Can you Change a Will without a Writing?

I cannot tell you how many times over the years a client has told me that despite what is written in the Last Will and Testament of their parent or grandparent or Aunt or Uncle, “s/he said that s/he was leaving the house to X,” or “she wanted Y to get more because he moved in and was taking care of her at the end” or “she gave a lot of money to Z and intended him to pay it back from his share of the estate” or “she lent money to X but said the loan was forgiven” or “she left it to J. but told him he had to hold it for K.”   In each of these situations of course, the deceased person never put anything like that into their Last Will and Testament, and never signed a new Will or even a Codicil (formal amendment) to the existing will. Similarly, I also hear expressions of surprise when people read what is actually written in the only Will that was found — “She told everyone she had changed it!!”

Can you change your Will without a writing? New Jersey statutes suggest that the answer is “no.” I was actually aware of a case in court in New Jersey years ago in which the deceased had never changed her signed Will but a family member insisted that it had been revoked by a series of oral statements allegedly expressed to different people. I don’t know how that theory worked out for him. No doubt the litigation cost the estate a great deal of money. Also I litigated a case in which one of the testator’s children claimed that her mother had revoked a Will and Trust by various oral statements. That lawsuit was dismissed on summary judgment.

A Last Will and Testament is a written document that is signed, dated and witnessed. It’s called “Last,” because if there is a presumption that if no writing was signed later on and the document still exists, the deceased person intended it to be the last will and testament. The law presumes that the last document supercedes all prior Wills. In fact, just to be safe, many — perhaps most — Wills expressly say that “this document replaces all prior Wills.”

How can a Will be revoked? There either has to be a writing [signed etc.] that amends or revokes the Will, or there has to be some affirmative and intentional act of revocation. The statute says: “By the performance of a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator’s conscious presence and by the testator’s direction. For purposes of this subsection, “revocatory act on the will” includes burning, tearing canceling, obliterating or destroying the will or any part of it. A burning, tearing or cancelling is a “revocatory act on the will,” whether or not the burn, tear, or cancellation touched any of the words on the will.”  Some old cases dealt with accidental destruction by fire, or additional papers found with writing on them that seem to amend a Will but it isn’t quite certain.  New Jersey has a statute concerning documents that don’t meet the specific requirements to be treated as a “Will,” and those documents are referred to as “a writing intended to be a Will.” But there always has to be a “document or writing.” There is a rational reason for these statutes. It is only when there is a writing that was reviewed by and signed by the deceased person that there can be reasonable certainty of what his or her last intentions were. Without a writing, it becomes a battle between interested parties who have a motive to either invent the alleged oral statements or to deny that the claimed statements were ever made (especially if they say that no one else was present when the alleged statements were made). With a writing, it not only speaks for itself, but there is often extrinsic evidence to authenticate the making and signing of the document.

Forewarned is forearmed. If it has been years since your parents reviewed their estate plan documents — or if they never bothered to sign a Will — this would be a good time to remind them to take care of it. Of course, getting your intentions in writing and updating your own plan is always a good idea.

Call us about senior care and estate planning with wills and trusts … 732-382-6070

Memory Cafe and Support Group are Great Resources in Union County

Many of our clients are caregivers of elders with Dementia.  They feel shut in taking care of their loved ones, never sure if they can go out together without incident.  Well, here is one option:  Jewish Family Services of Central New Jersey presents the Memory Cafe, on February 9th, March 23 and April 27th from 12 pm to 2pm at 655 Westfield Ave., Elizabeth, where individuals with dementia and their caregivers can enjoy a social outing together with support.  And it’s free!  To go, RSVP at 908-352-8375 Ex. 236.

Jewish Family Services also has an Alzheimer’s Support Group that meets on Fridays at 1 pm, at the same address.  The dates are February 3rd, March 3rd, April 7th, May 5th, and June 2nd.  Check it out!

Care planning for seniors includes care planning for the caregivers.

Call for advice on all facets of elder care planning …. 732-382-6070


Creating a safe home care plan for a loved one with dementia

For many senior citizens, being able to “age in place” and stay in their  home is a really high priority. The obligation to use Medicaid dollars to support aged and disabled individuals in the least restrictive environment has been a cornerstone of federal policy since the Olmstead decision was issued by the Supreme Court in 1999.  In addition to that there is the obligation to utilize “person-centered planning” and to individually tailor the services being provided. The  New Jersey Medicaid Long Term Services and Supports (MLTSS) program which provides Home and Community based Services (HCBS) is required to develop procedures that will adequately address the needs of the individual so that he or she can be adequately supported in the community environment.

