When the caregiving ends, new problems to tackle as Executor

In our legal practice, we advise  many family caregivers who are managing and supporting the lives of their frail loved ones, and  we also advise executors in the administration of estates. Very often, the person who was our client in their role of caregiver is now the client in the role of executor. It’s a very tender time when that transition occurs.

They  may have spent years involved with their parent who  had dementia or chronic illness, and the client’s life has been intertwined with the parent’s on a day to day basis. It’s been an emotional roller coaster for several years. The sense of self, role and identity have been strongly defined by the responsibilities of the caregiving. In these situations, the loss of the parent often leaves a gaping void that makes them feel as if they are drowning. They have trouble managing their day to day life because the focus of their activity is gone. There is a deep grieving process. They may have become isolated. And now, other family members are expecting them to jump and handle all  the dry and technical tasks of wrapping up the estate and distributing the money.

The challenge is that the executor has duties under the law to marshall the assets, resolve or pay the creditors, and distribute the estate in a reasonable period of time. There may be ambiguities in the Will that require court action to resolve. It may be that a beneficiary is disabled and a trust has to be established for them. It’s a big job and there can be serious repercussions when the job isn’t done.

There is help available. The National Family Caregivers Association has a Bereavement Program that could be of great use to someone caught in this situation. Ask for their article “Who am I Now that I am not a Caregiver?” Check out this website at AARP, Certain local family counselling services may be specially designed to help you with this unique issue, and enable you to start moving ahead, one step at a time..

Call us for advice and assistance with estate administration, probate and executor work … 732-382-6070

A disinherited spouse could have a medicaid problem

When a person applies for Medicaid benefits, a five-year look back is done by the county board of social services  to see if the applicant had given away any assets that they owned or to which they were entitled. If that occurred, it’s referred to as a “transfer of assets” or “uncompensated transfer of assets,” and the result will be a penalty period in which the person cannot receive Medicaid payments. This causes substantial problems for people in nursing homes or assisted living facilities, because the application isn’t filed until they are out of assets.

What happens if the Medicaid recipient is married and their community spouse dies? Or the applicant was widowed within the past five years? The question will still be whether the person had given away any assets that they owned or to which they were entitled. What happens if the community spouse signed a Will that left nothing for the Medicaid recipient, or put all their assets in joint names so that the Medicaid recipient inherits nothing from them?

In the Medicaid transfer of assets regulations at N.J.A.C. 10:71-4.10.b.3, a “transfer” is defined as including “failure to take action” to obtain assets, such as ” waiving the right to receive an inheritance, including spousal elective shares pursuant to N.J.S.A. 3B:8-10.” The Appellate Division decision in the case of I.G. v. Dep’t of Human Services (2006),  held that the widower’s failure to make a claim for the elective share was an uncompensated transfer of assets that caused a transfer penalty.

So if the deceased leaves nothing to the spouse who’s on Medicaid, the Medicaid recipient will be expected to assert a  “claim” for the elective share or risk losing benefits for a period of time. Under the law, the claim is asserted by filing a court action in the Chancery Division, Probate Part. The applicant would need an attorney. Assuming the surviving spouse is actually legally entitled to a share, the method to calculate the elective share and the  formula to calculate the amount due to the individual to satisfy the share is complicated. See N.J.S.A. 3B:8-1 to 8-19. For example, the calculations take into account assets that the survivor receives as a result of the death (such as a pension) and assets that are passing to someone else by way of joint ownership. The elective share starts with one-third of the augmented estate, but the calculation doesn’t stop there.

In some situations, our clients were told by Medicaid agencies that there would be a transfer penalty because the applicant/recipient didn’t receive “one third of the estate.” In other situations, the executor of the estate came to us, trying to figure out whether the estate was obligated to even pay an elective share. The issues aren’t simple, but you need to consider them. Many community spouses have “heard” that they should make a new Will disinheriting the spouse who has to move to the nursing home. The reality is, though, that disinheriting the spouse will likely cause legal problems for the person who is applying for or receiving Medicaid.

