Linda Ershow-Levenberg, Esq.

About Linda Ershow-Levenberg, Esq.

Linda is the managing partner at Fink Rosner Ershow-Levenberg, LLC. She takes care of legal problems involving people who are aged or who have disabilities, by protecting access to government benefits and helping them make the necessary arrangements for life-long assistance or care. Linda has been certified in Elder Law (C.E.L.A.) by the National Elder Law Foundation since 1999. She strives to provide her clients with responsive representation delivered with personal attention, compassion, and commitment. Find out more about Linda Ershow-Levenberg

Tell your Grandparents ……. Uber & Lyft can take them to the polls

Election day is, of course, tomorrow and the polls open bright and early. Many older folks are no longer driving and need help getting to the polls. I hope that the younger generation will make the time to transport their friends or family members who can’t get to the polls.  If a person doesn’t have a family member to drive them they might stay home and not vote. Every vote counts and ideally, everyone who is eligible to vote will be able to get to the polls to have a say in our democracy and keep it moving in the democratic direction people want.

Uber and Lyft have announced that they will provide free or reduced-fare rides one-way to polling places — though not back home, so planning is required. Here are some links to take advantage of this.

  Lyft:    Buzzfeed:

Uber: 

For advice and assistance with elder care legal issues and senior legal care planning, call us at 732-382-6070

Watch out for elective share issues in Medicaid planning

When a married person requires nursing home care, the spouse often seeks advice on how to preserve assets and minimize his/her exposure to the high cost of care. Often this will require consideration of how the Medicaid program (MLTSS or NJ FamilyCare) can help out. Assets may be transferred to the “community spouse,” and beneficiary designations may be changed. Some assets will be retained and others may be spent. There may be gifts, and there may be annuities that are purchased. Each plan is unique. The Will of the community spouse may be altered so as not to leave everything to the spouse who now requires nursing home care.

What happens if the community spouse dies first, and the institutionalized spouse is receiving MLTSS Medicaid benefits? The Executor of the Estate and the Agent under Power of Attorney for the surviving spouse will have some reckoning to do. This ‘reckoning” refers to calculating and satisfying the “elective share.”

The elective share is a statutory share of the deceased spouse’s estate. It is calculated by following the formula in N.J.S.A.3B:8-1 et seq. Basically it starts with the deceased person’s probate assets (essentially, the assets that have no beneficiaries or co-owners or that aren’t held in a living trust), minus expenses and debts, plus an array of other assets such as joint accounts, pay on death accounts, and assets that were given away within the prior 2 years. This whole combination of subtractions and additions produces what’s called the “augmented estate.” The elective share is one-third of the augmented estate. The share is “satisfied” first from assets owned by the surviving spouse or that he receives as a result of the death, and then from probate assets, and then from non-probate assets.

Sometimes it turns out that the surviving spouse gets a distribution of zero from the estate of his late spouse, but other times, the distribution is substantial, creating some havoc as the Executor tries to figure out how to make the payment — often, there is real property but insufficient cash, and the Will may leave the property to somebody specific.

Why does any of this matter? A person on Medicaid is required to seek all assets to which he is entitled, or he will face the risk under N.J.A.C. 10:71-4.10  of a transfer penalty. The Appellate Division has ruled in I.G. vs DMAHS that.  the failure to claim the elective share is a transfer of assets. If a transfer penalty is imposed, the State doesn’t pay for the nursing home for a period of time.

The Agent under Power of Attorney for a Medicaid applicant or recipient is obligated to report changes to the program. This would include notification that the person has been widowed. Typically, the County Board of Social Services then inquires about the estate of the deceased spouse and whether the Medicaid recipient has received his elective share. If the surviving spouse isn’t yet on Medicaid, then this issue will have to be addressed if the surviving spouse applies for Medicaid benefits during the ensuing five years, because at the time of the application, there is a 5-year look-back to see if any assets were given away/transferred.

What’s the risk? The risk is that Medicaid benefits were wrongfully received by the surviving spouse who failed to receive assets he was entitled to as an elective share. This further creates the risk that there was an overpayment, and the State has options under N.J.S.A. 30:4D-7.1, to pursue all culpable parties by initiating a lawsuit in Superior Court.

Careful planning can prevent a crisis. Senior care planning involves a whole array of activity, some now and some later as situations change. Call us for advice for now, and for later. … 732-382-6070

It’s Open Enrollment Season for Obamacare

If you have an inadequate health insurance plan or you have changed your situation and need new insurance, now’s the time to go out on the exchange and look around. Open enrollment is from November 1st to December 15th. Today’s NY Times has an in-depth discussion of what’s out there. Take a look also at this very recent NY Daily News article.

The American health insurance system is a frustrating  tangle which is hard to navigate and requires a lot of time to deal with, from selecting policies to figuring out how to afford insurance to changing prescription plans based on their formularies to coping with absurd denials of coverage for drugs or treatment that the patient’s doctor recommends. Unbelievable amounts of hours are spent by patients and their advocates every year, often during their workday when those hours might be better spent getting the work done. Before the affordable care act, our small-company plan’s premiums were rising by double digits every year. The ACA was designed to greatly broaden the pool of healthy, premium-paying plan participants as a way to bring those premiums down. With the rollbacks of certain protections that were built into the Affordable Care Act (“Obamacare”), in the free-market economy, that critical aspect of the program has been removed, and companies are allowed to offer policies that provide minimal coverage and are still costly to pay for. People are spending as much on their insurance as they are on housing. It’s absurd.