The Centers for Medicaid and Medicare Services issued an interesting “FAQ” on the subject of how to address the individual needs of a Medicaid recipient who has a tendency to “elope,” “wander” or “exit-seek.” While that FAQ is geared to program administrators and policy makers, it seems to me that it provides useful guidance to any of you who are engaged in senior care planning for someone who has this problem. For example: ” Assessing the patterns, frequency, and triggers for unsafe wandering or exit-seeking through direct observation and by talking with the person exhibiting such behaviors, and, when appropriate, their families. •Using this baseline information to develop a person-centered plan to address unsafe wandering or exit-seeking, implementing the plan, and measuring its impact. •Using periodic assessments to update information about an individual’s unsafe wandering or exit-seeking, and adjust the person-centered plan as necessary.”

What I have learned over the years from the thousands of families I have advised is that, in an organic way, they are instinctively engaged in Person-centered service planning for their loved one. They try hard to sustain the activities that the loved one enjoyed and avoid the things that the person loathed. Out of a sense of respect and honor, they try hard to incorporate what has always mattered to their parent.  Yet Elder care planning often needs to deal with new situations and behaviors that present themselves as a result of  underlying dementia. Sometimes it isn’t clear whether the behavior is willful and intentional or is just an erratic problem triggered by unpredictable things as a result of Alzheimers or other dementia. In either case, the caregiver needs to find strategies to keep the person as safe as possible.

Call us for advice on elder care planning legal issues … 732-382-6070

New “Medicaid numbers” available for 2017

If you regularly follow this blog, you know that there are resource limits and income rules for the  Medicaid program for nursing home care, assisted living and in-home care benefits for individuals who are aged or disabled. Some of these Medicaid numbers are adjusted by the State of New Jersey each year. In addition, CMS adjusts certain Medicare numbers each year (premiums, deductibles and co-insurance amounts). Seniors who are planning for the payment of care in nursing homes are often be dependent upon these programs, and the laws can be intricate.

Here’s a pdf of the 2017 numbers for your reference.MEDICAID NUMBERS FOR 2017

Call for advice on elder law issues and for preparation of Medicaid applications … 732-382-6070

Act Fast to appeal termination of Medicare skilled care benefits

When a senior or disabled patient who is on Medicare transfers to a skilled nursing facility for “rehab” after a hospitalization (of 3 days or more), a treatment plan is developed based on the physician’s orders, which incorporates all of the skilled care services which need to be provided in an inpatient facility by licensed personnel. Medicare Part A will pay for up to 100 days of such skilled inpatient care, provided that the patient meets the Medicare criteria. Once the criteria are no longer met, a termination notice is given, but the patient must act fast to appeal. As soon as you receive the notice, contact the Beneficiary Family-Centered Care Quality Improvement Organization (BFCC-QIO). They must act within 72 hours. If they affirm the termination/denial. you must contact them by noon the next day! Unbelievable, but that’s what it is. There’s a terrific packet of information and guidance provided by the non-profit Centers for Medicare Advocacy.

Restoration potential is not the sole basis to receive skilled care benefits. It’s  a question of the patient’s clinical needs — the Medicare recipient must require “skilled nursing or skilled rehabilitation services, or both, on a daily basis.”  This means 5 to 7 days a week, and the type of service is distinguished from custodial care which can be provided by non-licensed personnel.  The old “rule of thumb” that certain conditions would only need “x” days to reach maximum improvement was never the law, as reaffirmed by CMS in the Jimmo case in 2013.

If the patient has missed the deadline to appeal, there is still the possibility of reinstating benefits. You need to ask the treating physician to prescribe ongoing skilled care if the 100 day limit isn’t exhausted and the doctor feels the patient requires that level of services. And in the meantime, therapy can be provided as “outpatient services” for the nursing home resident, there in the facility and billed to Medicare part B.

Senior care planning takes vigorous advocacy. As in most things, the squeaky wheel gets the oil, and family advocates should get familiar with these Medicare rules to helkp them navigate this complex system.

Call us for elder care planning and advocacy … 732-382-6070