Author: elizabethadinolfi

I am an attorney with twenty years experience in complex litigation, who now focuses on elder and family law.

The Mistaken Marriage

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For various reasons, at times people wish to get married, either symbolically or within their religious tradition, without the legal consequences of marriage. They may be concerned about losing government benefits or spousal support, the impact marriage may have on their ability to leave property to their children, or they may fear the financial consequences of divorce. A common solution is for people to have a ceremony, but never obtain a marriage license. But, at least in New York, this can still result in a legal marriage.

New York Domestic Relations Law § 25, enacted in 1907, provides:

Nothing in this article contained shall be construed to render void by reason of a failure to procure a marriage license any marriage solemnized between persons of full age[.]

At the time the statute was enacted, marriage licenses were a novelty and the Legislature did not want to create a situation where couples married within their religious tradition, but lack of familiarity with the new requirement for a license would lead to an invalid marriage. In over one hundred and ten years, the Legislature has not seen fit to revise the statute.

The key phrase in the statute is “any marriage solemnized”. Only certain people are allowed to solemnize a marriage under New York Law:

  • A clergyman or minister of any religion, or by the senior leader, or any of the other leaders, of The Society for Ethical Culture ;
  • The current or a former governor, a mayor of a village, a county executive of a county, or a mayor, recorder, city magistrate, police justice or police magistrate of a city, a former mayor or the city clerk of a city;
  • A member of the New York state legislature;
  • A judge of the federal circuit court of appeals for the second circuit, a judge of a federal district court for the northern, southern, eastern or western district of New York, a judge of the United States court of international trade, a federal administrative law judge presiding in this state, a justice or judge of a court of the unified court system, a housing judge of the civil court of the city of New York, a retired justice or judge of the unified court system or a retired housing judge of the civil court of the city of New York certified pursuant to paragraph (k) of subdivision two of section two hundred twelve of the judiciary law, the clerk of the appellate division of the supreme court in each judicial department, a retired city clerk who served for more than ten years in such capacity;
  • A judge or peacemaker judge of any Indian tribal court, a chief, a headman, or any member of any tribal council or other governing body of any nation, tribe or band of Indians in this state duly designated by such body for the purpose of officiating at marriages, or any other persons duly designated by such body, in keeping with the culture and traditions of any such nation, tribe or band of Indians in this state, to officiate at marriages

Accordingly, under New York law, a religious marriage ceremony will lead to a legally valid marriage in New York, whether a license is obtained or not. A ceremony performed by friend who was once the village mayor, or a retired judge, will lead to a legally valid marriage under New York Law, whether a license is obtained or not. A random officiant found online who performs non-denominational ceremonies can still create a legally valid marriage, whether a license is obtained or not.

So if you are looking to have a marriage ceremony but not enter into a legal marriage in New York, beware. Skip the ceremony and go straight to the reception.

Changing the Culture of Nursing Homes: De Hogeweyk, the Dementia Village: Can a Dutch Model be Replicated in America?

On By elizabethadinolfi
Last week I posted about the Eden Alternative and its attempt to reenvision nursing home culture. Another example, particularly for dealing specifically with the needs of residents with dementia, is De Hogeweyk, an innovative nursing home in the Netherlands. Over the past few years, media coverage of De Hogeweyk has increased as facilities based on its model have opened in other countries. De Hogeweyk underwent a radical change in the late 2000s from a “traditional” nursing home to a “Dementia Village.” Instead of an institutional setting, the innovators at De Hogeweyk created a secure, walled community, with houses instead of nursing home wings, where residents cook, clean, and go about normal daily activities.
 

In October, I was fortunate to attend an event, Exploring Innovative Residential Options for Persons with Alzheimer’s Disease, which was co-sponsored by the NYSBA Elder Law & Special Needs Section and the New York City Bar Association, where I was able to learn more about De Hogeweyk. Eloy van Hal, Founder and Senior Managing Consultant of De Hogeweyk, had traveled to New York to share with us the principles behind De Hogeweyk and how they turn those principles into a community. The goal was to learn about De Hogeweyk and see if it is possible to replicate some or all of its principles in the United States, New York City specifically.

