The Tragic Case of Peter Knoll: What Legal Steps Could Have Prevented His Death?

This morning, I was reading the newspaper– on my smartphone– when a headline grabbed my attention: “Battle Erupts Over Estate of Wealthy Recluse Who Froze to Death Inside his Upper East Side Mansion (you can read the article here http://www.nydailynews.com/new-york/ny-metro-battle-estate-upper-east-side-man-20180722-story.html).

Reading this article led me to another one published on April 23, 2018, a number of months after his death that winter (read here: http://www.nydailynews.com/new-york/manhattan/hypothermia-kills-75-year-old-man-upper-east-side-townhouse-article-1.3949019).

Peter Knoll, a 75 year old Manhattanite and son of a furniture magnate,  froze to death in his apartment.  Con Edison had shut off his utilities in 2014. However and very unfortunately,  they failed to notify the proper adult protective and other city authorities so Mr. Knoll suffered in silence until his death. His close circle of family and friends evidently knew he had no heat in his home, but…nothing was ever said by anyone (as far as we know).

Publicly, there is not a lot known about his life in those last years. There is a brief mention of physical ailments, but the public record is largely silent on whether or not he suffered from any condition that cognitively or psychologically impaired him. My suspicion is that Mr. Knoll was not in his right frame of mind.  And I have some thoughts on that, but before I get to that…

In my professional experience, older people who live alone are often isolated-particularly if they live in a private residence–unless they have involved family or friends to supervise or otherwise “check in” on them.  This is why many older people and their loved ones, opt to have them reside in 1) senior living communities or 2) an assisted living residence. A third option, if finances permit, is to hire professional live in help. If problems arise, they will become known sooner.

It is shocking and tragic that a man of Mr. Knoll’s immense financial  resources would have been left to suffer alone. He had enough assets to not only live comfortably the rest of his days but to have others attend to his every need- without him ever having to leave his home, or ever becoming impoverished as a result.

The solution to this inevitable tragedy? Properly executed “Advance Directives,” individually known as a Health Proxy (for medical decisions) and a Power of Attorney (for everything non-medical). These documents are in effect during a period of incapacity. If these documents were never executed,  then the option would be an Article 81 Proceeding a.k.a. Adult Guardianship

I have been involved in Article 81 proceedings for a number of years and have worn every hat imaginable: 1. Petitioner’s Counsel, 2) Court Evaluator (the Judges’ “eyes and ears,”), 3) Counsel for the Alleged Incapacitated Person (AIP) and 4) Permanent Guardian.  Briefly, this proceeding is filed in Supreme Court (a trial court)  to request from the “Court” (the Judge) that a Guardian be appointed to care for the personal needs and property management of an “Alleged Incapacitated Person.” Yes, there is a hearing. Sometimes they are uncontested, other times they are quite contested. The AIP can consent, but sometimes they do not and then there are those who cannot.

In the end, the Judge determines if the person is incapacitated and how this incapacity could further harm them without the appointment of a Guardian.

Based on the brewing estate “battle” and the allegations by one of Mr. Knoll’s adult sons that others took advantage of his father’s “frail physical and mental state,” it seems it was known, at least by some, that Mr. Knoll was not well.

So why did nothing happen? I have absolutely no idea.  And if I were to put forth theories, this blog post would become even longer and I would become even more incensed.

My biggest takeaways from his story:

  1. Even all the money in the world cannot protect you, when people choose to remain silent.
  2. Watch over older people you know, in your family and community.  It really is our responsibility.
  3.  In Spanish there is a saying, “Hoy por ti, mañana por mi” which means “Today for you, tomorrow for me.” Treat others how you would want to be treated. Getting to old age is a privilege and it should happen with dignity.

 

Your government will not take care of you…so you have to: a post on paying for long-term care

A few months ago, I gave a brief presentation on long term care for the elderly and disabled. As I contemplate my own mortality, that of my parents and the people I come into contact daily– I thought I’d write a post about it. It’s a little long, but I promise you’ll learn something valuable.

