Ideas for transition plan for orphaned adult children with intellectual disabilities

There was a time when people who had developmental intellectual disabilities such as Down Syndrome rarely lived past their 20’s. With medical progress, many of these individuals will be blessed with a reasonably normal full life span. This presents major challenges for their parents or guardians, for the child could outlive the parent and lose that critical source of familiar lifestyle support.

For parents,the idea that their disabled child would survive them may be a new idea — they may never have expected this to occur.Also,  it can be very difficult to ponder the idea that someone else would be taking care of their dependent adult child who has intellectual disabilities. Who would know her as well? Who would be so attentive to every nuance of the child’s daily routine and mood? Who would fully understand the child’s special needs and preferences? Some parents avoid dealing with these issues because they are so, so difficult to think about. There is a better way, because as I have always said since I first began elder law and special needs planning 20 years ago, “careful planning can prevent a crisis.”

Sudden removal of the child from the home where they have lived for decades can add substantially to the trauma of losing the parent. His bedroom is his safe and familiar place. He knows the layout of the rooms and yard and can safely navigate in that protected environment. Think about the trauma if  the parent died and the house were suddenly sold and he were moved elsewhere.

I have developed testamentary plans for some clients in which the house is left to a Trust for benefit of the disabled child, along with sufficient cash to support the house and pay for the necessary live-in caregivers to enable the child to remain in the home for some transitional period of time. The house expenses are likely to be at least $1,500 a month, maybe $1,800 — taxes, insurance, maintenance, repair, heat and air conditioning. The time period depends on the needs and goals. In some cases it’s a year, in other cases longer. Each case is unique. This arrangement not only provides continuity, it can protect the individual while awaiting a residential placement through the Division of Developmental Disabilities (NJ-DDD), for instance. The Will can mandate the protective terms and the trust can be funded with life insurance or liquid assets. The child’s successor guardian or conservator would need to work well with the Trustee. The Will can direct that once the property is sold, a certain percentage of the assets remain in trust for the disabled child’s special needs while the rest is distributed to the other heirs. There is no end to the creative ways you can structure things.

“Leaving it all up to the other children” is also a plan, but one which has no specific financial or housing protections, and can create unnecessary burdens that could impair the relationship among your children. Instead, you can design a detailed care plan for your child which will survive your loving care, and give everyone involved the necessary peace of mind.

Call us about your estate planning and  life care planning for your child with special needs ……… 732-382-6070

There are some limits on what Guardians in NJ can do without court approval

A Legal Guardian is a person appointed by a court to be the decision-maker for a person who is incapacitated as defined by law, and unable to manage all or some of his/her affairs. The court rules provide the complex procedures (N.J. R. 4:86-1 et seq), but the powers and duties of the guardian, as well as further details about how the court has to handle the case, are found in the statutes, such as N.J.S.A. 3B:12-48, 12-49 and  12-50.

The Guardian “steps into the shoes” of the “ward” (incapacitated person), which means that unless the Judgment of Incapacity and Letters of Guardianship issued by the court have specific limitations in them, the Guardian of the Estate (Property) may take care of banking, contracts, insurance claims, applications for benefits and insurances, securities transactions, hiring and firing of persons to work for the ward, and so on. The Guardian of the Person may decide where the ward will live, obtain and consent to any kind of medical treatment, and may decline consent to some medical treatment, without obtaining further court approval. However, certain transactions do require court approval.

For example, the Guardian may not make gifts to other people with the ward’s assets or make changes to the form of ownership or titling of a ward’s assets without court permission. See N.J.S.A. 3B:12-49 (Court can authorize Guardian to do so); 3B:12-58 (gifts) and 3B:12-50 and 3B:12-62. Several cases in New Jersey have confirmed the authority of the Court to allows guardians to transfer assets: In re Trott (Estate Tax reduction planning – 1972); Matter of Manuel Labis (Medicaid planning transfers to spouse – 1998), and In re Keri ( Medicaid planning, transfers to adult children – NJ Supreme Court, 2004). Based on these precedents,  we have also obtained court authorization to transfer assets to disabled children or to trusts for family members. The plaintiff needs to include this request in the initial Complaint for Guardianship, or the Guardian will later need to file a Verified Complaint and Order to Show Cause, serve it on all the interested parties, and go back to court.

Also, the ward’s real estate may not be sold or mortgaged without court authorization. Again, a Verified Complaint is required, with service on all interested parties.The Court rules and specific procedures are at N.J. R. 4:94-1 to 7. The Court may authorize a sale if satisfied that it is in the ward’s best interest.See N.J.S.A. 3B:12-49. The guardian needs to provide the Court with proof of value and in some cases the actual proposed contract for approval.

I must say, we  have repeatedly encountered situations over the years in which guardians thought they could “make annual exclusion gifts” or sign contracts for sale of property without going back to court. Most situations have legal remedies, but complications can ensue if the guardian doesn’t have authorization, not the least of which is a cloud on the title of the property.

Call us if you are filing for guardianship or need  post-judgment court orders … 732-382-6070

Learn about dementia: seek the diagnosis, then develop a care plan

“Dementia” is a descriptive diagnosis, but by itself is not a specific diagnosis of the cause of the condition. There is some underlying disease process that is causing death of brain cells, and the type of process explains just what is happening to the different parts of the brain and what the trajectory is likely to be. Alzheimer’s dementia, Lewy body dementia, Parkinson’s dementia and vascular dementia all have unique characteristics. The underlying physiological cause or process is different, and the symptoms are different. Obtaining a correct differential diagnosis early on can be invaluable to you in developing the care plan.

