Remarriage terminates widow’s eligibility for disabled veterans property tax exemption

There are some circumstances in which a person’s eligibility for governmental benefits is affected by his or her marital status. This is certainly the case with Medicaid/MLTSS; Supplemental Security Income; and exemption from inheritance tax on receipt of an inheritance. The NJ Appellate Division had the opportunity recently to decide whether a veteran’s widow would retain her eligibility for his veterans’ property tax relief if she remarried. In  Pruent-Stevens v. Toms River Twp., the property owner’s first husband was an honorably-discharged Viet Nam veteran. He died before 1997 at a time that he had a pending claim for service-connected compensation benefits due to exposure to Agent Orange defoliant. She remarried , and her second husband died in 1997.  eventually, in 2014 (!) the Veterans Administration approved the claim and declared that the first husband had died of a service-connected disability. She then filed for disabled veterans property tax relief from Toms River.

The relevant statute allows a town to grant tax relief to the widow/widower of a disabled veteran  provided that s/he “has not remarried.”  The issue in the case was whether that status only pertained to the time that the application for the exemption was filed, or if it was a blanket cut-off for exemption eligibility for a widow who remarries at any time.  The New Jersey Tax Court  decided that the phrase “has not remarried” should be interpreted to mean that as long as the widow/er wasn’t married at the time of the application for exemption, the exemption would be available. In other words, it could turn on and off. She was unmarried in 2016 when her application was filed, so the Tax Court ruled in her favor. The Town appealed.

The Appellate Division reversed.  Finding that she had no “vested right” at the time of her 1997 remarriage, and that in other areas of New Jersey law, “widow” is defined as a person who has not remarried,  the court ruled that the potential entitlement to the exemption was lost as a result of having ever remarried.

Call us for advice on senior care planning and estate planning ….

732-382-6070

Hearing Monday in Trenton on Social Isolation and Age-Friendly communities

New Jersey is working on efforts to encourage municipalities to become “age-friendly communities.” Age Friendly is spreading across the country, with interesting initiatives in many places. Take a look at South Orange-Maplewood, Chatham, and Elizabeth for starters. Looking for volunteer opportunities? Contact your Mayor — you may be able to get involved with those initiatives or help to jump-start a new process. Age-friendly is an approach to community development that looks at the impact on seniors of a community’s physical space, transportation, recreation opportunities, public building access, access to municipal government and services, housing, etc. etc. and what might be done to improve those systems to make it more feasible for people to “age in place.”

Two new bills will be introduced to the NJ legislature which addressing key issues concerning older adults.  Click here to read the text

https://www.njleg.state.nj.us/2018/Bills/AR/246_I1.PDF

 https://www.njleg.state.nj.us/2018/Bills/A9999/5314_I1.PDF

 A-246 is a Resolution co-sponsored by Assemblyman Herb Conway and Assemblyman Wayne DeAngelo that urges New Jersey counties and municipalities to take the steps necessary to be accepted into the AARP network of age-friendly communities as defined by the World health organization.

A-5314 requires the Commissioner of the Human Senior Services “within 180 days and biennially thereafter” to assess and report to the Legislature on the state of social isolation in New Jersey as if affects individuals who are over 65, have disabilities, are suffering with mental illness, or are otherwise vulnerable. The bill marks a recognition that extreme social isolation is a problem in the State which adversely affects many citizens and might be alleviated if better understood and tackled. The report must also include recommendations for strategies to counter this problem. 

The Committee hearing will take place Monday morning May 19th at 10 am in the Committee Room 11, 4th Floor, State House Annex, Trenton.

If these issues are of interest to you, contact your Legislators, and read more here.

 

Planning for a good old age involves looking at a wide array of issues, and each person’s situation is unique. Call us for individualized elder care legal planning …. 732-382-6070

SS to allow predesignation of future Representative Payee

Congress has passed, and the President has signed,  the “Strengthening Protections for Social Security Beneficiaries Act of 2018”.  This statute makes changes to the Representative Payee system of the Social Security Act.

A Representative Payee is appointed by the Social Security Administration to handle the benefits of a person whom the SSA deems incapable of managing his or her own benefits. Examples are adults under guardianship, minors, and persons who suffer with severe cognitive or physical disabilities. A Representative Payee is like an informal Trustee — s/he is expected to keep the SSA income in a designated account [under the Social Security # of the incapable individual, of course] and spend it only on the SS recipient, unless there is a court order that allows other spending. The SSA sends out an annual report statement to the Representative Payees, who are expected to complete it, sign it under penalty of perjury, and return it to the SSA. Apparently there are insufficient resources to audit and monitor the millions of such reports that are filed each year, so there will be federal grants to state and local auditing entities..