Americans tend to think, “I have medical insurance so I’m covered.” And while this may be true for routine medical care, doctor’s visits, prescriptions and in-patient hospitalization and some types of rehabilitation, it does not extend to long-term care.

What is long-term care? I could define it, but the National Institutes of Health does a better job explaining it.

When we hear “long-term care” we often visualize an older person, but that is not always the case. Anyone can become ill at any time and require long term care in a facility.  As Americans we are living longer due to better medical care, advances in science, environmental factors and, if you’re lucky, good genes. Inevitably, no matter your genes, you will become ill. We just do not know from what-or when.

Most of us are not prepared to finance our long term stays in a nursing home. And it’s expensive, more expensive than paying for one year of university (private or public), a wedding and in some states, a year’s worth of mortgage payments. During my presentation I referenced this infographic and the dollars and cents really do make it real. It is worth a look.

Thankfully, there are ways to plan the financing of long term care. The earlier you do it, the more options you have. While none of the options are cheap, the later options are much more costly – and I am not just referring to money.

a) Private pay. This is exactly what it means. You or a loved one pays out of pocket for your long-term in care in a facility. Most of us will far outlive our savings, especially in light of the very high financial cost associated with aging.

But, if you are one of the relatively few who find themselves in the exclusive tax bracket of “exceedingly wealthy”- congratulations. Now, for the rest of us.

b) Long-term care insurance (LTC). I could tell you what it is, but the National Institutes of Health (NIH) does a better job of defining it here. It is insurance that you pay for so that it can take care of you should you need it.  Since I am a huge infographic fan here is another one, from 2013, that illustrates rates of  LTC insurance acceptance and rejection based on age, as well as the cost to maintain it

Again, the earlier you plan the better off you are. Because once you become ill, this type of insurance is no longer available to you.

One caveat: LTC insurance will likely not cover your entire long term care needs for the time you will require it. The latter is assuming you live past the period for which it will cover your needs i.e. the money runs out before you die. LTC insurance is meant to be a cushion of sorts, to delay or prevent spending out of pocket, parting with your assets, or applying for Medicaid. Applying for Medicaid is the next step for many, but it is not without challenges.

c) Medicaid. It is a needs based insurance program. In simplest terms, you must meet certain income and resource limits in order to qualify. And those limits are low- and in some people’s opinions- almost near indigency.

About 2/3 of nursing home residents rely on Medicaid for their medical coverage and a majority of those people worked with an attorney in order to qualify because they had “too much” in assets. And you’d be surprised to learn what “too much” is.

Unlike long term care insurance, Medicaid does not “run out” and will continue to cover your medical care —as long as you meet income and resource eligibility. It can quite possibly cover your long term care needs until your death. Very important, Medicaid is the only health insurance that covers long term care; Medicare has never and will never do so.

This link provides a succinct overview of the income and resource limits required in my home state, New York.

d) Reverse Mortgage. This is an option for individuals who are at least 62 years old and have either paid off their mortgage completely or have way more equity in their home than a mortgage balance. The amount of the reverse mortgage should be sufficient to pay off their mortgage (if necessary), live in the home and maintain it, pay off bills or debts of any kind, fund home renovations or to have a “nest egg” for the unexpected.

You can obtain a reverse mortgage and never touch a penny of it.  I have little experience with reverse mortgages, so I will let US. Department of Housing and Urban Development (HUD) provide further information here.

Lastly, and as a bonus for reading this post to the end, is one last infographic painting a literal picture of financing aging in the U.S.  Pictures definitely tell a story.

Do yourself a big favor, plan and plan early…and share this post with others!

My forthcoming post will be about how legal protection, in the form of a trust document (and other legal mechanisms), can safeguard your assets as you anticipate long term care needs in your future. To properly plan, you will need a lawyer in your corner.

