Chapter 1 CONDUCTING INITIAL CONSULTATION WITH ELDER LAW CLIENT
PART I: STRATEGY
§ 1.01 Scope
§ 1.02 Objective and Strategy
PART II: INTERVIEWING ELDER LAW CLIENT
§ 1.03 CHECKLIST: Interviewing Elder Law Client
§ 1.04 Eliciting Essential Information for Elder Law Planning Before Initial Consultation
§ 1.05 Examining Ethical Considerations and Determining Who Your Client Is
§ 1.06 Understanding Elder Client’s Needs
§ 1.07 Explaining Fundamental Elder Law Issues to Client
§ 1.08 Concluding Interview with Elder Client
PART III: EXAMINING NON-MEDICAID OPTIONS FOR PAYMENT OF LONG-TERM CARE
§ 1.09 CHECKLIST: Examining Non-Medicaid Options for Payment of Long-term Care
§ 1.10 Advising Clients About Long Term Care Insurance
§ 1.11 Explaining Funding Options Based on Home Equity
§ 1.12 Explaining Veterans’ Benefits
PART IV: DETERMINING WHETHER CLIENT IS, OR SHOULD BECOME, ELIGIBLE FOR MEDICAID
§ 1.13 CHECKLIST: Determining Whether Client Is, or Should Become, Eligible for Medicaid
§ 1.14 Explaining Level of Care, Income and Resource Considerations in Medicaid Planning
§ 1.15 Identifying Appropriate Medicaid Program
PART V: DISCUSSING SPECIAL PLANNING CONSIDERATIONS FOR MARRIED COUPLES
§ 1.16 CHECKLIST: Discussing Special Planning Considerations for Married Couples
§ 1.17 Explaining Financial Obligations of Spouses
§ 1.18 Reviewing Couple’s Estate Plan
§ 1.19 Discussing Effect of Marital Status on Medicaid Eligibility
§ 1.20 Determining Timing of Medicaid Application
PART VI: DISCUSSING PLANNING CONSIDERATIONS FOR UNMARRIED PERSON
§ 1.21 CHECKLIST: Discussing Planning Considerations for Unmarried Person
§ 1.22 Examining Options for Unmarried Person
§ 1.23 Reviewing Unmarried Person’s Estate Planning Documents
§ 1.24 Discussing Planning for Medicaid Eligibility for Unmarried Person
Chapter 2 ACHIEVING MEDICAID ELIGIBILITY
PART I: STRATEGY
§ 2.01 Scope
§ 2.02 Objective and Strategy
PART II: MEETING MEDICAID CRITERIA FOR LEGAL STATUS, RESIDENCY, AGE, AND MEDICAL NECESSITY
§ 2.03 CHECKLIST: Meeting Medicaid Criteria for Legal Status, Residency, Age, and Medical Necessity
§ 2.04 Confirming Legal Status, Residency, and Age of Applicant
§ 2.05 Confirming Medical Eligibility of Elderly Medicaid Applicant
PART III: EVALUATING COUNTABLE NON-EXCLUDED INCOME TO DETERMINE IF QUALIFIED INCOME TRUST IS REQUIRED
§ 2.06 CHECKLIST: Evaluating Countable Income to Determine if Medicaid Applicant Must Establish a Qualified Income Trust for Income in Excess of the Income Cap
§ 2.07 Computing Countable Income
PART IV: IDENTIFYING COUNTABLE RESOURCES OF MARRIED MEDICAID APPLICANT
§ 2.08 CHECKLIST: Identifying Countable Resources of Married Medicaid Applicant
§ 2.09 Determining Countable Resources of Married Medicaid Applicant
§ 2.10 Utilizing Community Spouse Resource Allowance (CSRA)
PART V: IDENTIFYING COUNTABLE RESOURCES OF UNMARRIED MEDICAID APPLICANT
§ 2.11 CHECKLIST: Identifying Countable Resources of Unmarried Medicaid Applicant
§ 2.12 Determining Countable Resources of Unmarried Medicaid Applicant
PART VI: CALCULATING VALUE OF RESOURCES FOR PURPOSES OF MEDICAID ELIGIBILITY
§ 2.13 CHECKLIST: Calculating Value of Resources for Purposes of Medicaid Eligibility
§ 2.14 Valuing Resources of Medicaid Applicant
PART VII: CRAFTING SUITABLE SPEND-DOWN PLAN TO ACHIEVE MEDICAID ELIGIBILITY
§ 2.15 CHECKLIST: Crafting Suitable Spend-down Plan to Achieve Medicaid Eligibility
§ 2.16 Determining Objectives of Spend-down Plan
§ 2.17 Targeting Desirable Expenditures That are Not Uncompensated Transfers
§ 2.18 Implementing Spend-down When Applicant Lacks Capacity; Gifting by Guardians
PART VIII: EVALUATING EFFECT OF PRIOR TRANSFERS OF ASSETS ON MEDICAID ELIGIBILITY
§ 2.19 CHECKLIST: Evaluating Effect of Prior Transfers of Assets on Medicaid Eligibility
§ 2.20 Ascertaining Whether Transfers Were Made During Look-Back Period
