Archive for February, 2009

Help for Persons with Disabilities in Monmouth County, NJ

Friday, February 20th, 2009

Fredrick P. Niemann, Esq., a Special Needs Trust Attorney

The Monmouth County Office on Disabilities, as part of the Division on Aging. Disabilities, and Veterans’ Interment Affairs, is the leading agency in Monmouth County providing information, assistance, and referrals to all people with disabilities. The Office on Disabilities utilizes vast public and private resources available throughout Monmouth County in order to serve the needs of the disabled community. Common inquiries for information, assistance, and referrals include the following:

• Social Security Disability Benefits
• Temporary Disability
• Housing
• Financial Assistance
• Transportation
• Handicap Parking
• Home Health Aids
• Donations
• ADA Issues
• Project Lifesaver

Programs and Partnerships

  • Identifying the location of people who are home bound in the event of a disaster is important to the security and well being of our Monmouth County citizens who are disabled. The Office on Disabilities, through a partnership with the Monmouth County Office of Emergency Management, can now directly register people online using the “NJ Special Needs Registry”.  This service will enable emergency responders to locate and evacuate people with disabilities in the event of a disaster.
  • The Office on Disabilities developed a partnership with the Jersey Coast Chapter of the American Red Cross to store donated durable medical equipment in their warehouse for citizens of Monmouth County.  Durable medical equipment is available free of charge.
  • The Office on Disabilities partnered with the Monmouth County Sheriff’s Department to design a “Sheriff’s Office Medical Alert Photo ID Card”.  Information on this card will include emergency contact information, allergies, medication, and medical conditions. This card will be available to citizens of Monmouth County free of charge beginning July, 2008.
  • The Division on Aging, Disabilities, and Veterans’ Interment Affairs provides grant funding for Camp Oakhurst in order to provide recreation and social activities for adults with disabilities. Transportation is available for program participants.
  • The Monmouth County Office on Disabilities provides information on accessible beaches located throughout Monmouth County.
  • MOCEANS Center for Independent living is located in Long Branch, NJ and serves as the Independent Living Center for Monmouth and Ocean Counties.
  • MOCEANS provides advocacy training and leadership development, independent skills development, and peer support. In addition, MOCEANS operates Personal Assistant Services Program (PASP) that provides personal assistance to individuals with disabilities so that they can access employment, educational pursuits, and volunteer work.  This program is partially funded by the Division on Aging, Disabilities, and Veterans’ Interment Affairs.

For information on the programs
and partnerships listed, please call
the Monmouth County Office on Disabilities
(732) 761-3599

For further information and advice in any Special Needs Trust matter, do not hesitate to contact me at 732-863-9900 Ext. 101 or 105, or fniemann@hnlawfirm.com.

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Your New Jersey Estate Plan Review Checklist Part 3

Friday, February 20th, 2009

Fredrick P. Niemann, Esq., NJ Estate Planning Attorney

  • What authority does the Trustee have to distribute the assets in the trust? Is the Trustee’s authority to make distributions limited to health, maintenance, education and support, or are distributions within the Trustee’s total discretion? If the beneficiary is also serving as Trustee, then distributions to the beneficiary/Trustee must be limited to health, maintenance, education and support. If the beneficiary and the Trustee are separate people, you may want to give the Trustee more flexibility in deciding how to distribute assets. You should also let the Trustee know what your goals are in terms of the distribution of assets.

If the trust is for the benefit of the spouse and children, is the primary beneficiary the spouse, the children, or both? If the trust is for the benefit of minor children, is the goal of the Trustee to hold the assets until the child reaches a certain age, or to use them for certain things along the way such as education, marriage, etc? 

  • Are your alternate beneficiary designations appropriate? In the event that all of your primary beneficiaries pass away, who will your assets go to? Many people take the approach that half of the assets will pass to one spouse’s siblings and their children, and the other half of the assets will pass to the other spouse’s siblings and their children. However, this approach may not work for you, in which case you should make sure that your assets are directed to one or more specific people or organizations. This desire should be stated in your Will.

     

  • Are your Executors, Trustees, and Guardians still the appropriate people, in the appropriate order? Over time, people and relationships change, so it may be appropriate to rearrange your Executors, Trustees and/or Guardians.

You have the ability to appoint one or more people to serve in these roles, as well as Successors for those people. In addition, if addresses are listed, you should verify that they are current.

  • If you have a taxable estate (assets exceeding $675,000), have you and your spouse reallocated ownership of and title to your assets to minimize estate taxes? Estate planning for a taxable estate will normally include the formation of a trust upon the death of the first spouse. However, if all of your assets are in joint name, there will be no assets available to fund that trust because all of the assets will pass by operation of law to the surviving spouse.