To learn more about me, visit my law practice website here and connect with me on Twitter, Facebook and Google + 

It can never be too early, but it can always be too late

As a solo practitioner, I now find myself doing a lot of networking. In recent months the phrase, “It can never be too early, but it can always be too late” has become a part of my lawyer lexicon. I think it is a phrase that is applicable to certain parts of our lives, but it definitely applies when speaking about what I do– mainly the practice of elder law and trusts and estates.

I generally deal with an older population- people who have lived life,  gained insight and experience (or maybe not) and, at the very least,  have a life to reflect on. But I also meet with younger people: single, married, with or without children, whose own  experiences have influenced their life outlook.  There is never a right age to plan for the future- it really depends on the person and their circumstances.  Some people need to feel “ready” to do so. News flash–you’ll never be 100% ready for anything.

People procrastinate when it comes to estate planning. My own parents did it, so it does not surprise me. I think estate planning, in general, really forces us to confront  our own mortality and to literally take stock of our lives– and our life’s work.

We will all die one day. You do not know when or how, but you know it will happen. This a scary thought for many of us. Who wants to think about drafting a will where you decide who gets what when you die…before you actually do? Morbid? No. I just call it smart.

I  hope to be a very old lady who dies peacefully in her sleep. I want to age and die with dignity, like everyone should. But I do not call the shots when it comes to my aging and dying– that is genetics and the luck of the draw.  Who wants to think about what happens if you can no longer take care of yourself or live independently? Who wants to think about who will make medical decisions for you if you can  no longer make those decisions competently? Scary stuff. Scarier still? Leaving those decisions to someone you would not have chosen to make them for you- just because you did not make that election when you had the opportunity.

I was taught from a young age that we have to confront the things that scare us in order to move forward.  I have learned that when I have confronted frightening situations: 1) I am stronger than I thought, 2) What I thought was scary really was not, and 3) That everything in life comes and passes. As quickly as it came, it can also go away.  In sum, we overcome.  Survival is what human beings do best.

Do not be afraid. Confront your mortality head on. Plan ahead.  Believe me, you will fee a lot of better if you do. Who does not like being in the driver’s seat?

Children and the Elderly- getting the short end of the stick?

I usually write about the law and its relevancy to my practice areas. However, I just started to think about how so much of my work (and my clients) are impacted by external forces that are beyond our control. These forces affect how effectively I can  do my job and how my clients will live. We are living in very difficult economic times, that some people refer to as the worst economic depression the United States- and the world– has seen in years (second only to the Great Depression).

All of us,  to different extents, have had to practice “austerity”- i.e. the tightening of the purse strings,  doing more with less, putting ourselves on a spending “diet,” and using less plastic and more green –or in many instances, counting our pennies and putting them away.

We have also felt the repercussions of our fragile economic state in the programs that support the most vulnerable in our population- children and the elderly. In my 30 something years on this Earth, I have learned that when times get tough, programs benefiting children and the elderly are always the first to get a good trimming or axed altogether. I admit that these programs are very expensive to administer, however I refuse to look at everything as dollars and cents all the time. I think it is important to look at the dividends these programs yield- that have absolutely no monetary value.

Some of these programs give children a “head start” in life –literally, or provide their parents the opportunity to work and better their lives while the children are being cared for in government subsidized day cares, or allow them to feed their family when they can’t afford groceries.  Others, allow otherwise home bound seniors to receive a nice hot meal, once– or sometimes twice– per day.  Or they run the risk of eating poorly,  not eating at all or burning down the house. I could go on– and on- about the  issues, but I realize this is a blog post not a chapter in a book . And I COULD write a book about my thoughts (just ask any of my close friends, if you know them)

My point is this, if you offer children better opportunities as they begin life you are leveling the playing field and giving them a better chance at having a brighter future.  If you cut off their opportunities early in life, you are basically telling them they aren’t worth the effort– not as much as more affluent children.   If you offer the elderly basic human services as they enter the twilight of their years, you are bestowing upon them the dignity and respect they deserve after contributing to our society during their most productive years.  They are old; not disposable.

