The Landscape has changed for Guardianship in New Jersey

Procedures for filing for Guardianship are changing in New Jersey as a result of amendments to the Court rules that were effective 9-1-2016. The Rules are at N.J.R. 4:86-1 to 4:86-10. Guardianship petitions now must be initiated using a specific set of forms that have been prepared by the Administrative Office of the Courts.  A Guardianship Monitoring Program is being established in each county. After the pleadings are filed, the petitioner must complete a mandatory guardianship training program before the court hearing date, which includes watching a certain video about the Guardian’s many duties and responsibilities.  The alleged incapacitated person must attend the hearing unless his/her court appointed attorney and the petitioner’s attorney both certify  that s/he would be unable to attend due to physical or mental incapacity. Once the Judgment is entered, the Guardian must qualify as Guardian within thirty days. The physicians’ reports must specifically delineate the areas of functional decision-making in which the individual retains capacity.

There continue to be thorny legal issues that will come up in these cases.  Whether planning the care for a senior or a young person with disabilities, The law is bending towards limited guardianship, and sometimes it isn’t patently obvious that the individual lacks capacity in all respects. If the person who seeks to become guardian cannot be bonded due to their own prior financial difficulties or lack of personal resources, there may be a need to find somebody else to serve as guardian. The petitioner may need to obtain court permission for sale of real estate, or for placement of a mortgage on the property to pay off debt or support the individual in his/her home. The petitioner may wish to get court authorization for Medicaid eligibility planning including transfer of assets to spouse or other family members. The Verified Complaint, Order for Hearing, Physicians’ Certifications and Judgment are in a format that requires careful reading and additional legal drafting, in order to be sure that everything the petitioner knows and everything the petitioner seeks can be reflected in the forms that are submitted to the County Surrogate.

Call us for advice and representation in guardianship matters …732-382-6070

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

Block Grants Could Throw Elder Care into Chaos

Since the election, there have been serious plans put out there to radically alter the Medicaid program .  Right now, while it can be hard to get Medicaid without guidance and assistance,  if you meet the eligibility criteria you are entitled to receive certain statutory benefits under federal law.  The benefits provided to every person on Medicaid are paid for through a combination of  state dollars and federal dollars, and each state has a formula for this.

Block grants change this.  Instead of the federal government contributing a certain amount per person, each State would receive a yearly amount (block of funds), and the State would decide how to allocate the funds.  Right now, this is how the Temporary Assistance for Needy Families (TANF) program works. While block grants may provide enough money to help people in good economic times (when enrollment is lower), when times aren’t so great the money won’t go as far, and eligible people might not get the services they would have gotten before.  This could mean waiting lists for nursing home Medicaid residents (creating financial hardship for the nursing home providers), and waiting lists for receipt of home health care services by aged or physically disabled people residing in the community, as well as waiting lists for residential services for people with intellectual disabilities, and less health care for low-income adults and children. Here is the  KAISER FAMILY FUND Block grant analysis

What can we do about this?  I can think of a couple of things.  First, speak out–let your Congressperson know that you don’t like the idea of block grants and you don’t want services for seniors cut.  Second, really think about whether a loved one has put off seeking present or future public benefits that he or she could benefit from. Seniors need to plan for their care and it’s important to seek enrollment before the rules substantively change for the foreseeable future.  If you’re not sure, we’re here to help.

We can prepare and file your Medicaid application. Call us for legal advice about your eligibility … 732-382-6070

Statewide Transition Plan for Disabled Finally Threading the Needle?

Stakeholders in New Jersey made their feelings known in a big way to State DDD officials on a new transition plan that New Jersey had to give to the federal government showing the State’s increased efforts to develop residential placements that integrate people with developmental disabilities and other enrollees in the community. It looks like the revised plan has satisfied the stakeholders.

The new transition plan gives more opportunities to new residential service providers to explain how their  congregate settings will integrate residents into the community while also balancing issues of safety and service provision.  Previous rules limited the number of  disabled individuals who could reside together in one place This seems like a common-sense approach to complex issues of balancing the needs of the disabled person with the values of community integration.

One area that we will continue to monitor is the rights of residents in assisted living facilities.  The transition plan addendum states, “The DOH will take whatever steps are necessary, including potentially revising NJAC 8:36, to ensure that an agreement between an AL facility and each resident is in place and that the document provides protections that address eviction processes and appeals comparable to those provided under New Jersey’s landlord tenant law.”  Having systemic landlord/tenant protections for residents of assisted living facilities (ALFs) is vital because ALFs fall in between the legal areas of landlord-tenant law and nursing home law, leaving  ALF residents unsure of how the law protects them against wanton eviction.

Call us for advice regarding legal planning to protect the rights of persons with disabilities …… 732-382-6070

 

Guardian needs a Court Order to move incapacitated person out of State

Once a Court has ruled that a person is “incapacitated” and has appointed a Guardian of his person and property, the Guardian has many responsibilities and also, there are  certain restrictions on what a Guardian may do. The details are spelled out in New Jersey’s laws and court rules. Also, each County may have certain specific procedures of its own. One of these limitations is that the Courts of New Jersey have jurisdiction over the person of the individual who is under a guardianship, and a guardian must seek court permission to move the “ward” out of state.

A guardianship may last for many years, and there are certainly circumstances in which it is in the person’s best interest to move out of state. One example would be, if the Guardian needs to relocate for a new job or family circumstance. If the Guardian already resides out of state, s/he may find that the ward is running out of funds and could receive equivalent local care at much less expenses. There might be a specialized program out of state that is ideal for the individual, with a plan for the individual to become a resident of that state.

The Guardian typically would need to file a Verified Complaint with the same Court that entered the Guardianship judgment, seeking authorization to transfer their ward out of state. Very likely, the Court will want to see an updated report of the income and assets; a proposed care plan; an opinion from a physician or other involved professional that the transfer is medically safe and will promote the ward’s best interests; information from the receiving site that confirms the availability of a placement. The Court may appoint an attorney or a guardian ad litem for the incapacitated person.  If the ward has family members who remain in New Jersey and who have an ongoing involvement with the ward, the Guardian may want to consider obtaining consents from those people as well. The Guardian needs to put together as strong a case as possible to increase the likelihood of a favorable ruling. Clearly, this process won’t happen overnight, and the matter could become contested.

The Guardian is accountable to the Court, as the Court has continuing jurisdiction over the person residing in New Jersey who is under guardianship. As in all things, careful planning can prevent a crisis. If a guardian needs to relocate, they should start the planning enough in advance to facilitate a smooth transition to the receiving state for the senior adult or other person under guardianship. Once there, new proceedings will be needed to establish the guardianship in the receiving state … there is a uniform Act [UAGPPJA], but  each state has its own procedures for that.

Call for advice and representation on guardianship matters … 732-382-6070