More formality may be better with intergenerational households

As elder law attorneys, our clients have presented us with many difficult situations involving adult children or grandchildren who live in their houses. Sometimes a child has run into some hard times and sees the parent’s home as an economical option; the child may move into his parent’s house along with his spouse and children. Sometimes the child just never became self-sufficient and never made any plan to move out. The adult child may or may not be disabled. Sometimes the expenses are being shared to a degree, but often the parent pays for most of the expenses. The parent may be wrestling with a feeling of obligation, and the child may have a feeling of entitlement. The child may feel that they are “taking care of the parent,” yet the actual need for care or the work being done may be imprecise and doubted by others in the family.

The longer the arrangement lasts, the more difficult it can be for the parent to move on. The dynamic can really change when there are other children who are upset at the arrangement. The parent’s financial security may get on edge. Things can particularly blow up when the parent has to hire a caregiver or wants to sell the house in order to downsize or move to assisted living or nursing home.  How can all of these competing interests be managed? How will the house be sold, and where will the child go?

Aging parents who are still supporting their adult children may want to do some careful planning. They need to consider what will happen to them if they need their funds for care but their child is counting on all of that ongoing financial support. There are many issues to consider. Should they charge actual rent? Should there be a written lease that specifies that occupancy only continues of the occupancy fees are paid? Should they put restrictions on the child’s behavior so that the parent’s peaceful residence isn’t disturbed? A parent may want to put a provision in his or her Will that allocates some extra amount for the dependent child so that at the parent’s death, there are extra funds for relocation. By putting protective provisions into the estate plan, the parent may be able to provide better protections than counting on other family members to honor the parent’s verbal “wishes.” It may not work well to just assume that the whole family will be able to work out an agreement to support the dependent one after mom or dad passes on.

At some point, should the parent insist that the child move out, but agree to pay for the alternate housing for some period of time? What if the house is going to be sold. Does the parent want to give the child written, enforceable rights to remain in the house for a certain amount of time under certain terms & conditions if the parent dies or moves out? How will that impact the parent’s well-being, or the ability of their Executor to wrap up the estate after death? Will the child need a new guardian or life care planner?

Call us for legal advice on developing a family well being plan … 732-382-6070

When Hiring In-Home Caregivers, Consider the Legal as well as Personal Issues

Under New Jersey law, the field of home care services is regulated by the NewJjersey Department of Health, and the copious regulations can be found in N.J.A.C. 10:60. Home health aides and home health nurses are credentialed by the NJ Board of Nursing. The requirements for licensure of Home health care agencies can be found at N.J.A.C. 8:42, Home Health Agency Licensing Standards. By 2017, all home health care agencies will have to be licensed and meet these requirements. Here are the rules: NJAC 10-60_Home Health Care Manual . The federal Department of Labor has many of its own regulations as well.

New Jersey treats domestic employees as any other employees who are entitled to the protection of the wage and hour laws. Federal law also contains many specific requirements for homecare workers. Among these are rules pertaining to payment of minimum wage, whether sleep time is included as paid time, and more.

The employer’s obligations are also discussed in the state’s gross income tax booklet. And h Here is a technical bulletin from the Division of taxation:Household Employees N J Treasury Technical Bulletin

Previously I blogged about the distinction between independent contractors and employees and issues with payment arrangements.

When setting up a paid in-home companionship or caregiving arrangement, it is vital that you examine all of the requirements contained in the federal and state laws. A person who is acting under their authority as Guardian or as agent under power of attorney could be held to the same standard as the principal (aged or disabled employer) themself. Failure to adhere to the requirements could lead to investigations and penalties if the relationship doesn’t work out. And of course, failure to document or failure to prove the payments made for the work can lead to Medicaid penalties for alleged transfers of assets.

Call us for advice and assistance in structuring an elder care plan … 732-382-6070

We Respect Our Aging Parents by Helping Them Plan for Future Needs

Could this be you? You’re in your thirties or forties, with several active children and a busy social and business life. You’ve got volunteer activities and school programs to keep track of. Your parents are in their seventies or eighties, have their own home, and appear to pay all their bills when due. You have no idea what your parents’ income or assets are because they don’t want to bother you about it, and they seem to be able to manage on their own. You and they have always known that they would be able to depend upon you for loving care and support if the need arose. You and they have always known that if necessary, you will arrange to take care of them, and you will try to keep them in their home.

Then one day you start to realize that your mother is asking very confused questions, and is calling you repeatedly to ask the same thing over and over, not remembering your recent answers. You visit the house and you find that she’s letting the mail pile up, and your father seems unable to communicate clearly. A neighbor calls you out of concern that they’re not able to take care of themselves. Or you get a frantic phone call informing you that one of your parents has had a terrible stroke, is in the hospital  and will need nursing home care, which can cost $11,000 a month. You wonder whether you’ll be able to keep them at home. And you feel so disrespectful when you try to step in and manage the elder care situation.

Sound familiar? When these problems develop, they can be readily handled if the family planned ahead. Without planning, these problems are likely to become a major crisis.

