Medicaid Stakeholders Attend the Big MAAC

New Jersey FamilyCare’s Medicaid program has many components that serve different population groups of people who are aged, disabled or poor. Did you know that there is a Medical Assistance Advisory Committee (MACC) which meets regularly and is required to hold quarterly public forums? On February 5th, along with other members of New Jersey NAELA, I attended the first MAAC (Medical Assistance Advisory Committee) meeting of the year.  MAAC meets quarterly outside of Trenton to discuss issues related to Medicaid and to take stakeholder input. It was quite a lively meeting.

In the audience there were attorneys, non-profit advocates, members of County Boards of Social Services, representatives of the Medicaid Managed Care Organizations and several Medicaid enrollees.  Here are some of the issues discussed  at the meeting:

— implementation of S499 and how that relates to denials of Medicaid applications for failure to provide certain information;

— Transitioning Medicaid/ MLTSS  recipients from a nursing home to a home in the community and how to assure continuity of care when the person switches from one program to the other;

— reductions in Private Duty Nursing and Personal Care Assistant (home health aide) hours for certain enrollees;

— how enrollees transition from one way of having Medicaid eligibility to another.

— an update on the Coronavirus, and many other topics.

I asked questions and expressed concern about how the State was implementing S499’s provision about giving extensions to applicants to obtain documentation.  I also commented on the importance of planning ahead for Medicare eligibility when a Medicaid recipient is eligible under the ACA.

Stakeholders at the meeting have a chance to ask questions of the state officials who are responsible for the Medicaid program, and they also have a chance to make recommendations for future MAAC meeting presentations.  If you have a concern about the Medicaid program in New Jersey, consider attending these meetings, or bringing them to the attention of your elder law attorney or another organization who can bring the concern to the MAAC.

Call us for advice on medicaid eligibility planning, applications and appeals ……… 732-382-6070

Marinaro is new NAELA Federal Policy Co-Chair

The National Academy of Elder Law Attorneys held its annual meeting in Fort Worth, Texas last week. Lauren S. Marinaro was selected as the incoming Co-Chair of NAELA’s Federal Policy Committee.

Marinaro is  President of the New Jersey Chapter of NAELA (NJ-NAELA), which advocates on legislative and policy matters that affect senior citizens and people with disabilities in New Jersey. She’s a Partner with Fink Rosner Ershow-Levenberg in Clark. She  attended the NAELA Annual Meeting and Trust Workshop in Ft. Worth, Texas on May 8-10th. While there, she participated in discussion groups on various Trust topics, facilitated a workshop on NAELA State Chapter advocacy and growth, and was announced as the 2019-2020 Federal Policy Committee co-Chair. The members of both state and national NAELA are attorneys who are experienced and trained in working with the legal problems of aging Americans and individuals of all ages with special needs. Established in 1987, NAELA’s mission is to educate, inspire, serve, and provide community to attorneys with practices in elder and special needs law. The organization also provide plenty of information for the public who may need such legal services.

Among the “hot topics” in Federal Policy that Lauren will work on through her activity with NAELA for 2019-2020 and beyond are monitoring 1115 Medicaid Waivers, fighting for improved spousal impoverishment standards for community-based Medicaid, supporting the Money Follows the Person initiative, protecting inherited IRAs for disabled and vulnerable heirs, and civil rights initiatives for disabled individuals and the elderly. Read more by clicking on those links, and contact Lauren or your legislators if these issues are of interest to you.

For advice on elder care senior planning and special needs, contact us at 732-382-6070

Brokerage found not liable to non-customer in joint account dispute

The owner of a financial account may choose from a variety of designations and forms of ownership for the account. It may be solely-owned; it may be jointly owned with right of survivorship but no independent access during lifetime; it may be “either-or,” it may be “pay on death to …,” it may be “in trust for …” Each of these carries very different legal ramifications during the lifetime of the account holder and after his/her death.  If a solely-held account is changed by the account holder to be jointly held with someone else, to what extent can the disgruntled heir of the estate seek compensation from the corporate financial entity which holds the account and processed that paperwork? The  NJ Appellate Division decision in Wolens v. Morgan Stanley Smith Barney  sheds some light on this subject.

The Court explained, “As a general proposition, the case law in our state has not recognized that a financial institution owes a legal duty to injured third parties who are not their customers unless a statute, regulation or other codified provision imposed such a duty, or where a contractual or “special relationship” has been established between the non-customer third party and the financial institution.”

What happened in this case? The Plaintiff’s mother had owned investment account(s) in her name alone at Morgan Stanley Smith Barney (MSSB). The accounts made up most of her estate.  At some point, she presented MSSB with a written request to change the account’s title so it was jointly held with one of her three daughters. She passed away four months later. Another of her daughters learned about this after her mother died, when it was disclosed that this “non-probate asset” would not be passing through the probate estate and would not be shared with the people inheriting under the mother’s Last Will and Testament.

