Tenancy by the Entirety – a form of ownership with special protections

In the recent case of  Jimenez v. Jimenez, N.J. Super. App. Div.(MAY 8, 2018) (approved for publication), the NJ Superior Court, Appellate Division rebuffed the efforts of a creditor to force the sale of a home owned by the debtor and his spouse as tenants by the entireties. Relying upon a New Jersey statute, the Court held that the legislature has prohibited spouses from severing their tenancy without the written consent of the other spouse, and therefore, the creditor of one spouse may not force such a severance in order to satisfy the debt. The statute is NJ Rev Stat § 46:3-17.4 (2013), which says: “Neither spouse may sever, alienate, or otherwise affect their interest in the tenancy by entirety during the marriage or upon separation without the written consent of both spouses. ” Before that statute was adopted in 2013, the Courts had discretion as an equitable matter to order a partition under certain circumstances. Newman v. Chase, 70 N.J. 254, 262 (1976).  The Jimenez Court did make a cautionary point: “That said, we do not preclude a remedy by a creditor against property held by tenants by the entirety when the title was deeded as a fraudulent conveyance in order to avoid known debts to creditors.”

What is Tenancy by the entireties? This  is a form of real property ownership reserved for lawfully married couples. The Deed normally uses language such as “X and Y, husband and wife,” or “X, married and Y his wife,” or perhaps “X and Y, wife and wife.” It must designate the marital relationship. In New Jersey, a couple who reside together but are not married cannot own property by the entireties. They may own the property jointly with survivorship, or they may own it together as “tenants in common” without survivorship. If the property is owned by a married couple by the entireties, then they each own 100% of all rights in the property, as neither spouse can transfer his/her interest without consent of the other spouse.  State law presumes that if a married couple acquire property, it is held by the entireties unless the Deed expressly states that they have a different form of ownership.

There are times that a married couple will choose to “sever” their ownership by transferring the property from entireties to tenants in common. However, all angles should be considered, since certain creditor protections could be lost while other objectives are accomplished.

Call for advice about senior care planning and property transfers ……… 732-382-6070

 

 

 

 

CMS confirms that transfer penalty for Medicaid home care applicants starts to run at time of application

Followers of this blog know that when a person applies for Medicaid under the New Jersey MLTSS program or other state programs that pay for nursing homes, assisted living or home health care services, there is a 5-year look-back that is done by the agency to determine if a transfer penalty should be imposed for gifts made during the 5 years preceding the application. The penalty is a period of time in which the State won’t pay for the care. The greater the amount that was gifted, the longer the penalty period.

There has been a problem for years that was inadvertently created when the Medicaid law was amended by the Deficit Reduction Act of 2005 (“the DRA”). The problem was caused by an interpretive guidance memo called State Medicaid Director Letter (SMDL #06-018) published on July 27, 2006 by CMS. The DRA itself specified that the start date of the penalty was to be “the later of (1) the month during or after which a transfer is made or (2) the date on which the individual is eligible for medical assistance under the State plan and would otherwise be receiving institutional level care services.” See Secn. 1917(c)(1)(D) of the Act. However, the 2006 explanatory SMDL stated that the start date was “…the date on which the individual is eligible for Medicaid and is receiving institutional level of care services.” (emphasis added). The problem was obvious — it created a catch-22 in which the penalty wouldn’t start to run until the individual was receiving services, yet no services could be provided until a penalty period had ended! Also, the memo was at odds with prior positions that applied resource rules and transfer penalty rules uniformly to people applying for Medicaid in different settings.