The main idea that drives the De Hogeweyk model is that residents should be in homelike units of 6 to 7 residents that replicate their lives before needing to enter a nursing home as much as possible, and that all the residents of each unit should share that lifestyle. The belief is that people will be happier and there will be less conflict and agitation if the surroundings feel familiar and they are living with like-minded people. De Hogeweyk used to have seven “lifestyles“:

  1. Stads — Urban, casual.
  2. Goois — Upper class
  3. Ambachtelijke — Working, farmers class
  4. Indische  — Indonesian/Dutch East Indies
  5. Huiselijke — Homy
  6. Cultural — Arts and culture
  7. Christelijke — Christian

De Hogeweyk has since reduced the number of “lifestyles” to 4,
cosmopolitan, nature-oriented, well-to-do, and traditional Dutch. Within the Village, there is a supermarket, restaurant, parks with fountains, and a theater square where residents are free to go about living their lives instead of staying in their beds or sitting in a day room watching television all day. The quality of residents lives has skyrocketed since the transition. In 1993, when it was still a “regular” nursing home, 50% of patients were being given antipsychotic drugs. In 2015, only 8% were.

In the weeks since the event, I’ve thought a lot about the barriers we would face here in New York City, and the US, to replicating De Hogeweyk. In New York City, where do you find the space to build these villages? Perhaps we could create vertical “villages”, where instead of having separate houses, each floor of a high rise building was redesigned into a full floor apartment, with enough bedrooms and bathrooms for 6 residents and staff, a kitchen, living room, dining room, laundry, etc. Or to create an enviroment more familiar to residents used to living in a house, duplex or triplex units could be created within a high rise. Shops, restaurants and activity spaces could occupy the lower floors, and the roof could be used to create outdoor space. In keeping with De Hogeweyk’s practice of having intergenerational programs and activities, a daycare/preschool could be located in the building, making it easy for the children and the residents to share activities together.

One of Hogeweyk’s principles that strikes me as particularly problematic to replicate in a place as diverse as New York City is the division of residents into “lifestyle houses.” I have difficulty seeing how the myriad cultures and lifestyles in New York City can be reduced to a small handful of residences.
De Hogeweyk no longer has a Christian residence, but would a facility run up against anti-discrimination laws if it created residences based on characteristics like ethnicity, religion, or sexual orientation, even if doing so was demonstrated to benefit the residents? De Hogeweyk’s model presents a host of possibilities and challenges I will explore further in subsequent posts.

Can we tackle elder abuse without changing the nature of nursing homes?

On By elizabethadinolfi1 Comment

After an investigation confirmed that a nursing home resident died as a result of physical abuse by staff, the State of Minnesota has revoked the facility’s license, essentially putting it out of business. The death of this resident was just one instance of abuse and mistreatment at this facility. Other residents were sexually abused, physically abused, and subjected to emotional abuse.

I have come to believe that until we fundamentally change how we care for the elderly and disabled who cannot be cared for in their homes, we are fighting a Sisyphean battle against elder abuse and mistreatment. The very nature of our nursing homes contributes to an environment that fosters abuse. Nursing homes are rarely inviting spaces where anyone would wish to spend their time. They are often aesthetically unattractive and have an array of unpleasant odors. Residents, particularly those in need of the most care and attention, become a burden to poorly trained, poorly compensated, and undermanned staff. Residents do not want to be there, and their negative behaviors are exacerbated by the stress and disorientation the environment creates. Finding qualified, kind, and compassionate people to work in such an environment is a constant challenge for these facilities. There must be a better way. Over the next several weeks, I will be highlighting some alternatives to our current institutional model of nursing home care.

The Eden Alternative is one approach. The Eden Alternative was developed by Dr. Bill Thomas, who believed that three “plagues” of loneliness, helplessness, and boredom result in suffering among nursing home Residents. He worked to develop a new paradigm for institutionalized care that eliminated these plagues and created an environment where residents could thrive. Studies of facilities that use the Eden Alternative model have found vast improvements, including: 60% decrease in Behavioral Incidents, 57% decrease in Pressure Sores, 48% decrease in Staff Absenteeism; 25% decrease in Bedfast Residents, and an 18% decrease in Restraints. Other even facilities have experienced a reduction in staff turnover from 48% to 4%.