The dissatisfied daughter sued MSSB for honoring her mother’s request. The Court dismissed the action, finding that MSSB did not owe any legal duty to the plaintiff to protect her potential interest, because the plaintiff was not a customer of MSSB and MSSB had not established any contractual or special relationship. The Court emphasized that even if there had been wrongdoing on the part of the daughter whose name was added to the account, that would merely provide a possible cause of action against her in connection with the estate, and it would not establish a basis for liability on the part of MSSB, who had no relationship with potential heirs of their customer’s estate.

The Estate planning process involves looking carefully at all of your assets and how they are structured, to be sure that the Plan you think you have is the Plan you actually have.

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

732-382-6070

 

 

Section 121 exclusion of capital gains available if nursing home resident resided in home 1 of last 5 years

Sale or transfer of a primary residence is often a major consideration in elder care planning. Property may be transferred from an infirm spouse to the “healthy spouse.” Property may be sold because the homeowner has to move into a nursing home or other care facility. Property may be transferred to the “caregiver child” in connection with a Medicaid application. A residence may be transferred “to the kids” to preserve its value for their benefit. When a sale or transfer takes place, there may be substantial capital gains incurred due to the large increase in value that has occurred during the decades that the elder resided in the property since time of purchase. This is where Section 121 of the Internal Revenue Code comes in. Let’s examine a few of the provisions.

Section 121 provides an exclusion from income tax of up to $250,000 of capital gains ($500,000 for a married couple) once every two years upon sale of the primary residence. The basic requirement is that the seller has resided in the property for 2 of the 5 years prior to sale. This would mean at least 2 years from the date the seller acquired title.

What about sales by widow/widowers? Under Section 121(b)(4), if the widow/er sells the residence within 2 years of the death, and all the other basic criteria are met, they can exclude up to $500,000 of gain.

What if the seller didn’t reside in the house the entire time? The time in which the person resided elsewhere before moving out for good is referred to as “nonqualified use,” and Section 121(b)(5)(C) specifies that there will be a proportional reduction in the exclusion based on the ratio of nonqualified use since 2009 to the whole period. There are a few exceptions.

What if the couple is married filing jointly, but only one spouse meets all of the requirements? Under Section 121 (d), They can claim the full $500,000 exclusion.

What if the seller has to move into a nursing home before the sale, or has resided in and out of health care facilities during the 5 years before the sale? Section 121(d)(7) has special provisions about that. If the individual “becomes physically or mentally incapable of self-care” and resided in the home for periods of time that, in aggregate, equal at least 1 year out of the past 5, “then the taxpayer shall be treated as using such property as the taxpayer’s principal residence during any time during such 5-year period in which the taxpayer owns the property and resides in any facility (including a nursing home) licensed by a State or political subdivision to care for an individual in the taxpayer’s condition.”

What if the parent transfers the property to a child who does not live there? The Section 121 capital gains exclusion will not be available to a family member who has received the property but then does not use it as his/her primary residence. When the property is later sold, there will be probably be capital gains to contend with, because the adjusted cost basis in the hands of the parent is “carried over” to the child who received the property.

Call us about asset protection planning and elder care ……… 732-382-6070

WW II Crew memoirs available for interested readers

I have a group of books about  World War II bombers that I would love to give to any of my readers who are interested in these subjects. Some of the books are crew memoirs with photos and mission descriptions from the  Air Force campaigns in Foggia, Italy and North Africa, others are about related incidents in the Italian and eastern European Campaigns. Why do I have these? My late father  Walter (“Wally”) Ershow was a B-17 bombardier on the 15th Air Force, 2nd Bomb Group, 20th squadron, crew # 7619 based at Amendola in the Apuglia region of southeastern Italy. In his later years he started collecting books about the bombadiers and their crews. I have the books, and if you or anyone you know is interested in reading any of these, I will be glad to send the book to you. Please get the word out to anyone who’s potentially interested. Send me an email at linda@FinkRosnerErshow-Levenberg.com or call my office 732-382-6070 and leave me a voicemail.

Here’s what I can offer you:

Wrong Place, Wrong Time! The 305th Bomb Group & the 2nd Schweinfurt Raid by George C. Kuhl (8th Air Force);

Crew Umbriago (Third Air Force; 463rd Bomb Group) original copy, crew memoirs  compiled by Maj. Daniel P. Carroll USAF;

Chick’s Crew: A Tale of the Eighth Air Force by Ben Smith, Jr. (303rd Bomb Group under Lt. Anthony J. Cecchini)

Those Brave Crews by Ray Ward (signed by the author 12/23/1991)(B-24 heavy bombers; Ploesti Romania raid);

Nightmare in Bari – the WW II Liberty Ship Poison Gas Disaster and Cover Up by Gerald Reminick;

Bombing Iron – Airworthy bombers of WW2 and Korea by Michael O’Leary;

The War Between the Generals – Inside the Allied High Command by David Irving, and

Guidebook of the Unites States Air Force Museum (Photos of the planes)

Call us for advice on legal issues in New Jersey concerning aging and disability, nursing home care and family protection planning ….. 732-382-6070