This means that the estate tax exemption of the first spouse will be wasted. Accordingly, if you have a taxable estate it is critical that you re-title your assets pursuant to your attorney’s recommendations. By doing this, upon the death of one spouse, he or she will have sufficient assets in his or her individual name to fund the trust(s) that will create the estate tax savings in the future.

  • Is your General Durable Power of Attorney more than 10 years old? If so, banks in New Jersey are not required to accept it. We recommend that your General Durable power of Attorney and Living Will be refreshed every 3 to 6 years.

     

  • Does your General Durable Power of Attorney continue to name appropriate attorneys-in-fact? You are allowed to name one or more attorney(s)-in-fact to act in your place with reference to your financial matters in the event that you are unable to do so. You should verify that your named attorney(s)-in-fact and any successors have current addresses.

     

  • Does your General Durable Power of Attorney allow for Medicaid planning or gifting? Many seniors want the ability to engage in asset protection planning to shelter assets from the cost of nursing home care. Your General Durable Power of Attorney should specifically grant your attorney(s)-in-fact the power to engage in this type of planning. We are recommending to all or our clients that they update their General Durable Power of Attorney if it does not specifically authorize this type of planning in the future.

     

  • Does your Health Care Power of Attorney reference the Health Insurance Portability and Accountability Act (”HIPAA”)? The HIPAA privacy rules have created a new category of private information called “Protected Health Information” (PHI) or “Protected Medical Information” (PMI). In order to avoid any issues about the persons to whom your health care provider may divulge your PHI, you should specifically state who has the right to receive your PHI. We are recommending to all of our clients that they update their Health Care Powers of Attorney to include a HIPAA provision to avoid any inability of a Health Care Representative to receive information in the event of medical emergency.

     

  • Does your Living clearly state your desire about what medical treatment you want to receive or refuse in a terminal situation? You have a right to direct your care if you are terminally ill. You should make sure your Living Will clearly states your desires.

     

  • Does somebody know where all of your estate planning documents are? If you have the greatest estate plan in the world, but nobody knows how to access your documents in the event of an emergency, it is going to be useless to you. One or more trusted people should know where they can find originals and copies of your Last Will and Testament, General Durable Power of Attorney and Living Will/Health Care Power of Attorney. In addition, we recommend having copies of your Health Care Power of Attorney and Living Will placed into your medical record with your primary care physician. Note that your original General Durable Power of Attorney is a very powerful document and could allow somebody to access your accounts while you are alive without your permission. As a result, it may be best not to have the original of the General Durable Power of Attorney easily accessible.

Your New Jersey estate plan is an investment. If your estate plan does not address your current situation, or if it was not completed through appropriate re-titling of assets, then that investment may have little or no value. The law gives you the right to direct what happens to your assets upon your death, and gives you the ability to minimize any tax consequences. You should take advantage of the law to make sure that your estate plan meets your needs today and into the foreseeable future.

Fredrick P. Niemann is managing partner at Hanlon Niemann located at 3499 Route 9 North, Freehold, NJ. His practice focuses primarily in the areas of Elder Law, Asset and Estate Protection Planning, Medicare, Medicaid and Veteran’s Benefit Assistance. He can be reached at fniemann@hnlawfirm.com, or by calling 732-863-9900, Ext. 101.

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The After Thought of Transferring Assets – A Real Life Example of Good Intentions Going Wrong

Friday, February 13th, 2009

Fredrick P. Niemann, Esq., NJ Medicaid Attorney

When I talk with people about long term care and the Medicaid program I sometimes hear very strong opinions that “it is wrong to transfer assets in order to qualify for Medicaid to pay for nursing home care”.  The person making the statement, however, typically hasn’t really given any thought to what that means in real life situations.

Let me give an example.  Mom is 85 years old and living alone.  While she clearly shows the signs of aging and should have put in place a plan in case she needs long term care, like most people, she hasn’t considered it at all.  She receives a $100,000 inheritance from her brother.  She has always considered her family first, ahead of her own needs, and wants to transfer this inheritance to her son, who is struggling to make ends meet and just lost his job.  She believes she has everything she needs financially and her maternal instincts are to help her child.  You may or may not believe she is being foolish in her thinking but it is her genuine belief.

Times are tough.  Families do what they always do.  They pitch in and help each other out.  Except that if Mom gives this money to her son and needs nursing home care in the next 5 years she won’t qualify for Medicaid because of the transfer.  So, is Mom trying to beat the system, transferring assets to qualify for Medicaid?  No, I think we all would agree that this is not what is motivating her.  But it’s not that simple.  It never is in the real world.  Mom ought to be thinking about her long term care needs but she isn’t. 