The Eden Alternative is based in Ten Principles:

  1. The three plagues of loneliness, helplessness, and boredom account for the bulk of suffering among our Elders.
  2. An Elder-centered community commits to creating a Human Habitat where life revolves around close and continuing contact with people of all ages and abilities, as well as plants and animals. It is these relationships that provide the young and old alike with a pathway to a life worth living.
  3. Loving companionship is the antidote to loneliness. Elders deserve easy access to human and animal companionship.
  4. An Elder-centered community creates opportunity to give as well as receive care. This is the antidote to helplessness.
  5. An Elder-centered community imbues daily life with variety and spontaneity by creating an environment in which unexpected and unpredictable interactions and happenings can take place. This is the antidote to boredom.
  6. Meaningless activity corrodes the human spirit. The opportunity to do things that we find meaningful is essential to human health.
  7. Medical treatment should be the servant of genuine human caring, never its master.
  8. An Elder-centered community honors its Elders by de-emphasizing top-down, bureaucratic authority, seeking instead to place the maximum possible decision-making authority into the hands of the Elders or into the hands of those closest to them.
  9. Creating an Elder-centered community is a never-ending process. Human growth must never be separated from human life.
  10. Wise leadership is the lifeblood of any struggle against the three plagues. For it, there can be no substitute.

The Eden Alternative challenges the idea of Residents as passive recipients of care, and requires providers to create dynamic, living environments with plants and gardens, animals, and programs that bring children into the facilities. The transformation of these environments leads not only to improved well-being for the Residents, but for staff as well. It is not a large leap to conclude that an environment that can lower staff turnover to 4% can also lower the risk of abuse and mistreatment.

A Chance to Prevent Dementia

On By elizabethadinolfi

A new study offers some hope for reducing your chances of developing dementia. The study demonstrated that reducing high blood pressure to lower levels than previously were recommended, from 140 to 120, reduced the chances of developing mild cognitive impairments, which are often a precursor to Alzheimer’s and other forms of dementia, by nearly 20%.

While many people think of Alzheimer’s when they think of dementia, there are many forms of dementia. Vascular dementia results from damage to the blood vessels in the brain, including mini strokes, caused by conditions such as hypertension and diabetes. One of the most important things we can do to prevent dementia is keep our blood pressure under control, and if you have diabetes, control your blood sugar. If you, or a loved one, have hypertension, even if your doctor says it is under control, discuss this study with your doctor and see if you should try to get it even lower.

The Best Laid Plans

On By elizabethadinolfi

Living wills are documents that set forth your wishes, or “advance directives,” for medical treatment should you be incapable of making decisions for yourself, particularly regarding end of life decisions. A health care proxy appoints the person you want to have make decisions for you if you can not make them for yourself. A living will and a health care proxy are documents everyone should have, regardless of age. But women should exercise extra caution when creating a living will. This is because, as the New York Times has reported, many states have laws invalidating living wills if the woman is pregnant. Idaho’s law is currently being challenged in court. Other states have statutes that are silent regarding whether a woman’s living will must be followed if she is pregnant.

While there is never any guarantee that an overzealous hospital administrator will not try to impose their own values, the best way to ensure that your end of life wishes will be carried out is to have a living will that specifically addresses pregnancy. These are complex decisions, and a woman may have different wishes for end of life care and pregnancy depending on many factors including, but not limited to, how far along the pregnancy is, whether the fetus has been harmed by the illness, injury, or accident that caused the woman’s condition, and whether the treatment will cause harm or pain to the woman. If you have a living will and had not considered whether your wishes would be the same if you were pregnant, a consultation with the attorney who drafted the document is in order. If you do not have a living will or other advanced directives, get the new year off to the right start and consult with an attorney who can prepare the documents necessary to manage your affairs, financial and personal, if you are unable to do so yourself.

The Journey Begins

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Thanks for joining me! The idea of starting this blog had been floating around my head for two years now. So I decided to start 2019 by finally bringing it to life. I hope you will find among the posts guidance, valuable resources, and thought provoking commentary about the challenged of aging and family in America.