50 THE QUEENS COURIER • HEALTH • APRIL 5, 2018 FOR BREAKING NEWS VISIT WWW.QNS.COM
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The Elder Law Minute TM
The Difference Between Estate Planning and Elder Law
BY RONALD A. FATOULLAH, ESQ.
AND EVA SCHWECHTER, ESQ.
We are often asked about the difference
between estate planning and elder
law. Although we believe that the two
go hand-in-hand, there are important
distinctions between them. One notable
similarity, however, is that they are
both more universal than they may seem
at first glance: estate planning is not only
for those with large estates and elder law
is not exclusive to the elderly.
Estate planning focuses on an individual’s
assets - how they should be held
while the individual is still living, and
how they should be distributed after that
individual passes. An estate planning
attorney can utilize tax-planning mechanisms
to minimize estate taxes, as well
as utilizing testamentary substitutes to
minimize the cost of probate. Of paramount
importance to many clients is the
ability to make specific choices regarding
the beneficiaries on each of his/her
ELDER LAW
assets. With the help of an estate planning
attorney, an individual can create
a will or trust that reflects the client’s
desires regarding how his/her estate
should be allocated after his/her passing.
Without a proper estate plan in place,
assets will be distributed according to the
strict requirements of law, which may
run counter to the true wishes of the
individual. Additionally, an estate planning
attorney can provide a plan inclusive
of the needs of minor children or
family members with disabilities, so that
each family is best provided for according
to their unique and individual needs.
Elder law is a broad field that encompasses
many different aspects of the law.
As mentioned, it is not just for the elderly,
and in fact the process can be most
effective when initiated prior to advanced
age. Elder law focuses on providing a
plan to continue living according to one’s
wishes as one ages, while remaining in
good financial standing. Depending on
the individual’s circumstances, this plan
can include trusts, gifts to family members,
the purchase of long term care insurance
in anticipation of potential future
needs, or qualifying for Medicaid benefits.
Elder law planning also encompasses
many of the estate planning tools, such as
wills and trusts, as well as the necessity of
a Power of Attorney to avoid the need for
a Guardianship should the individual lose
capacity at any point. A proper elder law
plan should be a comprehensive, holistic
plan, taking into account the specific needs
of the individual and his/her future needs
as he/she ages.
Attorneys practicing in the fields of
estate planning and elder law share a common
goal: to help the clients achieve their
goals while preserving their assets for
themselves and their loved ones. However,
as mentioned, there are key differences in
the practice of estate planning and elder
law. It is important to reach out to a qualified
elder care and/or estate planning
attorney for assistance in ensuring that the
future is appropriately planned for, both in
terms of the preservation of assets and the
ultimate distribution of those assets.
Ronald A. Fatoullah, Esq. is the principal
of Ronald Fatoullah & Associates, a law
firm that concentrates in elder law, estate
planning, Medicaid planning, guardianships,
estate administration, trusts, wills,
and real estate. Eva Schwechter is an elder
law attorney with the firm. The law firm
can be reached at 718-261-1700, 516-466-
4422, or toll free at 1-877-ELDER-LAW
or 1-877-ESTATES. Mr. Fatoullah is also
a partner with Advice Period, a wealth
management firm, and he can be reached
at 424-256-7273.
RONALD FATOULLAH
ESQ, CELA*
“DEMENTIA” AS A STRATEGY AND AGING
An old woman has been admitted to
an institution with a probable diagnosis
of dementia and uncommunicative. She
doesn’t speak nor appear to understand.
However it soon becomes clear that she
can speak and understand.
Silence is, however, her way of punishing
the family whom she regards as
insensitive to her needs. “They are all living
in my house and they treat me like
a poor relation. Boss me around all the
time!”
In her new home, staff members see
her having a vacant, rejecting attitude on
her family and visitors, only to relax and
chat coherently, later in the day, with
somebody who is in her favor.
This is but one example of the use of
“dementia” as a strategy by some old
people. The strategy may not always be as
deliberate as this, nor is silence the only
form it takes. The individual who is no
longer in complete control of her body
and environment may have only one
sure response left in her own hands – the
“non-response response.” Stubborn, we
may complain; “demented?”
But she is making use of one of her
remaining coping strategies, i.e.: the ability
of divorcing herself from pressure
and disagreeable reality by refusing to
respond as demanded.
Dementia, as a strategy however, has
its dangers. The old person, in an alien
and disagreeable environment, may turn
her mind into a sort of kite. She lets out
the string, catches a breeze from memories
of a happier past, and allows her
thoughts to soar away from the drab realities
of the immediate situation.
Others may recognize in her a quality
of disorientation that she is not where
they are, yet they do not really know
where or why she has gone.
Potential caregivers may come to care
less because they feel out of touch with
the old person’s personality. She may be
given drugs with disabling side effects.
Removed from daily realities, the mind
in flight may become increasingly incapable
of meeting its own basic survival
needs. The same downhill spiral can
occur when social withdrawal is brought
about by protective caution. The individual
withdraws from stimulation and
social interaction out of fear of being
hurt physically or emotionally, humiliated
or proved incompetent. They assume
a guarded, no-risk position.
Again this position cannot only be
mistaken for dementia, but can contribute
to the actual faltering of the mind by
the loss of stimulation, experience and
mental exercise.
Dementia as a strategy may be subtly
encouraged by others. Psychologists
have observed children who have given
an impression of unintelligence because
they had been told repeatedly at home or
at school that they were dim. When provided
with an opportunity to discover
their own abilities and develop them, the
children often flourish.
In the same way, old people are sometimes
treated as if they were unintelligent
and not to be taken seriously. Any error
they make, or any point at which they
differ from a general opinion, is taken
as evidence
In some institutional environments the
old person is better off if she says little.
Passivity seems to be what the situation
requires. I must however add that
in many of our nation’s facilities, openness
is broadly encouraged by enlightened
staff.
We should recognize that the comfort
and well-being of an afflicted individual
can be improved even when a progressive
and debilitating brain disease exists.
Environment can also be adapted to
allow for a measure of independence
together with safety.
The research has repeatedly demonstrated
improvements in mental and
physical functioning when the impaired
aged individual is moved to a socially
enriched environment. Memory units
are but one example! Damaged brain
cells, of course, have not to date been
repaired, but the person with dementia
can, with encouragement, become motivated
to make better use of their remaining
function.
In my fifty plus years as a registered
nurse, working in long-term care with
the aged individual and diagnosed with
dementia, I’ve witnessed, time and again,
a dramatic and sustained improvement
in their social and physical skills.
Even when the individual’s behavior
appears bizarre and ineffective, it often
has the same goals as our own behavior,
i.e.: to understand and to relieve anxiety,
to achieve a comfortable measure of
safety, and feel emotionally and act like
a person.
Quotable Quote: “Laughter is an
instant vacation.” Milton Berle
Sheldon Ornstein Ed.D, RN, LNHA
Dr. Sheldon Ornstein is a
registered professional nurse
with a doctoral degree in
nursing organization. He
has specialized in the care
of older adults and has
published many articles on
the subject. He has done
post-graduate work in gerontology
and has taught
at several universities. In
2013, he was inducted into
the Nursing Hall of Fame at
Teachers College, Columbia
University.