Medical crisis can trigger temporary extreme confusion in the elderly, which can be transient and should not be misinterpreted as the onset of dementia, which is presently irreversible. If you are caring for an elderly person, you have probably seen situations where severe infection (even UTI;s), malnutrition, dehydration, or hypoparathyroidis have produced a degree of confusion and difficulty making simple decisions or remembering things that looks like the patient has dementia, If the patient was otherwise cognitively intact before this illness, assuming that “the patient has dementia and needs a guardian” can really miss the  boat, with serious adverse consequences for the elder as the family heads down the wrong path.

In other cases, a person is steadily declining in their comprehension and their confusion is escalating without there being any concurrent acute medical  crisis.Behaviors may be developing that are strange and  different from how the person used to act.  Dementias can involve the loss of self-inhibiting functions of the brain as well as the loss of memory or loss of ability to sort information. By seeking a thorough cognitive evaluation which takes into account the patient’s personal and family medical history, you can be better prepared to plan for the future. You can learn about behavioral techniques that can protect the person against financial loss or self harm, minimize confrontations or escalations, and make sure that the person can remain safe and contented. Dementias are progressive, but better understanding of the specifics for the case will lead to a more effective care plan.

Call us for legal advice and elder care planning early in the process — careful planning can prevent a crisis… 732-382-6070 

National Senior Citizens Day was August 21st

National Senior Citizens Day was proclaimed by President Ronald Reagen in 1988. Proclamation 5847 began with this: “Throughout our history, older people have achieved much for our families, our communities, and our country. That remains true today, and gives us ample reason this year to reserve a special day in honor of the senior citizens who mean so much to our land.” It became a Day on the national calendar of special days. Interestingly, I read that some people consider August 14th to be “senior citizens day.” Why? Because August 14, 1935 was the day that President Franklin D. Roosevelt signed the Social Security Act! The preamble stated that The Social Security Act (Act of August 14, 1935) [H. R. 7260] was “An act to provide for the general welfare by establishing a system of Federal old-age benefits, and by enabling the several States to make more adequate provision for aged persons, blind persons, dependent and crippled children, maternal and child welfare, public health, and the administration of their unemployment compensation laws; to establish a Social Security Board; to raise revenue; and for other purposes.”

Social Security is of course 70 years old this year, and national senior citizens day is now 27. Whether old or young, people have many opportunities to do something that can honor and show appreciation of the seniors in their communities and families. And not just on August 21st. Did you ever consider interviewing someone about some aspect of their life that you never knew about? Talk to a person and you may learn fascinating things about their experiences in their jobs, volunteer work, military service or their wildest vacation or adventure. Asking a person about their life not only gives them the chance to relive those adventures but helps to show that their life matters.Ask your grandparents about the world they grew up with, and do some research to see what shows up online about their great-grandparents. I’ve found lists of people and occupations from the villages my great-great grandparents came from, showing that the  occupation of my grandparents in New Jersey (they were butchers) had a very long family history.

More ideas: talk to your aging parents about the lifestyle they want in old age and how you can help them plan for it. Write to your legislators to urge them to maintain programs for the needy elderly and to make those programs easier to attain. Help someone who you see in the store who appears confused or disoriented. Just reach out!

Call us for advice and assistance on planning for a good old age, elder care planning and estate planning … 732-382-6070

Transfers during the look-back merely raise presumption of intent to qualify for Medicaid

When a medicaid application is processed, five years’ of transactions are examined, and among other things, they look to see if there were uncompensated transfers or “gifts.” The agency then must presume that the transfers were made for the purpose of expediting eligibility, and can impose a transfer penalty  for the gifts. You are entitled to a Fair Hearing at the Office of Administrative Law to try to “rebut the presumption” by providing “convincing evidence” that gifts were made exclusively for a purpose unrelated to potential Medicaid eligibility. Sometimes, life takes a terrible turn and an otherwise healthy person makes gifts to their children but then becomes catastrophically ill and requires Medicaid to pay for their bills. That’s what happened to Mr. and Mrs. M in a case I handled  6 years ago.

Mr. and Mrs. M were in their mid-50’s. He retired at about 57 years of age. Coincidentally, the factory where his  wife worked closed down. They had 2 children. They sold their house in NJ, transferred some of the modest proceeds to their children, and took a long-awaited and prolonged vacation out of the country . Upon their return, staying in their daughter’s apartment as they began looking for a new house to buy, Mrs. M. became desperately ill with a rampaging infectious condition and required lengthy hospitalization. She had no insurance and did not survive the crisis. In processing the Medicaid application, the agency  imposed a transfer penalty for the gifts. We appealed.

Estate of M.M. vs Division of Medical Assistance & Health Services & Union County Board of Social Services, OAL docket no. HMA 13911-08 (2009)

DMAHS’ Final Agency Decision May 2009 adopting the ALJ Initial Decision, reverses County Board’s action that penalized pre-eligibility transfers of assets. The Agency confirmed the ALJ findings that  transfers made to her daughters a year before the application were made exclusively for a reason unrelated to medicaid eligibility.

These cases are all fact-sensitive. Particularly in the case of younger applicants, there is opportunity to “rebut the presumption” with the careful development and presentation of the relevant evidence.

Call us for advice about Medicaid eligibility, planning, applications and appeals … 732-382-6070