Why would an 18-year old need a Power of Attorney or a Will?

Powers of attorney are for old people.” “I don’t need a Will, I don’t own anything!” Truth be told, signing a basic set of ‘estate plan documents” at age 18 can prevent expensive legal problems later. It’s like fire insurance — you get it, but hope you don’t need to use it. I have been in court on so many occasions when an expensive guardianship proceeding was in progress because a young person had had a traumatic medical catastrophe or accident or brain injury but was over 18, had never signed a financial or medical power of attorney,  and no one could lawfully make decisions for them. Lawsuits couldn’t be filed or defended; settlements couldn’t be handled; bank accounts couldn’t be accessed; checks couldn’t be written; medical decisions were held up; bills couldn’t be paid.

What if there is no Last Will and testament? There, too, a person needs a Will so that someone can be appointed as Executor. It could happen that after a death, a lawsuit needs to be filed or other legal problems need to be straightened out. The Will designates the Executor, along with specifying who will receive the assets later. If there is no Will and no Executor, someone must apply at the County Surrogate  for appointment as  administrator, and others may be equally entitled to that appointment. This can cause substantial delays and costs to the estate.

As my children turned eighteen, they signed their basic estate plan. We called it insurance. As your children are becoming adults, consider helping them to make these arrangements also. The result can be peace of mind for everyone involved.

Call us for life cycle planning for young adults ……… 732-382-6070

Protective arrangements may be necessary for individuals impaired due to drug addiction

When one thinks about “guardianship,” one usually thinks about cases involving dementia or severe developmental/intellectual disabilities, or perhaps the residuals of traumatic brain injury. The definition of “incapacitated” is broader than that. In the New Jersey probate code, “incapacitated individual” is defined to include  someone “who is impaired by reason of physical illness or disability, chronic use of drugs, chronic alcoholism, or other cause (except minority) to the extent that the individual lacks sufficient capacity to govern himself and manage his affairs.”  What this means is that there may be times that a concerned family member will consider filing for general or limited guardianship to protect the assets and well-being of a person who is a habitual drug abuser. There are many procedural due process protections built into the process of obtaining guardianship, but in life threatening situations there could be the opportunity for emergency limited intervention through the court system. At the point that the individual obtains treatment and regains his/her sobriety and capacity, s/he can return to court to scale back the limitations imposed by the guardianship. meanwhile, s/he can be protected against the hazards caused by the behavior and illness.

A court can find that an individual “lacks the capacity to perform some, but not all, of the tasks necessary to care for himself,” and can appoint a limited guardian with specific authority. The individual may not be functionally capable to arrange for insurance, manage assets, maintain a safe home, or consent to treatment. The individual’s funds may be dissipated due to severe impairment of decision-making and susceptibility to influence by other people with similar problems. The individual may be living in a truly hazardous situation as a result of the addiction. The protective arrangement statute , the guardianship statute and the special medical guardianship statute provide the framework to  enable a concerned person to come to the rescue in these situation.

If you are wrestling with how to provide the protection that you feel is needed for your adult child with drug addiction problems, call us at ….. 732-382-6070

“Need for skilled care” is the Medicare standard for rehab payment

We are seeing an uptick in the number of fragile elderly patients whose post-hospital subacute Medicare benefits are being prematurely terminated due to lack of improvement. Before 2013, the insurance companies that were processing the post-hospital skilled care benefits under Medicare Part A were often using a “rule of thumb” whereby they would terminate benefits if the patient wasn’t improving. Families would be told that their loved one had “plateaued and we can’t bill this stay to Medicare any more.” The Jimmo vs Sebelius class action lawsuit about this issue was then settled, and CMS issued press releases and guidelines to all Medicare insurance intermediaries, reminding them that the “improvement standard” was not the only path to Medicare reimbursement. jimmo-factsheet  The law has always been that the patient’s clinical need for skilled services is the criteria to apply.

Now it seems that the old habits are re-emerging. The Center for Medicare Advocacy was back in Court, and the federal judge who oversees the Jimmo settlement ordered CMS to carry out a Corrective Action Plan to ensure compliance with the terms of the settlement. Read about it here. Skilled care benefits can last uo to 100 days.

Vigorous advocacy is needed when your loved one enters a skilled care facility after a hospitalization of three days or more. Have a care plan meeting with the treatment team and talk with the doctor to identify and address all of the patient’s clinical and nursing needs. Read the chart and monitor the patient’s progress and needs. The patient’s physician may be the greatest ally. Keep ahead of things, because once the termination of benefits notice is issued you must file your appeal extraordinarily quickly.

Call us for advocacy concerning senior care in subacute facilities. We help you secure the benefits your loved one is entitled to. … 732-382-6070

A handwritten Will may work …….. depending

A handwritten Will is called a “holographic Will.” In New Jersey, it is referred to as a writing intended as a Will. The baseline statute for what is a “Will” requires that for something to “be a Will” it must be (1) in writing; (2) signed by the testator or by someone else at the testator’s direction while the testator is consciously present, and (3) signed by at least 2 witnesses who each witnessed the signing of the Will and who each affixed their signatures within a reasonable time of so witnessing. A document that doesn’t meet those exacting standards is a “writing intended as a Will.”

To be accepted, such a writing does not have to be witnessed, but the signature and material portions of the document must be in the testator’s own handwriting. There also must be proof that the writing was specifically intended by the testator to be the final expression of his or her wishes.

A major hazard with self-prepared writings intended as Wills is that a court proceeding is required in order to obtain the necessary court order that authenticates the document. Very often, such documents create arrangements which are unclear or incomplete, and some of the heirs-at-law may oppose it. Notice has to be given to all such people, and if they file opposition, this could turn into a very expensive and time consuming contest.

A recent case in Alaska dealt with the question of whether the placement of the signature up at the beginning of the handwritten document rather than in its customary place at the end could still qualify it as the “signature” that’s required. Estate of Baker, 2016 WL 7488253 (Alaska Dec. 30, 2016). This was a hotly contested case, but eventually the Court decided that the document met all of the statutory criteria and upheld the validity of the document.

The probate process for a properly drawn Will is very easy in New Jersey. However, when it comes to home-made legal documents, not only is a complex  and time-consuming court process required, there are often additional problems, because the writer may not understand the meaning of the language that they use in their writing. Not only are there cases in which the document isn’t signed, there are cases where the document doesn’t  completely dispose of the estate, or doesn’t deal with a contingency (such as a deceased beneficiary or the refusal of a named trustee to serve). Sometimes the document creates ambiguities so that the Executor can’t figure out what is required.

Would you do your own plumbing or electrical wiring? If not, you may not want to prepare your own legal documents either.

Call us for estate planning assistance that reflects your final wishes …



Memory Cafe and Support Group are Great Resources in Union County

Many of our clients are caregivers of elders with Dementia.  They feel shut in taking care of their loved ones, never sure if they can go out together without incident.  Well, here is one option:  Jewish Family Services of Central New Jersey presents the Memory Cafe, on February 9th, March 23 and April 27th from 12 pm to 2pm at 655 Westfield Ave., Elizabeth, where individuals with dementia and their caregivers can enjoy a social outing together with support.  And it’s free!  To go, RSVP at 908-352-8375 Ex. 236.

Jewish Family Services also has an Alzheimer’s Support Group that meets on Fridays at 1 pm, at the same address.  The dates are February 3rd, March 3rd, April 7th, May 5th, and June 2nd.  Check it out!

Care planning for seniors includes care planning for the caregivers.

Call for advice on all facets of elder care planning …. 732-382-6070