Whenever I see someone going through rough times, I say to myself, “There but for the grace of God, go I.”  And it’s true. Anything that is given can also be taken away. Never think it  can’t be you– or someone you know and love. I just wish our legislature saw it that way too…my next post will be about the proposed cuts to existing programs- like Medicaid and home care– for the elderly…which has me scared for my elderly clients. Coming soon.

Having “The Talk” with your Parents

Yeah, I know it can be uncomfortable to talk about these kinds of things with your parents. They come from a different time (and sometimes a different country)where these topics are  taboo,  but it has to be done.  I’ve done it repeatedly and it wasn’t as bad as I thought.  Come to think of it, it was cathartic and I know my parents felt good about it too.

No, I am not talking about the “birds and the bees.” What I am talking about is health, death and money.

We’d all like to think that our parents will live to a ripe old age, without infirmities and  pass away snug in their beds.   I know I want that for myself- and for my parents- but the reality is that all of us will die of something. Health and Death are not topics to shy away from.  On the contrary, you need to have these discussions with your parents while they are still alive and have the capacity to meaningfully talk about these issues with you. You also need to have this discussion with yourself about your own health and wishes.

The below is a succinct and general post that provides an overview of  the legal documents that serve to protect your parents’ wishes regarding their health, money and death.

Health: Does your parent (or parents) want to be kept alive by artificial means if they were to suffer from a catastrophic injury or illness that would severely impact their quality of life?  Whether the answer is yes or no, your parent needs a Living Will. While the latter is not legally enforceable in New York State, it is a document that is recognized and respected by medical personnel.  Click here to download a copy to read.  It expressly states a person’s wishes regarding medical treatment, artificial respiration and the appointment of a health care agent to carry out those wishes.  In addition, a Health Care Proxy, which is legally recognized,  is also strongly recommended. Like a Living Will, it memorializes a person’s wishes regarding end of life issues but it is a general power regarding medical care and treatment should the principal become disabled. Click here to download a copy to read.

They have religiously conscious health care proxies too, like a Halachic Health Care Proxy that aligns with Jewish law.  Click here to download a copy to read.  In addition, there are reading materials on the internet for Catholic and Orthodox Christians, as well as other denominations, regarding the use of health care proxies.

Money: Does your parent (or parents) have a Last Will and Testament? They should, no matter how big or small their “estate” is. If your parent dies without a will it means they died ” intestate,” which means a headache to obtain and/or dispose of their assets-plus Uncle Sam will take a nice chunk out of it before it ever gets to the beneficiaries.  For some assets, a  Trust is an even better testamentary document for the disposition of assets.  There are different types of trusts and each has a specific function and objective.  And last but not least, the never to be forgotten Power of Attorney.  Necessary.  End of story.

Death: The “Last Will and Testament” can express the testator’s wishes regarding burial or disposition of remains, as well as who or what will pay for it.  In my opinion, there is an even more important document that everyone should have in their legal arsenal,  the  “Appointment of Agent to Control Disposition of Remains. Click here to download your own copy. It can designate how  remains are to be disposed (i.e. burial, cremation, spreading of ashes, being buried in your favorite dress, etc.) as well as whether  there will be a wake for the deceased, an open or closed casket,  a religious ceremony (a service or Mass), a graveside prayer, or no prayer at all.

These topics may not be easy to talk about, but once you do and they put their wishes in writing, you will feel as if a big weight has been lifted. I would even venture to say, it’s a good feeling.

So go and have “the talk” with mom and dad, or anyone else you care about.

Making the Most of a MOLST in New York State

I recently attended an Elder Law Conference and was able to learn more about Medical Orders for Life Sustaining Treatment, or MOLST for short, a medical document used in  New York State (and slowly being rolled out in other states). In my opinion, it is a document any person who is suffering from a serious medical condition should have with their records.  One of the great things about a MOLST is that it is meant to follow the patient from one hospital/facility to another, which is why I suspect it is printed (and must always be) on bright neon pink paper (making it much easier to distinguish from other medical documents or records).