Under Secn. 201,  Social Security or SSI recipients over age 18 can designate “at any time” a person — but not an organization — who they want as their Representative Payee should the SSA determine that such appointment is required. The Social Security Administration must select the designated individual as Rep. Payee with certain exceptions, most notably, if the person had been convicted of any of a wide range of crimes. Even that exclusion can be waived in certain cases involving a designated person who is in a close family relationship to the benefits recipient or in the “best interest” of the benefits recipient. Section 201 amends 42 USC sec. 405 (j)(i) by adding (C) (1) to the end of that subsection.

The Act doesn’t specify the form of document that the person needs to sign when making his or her own designation.  I think that it could be included as a paragraph in their Durable Power of Attorney. A State Guardianship Court could order that the Guardian have preference for appointment as a Representative Payee. Section 201 amends 42 USC sec. 405 (j)(i) by adding (C) (1) to the end of that subsection.

Within 18 months the SSA is required to issue regulations. Among other things, there must be forms provided, and the regulations must specify the information that beneficiaries must provide to SSA about the designated individuals. Also, the SSA will be required to notify beneficiaries who have designations annually with the names of the advance designees. The forms and instructions must be published by December 13, 2019.

Another useful amendment is found in Secn. 102. Under this amendment,  the Spouse or parent need not become Rep Payee for someone whose benefits they handle, if they live in the same household. This should make things more convenient for most cases. Of course, in a very bad situation, there could be a need for someone to intervene on behalf of the vulnerable adult in that household, but such an action can be initiated by any interested party if they become aware of the need for a protective arrangement.

Link to the statute permitting designation of a representative payee in advance is below:

https://www.congress.gov/bill/115th-congress/house-bill/4547/text

The law is effective two years after the date of signing, which will be April 13, 2020.

Pre-designation of a Representative Payee is just one component of a senior care and disability protection plan. Updated estate plan documents, powers of attorney, beneficiary adjustments, and other steps may be appropriate depending on the situation.  Each situation is unique and has its own special concerns.

For legal advice and assistance with elder care and disability planning, call us at ………. 732-382-6070

 

Ambiguous Drafting can Cause Expensive Litigation

What’s the meaning of a sentence in a Trust or a Will? once the ink is dry on the paper, the document is expected to “speak for itself” without the need to hunt for external evidence to understand the meaning of the words. A recent case called In the Trust of Roger S. Linn, decided by the Nebraska Supreme Court, illustrates the problems caused by ambiguous drafting.

Roger Linn had established a trust for benefit of his wife Shirley, and his children were the remainder beneficiaries. At a certain point after his death, Shirley moved to an assisted living facility. The Trust document required  the Trustees to pay all income to Shirley, but distribution of principal was within the Trustee’s sole discretion. The trust document specified in Article V.10(f) that the trustees had to pay “any obligations that the Donor’s spouse may incur in acquiring assisted living or nursing home care.” The Trustees paid the down payments and move-in fees to “acquire” the apartment within the assisted living facility, but they refused to pay for the ongoing monthly costs for Shirley to live there. That led to this litigation. Each side argued that the Trust was unambiguous and supported their position. The Trial court (District Court) found that the Trust was clear – unambiguous — and that it did not obligate the Trustees to pay for the ongoing costs. The Supreme Court ruled that the language was actually unclear – ambiguous — and remanded for a trial to determine the intent of Mr. Linn.

Similar cases have occurred in New Jersey, and the standards are similar – the Court looks first to the express words of the document read in conjunction with the document as a whole to arrive at their natural meaning, and seeks to determine the intention of the Trust’s creator in that manner first, before turning to extrinsic evidence. There is a state statute about this — N.J.S.A. 3B:3–33.1(b), which says that the trust’s language and statutory rules of construction control “unless the probable intent of such settlor or of such individual, as indicated by the trust or by such governing instrument and relevant circumstances, is contrary.”  A recent New Jersey case with this problem was In re the Trust of Violet Nelson (2018).  However, as with all litigation, it’s expensive for everyone involved.

Sometimes it’s necessary to draft the language with many more words or sentences to achieve clarity. Always, the draft should be reviewed from the perspective of someone reading it years down the road when all that one can depend on is the words themselves. Will the plain intention be clear? That’s the test of a well-written document.

Careful planning can avoid a crisis. Call us for advice and assistance with preparing your estate and trust plans ……… 732-382-6070

 

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