I’d like to see a system where coverage isn’t linked to employment and instead is just based on something simple, like geography … for example, everyone who resides in a county which has population in excess of X people enrolls in that county’s plan, and very small counties just combine into a regional plan of an adequate and defined size. You’d only have to change plans if you moved out of county. No more worries that your smaller employer won’t have an insurance plan.  Let the insurance companies compete behind the scenes to be the plan administrator. Have all practitioners in a given county accept that insurance plan as well as others. Let the plans negotiate drug prices or treatment prices like the Veterans Administration does (for drugs) or Medicare (treatment). Control the price of premiums and subsidize premiums through tax returns (as is done under the ACA) so that no participant has to pay more than a certain nation-wide percentage of their modified adjusted gross income. It’s absurd that an employee in a company which has a health plan should have to pay $12,000 a year for their share of the premium to have coverage for their family. The cost of insurance may not make too big of a dent in the budget of someone earning $180,000 a year, but the premium cost is the same for the person earning $60,000 a year.

By the way, if you are at that age to enroll in Medicare (65), keep an eye on your deadlines as well, and be sure to be mindful of the potential lifetime penalties for failure to enroll in Part B when you sign up, even if you are still employed.

For advice and representation on senior care legal planning, call us at 732-382-6070

 

Today is Love Your Lawyer Day! (Who Knew?)

This morning I learned that the first Friday in November is international Love Your Lawyer Day. I had no idea. I think it’s really nice that someone thought up that idea.

Lawyers do their best to solve their clients’ legal troubles whatever they may be — contract disputes, family disputes, problems caused by incapacity or denials of government benefits, finding remedies for damage done, improper arrests, or making sure that a clients’ rights are protected. The type of legal problems people face goes on and on. The  challenge for attorneys is that every time a lawyer tackles a client’s problem, he or she has to keep in mind a huge array of rules that govern what the lawyer can, can’t, should or shouldn’t do. Starting at the top we have to be familiar with the US Constitution; federal statutes; federal regulations; federal agency guidance. Then we have the state constitution; state statutes; state regulations; and state agency practices. Of course we have to research court decisions that may even date back more than a hundred years. On top of that are the strict Rules of Professional Conduct which are sometimes referred to the attorney ethics rules. Not to mention the hundreds of detailed facts that we need to keep straight for the particular situation; anticipating the strategy the “other side” will use, and figuring out what is likely to be the best tack forward against the headwinds of the case.

So if you are in the midst of a case, say “thanks” to your lawyer who’s doing the best they can with the case there is. Sometimes it can be unclear to a client just why the lawyer recommends a certain course of action. Each fact in a case can work for or against the client depending on how the facts can be put together. As John Adams famously said in his defense of the shooters in the Boston Massacre, “facts are stubborn things” – lawyers can’t change the facts; we just do our very best for our clients when working with those facts and the applicable law.

For vigorous representation on elder law and disability problems, call us at …….. 732-382-6070

Recorded Life Estate given priority over later-recorded mortgage

Here’s a situation that came up after parents transferred their home to their daughter and reserved a life estate. The value of the life estate vis-à-vis the whole property is a pro rata percentage based on the age of the life estate holder at the time of the transaction in question. The case is called Ocwen Loan Services, LLC vs. Quinn.

The transfer took place in 2004. A year later, the Quinns and their daughter mortgaged the property and received $260,000. The market was hot and two years later, the daughter alone refinanced that mortgage loan and obtained $380,000, paying off the 2005 mortgage in the process. For some reason, when this new lender (IndyMac)  did its title search, it failed to discover the recorded life estates that were held by the parents, so it didn’t ask the Quinns to co-sign its mortgage documents. The daughter defaulted on the IndyMac mortgage, and IndyMac started foreclosure proceedings against the parents as well as the daughter.

The parents argued that since they had no knowledge of the daughter’s refinance of the mortgage which they had originally co-signed, their life estate should not be subject to the new mortgage. However, the court applied a legal doctrine that is called “equitable subrogation,” and found that it would be inequitable and would unjustly enrich the parents if they were totally relieved of any responsibility for the mortgage, yet at the same time, it would be inequitable for the lender to be able to hold the life tenant liable for the full amount due. The Judge stated: “[Defendants] signed a mortgage in the amount of $260,000 as possessors of a life estate. While [defendants] may have signed the mortgage as an act of kindness and love to their daughter, the fact remains [defendants] were parties to the 2005 mortgage and thus subjected their life estate to this foreclosure action. This [c]ourt sees no procedural or substantive defect which would challenge the validity of the 2005 mortgage.”

Bottom line? The life estates are subject to the IndyMac mortgage up to the $260,000, but the IndyMac mortgage is subordinate to the rights of the life tenants for any excess above that.

Call us for advice about elder care planning including real estate transfer issues …. 732-382-6070