Well it only took 12 years, but the good news is that CMS has just published SMD # 18-004 which clarifies the point once and for all: the start date for applicants for home and community services is the date on which they’d be receiving services were it not for the penalty period. Here it is: CMS SMD # 18-004

Asset protection is feasible even when a person is right on the verge of applying for Medicaid. Houses and other assets can be protected with proper senior care planning. Call us first, to advise you and prepare your Medicaid application…. 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

Hospital’s Failure to apply for charity care for psychiatric emergency patient leaves hospital holding the bag

DRAFT   MUST REWRITE    text from daily briefingHEALTH CARE LAW

New Jersey has a Charity Care program which pays for hospital care for uninsured individuals who meet the stringent income and asset requirements and also file an application. If an eligible individual enters the hospital as an emergency room admission, the hospital is required to prepare and submit the application and to take measures to obtain the necessary verifications. If an individual is admitted to the hospital without first going through the emergency room, on the other hand, the individual bears that responsibility. The application can be filed by the individual or a responsible party and the hospital, at its discretion, can accept the application up to two years after discharge, which is also the deadline for a hospital to submit the claim to the state program for processing. The regulations are found at N.J.A.C. 10:51-11. This issue was addressed in the recent Appellate Division decision of Newton Med. Ctr. v. D.B.

The patient had been  involuntarily committed to the hospital’s short-term care facility on an emergent basis when the county PESS determined that he was a danger to himself and others. He met the financial qualifications for charity care, and filled out an application. However, due to his condition, he did not submit all the needed documentation within the required time period, and evidently did not seek the help of another person to gather and submit the required verifications. The hospital eventually sued him for the substantial unpaid bill. He argued that the hospital had a duty to submit the application on his behalf because his emergency psychiatric hospitalization placed him in the same category as a medical patient coming in through the emergency room. Although the trial court ruled against him, the Appellate Division reversed.

In a decision which discusses in depth the history and purpose of the Charity Care Program, the court held that the statute did not explicitly limit the category of emergency room hospitalizations  to medical needs as opposed to  psychiatric need, and that the Legislature intended that all patients in such desperate straits who enter a hospital for emergency treatment be relieved of the responsibility to submit their own applications. The Court placed the responsibility upon the hospital staff to follow the procedures mandated in the regulations for all such patients, and dismissed the collections action.

Admission to any hospital  raises the need for a patient to have an advocate and assistant watching out for his or her interests. Careful planning with powers of attorney, records release authorizations, HIPPA authorizations and health care proxies, including psychiatric health care proxies, can add a layer of protection for an individual in the throes of severe illness.

Call us for advice on elder & disability issues … 732-382-6070

Section 8 housing rules for live-in caregivers

Did you know that if a person with physical or cognitive disabilities resides in section 8 funded HUD housing, the law requires the Public Housing Agency (PHA) to allow a necessary home health aide to reside with the tenant? The concept is that the PHA is required to make a reasonable accommodation for the tenant’s needs pursuant to the Americans with Disabilities Act, to enable the participating tenant to reap full benefit from this federal housing program to enable them to dwell in the community and avoid nursing home placement. The regulation is in surprisingly plain English:

             “24 USC § 982.316 Live-in aide. (a) A family that consists of one or more elderly, near-elderly or disabled persons may request that the PHA approve a live-in aide to reside in the unit and provide necessary supportive services for a family member who is a person with disabilities. The PHA must approve a live-in aide if needed as a reasonable accommodation in accordance with 24 CFR part 8 to make the program accessible to and usable by the family member with a disability. (See § 982.402(b)(6) concerning effect of live-in aide on family unit size.)”

Normally, the income of other occupants of the apartment will be counted in the household income calculation for Section 8. However, if the person resides there because s/he serves as the live-in aide, his/her income is not counted. The criteria for exclusion of that person’s income are in the federal regulations and are basically that (1) the aide’s services are essential to the care and well being of the person(s); (2) the aide is not under a legal obligation to support the person(s) with the disabilities, and (3) the aide would not be living in the unit except to provide the necessary supportive services. The tenant needs to formally request the accommodation by submitting an application to the PHA. The tenant who is applying for this special accommodation would need to provide relevant and necessary medical proofs as to the disability and need for a live-in aide, including physicians’; opinion reports, and evidence concerning the identity of the aide and services to be provided. A sample detailed explanation of the requirements for this application are here, from the Georgia Department of Community Affairs.

The person being proposed as the live-in aide must still be eligible to reside in HUD housing based on other federal criteria, but that is a different topic.

Senior care planning involves looking at the opportunities to enable a person to age in place in his or her preferred environment. There are a wide array of legal questions that are relevant to that planning, including the public benefits that might be available.

Call us for advice about planning for senior care …. 732-382-6070