§ 2.21 Determining How to Characterize Transactions as Gift Transfers or Not
PART IX: PLANNING AND MAKING GIFT TRANSFERS OF ASSETS WITHOUT CAUSING MEDICAID TRANSFER PENALTY
§ 2.22 CHECKLIST: Planning and Making Gift Transfers of Assets Without Causing Medicaid Transfer Penalty
§ 2.23 Transferring Resources to Certain Specified Transferees
§ 2.24 Transferring Assets to Certain Types of Trusts
PART X: PLANNING AND MAKING GIFT TRANSFERS OF ASSETS THAT WILL CAUSE A MEDICAID TRANSFER PENALTY
§ 2.25 CHECKLIST: Planning and Using Penalty-Causing (Non-exempt) Gift Transfers of Assets to Meet Medicaid Eligibility
§ 2.26 Making Non-exempt Transfers of Assets to Meet Medicaid Eligibility
§ 2.27 Determining When to File Medicaid Application
§ 2.28 Seeking Hardship Exception to Avoid Transfer Penalties
PART XI: CONFIRMING MEDICAID ELIGIBILITY AT END OF SPEND-DOWN PERIOD
§ 2.29 CHECKLIST: Confirming Medicaid Eligibility at End of Spend-down Period
§ 2.30 Confirming Countable Resources and Income at End of Spend-down Period
PART XII: APPLYING FOR MEDICAID BENEFITS
§ 2.31 CHECKLIST: Applying for Medicaid Benefits
§ 2.32 Applying for Medicaid Benefits
PART XIII: POST-ELIGIBILITY TREATMENT OF INCOME AND RESOURCES
§ 2.33 CHECKLIST: Post-eligibility Treatment of Income and Resources
§ 2.34 Determining Amount Medicaid Recipient Must Pay Care Provider
§ 2.35 Post-eligibility Increases in Resources of Community Spouse
§ 2.36 Retaining Additional Resources to Provide Community Spouse with Maximum MMMNA
Chapter 3 ADMINISTRATIVE PROCEEDINGS, POST-ELIGIBILITY INCOME ALLOCATION, AND PROCEDURES UPON DEATH OF RECIPIENT OF INSTITUTIONAL MEDICAID
PART I: STRATEGY
§ 3.01 Scope
§ 3.02 Objective and Strategy
PART II: APPEALING ADVERSE DECISION ON ELIGIBILITY FOR INSTITUTIONAL MEDICAID
§ 3.03 CHECKLIST: Appealing Adverse Decision on Eligibility for Institutional Medicaid
§ 3.04 Contesting Determination of Ineligibility for Institutional Medicaid
PART III: APPEALING DETERMINATION OF ALLOCATION OF INCOME OF MARRIED RECIPIENT OF INSTITUTIONAL MEDICAID
§ 3.05 CHECKLIST: Appealing Determination of Allocation of Income of Married Recipient of Institutional Medicaid
§ 3.06 Requesting Administrative Fair Hearing to Increase Authorized Deductions
§ 3.07 Requesting Administrative Fair Hearing to Increase Resources Retained by Community Spouse
PART IV: APPEALING HOURS OF HOME CARE SERVICES AWARDED UNDER HCBS
§ 3.08 CHECKLIST: [Reserved]
§ 3.09 Grievances Concerning Inadequate Awards of Home Care Services
PART V: ALLOCATING INCOME OF UNMARRIED RECIPIENT OF INSTITUTIONAL MEDICAID
§ 3.10 CHECKLIST: Allocating Income of Unmarried Recipient of Institutional Medicaid
§ 3.11 Examining Calculation of Income of Unmarried Recipient of Institutional Medicaid to Be Paid to Institution
§ 3.12 Arranging for Payments of the Income on Behalf of Unmarried Recipient of Institutional Medicaid
PART VI: PROCEDURES UPON DEATH OF RECIPIENT OF MEDICAID LONG-TERM SERVICES AND SUPPORTS
§ 3.13 CHECKLIST: Procedures upon Death of Recipient of Institutional Medicaid
§ 3.14 Determining Proper Legal Representative for Estate of Deceased Medicaid Recipient
§ 3.15 Dealing with Claim for Medicaid Reimbursement
Chapter 4 MANAGING ISSUES RELATED TO NURSING HOME CARE
PART I: STRATEGY
§ 4.01 Scope
§ 4.02 Objective and Strategy
PART II: NAVIGATING NURSING HOME ADMISSIONS PROCESS
§ 4.03 CHECKLIST: Navigating Nursing Home Admissions Process
§ 4.04 Advising Client About Pre-application Issues
§ 4.05 Advising Client in Selection of Nursing Home
§ 4.06 Assembling Materials to Support Application
§ 4.07 Examining Specific Nursing Home Application and Contract
PART III: HANDLING NURSING HOME PAYMENT ISSUES
§ 4.08 CHECKLIST: Handling Nursing Home Payment Issues
§ 4.09 Advising Client About Medicare and Medicaid Coverage for Nursing Home