Call us about any aspect of Medicaid eligibility planning, applications and appeals… 732-382-6070

 

Family caregivers and decisionmakers in the complex care of dementia patients

Tha AARP and the National Alliance for Caregiving report that there are 40 million Americans taking care of family members with dementia such as Alzheimer’s Disease, cancer, and other debilitating chronic diseases, or physical disabilities, and that 25% of the caregivers are under 35 years old. The medical issues can be complex. There can be myriad medications to manage and the side effects can impact the patient’s cognitive ability, response time and behaviors. The family caregiver needs to be companion, advocate, assessor of unusual clinical responses, emergency manager, monitor of symptoms, transportation provider, and assistant for decision-making. They may or may not have received specific training in the care the patient requires. Should the caregiver also have authority to actually make decisions on behalf of the patient? Maybe yes, maybe no. It depends on the circumstances.

The line between the work of caregiving and the authority for decisions can get blurry. It’s important to discuss this subject when preparing powers of attorney.  At times, one child is given authority as Power of Attorney and Health Care Representative, and then also moves in and becomes the 24/7 caregiver when the parent can no longer safely live on their own. If the same person is responsible for all caregiving and all financial matters, it can be truly overwhelming and there could be a loss of objectivity.When a person requires 24/7 care and a devoted family member is the full-time caregiver, expanding the team and  dividing up the responsibilities can go a long way to make the job more manageable, and assure that the whole picture is being seen. Perhaps one person should have authority over the assets, income, bills and contracts, and another person should have responsibility for health care decision-making. Sometimes the person providing the live-in care should be the health care decision-maker, but not necessarily.

To guarantee broader input and communication, a patient may want to divide up the roles. But again, this is simply not always possible. The family may be small, or most of the family may be far away, or there may be other family dynamics in play.

There are ways to ensure collaboration between caregiver and the designated agents. For example, the financial Power of Attorney and the health care proxy or advance directive documents documents can obligate each designated agent to  share information  with the other and to consult with each other. The person who is the general agent under the power of attorney could be given the authority to delegate some power to the person who is the live-in caregiver so that they can manage some reasonable size bank account on a day to day basis in case there’s a need to buy things. Or they can be given authority to utilize  a debit card on the patient’s bank account with a certain limit.

Another idea is that the financial power of attorney document can expressly allow a family member to be hired as a live-in caregiver, and can direct the Agent to pay a wage that’s in line with similar occupations. When caregiving is paid for, it eases the economic pressures on the care giver, but it does raise other issues such as wage & hour laws and potential Medicaid scrutiny if the parent runs out of money within 5 years and applies for Medicaid benefits.

No matter what, either the patient or their authorized agent may want to sign HIPPA release forms for certain purposes so that the caregiver can access the relevant health care information that’s needed for them to do their job.

For legal advice on elder care planning, caregiver employment, and estate planning, call us at … 732-382-6070.

Distributing an Estate? Watch out for child support judgment liens

The Executor of an Estate (named under the Last Will and Testament) or Administrator of an Estate (appointed by the Court because there was no Will or the Executor couldn’t serve) has an obligation to take care of all of the bona fide creditors of the estate before distributing the rest and remainder to the beneficiaries or heirs according to what the Will specifies or the law requires.  However, they also have a duty to pay a beneficiary’s share to probation if the beneficiary owes child support.

During the first six months or so after the beginning of the estate administration process, the bills are arriving and the Executor/Administrator is gathering the assets, selling property, and figuring how what is due. The process sometimes takes longer. But then there comes the point when it is apparent that all assets have been identified and accessed, all taxes have been paid, all outstanding debts of the deceased person have been paid, and the Executor/Administrator is ready to make the distribution that the beneficiaries are waiting for.

Since 2000, New Jersey law has required the Executor/Administrator to do a child support judgment search on every single person before distributing  their inheritance. NJSA 2A:17-56.23b. The search can be limited to judgments and liens against the person that were entered in the State of New Jersey. See Strickland v. 212 Corp. of N.J.. Even if the Executor/Administrator is planning to do a partial distribution mid-stream, the search must be run.

The Executor/Administrator asks each beneficiary to certify their social security number, date of birth, complete name, and mailing address. The search is then ordered through an independent search firm. If there is a child support judgment, a call should be placed to the relevant agency to get a written statement of the amount of the lien. Then the Executor/Administrator must transmit the appropriate amount of dollars from the debtor/beneficiary’s share of the estate to the Probate Division of Superior Court, with  notice to the beneficiary. If the payment fully satisfies the judgment, a Warrant of Satisfaction will be sent to the Executor/Administrator. After that, any remaining dollars can be distributed to the estate beneficiary.