Had she consulted with an elder law attorney she could have set up a plan that would allow her son to receive the inheritance (or she and her son could share the inheritance) by setting up a trust.  And when an attorney sat down with Mom and explained to her what would happen if she needs long term care, she would quickly agree that it was not a good idea to simply transfer the inheritance to her son.  She just had never had that conversation before and no one ever explained it to her in that way.

So, instead of having that conversation after she received the money, if we had it before the inheritance had been received, my advice to Mom would have been to keep the money in a trust, in case she needs it for long term care, but that it would be possible to transfer some of it to her son, should he need it.  We would have to manage the trust very carefully but it is clearly doable.  I wouldn’t call this beating the system. It is a case of families pulling together in times of need.  Isn’t that what families are supposed to do?  It also helps the long term care facility that will provide the care to Mom by ensuring sufficient private pay funds to support their vital care services.

For further information and advice in any elder law matter, do not hesitate to contact me at 732-863-9900 Ext. 101 or 105, or fniemann@hnlawfirm.com.

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Exempt Medicaid Transfers

Friday, February 13th, 2009

Fredrick P. Niemann, Esq., a NJ Elder Law Attorney

As a general rule, when assets are transferred to third parties, the transfer results in a period of Medicaid ineligibility. Some transfers, however, are exempt and do not result in the imposition of a period of ineligibility for Medicaid. It is important to make transfers that are consistent with the estate planning goals of the client. If inconsistent transfers are made, they may result in litigation from beneficiaries of the estate who consider themselves to be treated unfairly.

1.      The Family Home
There are several limited exceptions from the general transfer rules relating to a principal residence, but you must be very careful in how you plan your transfer, otherwise the consequences are dreadful. These transfers are generally exempt.

Community Spouse
The residence can be transferred to the community spouse without penalty. A married couple can simply deed the house to the community spouse. There is no transfer penalty because the transfer is between spouses. In a typical situation, husband and wife own the home as tenants by the entirety. But, if one spouse enters a nursing home, and the community spouse predeceases that spouse, then by operation of law, title to the home will vest in the institutionalized spouse. The institutionalized spouse would then be required to sell the home and use the proceeds for nursing home care. In states that have a broad definition of estate for purposes of Medicaid estate recovery, like New Jersey, the home should always be transferred to the community spouse to avoid Medicaid estate recovery.

If the property is deeded to the community spouse, and that spouse dies first, the property can be left by the will of the community spouse to a special needs trust for the benefit of the institutionalized spouse or to the children. The elder law attorney must also be aware of the state elective share statute, which prohibits a person from disinheriting a spouse. Medicaid could, conceivably, take the position that failure of the surviving spouse to exercise his rights under the elective share statute constitutes a transfer, subject to the transfer penalty provisions.

Child Under 21, Blind, or Disabled
The home can be transferred to a child of the institutionalized individual who is under the age of 21, or a child of any age who is blind or disabled. For example, a person about to enter a nursing home has a daughter who is blind. The potential Medicaid applicant can transfer the home to the blind daughter as an exempt transfer, and there will be no transfer penalty. In a second marriage situation, the question remains whether the institutionalized individual could transfer ownership of the home to a stepchild who met the criteria of caregiver.

Sibling
The home can be transferred to a brother or sister of the institutionalized individual who already had an equity interest in the home prior to the transfer and who was residing in the home for a period of at least one year immediately before the individual becomes an institutionalized individual. It may not be necessary for the sibling to be named on the deed to the property for a year prior to the transfer. You can bet Medicaid will fight you on this.  The sibling may have an equity interest if he or she has paid taxes or other expenses and has actually lived in the home for a period of time. For example, a potential Medicaid applicant is not married and lives in his home with his brother. Each owns a portion of the house as tenants in common and they have been living together for more than one year. The potential Medicaid applicant would simply deed the property to the healthy sibling, and there would be no transfer penalty.

Caregiver Child
The home can be transferred to a caregiver child. A caregiver is defined as a son or daughter of the institutionalized individual who is residing in the individual’s home for a period of at least two years immediately before the date the individual becomes an institutionalized individual, and who has provided care to such individual that permitted the individual to reside at home rather than in an institution or facility. The care provided by the son or daughter must have been essential to the safety of the individual and consisted of activities such as, but not limited to, supervision of medication, monitoring of nutritional status, and ensuring the safety of the individual.

