After the Wedding Bells Have Rung Again, Update your Estate Plan

It is surprising how often we hear of situations in which a person passed away unexpectedly or had a catastrophic accident or stoke, and various family members or good friends start trying to find out information or even start trying to gain access to assets without any authority to do so. Oftentimes, energy is fruitlessly spent before legal advice is obtained. Sometimes, tremendous fights ensue. These issues are bad enough when the individual has no spouse or no children  — there may be a certain group of nieces, nephews or cousins who believe they are the rightful heirs or the rightful decision-makers — but the issues can be magnified where there are  children from a prior relationship as well as a current spouse.

Once a person is divorced, any prior designation of their now ex-spouse as a fiduciary in a Will or Power of Attorney or Health Care proxy is deemed to be voided. In some circumstances, that can leave the individual without any fiduciary. Remarriage by itself doesn’t grant actual fiduciary authority to one spouse over the other. Signing a new set of estate planning documents is very important. The individual can specify who has the decision-making authority in the event of incapacity, and who will be the Executor of the Estate.  A carefully written set of documents will address any necessary interplay between the second spouse and the individual’s children. Are adult children entitled to continue to live in the marital home if their parent is now incapacitated or deceased? Are they required to pay expenses or rent? If the incapacitated parent was supporting adult children, is the Agent under Power of Attorney obligated to continue this pattern?  Many issues can be addressed through careful planning and signed legal documents.

If an individual becomes incapacitated and never signed any power of attorney, there may be a need for someone to pursue Guardianship to attain authority to make decisions and handle real property and other assets. At times, we have to dash into court with a petition for some emergency authority. In situations where there is a second spouse and children from a prior relationship, a guardianship action may become contested, leading to extensive and expensive litigation over who is entitled and best suited to be appointed as Guardian.

A spoken statement doesn’t create a Will. A spoken promise doesn’t create a power of attorney. A person’s belief that they were authorized to handle someone’s financial matters doesn’t translate into authority without a writing.

Thoughtful estate planning can go a long way to prevent crises and litigation, and thoughtful updating of estate plans on a regular basis — especially after a major life event such as marriage — can help ensure that your wishes will be carried out.

Call us about creating first time or updated estate plans .. 732-382-6070

 

Sometimes, Arbitration Clauses in Nursing Home Contracts aren’t Enforceable

It’s very common for nursing home and assisted living contracts to contain a section in which the applicant is asked to consent to arbitrate any dispute with the facility. By consenting to arbitration, the individual waives his or her right to file suit for damages or breach of contract, or other matters, in the court system. Lately, those contracts frequently have a statement that signing the arbitration clause is optional and that admission won’t be denied for failure to consent to arbitration. In 2010, in the case of Estate of Ruszala vs. Brookdale Living Communities, The New Jersey Superior Court, Appellate Division,  invalidated a portion of a statute that sought to make all arbitration clauses in nursing home contracts unenforceable (N.J.S.A. 30:13-8.1), but held that each case had to be examined on its facts because in a given case, certain provisions of a contract might have to be stricken.

In a recent case, a long-term care resident of a skilled nursing facility in New Jersey sued for damages based on alleged negligent health care. The facility filed a motion to dismiss the case because the plaintiff had signed an arbitration agreement as part of his application for admission. As of now, the decision is “not approved for publication,” which means it is not precedential and is only binding on the parties to that case. However, as with other non-published decisions that I have discussed in this space, the facts and analysis are interesting and informative and useful for the general public to know about. The case is called Ricciardi vs Abingdon Care and Rehabilitation Center et al. and Kindred Hospital.Ricciardi v Abington Care Center

The facts that were established in the trial court were that Mr. Ricciardi signed his application for admission; there were 12 pages; each was signed and the time was noted; the whole process took one minute; staff did not give him any useful explanation of the impact of signing the arbitration agreement; he was not given a copy of the arbitration clause page although he was given a copy of other pages; and although the arbitration clause page provided a five-day right to cancel, the facility deprived him of this right because he wasn’t given a copy of the page to retain and review. The trial Court denied the motion to enforce the arbitration agreement, finding that the plaintiff did not actually consent to arbitration, and the appellate division affirmed that decision.  The Court explained that “Any contractual waiver of rights, including arbitration provisions, must reflect that the parties have clearly and unambiguously agreed to the terms” and “must have full knowledge of their rights and show an intent to surrender those rights.”