The statute doesn’t specify that searches have to be done again after there has been a partial distribution. But if the final distribution is being made more than 30 days later (see Strickland, above), prudent practice dictates that another search be run.

This procedure is very important, because an Executor/Administrator can be held personally liable if they distribute an inheritance without making a search for the lien.

For legal advice and assistance on probate and estate administration, call us at 732-382-6070

Aging in Place: Make a Plan, Assemble your Team

“No matter what, please keep me out of a nursing home!” How often do people hear their parents say this, as the parents enter their most senior years. The reality is that aging in place is a complex but achievable endeavor for most people. Whether you are the person who hopes to “age in place,” or you are the person who will have responsibility to make it happen, you need a plan, and you will need a team. There are so many details to consider, and developing a general plan in advance can really help you and your family when the time comes that you really can’t do it all on your own.It’s crucial that you face the issues honestly and make practical choices.

This post uses “you” as the aging person/parent, but if you are already the power of attorney for them, you need to deal with these issues as well. I’ve included links to some businesses as examples, but I am not specifically endorsing them or vouching for them.

Legal matters: Meet with an elder law attorney. Make sure you have a Durable General Power of Attorney (POA), Health Care Proxy and a Last Will and Testament. Include everything necessary to customize your plan for the lifestyle you want. Discuss your family concerns confidentially with your lawyer so that your plan meets your particular needs and you can try to ward off potential fights among your family members. If you have been appointed to the job of POA, health care representative or Executor of the eventual estate, talk to a lawyer to get a thorough understanding of your responsibilities and the extent and limits of the authority you’ve been given.

Pick your first responder: Who will be the first responder in case of a medical emergency? Be practical. The most beloved eldest child who lives overseas may not be the sensible choice. Fill out HIPPA forms for your doctors and hospital so that your first responder can see the chart or call in for information.

Pick your trusted fiduciary: Who will manage your assets, hire caregivers and pay your bills if you develop dementia? Again, be practical. Being Power of Attorney is a JOB, so make sure the person you select is willing and capable of doing it.

How’s the home? This is the time to bring in someone to examine your premises and help you make all the necessary changes so that you can live safely  in your home over time. Some interior designers specialize in this kind of thing, and bring in the contractors for the necessary safety repairs. Geriatric care managers can also do the assessment and make suggestions. With increased physical frailty or confused thinking there is increased risk of falling, which can cascade into serious disability. Consider everything — Stairs;Railings; Worn out carpet; Hard doorknobs; Grab bars; Walk-in tubs; location of the washer & dryer.

Transportation: Who will take you to your doctors’ appointments?  Find out if any taxi services will  escort you between your door and their vehicle. Have a plan in case you cannot walk well or can’t manage your own wheelchair. How will you get yourself from the parking lot into the doctor’s office, Non-medical Home assistant services are available, and can accompany you to appointments and errands, but usually you have to book them ahead of time on a schedule with a 2-hour minimum per shift.  Often you can find volunteers  through your religious congregation as well.

Grocery shopping: In some locations there are stores that will assemble and deliver the order to your home every week. Otherwise, you need an arrangement with someone to do the shopping for you.

Prescriptions: You may want to use a local or mail order pharmacy that can get all your renewals onto a consolidated schedule and deliver everything to the home. This can take a few months to establish, but can go very far to make the whole medication issue more manageable and prevent medical problems. Some pharmacies will even create blisterpaks with pre-set pill combinations for each time of the day.

In-home services and someone to run your errands: Clothes and shoe shopping can be done on line, and you can often arrange for the returns to be picked up at the house.  Some dry cleaners will do pick-ups and drop-offs. Some hairdressers may make house calls. Some physical therapists will treat the patient in the home. The list goes on and on.

Tidy up and De-clutter: get someone in to help you go through all of the things you’ve accumulated during your long and wonderful life. Call the kids and grandkids and have a celebratory “take it, keep it, or recylce/pitch it out” event.

Careful planning can prevent a crisis. Making sure the home is safe  is crucial. Making sure your legal affairs are organized is crucial. Investigating all the in-betweens that a person needs help with, and making lists of services that you can call upon in a pinch, will make it easier in the event that you suddenly realize that you need help. Even a plan that is partially used is better than no plan at all.

For elder law advice on estate planning and planning for a good old age, call us at … 732-382-6070