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

Tips on designing a guardianship plan

What are the responsibilities of a Guardian of the person and property of an incapacitated individual? The Guardian is expected to fulfill a broad array of obligations, since the Guardian is responsible to arrange for and oversee the financial and personal well-being of the person under guardianship. Each individual is unique, with her or her own preferences, likes and dislikes, and cultural experiences. In some cases, the Guardian is very familiar with the individual. In other cases, it’s all new and some investigation may be required to learn about the unique attributes of the individual. And of course an individual’s interests and needs will typically change over time.

New Jersey’s guardianship statute on this subject can be found at N.J.S.A. 3B:12-57 and there are other statutes surrounding it in the Probate Code.  Among other things, the Guardian needs to arrange for “the care, comfort and maintenance and, whenever appropriate, the education and training of the ward;”  must “develop a plan of supportive services for the needs of the ward and a plan to obtain supportive services;” and must take all measures required to attain eligibility for programs and benefits, to pursue assets that are owed to the ward, and to apply the available sums in the ward’s benefit.

To develop a plan,  create a budget. The budget needs to include every single recurring cost in a typical month or quarter. Determine the recurring sources of income and apply for benefits that are available. It may be necessary to apply for Social Security Disability or retirement income, SSI, employer’s disability pension, or to file a claim for any available long-term care insurance.  Do an assessment of whether the individual can stay in their current residence or if a different residence — or health care facility — would be more appropriate. Is in-home care needed? This becomes part of the budget. Is nursing home care required? It’s important to investigate the availability of Medicaid benefits. Are their unpaid bills or unfiled taxes? Start to tackle all of that and bring things up to date.

For a ward in the community, start investigating the social supports that can add meaning to that person’s life. Does the person enjoy attending religious services? See what needs to be done to bring the person to weekly services and have a companion there for assistance.  Perhaps the person can be enrolled in recreational activity at the local “Y” or senior center. Map out a plan of activity for an in-home caregiver to do — this might include reading aloud, exercise, outdoor walking excursions, movies, particular types of menus or trips to beloved eateries.

By putting together a thoughtful plan of activity to help the individual stay engaged in his or her cultural and social life, a Guardian can support the sense of well-being, happiness and security of the person under guardianship. In this way, the Guardian  can fulfill his or her legal obligation to “give due regard to the preferences of the ward, if known to the guardian or otherwise ascertainable upon reasonable inquiry. ”

Call us for legal advice in carrying out your responsibilities as a Guardian ….. 732-382-6070

Burden to provide all verifications sits with Medicaid applicant

The Medicaid application process for MLTSS services in nursing homes, assisted living facilities or in the community requires a tremendous amount of documentation. Numerous documents pertaining to personal status, income, and finances must be produced. Filing an incomplete application increases the risk of a denial. Failing to produce the required documentation frequently leads to denials, as the courts in New Jersey have held again and again that the responsibility to produce proof of eligibility rests with the applicant and not with the agency which is processing the application. Of course, the notice of what’s missing actually needs to be delivered to the person who is filing the application, but upon receipt, one must “jump” since the time given to reply is typically really short.

Two recent cases illustrate the problems that can be encountered from failure to present required verifications for a Medicaid application These are not “published” decisions, so they are not considered to be binding precedent on any other court. But they do illustrate the problems that can arise. In both cases, there was a failure to produce certain documentation, and the court concluded that the individual had the authority to obtain the records had they wanted to do so. One case is RP vs DMAHS  2018    and the other is G.C. vs DMAHS (birth certificate case).

There may be circumstances in which the person filing the application has no authority to get documents. There may be a need to apply for guardianship or to get a court order directing the release of certain records. These are situations in which the person should quickly consult with an elder law attorney to take necessary protective action. The important thing is that the person filing the applicant needs to act — to seek whatever legal remedies might be necessary rather than just throwing up his hands and doing nothing. The pace of denials for “failure to provide verification” seems to be escalating and there may be numerous legal issues in any given application that need an attorney’s attention.

Don’t despair! Call us for help & legal advice with the preparation and filing of your MLTSS Medicaid application ……… 732-382-6070

Designating your representative can prevent a fight over your remains

I have been saying for years that taking the time to put things in order in proper legal documents can save a lot of headache and money in the long run. “Careful planning can prevent a crisis” has been one of my professional mottos for many years now. New Jersey has a statute that allows a person to sign a document that designates a Funeral and Disposition Representative who has authority to make the decisions about final disposition of the body at death. A person can write these instructions in a Last Will and Testament or can sign a separate document and provide it to whoever might need to know. A new court decision called In the Matter of Estate of John Travers Jr. Travers App Div tackles the thorny problem of who is entitled to make those decisions for a person who died without a Will and without any written designation.

John Travers, Jr.,  died without any written instructions concerning his remains. He had no Will. He was single and had no children. His parents survived him, but they were divorced  They disagreed over what should happen — the father believed that his son should be buried, but the mother believed that his remains should be cremated. . The court noted that under the statute, the priority would be given to (1) spouse if any; (2) majority of the adult children if any, and then (3) the surviving parents. However, the statute said nothing about what to do when there is a dispute between the parents, who are the equally-situated next-of-kin.

The Appellate Division decided that the Legislature would want the decision to be as much in accordance with the individual’s preferences as a court could discern . Here, he had failed to make his wishes known, but there was evidence that he had a closer relationship with his father at the time of his death. The Court decided that the father was therefore in a better position to determine what his son’s wishes would be. Another factor that impressed the Court was that the father was likely to be appointed administrator of the estate and would also likely pay for all disposition arrangements himself since his son had few assets.

