Linda Ershow-Levenberg, Esq.

About Linda Ershow-Levenberg, Esq.

Linda is the managing partner at Fink Rosner Ershow-Levenberg, LLC. She takes care of the legal problems of the elderly and of people young and old who have disabilities, by protecting access to government benefits and planning for life-long care with whatever tools may be needed. Linda has been certified in Elder Law (C.E.L.A.) by the National Elder Law Foundation since 1999, is the past chairman of the New Jersey State Bar Association Elder & Disability Law Section, and New Jersey Elder Law.

Find out more about Linda Ershow-Levenberg

Widow/er must be unmarried to claim deceased disabled veteran’s property tax exemption

TAX | ADMINISTRATIVE LAW
Veterans and their families may be aware that property tax exemption is available for 100% service-connected disabled veterans and disabled veterans suffering with certain specific severe conditions. The state law is found at N.J.S.A. 54:4-3.30.The law also makes these exemptions available to the veteran’s surviving spouse:  ” b. (1) The surviving spouse of any such citizen and resident of this State, who at the time of death was entitled to the exemption provided under this act, shall be entitled, on proper claim made therefor, to the same exemption as the deceased had, during the surviving spouse’s widowhood or widowerhood, as the case may be, and while a resident of this State, for the time that the surviving spouse is the legal owner thereof and actually occupies the said dwelling house or any other dwelling house thereafter acquired.” A claim must be filed, as specified by N.J.S.A. 54:4-3.31, and the surviving spouse must certify  the requirements set forth in N.J.S.A. 54:4-3.31, which includes a certification that the surviving spouse “has not remarried.”

A recent New Jersey Tax Court case examined the meaning of the terms widow and widower.  In  Rosanna Pruent-Stevens v. Township of Toms River, Tax Ct. (Brennan, J.T.C.), the court determined that the terms “widow” and “widower” define a person and not a marital status, and that the exemption would be available to the surviving spouse during periods in which s/he is not married after the death of the veteran. Rosanna Pruent’s husband was a Vietnam Veteran who was exposed to Agent Orange while in Viet Nam. He died in 1989 at age 41 of medical conditions that were possibly linked to Agent Orange, and his widow applied for DIC benefits from the VA. Finally the VA found that his death was service-connected, and awarded her the DIC benefits retroactive to his date of death. This determination was made in 2014 — 25 years after his death Meanwhile, she had remarried in 1993; it appears the married lasted only four years, and then this second husband died in 2014. In 2015 after receipt of the VA’s decision on service-connected disability, she applied for a real estate tax exemption as the widow of a disabled veteran. This exemption was denied, and the appeal to the Tax Court followed. 

The Tax Court concludes that because there is ” sufficient ambiguity” as to whether the term “has not remarried” indicates a present or past marital status, an examination of legislative intent was necessary to figure out the meaning of the phrase. The court determined that the legislative intent was that it represented present marital status. So, a surviving spouse’s exemption is available to them during periods when they are not married. The court also determined that “fundamental fairness” requires that  the surviving spouse’s marital status should not be considered until the VA has rendered its decision that the veteran had a service-connected disability and was rated at 100%. The surviving spouse would be eligible to apply as long as s/he was unmarried at that time.   http://caselaw.findlaw.com/nj-tax-court/1876350.html

Call us about elder and disability planning…. 732-382-6070

Keep a close eye on your loved one’s care in a nursing home

It almost goes without saying that if your loved one is admitted to a health care facility, somebody outside of the institution needs to immerse themselves in the treatment & care planning process, read the chart on an ongoing basis, know what’s being prescribed, speak with the care providers or treatment team frequently, and demand answers to reasonable questions about What is being planned, Why it’s being recommended, How it will affect the patient, Where the follow-up care will be, and Who needs to be available to implement a safe follow-up plan. If the family member who is known as the “first responder” is having trouble gaining access to this information, the patient or his/her agent under power of attorney can sign a HIPAA authorization.  Somebody has got to keep an eye on what’s going on: there can be a lag time between the time a request is made and when the physician or nurse can act on it; the addition of a new medication can create new symptoms and imbalance for the patient; if the resident exhibits dramatic changes in demeanor such as lethargy, falling, stupor, or increased confusion, the family needs to be able to address it right away. And of course, often, a decision by the family is being demanded in a big rush.

Another reason somebody has got to keep watch over the patient is that there are times when inappropriate or unnecessary treatment is being provided. CNN did a disturbing expose recently about the off-label over-prescribing of a medication called Nuedexta to nursing home residents who have Alzheimers’ disease and other dementias, but also have symptoms of depression. The article says:

The pill, called Nuedexta, is approved to treat a disorder marked by sudden and uncontrollable laughing or crying — known as pseudobulbar affect, or PBA. This condition afflicts less than 1% of all Americans, based on a calculation using the drugmaker’s own figures, and it is most commonly associated with people who have multiple sclerosis (MS) or ALS, also known as Lou Gehrig’s disease. … Since 2012, more than half of all Nuedexta pills have gone to long-term care facilities. The number of pills rose to roughly 14 million in 2016, a jump of nearly 400% in just four years, according to data obtained from QuintilesIMS, which tracks pharmaceutical sales. … Nuedexta is approved by the Food and Drug Administration (FDA) to treat anyone with PBA, including those with a variety of neurological conditions such as dementia. But geriatric physicians, dementia researchers and other medical experts told CNN that PBA is extremely rare in dementia patients; several said it affects 5% or less.

The report goes on to discuss, among other things, severe adverse consequences experienced by many patients who are receiving the drugs inappropriately.