The longer we live, the higher the risk of catastrophic illness and expense. What can you do to protect your parents, and prevent the chaos which so often occurs when a person becomes severely, irremediably disabled? You can encourage your parents to do what I call Disability Planning. Careful planning is like having insurance on your home – you wouldn’t dream of not keeping up that policy, even though, in your entire lifetime, you probably won’t ever put in a single claim. What follows is a discussion of the key elements of disability planning. It must start with asking questions, and helping your parents to share information with you so that you can take care of them when the time comes.

ASK THEM TO UPDATE THAT OLD WILL. If one spouse is severely ill, such as with Alzheimers’ Disease, it may not be a good idea for them to inherit their spouse’s entire estate outright. The other spouse may want to divide the estate between the ill spouse and the children, or to create a Trust to receive the inheritance. It’s probably time to select someone else as the Executor also. And be sure to plan carefully for the future care of a dependent disabled child by considering a  Supplemental Needs Trust.

ASK THEM TO SIGN A DURABLE POWER OF ATTORNEY. If your parent becomes completely incapacitated and can’t manage their affairs, but never designated an Agent by signing a Durable Power of Attorney, no one will be able to carry out transactions with the parent’s assets. The house can’t be sold; gift transfers to children or spouse can’t be made; life insurance can’t be cashed in; contracts can’t be signed; stocks can’t be sold; etc. It will be necessary for someone to file a legal action for a Guardianship, in which they seek to be appointed as the parent’s Guardian by the court. Unfortunately, sometimes there is bitter disagreement among family members. If there is any disagreement in the family as to who should be the Guardian, there may be a drawn-out, costly legal battle, during which the court will designate a third party to be the guardian until the final decision is made. Your parent will have no control over the outcome. A comprehensive Durable Power of Attorney should be signed which covers everything from banking to life insurance, 401K’s, gift transfers and real estate. It can be made to be effective as of the time it is signed, or it can “spring” into effectiveness at some specified later date or condition. Your parent can leave their Power of Attorney with their attorney, to deliver to the Agent when some specified condition occurs.

ASK THEM TO SIGN HIPAA FORMS AND A LIVING WILL OR A HEALTH CARE PROXY. Living Wills (also called “advance directives”) express a person’s wishes on whether life supports should be used if the person is in a severe, vegetative or terminal condition, or has advanced brain diseases which leaves him/her unable to interact with others in a meaningful way, and then suffers a life-threatening event like a heart attack, kidney failure, breathing failure, or inability to swallow. A Health Care Proxy document doesn’t express advance wishes, but it does appoint the designated decision-maker who would make all the health care decisions if the patient could not communicate with his/her doctors. The HIPAA form will immediately enable a health care provider to share confidential information with the trusted person who is trying to help out. HIPAA.

What happens if there’s no advance directive or proxy?

Typically, the doctor will turn to the spouse for guidance, consent and decision-making. In a case of no spouse, there is increased risk of disagreement if there’s more than one child. One will see improvement where the other sees hopelessness. One will be willing to implement the advance wishes the parent expressed verbally in conversation; the other won’t agree because he can’t let go. It is the Living Will which stands as the clearest expression of the parent’s wishes regarding resuscitation and other life supports, regardless of the personal preferences of other family members.

COMPILE AND CONSOLIDATE THE ASSETS. Your parents need to know what they have in order to plan for how they’ll pay for care in the event of disability. They should save five years’ of bank records, cancelled checks and financial statements, as well as their filed income tax returns.

DEVELOP A PLAN FOR LONG-TERM CARE. Care can be provided in the home, in an Assisted Living group residence, or in a nursing home. Unless the person is eligible for Medicaid, s/he’ll be paying privately for care. Can your parents still take care of each other? Who should be brought in? To be eligible for Medicaid, the applicant’s assets must be below specified levels and there is a complex network of laws that typically need a lawyer’s interpretation. Since Medicaid doesn’t pay for 24/7 care in the home, careful planning means looking into all the ways your parents could finance their care at home, whether that’s with a reverse mortgage or other means.

The Medicaid applicant can be asked to provide the last 5 years’ of documentation of the value of each of the assets, copies of all cancelled checks, as well as proof of what was done with each of those assets. The more disorganized your parent’s portfolio, the harder it will be for you to provide the necessary documentation. Banks are now charging high fees to retrieve bank records for customers.

DON’T JUST GIVE EVERYTHING AWAY WITHOUT A PLAN. Also, they should not make gifts of their assets without advice from an attorney familiar with the consequences of doing so. So if they do wish to transfer assets to the children, they must be sure to get advice from an elder law attorney with substantial expertise in this area.There are many different strategies which can be utilized to protect the family’s assets. Sometimes it is a good idea to transfer full or partial ownership of the house, and sometimes it isn’t. A lot depends on the other assets available to pay for care if it is needed. Also, a lot depends on the family structure and the impact on a potential Medicaid application. Once assets are given away,  the parents may not have as many choices as they need for different kinds of care which have to be paid for privately.

