Archive for July, 2009

The Unpredictability of Alzheimer’s Disease

Friday, July 24th, 2009

Fredrick P. Niemann, Esq., an Elder Law Attorney

So often, when working with families who are struggling to care for a loved one with dementia, the most frustrating part is the uncertainty of the condition from day to day.  A recent case in another state highlights that very clearly.

Verne Gagne was a prominent professional wrestler in his day with the American Wrestling Association, in the 1960’s and 70’s.  He eventually lost his big stars, such as Hulk Hogan and Jesse Ventura, to the World Wrestling Federation. He is now 82, and suffers from Alzheimer’s disease, residing in a nursing home.  That is where he had an altercation with a 97 year old resident and put a wrestling move on the resident, slamming his body to the ground.  The other man broke his hip and died several weeks later.  The police are investigating the incident but there is a consensus of opinion that Mr. Gagne should not be charged with a crime because he didn’t know what he was doing.  A tragic story but with similarities that are all too familiar to families who have loved ones with Alzheimer’s.  It is the uncertain, sometimes violent and erratic, behavior that can be most frustrating and frightening. 

Although no one can be sure what caused Verne Gagne to act in the way he did, we know that Alzheimer’s patients very often lose their short term memory but are able to conjure memories of events and people 40 or 50 years ago or more.  Gagne’s skill as a wrestler made him more dangerous than the average resident.  Firstly, he was more physically fit than the average resident.  Secondly, while he was losing his short term memory, he was prone to recalling events from his past, such as his days wrestling.  Perhaps it is that memory, programmed into his brain, that caused him to perform a wrestling move on his co-resident.

It is the unpredictability that often turns a family’s world upside down,.  Dad can be living comfortably in a facility one day and the next he can become extremely agitated and aggressive, causing the facility to ask the family to move him because they can’t accommodate his needs, or because of concern for the safety of other residents.

It is just another reason why families cannot wait and react to a loved one’s long term care needs.  When possible, preventative measures need to be taken.  So often, we see families plan as if Mom or Dad’s current condition, while tragic and upsetting, will remain static, unchanging.   That is usually far from the case and misjudging the situation can be worse than anyone imagined.
 
Who knows what could have been done to prevent Verne Gagne from acting out, although, there was at least one previous altercation between the two residents.  The lesson to be learned on a broader level, however, is to recognize the unpredictability of Alzheimer’s, and dementia in general.  Take action before, not after, it becomes necessary.

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.

Retirement Home Can Force Resident to Move to Higher Level of Care

Friday, July 24th, 2009

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

A federal court has ruled that a continuing care retirement community (CCRC) can force one of its residents to move from her private apartment to an assisted living unit.

Sally Herriot, 90, is a California resident of a CCRC which provides three levels of care — independent living, assisted living and skilled nursing. Since moving to the facility with her now-deceased husband in 1991, Ms. Herriot had lived in a spacious independent living apartment. After Ms. Herriott returned from a hospital stay, the CCRC determined that it was necessary to transfer her from her apartment to a much smaller, hospital-like assisted-living unit where she could be served by a trained nursing staff. Ms. Herriot, her family and her physician objected to the transfer, arguing that she is able to remain in her apartment with the help of round-the-clock private aides she had hired. The CCRC rejected this arrangement.

Ms. Herriot subsequently filed suit in federal court, alleging that the facility had discriminated against her based on her disabilities by refusing to accept her accommodation of hiring private aides.
 
The U.S. District Court ruled that the CCRC has a duty to provide Ms. Herriot with medical care based on her level of need, and that it cannot delegate that duty to private help hired by Ms. Herriot. The court finds that the facility would be violating its legal obligations by accepting Ms. Herriot’s plan to allow her to remain in her apartment.

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.

The Story of the Pitfalls Caused by an Improperly Drafted Will

Friday, July 10th, 2009

It Really Does Matter!

Fredrick P. Niemann, Esq., a NJ Wills Attorney

A number of years ago, a woman’s husband died leaving a will and some assets, one of which was a 401k.  The marriage was a second for her husband, who had two sons from his first marriage.  While he was single he had changed the beneficiaries of his life insurance and 401k plan to his sons and had redone his will.

After his second marriage, the husband and his new wife bought a new home together.  They asked their real estate attorney, who handled the purchase for them, to draft a new will as well.  The husband listed for his attorney the assets he wanted to pass to his sons and which to his new wife.  The 401k he wanted to go to his wife.  Unfortunately, the attorney didn’t understand the difference between probate and non-probate assets.  So when he wrote a will that specifically left the 401k to the wife, he didn’t know that the will would have no effect on this asset because the beneficiary designations on file with the custodian of the 401k plan still listed the sons from the first marriage.

When the husband died, the wife received a big shock when she was told that she had no interested in the $500,000 account.  That’s because a will doesn’t automatically control the distribution of all your assets.  Contract property such as life insurance, annuities and retirement accounts pass in accordance with whom you have designated on the beneficiary forms completed and filed with the life insurance and annuity companies or retirement account custodians.  Other types of property pass by operation of law such as joint accounts with right of survivorship or real estate that is owned by husband and wife.  When one owner dies, the property automatically passes to the surviving owner.  It does not matter what the will says.

That is what happened in our story.  The 401k is contract property so it passed according to the beneficiary designation form on file, not by the will.  The wife tried unsuccessfully to get a court order directing the funds be paid to her.  She did recover about half of the account balance in a litigation settlement, less fees and costs.

The moral of the story is that although many people think drafting a will is simple and often undertake to do it themselves with a “will kit” or ask an attorney to do a “simple will”, they may miss important steps that must be taken that can save a lot of heartache and money.

To learn about these and other elder law issues, go to www.hnlawfirm.com or contact Fredrick P. Niemann, Esq. at (732) 863-9900 or by e-mail at fniemann@hnlawfirm.com

Do You Have the Right Fiduciary for Your Estate?

Friday, July 10th, 2009

Warning: Your Decision Does Matter

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

When creating an estate plan, especially in your will and/or trust, an important decision is who to name as your fiduciary. A fiduciary is a fancy legal term for the person who will take care of your property for you if you are unable to do it yourself, such as the executor of an estate, the trustee of a trust, or an attorney-in-fact under a power of attorney. Your first instinct might be to name one of your children as a fiduciary, but if you want to avoid conflict among your children, this might not be the best option.

When naming a fiduciary, it is important to be able to trust the individual, which is why people often name family members as fiduciaries. However problems can arise when a parent with two or more children names one child as a fiduciary. According to Fredrick P. Niemann, an attorney from Freehold, New Jersey, who spoke on the issue of family harmony at a recent estate planning seminar, a child is often not the best fiduciary for several reasons:

  • It is hard for a child to be completely objective. 
  • Children often disagree over many things, including how long the estate should take to complete, the selling of assets, and the division of personal property.
  • Children often don’t communicate with each other well.

An alternative is to hire a professional fiduciary. A professional fiduciary can be a bank or investment firm with trust administration experience with trust powers, a certified public accountant, or a trust company. A professional fiduciary will charge a fee, but the fee should be explained ahead of time. In addition, because a professional is experienced in managing money and property, your assets are more likely to increase under this person’s or institution’s guidance.

To ensure that your family has some input, you can include a provision that allows one or more family members to discharge the fiduciary if they feel the professional is not doing a good job. This will allow your family to make sure the fiduciary is performing properly without having the burden of acting as fiduciary.

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