Family planning is full lifetime planning. Call us for individualized assistance and solutions ……. 732-382-6070

Managing difficult behavior in nursing homes: assessment and interventions

A hot-button issue for nursing home administrators and admissions personnel seems to be “behavior disturbances.” Family members may be encouraged to make alternate arrangements because the facility maintains that it cannot manage the person and the person is “creating a danger for the staff and other residents. ” In advocating for your loved one, there are tools available to help get the administrator to put the brakes on hasty efforts to get the family to relocate the resident.

Appendix B to the State’s Standards for Licensure of Long-Term Care Facilities is a deeply detailed Guideline for the Management of Inappropriate Behavior and Resident-to-Resident Abuse. Removal if the resident is not the first step, and should not be the reflex reaction. Rather, the staff are obligated to go through numerous types of assessments in an effort to pinpoint the cause of the behavior, find strategies that would avoid or prevent the behavior, redirect the resident’s attention,  and otherwise enable the resident to remain in the facility.

This appendix is really worth reading. It provides practical descriptions of what staff need to do to better understand what might be triggering a reaction and what can be done to prevent this. Also, some of the text cautions staff not to provoke a resident and to try to understand the individual and what he or she may be going through.  The staff are required to “determine the resident’s emotional adjustment to the nursing facility, including his/her general attitude, adaptation to surroundings, and change in relationship patterns,” all of which can contribute to a resident being hostile, easily aggravated, verbally abusive to staff, physically pushy, restless or resistant to programming or treatment.

Here are the categories to be assessed, each of which is described in tremendous detail: 1. Sense of initiative/involvement; 2. Unsettled relationships; 3. Past roles and current sense of self. Further elements must be considered to determine a resident’s mood and the reasons for it. All staff are expected to make a record of their observations so that based on all of that data, changes in approach can be designed: 1. sadness or anxiety and the practical causes of same, 2. mood persistent for a week and is resistant to cheering up efforts; 3. behaviors that appear disruptive but in fact may not be so different than other residents, 4. reasons for resistance to care; 5. steps for behavior management program that may include identifying whether the behavior of a different resident is triggering the seemingly disruptive reaction; 6. whether there has been a change in mood over the past 90 days, and 7. whether there has been a overall increase in the “problem behaviors” over the past 90 days.

The staff of skilled nursing facilities are trained professionals working in a setting where unusual behavior is the norm, not the exception. They have many ways to figure out how to address a challenging situation with a resident. By using those skills and getting some insights from the resident or the resident’s support network, situations can be defused and progress can be made. Too often, though, a sense of hysteria arises instead of the calm, deliberate approach that is needed to actually solve the problem. Removal of the resident should be the last resort.Appendix B

 

For legal advocacy and advice regarding nursing home care planning, call us at … 732-382-6070

Pet therapy provisions in the New Jersey Skilled Nursing Facility Manual

Are you watching out for a loved one or a client who resides in a nursing home? You will want to become familiar with some of the provisions in the State’s regulations for skilled nursing facilities. In this series of posts I will talk about some sections of the Code and its appendices that are useful for a patient’s advocate to know about.

Let’s start with the provisions about pet therapy. Can a resident of a nursing home be visited by their pets? Can a resident of a nursing home bring in a pet to live with them? Facilities are permitted to establish protocols that enable a resident to have a pet as a companion or to receive visits from animals that are residents of the nursing home or are brought in as visitors. The details are in Appendix A, which is found at page 105-107. Appendix A.

The idea of bringing animals into nursing homes for pet therapy isn’t new. The NY Times did this piece about it in 1987, and  researcher H.M. Hendy at the National Institutes of Health published a study that same year in the International Journal of Aging and Human Development which was a follow-up study of the effects of pet visits vs. human visits on residents’ alertness and other indicators of contentment and satisfaction.

Under the New Jersey program, allowable companion pets are dogs, cats, non-carnivorous birds, domestic rabbits, gerbils, hamsters, guinea pigs and fish. Reptiles, ferrets and other wild animals are not permitted. The facility itself (or a staff person or other party) can own and maintain the animals,   or  a resident can own the animal and keeps it on the premises. Any animal that resides at the facility more than 4 hours a day is referred to as a “residential pet.” Appendix A contains explicit requirements regarding the health and safety of such animals.

There is a category called “visiting pets.” If pets are brought in so that the resident can visit with the pet, the party bringing it in must abide by certain requirements. Dogs and cats must be vaccinated, housebroken, and not in estrus (not “in heat”) at time of visit. Dogs must be licensed and tagged. The owner must accompany the animal and is responsible and liable for its behavior while on the premises. Visiting birds are not permitted, but hamsters, gerbils, guinea pigs, domestic rabbits, rats and lab mice may visit.

Resident pets and visiting pets cannot be allowed into certain areas such as nursing stations, drug preparation areas, linen storage areas and sterile supply rooms, for example. Food handlers may not be involved in the cleanup of animal waste. There must be a pet-free area within the facility so that residents can avoid undesired contact with animals. 

If you want to read the State’s entire manual of requirements for skilled nursing facilities, here it is. — Chapter 8:39 of the NJ Administrative Code.

A person who moves into a skilled nursing facility for long-term care is a resident, not a patient, and the SNF is their new home. Not only is an individualized plan of care required, but many protections and rights which  people have in their communities follow them into this new residence. Vigilant, attentive and creative advocacy can assure a good quality of life for your loved one in a senior care facility.

For advice and advocacy on senior care and elder law issues, call us at ……732-382-6070