Friday, March 16, 2007

'A BRICK WALL' - {"The Three (3) Year Look Back Rule and Opportunists"}

by Ray Fernandez

Having spent time in the Convalescent Center where Clara is recovering from her trauma as a victim of Elder Abuse , and as a result of talking to other families, I have learned a great deal about how the system fails to protect our elders and I have to admit, it is as if the abusers used the same manual.... "the story is the same only the names change."


-Sudden appearance of previously Un-involved relative(s) claiming their rights to an Elders affairs and possessions.

-Previously Un-involved relative(s) takes the infirmed elder out of their home, attorney in tow, and gets a "Quit Claim" deed to the elders home, 'Power of Attorney' and transfers all of the Elders possessions that are falsely signed over to their name for their own benefit.

The elder is now NOT eligible for Medicaid Long Term Care due to the "three (3) year look back rule", which states; that in the event an elders assets are transferred out of the elders name within the last three years, and it becomes imminent that the elder will be in need of long term care, it disqualifies him/her from receiving further Medicaid benefits.

An elders family becomes alarmed and goes to the authorities, elders family runs into a brick wall with the local authorities and turns to the DCF for help.

The DCF, lacking police powers, turns the case over to the local State Attorney's office.

Local State Attorney calls the case a 'Civil Matter', in which it in itself, is a death sentence to the elder.

The Elder becomes disqualified to receive aid due to the 'three (3) year look back rule' , and is unable to receive financial aid due to the high cost of providing specialized care, and the nursing home is now forced to discharge the elder when he/she most urgently needs the care.

Most elder financial abusers are 'opportunists,' and do not plan three years ahead of time, as they usually strike when the opportunity presents itself. It is usually when the elders mental capabilities are in question such as in the case of 'dementia' that had advanced up to a point where he/she can be easily manipulated and usually within months of the elder is in need of being institutionalized and in need of special care, or when the elder is already institutionalized.

The once financially independent elder is now indigent, and left out to his luck, or to the mercy of caring relatives that lack the assets to properly provide medical attention or supervision to the once financially independent elder, thus subjecting the elder to a great deal of suffering as well as his/her family that means well, but lacks the resources to care for the elder.

When a person's health declines or when his or her ability to think begins to fade, all too often someone comes along to take advantage of the situation.

In many cases the courts could play a critical role in protecting the current victim or other victims from abuse, compensating the victim for damages, enabling victims to recoup financial losses they've suffered, or punishing the perpetrator.
Nonetheless, there are numerous reasons why victims of elder abuse WILL NOT SEEK relief from abuse or compensation for damages.

A victim may not be able to pay for a lawyer's services because the victim has never had much money or because the victim's life savings were lost as a result of the exploitation that would be the subject of the lawsuit.

Slow pace of the Legal Process. -

-The slow pace, and customary delays of the legal process are particularly onerous to older persons in general, and to those who have been abused in particular.

The lack of knowledge about Elder Abuse amongst lawyers, prosecutors, law enforcement officers, and judges, also has it's pronounced negative effects.

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