Lauren S. Marinaro Presents on Variety of Elder Law Topics in 2019

At NJ NAELA’s Unprogram on April 10, 2019 in Morristown, New Jersey, Lauren S. Marinaro presented and facilitated a member discussion group on the Affordable Care Act, Expansion Medicaid eligibility and Medicare.  The discussion focused on the eligibility differences between being on Medicaid through the Affordable Care Act (ACA) and being on Aged, Blind, and Disabled Medicaid, as well as how to transition from one to the other when Medicare eligibility is achieved.  Also discussed was the use of the ACA Marketplace for certain individuals over the age of 65.  On June 5, 2019, Lauren S. Marinaro will present at the 81st Semi-Annual Tax and Estate Planning Forum in New Brunswick on the “Use of Restricted Credit Cards by Trustees and Trust Beneficiaries.”  Marinaro will also be presenting at NJ ICLE programs in November and December of 2019.

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

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

 

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