How does a person obtain a MOLST? A MOLST can only be obtained after the patient has discussed their diagnosis, prognosis, thoughts on life-sustaining treatments with their physician and has communicated their position regarding life sustaining treatment to their physician. The most “suitable” candidate for a MOLST is an individual who currently resides in a long-term care facility or requires long-term care and could possibly die within the next year. A MOLST does NOT replace Advance Directives, like a Health Care Proxy and/or Living Will. Every person should have the latter documents, whether they are old, young, healthy or sick.

Unlike Advance Directives, a MOLST contains actionable medical orders, is set in the present (i.e. medical personnel can act on the orders right now),  and the patient can still have capacity to make decisions even when a MOLST is in effect. The only way to modify a MOLST is if a physician examines the patient, reviews the medical orders and changes them (based on the patient’s current medical condition).

A MOLST addresses the some of the same issues as contained within Advance Directives, like artificial nutrition and hydration, cardiopulmonary resuscitation (CPR), artificial/mechanical respiration, the use of antibiotics in the course of treatment as well as future hospitalizations or transfers to other facilities.

The most comprehensive website by far, exclusively devoted to end of life/palliative care issues  (and that goes into much greater detail than this post) is http://www.compassionandsupport.org – I strongly recommend that you search this website.  It not only contains the most current version of the MOLST, which you can print for personal use- on bright neon pink paper, of course, but useful information on the history of MOLST (which began in Rochester, NY) and information for families/patients and professionals.  It really is a wonderful website. An added bonus, you can also read the website en español aqui.

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A Power of Attorney: Not just a piece of paper

As of today, September 12, 2010, the Amendments made to the New York Power of Attorney law are in effect and go back retroactively to September 1, 2009, the date on which previous amendments were made to the law. If you would like to read the actual amendments (like me), click here.

Power of Attorney is a legal document that allows a person, the “principal,”  to give another individual, the “agent,”  the power to act on their behalf  in every day, but financially sensitive, matters– while the person is still alive. The  principal  must be incapacitated physically and/or mentally in order for the power to take effect. In my opinion, a POA, as it is commonly referred to by practitioners, is more powerful than a will, in that it gives the person to whom the “power of attorney” is entrusted the ability to run another person’s  affairs…and if the duties are not performed ethically, is a vehicle that can be used to commit outright fraud.  It can destroy the principal’s financial security in their most vulnerable of moments.

Who needs a Power of Attorney? Everyone (in my opinion)

Why do we need a Power of Attorney? If at any time you become incapacitated physically and/or mentally and are unable to handle your personal and financial affairs, you will need someone to do it for you. The power bestowed on the agent can be as broad or narrow as the principal desires.

What financial affairs does the Power of Attorney cover? The below is not an all inclusive list ( it’s pretty close) but you get the picture:

  • Real Estate
  • Estate Transactions
  • Trusts
  • Retirement Plans
  • Safe Deposit Boxes
  • Loans and Debts
  • Social Security Benefits
  • Government and Military Benefits
  • Medical Records and Billing
  • Claims and Litigation
  • Tax matters
  • Stock market transactions
  • Personal and family maintenance
  • Business Operating Transactions
  • ALMOST anything having to do with something you own OR owe

Can you have more than one agent? Yes and they can either act together or separately.

Is the Power of Attorney revocable? Yes.

In addition to the Power of Attorney, there is also something called a “Statutory Major Gifts Rider” which can be a part of your Power of Attorney, if you are inclined, have the ability, means or desire, to make monetary gifts or money transfers to family or to allow the agent to make monetary gifts to him or herself.  The principal must expressly grant this power and can also designate the amount of the gift or gifts.  Two words: powerful and scary. But legal.

This post is not meant to fully explain what a POA is or does, it’s a primer to whet your appetite and get you thinking about how to protect yourself should you be unable to do it.   I hope that my brief intro into the Power of Attorney gets you to think about one thing: Who would you trust with your life?  That’s what a POA kind of is– your life on a piece of paper.