The main point is not that I’m expressing a position on the bona fides of any particular practitioner’s prescribing patterns. It is, rather, to emphasize the extreme importance for every patient and every nursing home resident to have an attentive advocate watching over what is happening.

Call us for advice about elder care, nursing home placement and long term planning .. 732-382-6070

 

A happy day in Guardianship Court: Restoration

Today I had the great fortune to participate in a case in which a person who has been under guardianship for six years had their capacity restored in full.  This kind of situation doesn’t often happen, but it’s really fabulous.

This case started in 2010 when the parent and sibling came to me in an emergency to report that their loved one who I’ll call “X” had suffered a burst aneurysm and a stroke, and was in a coma in the hospital. The hospital advised that they seek guardianship, as there was no power of attorney or health care proxy in place. We filed the necessary papers, and the parent was appointed Guardian. The “ward” — a former executive with huge responsibilities at a major New Jersey corporation —  required extensive hospitalization, but eventually arose from the coma and was released. “X” had a very slow improvement in high level intellectual ability. Also, “X” had various lower body physical handicaps including partial paralysis and required a lot of hands-on assistance.

The family was utterly devoted, and with each year, “X” got stronger and more of “X’s” intellectual processing returned. At one point, “X” asked us to go back to Court, as “X” wanted to revoke “X’s” prior Will and make a new plan. That was accomplished, with the help of the “ward’s” court-appointed attorney. The Guardian and family continued to assist the “ward” with challenging exercises and tasks to help “bring the brain back.”

Finally, the Guardian contacted me and basically said “we think that “X” is ready to regain control of all decisions about their life. “X” has physical handicaps, but “X” can handle those with amazing specialized equipment which “X” knows how to use, and “X” will ask for help when necessary.” So we filed the necessary Verified Complaint with supportive medical reports, and today, following a hearing, the Judge granted “X” restoration of full capacity.

Pursuant to N.J.S.A. 3B:12-57.g.,  Guardians are required to encourage the ward to participate in decision-making “in order to encourage the ward to act on his/her own behalf whenever s/he is able to do so, and to develop or regain higher capacity to make decisions in those areas in which s/he is in need of guardianship services, to the maximum extent possible.” The incapacitated person has the right to petition the court for modification or termination of the guardianship, R. 4:86-7(a)(6),  and the Guardians have the duty under N.J.S.A. 3B:12-57f(10) to institute such legal actions as the “ward” could institute. How is that done? By filing a formal Verified Complaint and order to Show Cause with the court who has jurisdiction over the guardianship, supported by medical proofs and other relevant evidence.

Needless to say, “X” was grinning from ear to ear to receive the Judgment of restoration. So was the Judge … they rarely have the opportunity to see such a fantastic recovery by a person under guardianship.

Call us for advice on guardianship, conservatorship, power of attorney and elder law …. 732-382-6070

 

 

NJ law streamlines process for fiduciary resignation

A person who has been appointed as administrator of an estate or Executor under a Last Will and Testament is appointed to their role by either the Surrogate’s Court or Surrogate’s office. I’ve previously blogged about the steps to take if a fiduciary wants to quit the job. Previously, it was necessary to file a formal Complaint in Superior Court on notice to the beneficiaries. Amendments to the statute passed by the Legislature in New Jersey would enable a fiduciary who was appointed by the Surrogate to file this process through an application for resignation at the Surrogate’s Court which appointed him/her.PL 2017, Ch. 208 Download: New_Jersey-2016-A1955-Amended.html If s/he was appointed by the Court, a Complaint will still be required. The amendments deal with executors under a Will, administrators of estates, and trustees.

The law specifies the requirements for such a filing:

N.J.S.A. 3B:14-19 (a)… (1) a written statement of intent to resign, (2) a copy of the governing instrument which expressly authorizes resignation of the fiduciary, (3) proof of compliance with the terms, if any, set forth in the governing instrument, and (4) proof that the resigning fiduciary has served written notice of intent to resign on all co-fiduciaries and all parties to the estate or trust at least 20 days prior to filing with the court.”

In section (b), discharge must be granted as long as requirements are met: “A court in receipt of a request for discharge that meets the requirements established pursuant to subsection a. of this section shall discharge the fiduciary if: (1) no opposition has been filed, (2) the discharge will not be prejudicial to the estate or persons interested therein, and (3) either the estate or trust administration is concluded, there is a co-fiduciary with authority to continue with the administration, or there is a successor fiduciary appointed simultaneously with the discharge who is acceptable to the court.

Bear in mind that being discharged from the duties does not relieve the fiduciary from accountability.

The law takes effect 60 days after enactment, which will be October 7, 2017.

Contact us for advice on administering estates and trusts ….. 732-382-6070

 

 

Navigating the Coordination of Medicaid benefits with other benefits

Generally speaking, the Medicaid program is the payor of last resort. If an individual is eligible for Medicare as his or her primary health insurance, Medicare would be the primary payor for medical needs, and Medicaid would become the secondary payor for any remainder. If an individual maintains a “medi-gap” insurance policy, that policy would be secondary and Medicaid would be in third place. When it comes to paying for long-term nursing home care (or assisted living or home care), Medicare and most Medi-gap policies do not pay for it, so Medicaid becomes the primary payor. If an individual has a long-term care insurance policy, Medicaid would generally pay the remainder of cost, at the Medicaid rate, after the benefit provided by the LTC policy.

Interested in digging deeper into this coordination of benefits? The Centers for Medicaid and Medicare Services has published an excellent, user friendly guidebook. Enjoy!

Call us about asset protection planning, Medicaid eligibility and Fair hearings for denials of Medicaid benefits … 732-382-6070