In conclusion, you show your love and respect for your parents by helping them to plan for their future protection. Careful planning is the key to success when it comes to your parents’ personal wishes, their financial security, their family’s peace of mind.

Call us for help in planning for a good old age ….. 732-382-6070

 

 

Don’t guarantee that nursing home bill unless you plan to pay it

When an individual moves into a nursing home for long-term care, there are an array of admissions documents that get signed. These include everything from personal preferences information to insurance and financial disclosures, medical releases, selection of physicians etc. One of these documents contains the contract for payment for the services being rendered.

Typically, the contract contains the daily rate and potential add-on charges, as well as information concerning the obligation to pursue potential Medicaid eligibility. The party signing the contract agrees to  pay the bill and to file a Medicaid application in a timely way, and to pursue that Medicaid application process by providing necessary documentation to the board of social services. Who should sign the contract?

Nursing homes are regulated by the state and federal governments. The law prohibits a nursing home facility from requiring a third party guarantee of payment as a condition of admission to the facility http://www.ecfr.gov/cgi-bin/text-idx?rgn=div8&node=42:5.0.1.1.2.2.7.4   [41 CFR 483.12(d)(2)]. These are among many protections contained in the federal Nursing Home Reform Act, http://www.law.cornell.edu/uscode/text/42/1395i-3  [42 USC 1395i–3(c), and the NJ law is at NJSA 30:13-3].     Nevertheless, it is not uncommon for nursing facilities to request that a family member or friend also sign the Admission Agreement as a “responsible party.” There is typically an optional signature line for the “responsible party.”  Be careful. If you choose to take on that responsibility, you may find that you’ve made a binding contract to personally pay the nursing home if the resident fails to pay or fails to become eligible for Medicaid.

The admission contract should be signed by the incoming resident. It can also be signed by the spouse, because — at least under NJ law —  married people who reside together are legally responsible for each other’s “necessary” medical bills [Jersey Shore Medical Center – Fitkin vs. Estate of Baum,  84 NJ 137 (1980)]. This post, though, is really a caution to the non-spouse who is involved in the situation. If the resident is incapable of signing the contract themselves, the legal representative should sign on their behalf  and should clearly indicate their role. The legal representative would be either the court-appointed Guardian or the person who is the Agent under Power of Attorney. Either way. the legal representative is the person who manages the funds and government benefits for the applicant, and basically “stands in the shoes” of the applicant. By signing the contract on behalf of the resident, they take on the obligation to make sure they pay the bill from the resident’s income or assets and to file a Medicaid application when that becomes necessary.

Although a nursing home is a health care facility, the admissions contracts can be complex. Legal advice is useful to make sure your interests are protected.

For advice on nursing home admissions, Medicaid and elder care care, call 732-382-6070

Agent under Power of Attorney Can’t Stand in for Party to a Divorce Action in NJ

In a decision published yesterday, a New Jersey judge has ruled that a party to a divorce case cannot avoid the need for their personal participation by having their agent under Power of Attorney appear on their behalf. The case of Marisco v. Marisco, Chancery Div.-Ocean Cy., docket no. FM-15-1152-13-N (Jones, L. R., J.S.C.) involved a divorce action between a husband and wife in their 80’s. The husband (defendant) had designated his daughter as his Agent under Power of Attorney, and it was she who signed the Certification to his Answer and Counterclaim. The plaintiff objected, and the court agreed with the plaintiff.

The decision is an interesting review of the limits on the authority of a POA and the general requirements for personal participation in divorce actions by the parties to a divorce, including the potential need for personal testimony at all proceedings.  The Judge ruled  that  unless there has been a finding that a party is “incompetent” (incapacitated) or that a legal guardian needs to be appointed,  the POA can’t testify on the party’s behalf or attest to facts by signing his certifications (unless the other party consents).

One of the reasons discussed by the Judge is that there are rules limiting the admissibility of hearsay in court proceedings, and a witness (such as the person who is the POA) can only testify to matters that are within his or her personal knowledge. If s/he were to testify about things known only to the party, it could be inadmissible hearsay. This would of course deprive the court of necessary facts, would increase the unreliability of the testimony, and would impede the ability of the other party to cross-examine.

On the other hand, if a legal guardian has already been appointed for a person who is now a party to a divorce, the guardian can actually “stand in the shoes of” the incapacitated party. See Kronberg v. Kronberg, 263 N.J. Super. 632 (Ch. Div. 1993) and Kingsdorf v Kingsdorf, 351 N.J. Super. 144 (App. Div. 2002). http://www.leagle.com/decision/1993895263NJSuper632_1840.xml/KRONBERG%20v.%20KRONBERG  and  https://www.courtlistener.com/njsuperctappdiv/8T1R/kingsdorf-v-kingsdorf/

We represent clients of all ages including clients with disabilities in divorce and non-dissolution support actions … call 732-382-6070 

http://www.ershow-levenberg.com/articles/divorce-only-answer.html