Tuesday, January 13, 2015

Over Medication of Elderly in Nursing Care Still an Issue of Concern

According to a report conducted by NPR in December 2014, nearly 300,000 nursing home residents are currently receiving antipsychotic drugs that are normally used to treat symptoms related to Alzheimer’s disease and other forms of dementia.

These drugs, however, are approved mainly to treat serious mental illnesses like schizophrenia and bipolar disorder. Furthermore, when it comes to dementia, many of these drugs can increase the risk for heart failure and infections. The drugs have also been noted to greatly raise the risk of falls leading to serious injuries such as a hip fracture.

Furthermore, many experts in the medical field note that such antipsychotic drugs are not necessary in the vast majority of dementia cases. Other experts note that antipsychotics should only be used as a last resort, and just for a month or so, before gradually being eliminated.

According to a 2011 government study, 88 percent of Medicare claims for antipsychotics prescribed in nursing homes were for treating symptoms of dementia, even though the drugs aren't approved for that. Following the publication of the government’s findings, federal efforts were taken to reduce the use of antipsychotics by 15 percent. While 15 percent reduction was supposed to take less than a year, it ended up taking nearly two, while still leaving nearly 300,000 nursing home residents on questionable antipsychotic medications.

There are a number of estate planning techniques available to help curb the risks that are associated with selecting long-term care and treatment options. Such techniques can help you and your loved ones choose when, where, and how your future care will be provided. A plan today helps mitigate the risks of tomorrow. To set up a consultation with the Long Island elder law attorneys at Maroney Associates, PLLC, please call us at (866) 994-2025.

Tuesday, March 8, 2011

Incapacitated Without a Plan; What happens now? (Part II)


In the previous blog, we spoke about the advisability of having a Health Care Proxy and Durable Power of Attorney in place.  Not having these documents in place begs the question, how does anything get done if a person becomes incapacitated?
The answer is a Guardianship Proceeding.  This is when some caring individual, or a health care facility when someone does not have anyone in the world available to them, brings a petition to the court seeking a Guardianship for the incapacitated person.  A Guardianship Proceeding is prolonged and time consuming and therefore very expensive from a legal fee standpoint.  Even when the Guardianship is unopposed, it is nevertheless a major court process which requires significant court intervention, and the fees to go with that intervention.
In a Guardianship Proceeding, the court will generally assign an Attorney for the Incapacitated Person (AIP).  This trained attorney will seek out the incapacitated person to see whether they object to, and/or even understand what is happening to them.  If the person says that they do not want a guardian, or do not want the person petitioning for guardian to be their guardian, the attorney has a duty to stand up and fight for the rights of the alleged incapacitated person.
The court will also assign what is called a Court Evaluator (CE), who will act as the eyes and ears of the court, spending time with the alleged incapacitated person as well as the petitioner for guardianship and any other interested persons.  The Court Evaluator will take a complete picture of the situation and report his or her recommendations back to the court. Neither the attorney for the alleged incapacitated person or the court appointed Court Evaluator is working for free. The court will award them attorney fees and those fees will come out of the alleged incapacitated person’s estate.
If the alleged incapacitated person objects to being appointed a guardian, and/or another loved one steps forward and says that they wish to be the guardian or at least oppose the petitioner being the guardian, the proceeding becomes an even more time consuming and expensive litigation type situation.
From an emotional standpoint, our firm has experienced that often times when someone suffers incapacity it is often at first not a total and complete incapacity.  They are often “in and out of capacity”.  When the alleged incapacitated person is brought to court for a Guardianship Proceeding, it is a very emotionally draining and difficult process if they happen to be with capacity when they are on the witness stand.  In this situation, they become very aware that someone is petitioning to become their guardian because they do not have capacity to manage their own affairs anymore.  This is a very emotionally charged and depressing situation for them because they realize that in essence their liberties are being taken away.
In short, the lesson here is that failing to plan is planning to fail.  To avoid a gut-wrenching, expensive, and time consuming guardianship application, all one needs to do is prepare a Durable Power of Attorney and a Health Care Proxy, and/or a Trust, wherein they appoint a trustee.
If you don’t have these very important estate planning documents, please contact us at Maroney Law.  We can walk you through the process and help you protect your estate and health care choices should you become incapacitated sometime in the future.

Monday, February 21, 2011

Incapacitated Without a Plan


What Happens Now? (Part I)

What happens if you become incapacitated without a proper plan and/or protective documents in place?  Your loved ones will be unable to make decisions, major, minor or critical, relative to your financial and personal health care needs/desires, unless or until a Guardian is appointed.
Doctors and other medical personnel may have listened to and acted upon comments from the spouse of the patient who has for years attended doctor visits, and even spoken for their spouse at those visits, because the more silent spouse could speak up for him or herself if they did not agree with the direction of his or her care.  All of that would stop, however, when and if one of the spouses became incapacitated.  If the incapacitated person is unable to speak for himself or herself, and does not have a Health Care Proxy in place, health care providers are precluded from doing anything except what they think is medically necessary for the ill person.  Even if the ill person would rather not have:
  • Surgery
  • A breathing tube
  • An infusion
  • A transplant
  • A diagnostic procedure;
The doctors will do whatever they think is medically necessary to treat the patient.  If a Health Care Proxy is in place, the well spouse or another trusted individual can step in and advise the medical personnel as to what he or she thinks best for the ill person and, even more importantly, what the ill person wants for himself or herself.
A Living Will is also a critical document for any incapacity plan.  The Living Will is often known as a Do Not Resuscitate (DNR) order.  It is a person’s written and explicit wishes to their health care providers as to whether they do or do not wish to remain on life support if they are in a permanently brain dead or vegetative state.
This document is similar to a Health Care Proxy and, in fact, most Health Care Proxies contain Living Will language as well.  The difference is that the Living Will can only take place if the person is in a permanently brain dead or vegetative state.  The Health Care Proxy, on the other hand, will trigger when the person is incapable of making their own decisions, but may be far from a permanently brain dead or vegetative state.
Likewise, with respect to financial or business matters, incapacity will bring your bank account, personal accounts, business accounts, property and other business transactions to a standstill, unless a Durable Power of Attorney is in place.  Even your spouse cannot act for you relative to business and financial matters, if the asset that is the subject of the intended action is in your own name and not jointly held with your spouse. Without the Durable Power of Attorney, your business and financial matters will be in limbo because no one can act for you.
All of this can be avoided, if while you have the capacity, you prepare a Health Care Proxy and a Durable Power of Attorney. These two forms will allow you, while of sound mind and body, to designate who you would like to be making your decisions for you when and if you become incapacitated.  Likewise, if your estate plan involves a Living Trust, the person you designate as your trustee will be able to immediately step in and take over the management of the assets held in the trust.  However, the Living Trust only applies to the assets held in the trust, so making a Health Care Proxy and Durable Power of Attorney are still very important in any estate plan.
If you don’t have these very important estate planning documents, please contact us at Maroney Associates.  We can walk you through the process and help you protect your estate and health care choices should you become incapacitated sometime in the future.
In our next blog, we will discuss the consequences of not having these documents which is a Guardianship Proceeding.

Based in Melville and Garden City, New York, the attorneys at the Law Offices of Maroney Associates, PLLC assist clients throughout Nassau County, Suffolk County, Queens, and the cities of Mineola, Hempstead, New Hyde Park, Franklin Square, Williston Park, Queens Village, Melville, Huntington, Farmingdale, Patchogue and Uniondale, NY.

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| Phone: 866-994-2025
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| Phone: 866-994-2025

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