There may be an issue as to when the transfer of the home to the caregiver child must take place. In a New Jersey case, the Burlington County Board of Social Services contended that a deed transferred 90 days after institutionalization did not qualify, and that such transfers need be made within 30 days of institutionalization. The Administrative Law Judge held and the Director affirmed that there is no time set forth in the regulation as to when the deed must be given. The only reference to time is that the home must be the home in which the individual resided immediately prior to entering the nursing home. Based on this case, it would appear that a deed could be given at any time prior to, or subsequent to, entering a nursing home. For example, a potential Medicaid recipient is about to enter a nursing home. His daughter has lived with him for two years and provided a level of care sufficient to keep him out of a nursing home. The deed to the house can simply be deeded to the daughter. There would be no transfer penalty, because this is an exempt transfer.

Taxation
In transferring a home to an exempt child, consideration must be given to the gift tax rules, carry over basis, and the capital gains tax exclusion from the sale of a principal residence.

For further information and advice in any elder law matter, do not hesitate to contact me at 732-863-9900 Ext. 101 or 105, or fniemann@hnlawfirm.com.

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Towns Can No Longer Ban Sex Offenders; Can Landlords?

Monday, February 9th, 2009

Christopher J. Hanlon, Esq., a NJ Landlord Attorney

In what has been viewed by many observers as a landmark decision an Appellate Division panel in the Superior Court of the State of New Jersey ruled in favor of the convicted sex offenders on July 15, 2008 in two consolidated cases challenging municipal restrictions which ban the residency of convicted sex offenders within a designated distance of schools, parks, playgrounds and daycare centers.  G.H. v. Tp. of Galloway, 401 N.J. Super. 392 (App. Div. 2008).  The decision was based upon the doctrine of preemption which prohibits municipalities from exercising their legislative power over matters where the State has implemented comprehensive control.  In so ruling the Court relied upon a provision of the legislation known as Megan’s Law which prohibits   “. . .use of any information disclosed pursuant to this Act” to deny housing accommodations.  The Appellate Division struck down two municipal ordinances as being violative of this statutory scheme. 

The Court noted that one of the problems with these ordinances was their scope.  Using five hundred foot zones (or one thousand foot zones as many of these ordinances do) and applying them to most municipalities will render unavailable many, or in some cases, any practical housing opportunities for these sex offenders.  For example, in Cherry Hill (one of the defendant municipalities in that case) there were only two areas which were not within these school zones.  One was an undeveloped field, and the other was a very expensive residential subdivision (not a practical housing opportunity for parolees).

However, this decision did not decide the question of whether or not private housing providers are allowed to continue to perform criminal background checks (not limited in their scope to information received pursuant to sex offender disclosures under the Megan’s Law) from continuing to do so.  It expressly recognized that in a prior decision before the Appellate Division Mulligan v. Panther Valley Property Owners Association, 337 N.J. Super 293 (App. Div. 2001) involving a challenge to a prohibition of Tier 3 sex offenders (those most likely to violate the law again) in a common interest development, the matter was not decided because of an inadequate record.

Accordingly, this Galloway decision does not mean that housing providers cannot continue to perform criminal background checks on all applicants.  It would be the most prudent practice not to use a screening standard limited in its scope to information received by a landlord from a sex offender disclosure which would typically come from a County Prosecutor’s office pursuant to Megan’s Law, or made available through some other published source (such as the internet). A broader search of all criminal convictions would be the better practice.

In fact, there are numerous authorities which continue to endorse the practice of using a criminal background check as part of a uniformly applied screening criteria even when dealing with members of protected classes.  42 U.S.C.A. 3604 (F)(9)(Fair Housing Act); 24 C.F.R. 982.307(a)(3) (H.U.D.’s regulations enforcing the Fair Housing Act); DCA’s Landlord’s Guide to Section 8 Housing.  In Maglies v. Estate of Bertha Guy, 193 N.J. 108 (2007) the Supreme Court, in dicta, referenced the right of a landlord to refuse to allow the continued occupancy of a resident otherwise disqualified because of a “past conviction.”

Almost every legal authority dealing with private housing providers recognizes a landlord’s right to screen using criminal background checks.  It would be the height of absurdity to restrict the housing providers right to turn away those most likely to commit another sex crime while every other person with a criminal background could be the subject of an adverse discretionary determination at the time of application made to a private housing provider.  This author predicts that will not happen in New Jersey.  For now, there is no law that eliminates this discretion on the part of housing providers and therefore a uniformly applied written screening policy which contains specific reasonable criminal history disqualifying criteria is sustainable.

For further information and advice in any landlord matter, do not hesitate to contact me at 732-863-9900, or chanlon@hnlawfirm.com.

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