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 Step in the Right Direction- Equal Rights in Adoption

Today, Governor Patterson signed into New York law, Bill Number A05652, which permits joint adoption between two unmarried intimate partners– and this includes same sex couples. In addition, the legislature modified the language in the adoption statute referring to  “husband and wife” to now read  the more gender neutral “married couple.”

The language of the Bill is here— enjoy.

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.

I can absolutely hit my kid (Can’t I?)

I practice law in New York City, one of the most diverse cities in the world. There are people here from every corner of our planet- and they bring with them traditions and customs that make up the wonderfully colorful fabric of our vibrant city.  Corporal punishment of children has always existed and if we talk to our parents or grandparents, we would definitely hear stories about being hit with a belt…or anything else a parent could get a hold of, as a means to discipline disobedient, disrespectful or otherwise unruly children.

When I started my career working in child welfare law, I repeatedly encountered parents or “persons legally responsible”  (adults who under the law are viewed as responsible for the care of a child) who had a neglect or abuse action filed against them for excessive corporal punishment.  Many of these adults, especially those who emigrated from another country,  did not understand (or quite possibly feigned a lack of understanding ) of what they did wrong.

An important caveat:  not every foreign born parent hits their kids, and it really depends on a lot of complicated factors (and I bet you could find plenty of scholarship on this issue). The most salient factor, in my opinion, is the lack of legislation on the books and enforced on behalf of children who are neglected or abused in many countries throughout the world.  If there are no laws, then how are parents to know their actions are wrong?  If there are laws but they are not enforced,  how can you stop a parent from doing what is wrong?  If there are no consequences, then where will it end?  In sum, people have to be educated in order to be and do better.  Period. And sadly, not everyone has the same access to education in this world.

Getting back to our mainland, and after a neglect or abuse petition is filed against them, adults learn rather quickly that the United States does not allow for this and that you can also be criminally charged– not to mention the possible removal of children from their parents’ care.

A second caveat: I am not excluding the American born parent…they are also guilty of using excessive force when disciplining their children and they should know better considering they grew up here.  However, when you grow up in a home where you were disciplined in that fashion or if you have an inability to control your temper, your native-born status is of no help to you. You suffer from a lack of education too.

My lawyer turned layman definition of  Excessive Corporal Punishment is,  any type of force used against a child that leaves bruising, breaks the skin, causes bleeding, a  fracture of a bone (or bones) or any other type of serious injury to a child. It can be caused by a hand, or possibly a hand balled into a fist, a belt, a wire, a piece of wood, or any appendage that is connected to your hand that should never be used to hit a child and was not created to do so.  Also,  feet and the human body can also cause injury defined as excessive corporal punishment-kicking, shoving, stomping,  body slamming…just to name a few.

An incident of excessive corporal punishment can happen once,  sporadically or it can be systematic (a routine occurrence) in the life of that child. I can’t tell you which one is worse. I don’t think one is “better” than the other.  All of them can leave physical and emotional scars on a child that last a lifetime.

What is permissible? Corporal punishment in the home. It is legal in all 50 states. With a bare hand. That leaves no marks or bruising. Every jurisdiction has  different laws so checking with your local child protection agency is a good idea.

Raising children is not easy.  It does not get any easier as they become older, and develop minds and mouths of their own. If you can’t cope, talk to someone.  If you need help with your children, ask for it.  If you feel like you are about to explode, take a breath and walk away. The alternative remedies offer a momentary release, but is not a long-term solution by any means.

“Spare the rod and spoil the child?” I like “Spare the rod and heal a child”  better.