Admission to skilled nursing facilities involves evaluation of intertwining issues of health care, residential rights, and financial obligations. Contracts can be confusing and obligations can be confusing. Elder care legal advice can be a very useful and protective part of the process.

Call us to review contracts and provide advice about care being provided in skilled nursing home settings .. 732-382-6070

LifeTown: a special downtown for individuals with special needs

An innovative community service for people with special needs was recently opened in Essex County called “LifeTown: The Jerry Gottesman Center” in Livingston. It’s like a mini-mall filled with shops such as a pet store, a book store, a bank, a movie theater and a food market, as well as  recreational venues including  a music studio, basketball court and more. Evidently it’s 53,000 square feet and is staffed by both professionals and volunteers through the Friendship Circle of New Jersey. Some of the businesses are independent businesses with their own employees. Friendship Circle participants have the opportunity to learn job skills as well as skills with handling money and shopping. There will be social activities, work activities and recreational activities, all designed for skill-building, socialization. One of the goals of the mission of Friendship Circle and LifeTown is “to fully integrate people with special needs into the community and society at large ” and to “simulate life in a safe and accessible environment.”

For information about participation in Friendship Circle, click here

Life care planning for family members with special needs requires forward-thinking, innovative strategies, Call us for help with your estate planning needs … 732-382-6070

Continuous residence in USA not prerequisite for Medicaid eligibility for previously-qualified alien

One of the threshold eligibility requirements for Medicaid has to do with legal status. N.J.S.A. 30:4D-3(q)(1)(a).  If a person is an alien (non-citizen) with the status of a Legal Permanent Resident (LPR) (“green card holder”) who was present in the United States prior to August 22, 1996, s/he is eligible to apply for Medicaid (and receive “full Medicaid benefits” if all other criteria are met).  NJAC 10:71-3.11(c)1. On the other hand, if an alien enters the United States on or after that date, s/he can apply for Medicaid “after having been present in the United States for five years,” N.J.A.C. 10:71-3.11(d), unless s/he is in one of the protected categories that are further detailed in that regulation. So a person who meets the criteria is an “eligible alien” who could receive full Medicaid benefits. An alien who is not an “eligible alien” can receive emergency medical treatment only.

A recent case arose involving an 88 year old who had held LPR status since 1991. He had worked the necessary length of time and was insured under the Social Security system (40 calendar quarters). In 2007 he left the United States and gave up his LPR card. Seven years later he returned and again received an LPR card. In 2015 he applied for institutional Medicaid benefits but the application was denied under the section (d) five-year rule cited above. he requested a Hearing and the case was tried.

The pivotal part of the evidence at the hearing seems to be as follows, quoted from the Appellate decision: ” The supervisor of Adult Medicaid for the SCBSS testified that when K.K. applied for Medicaid, both his new LPR card and the agency computer system noted an entry date of July 2014, with no indication that he had previously resided in the country. His application stating his 1991 entry was not considered. K.K. was thus rejected because the computer records reviewed reflected he had not been an LPR for five years, as required of someone who entered the United States after August 22, 1996. At the hearing, K.K. proved he had entered the United States in 1991 and received an LPR card in 1996, which he surrendered upon leaving the country in 2007. His LPR card was at that time set to expire in 2015, after he applied for Medicaid. The card he obtained upon reentry in 2014 is valid until 2024. Both cards have the same identification number.”

Although the denial was affirmed by the administrative law judge and Director of the Division of Medical Assistance and Health Services, the appellate court reversed in a precedential published opinion called  K.K. v. Div. of Med. Assistance & Health Servs.

The Court agreed with Mr. K that since he had previously met the criteria of section (c) — presence in the United States before August 22, 1996 — the lapse in his residency did not terminate his eligible alien status..The Court reversed the decision and authorized the application to proceed. The Court also cited an earlier case from 2009, which was  A.B. v. Div. of Med. Assistance & Health Servs., 407 N.J. Super. 330, 338 (App. Divi. 2009) in which the Court declared and held that “once an immigrant obtains qualified alien status, he or she does not have to remain continuously present in the United States in order to avoid application of the five-year bar.”

  The Medicaid program operates within a complex web of intertwining and often unclear regulations and statutes. For advice and representation concerning Medicaid eligibility, call us at ….. 732-382-6070