§ 4.10 Advising Client About Security Deposit
§ 4.11 Ensuring Compliance with Bed Hold Requirements
§ 4.12 Assisting Client with Long Term Care Insurance Claims
§ 4.13 Advising Client About Income Tax Deduction for Medical Expenses
PART IV: PROTECTING RIGHTS OF NURSING HOME RESIDENTS
§ 4.14 CHECKLIST: Protecting Rights of Nursing Home Residents
§ 4.15 Advocating for Client’s Rights Under Nursing Home Resident’s Rights Act
§ 4.16 Protecting Client Against Involuntary Discharge
PART V: OBTAINING SHORT TERM REHABILITATION BENEFITS IN SKILLED NURSING FACILITIES UNDER MEDICARE PART A
§ 4.17 CHECKLIST: Obtaining Short Term Rehabilitation Benefits in Skilled Nursing Facilities under Medicare Part A
§ 4.18 Establishing Client’s Eligibility for Medicare Part A Coverage for Care in Skilled Nursing Facility
§ 4.19 Explaining Benefits Under Medicare Part A for Care in Skilled Nursing Facility
§ 4.20 Assisting Client in Obtaining Clinical Goals
PART VI: ASSISTING CLIENT IN TRANSITION TO LONG TERM CARE
§ 4.21 CHECKLIST: Assisting Client in Transition to Long Term Care
§ 4.22 Obtaining Pre-Admission Screening
§ 4.23 Arranging for Transition to Private-pay
§ 4.24 Obtaining Medicaid Clearance for Long Term Care
Chapter 5 CONTINUING CARE RETIREMENT COMMUNITIES
PART I: STRATEGY
§ 5.01 Scope
§ 5.02 Objective and Strategy
PART II: EVALUATING LEVEL OF SERVICE PROVIDED BY CONTINUING CARE RETIREMENT COMMUNITY AND CLIENT’S NEEDS
§ 5.03 CHECKLIST: Evaluating Level of Service Provided by Continuing Care Retirement Community and Client’s Needs
§ 5.04 Explaining How Continuing Care Retirement Community Operates
PART III: EVALUATING SUITABILITY AND STABILITY OF CONTINUING CARE RETIREMENT COMMUNITY
§ 5.05 CHECKLIST: Evaluating Suitability and Stability of Continuing Care Retirement Community
§ 5.06 Advising Client in Inquiry About Residential Life Within Continuing Care Retirement Community
§ 5.07 Advising Client to Determine Degree of Control over Health Care Issues Within Continuing Care Retirement Community
§ 5.08 Advising Client to Investigate Financial Stability of Continuing Care Retirement Community
PART IV: EVALUATING FINANCIAL TERMS IN CONTRACT WITH CONTINUING CARE RETIREMENT COMMUNITY
§ 5.09 CHECKLIST: Evaluating Financial Terms in Contract with Continuing Care Retirement Community
§ 5.10 Examining Entrance Fees Required by Continuing Care Retirement Community
§ 5.11 Examining Monthly Fees Required by Continuing Care Retirement Community
§ 5.12 Reviewing Surcharges Charged by Continuing Care Retirement Community
§ 5.13 Evaluating Provisions Concerning Buy-down Process in Contract with Continuing Care Retirement Community
§ 5.14 Evaluating Provisions Concerning Refunds in Contract with Continuing Care Retirement Community
PART V: REVIEWING NON-FINANCIAL TERMS IN CONTRACT WITH CONTINUING CARE RETIREMENT COMMUNITY
§ 5.15 CHECKLIST: Reviewing Non-financial Terms in Contract with Continuing Care Retirement Community
§ 5.16 Examining Non-financial Provisions of Contract with Continuing Care Retirement Community
PART VI: DEALING WITH EVICTION FROM AND DISPUTES OVER SERVICES PROVIDED BY CONTINUING CARE RETIREMENT COMMUNITY
§ 5.17 CHECKLIST: Dealing with Eviction from and Disputes over Services Provided by Continuing Care Retirement Communities
§ 5.18 Determining If Grounds for Removal from Continuing Care Retirement Community Meet Just Cause Standard
§ 5.19 Requesting Hearing Before Department of Community Affairs
§ 5.20 Pursuing Administrative Appeals
§ 5.21 Negotiating Issues Regarding Level of Care
PART VII: MEDICAID CONSIDERATIONS IN CCRC
§ 5.22 Medicaid Considerations in CCRC
Chapter 6 ASSISTED LIVING FACILITIES
PART I: STRATEGY
§ 6.01 Scope
§ 6.02 Objective and Strategy
PART II: COUNSELING CLIENT IN ADMISSIONS PROCESS FOR ASSISTED LIVING FACILITIES
§ 6.03 CHECKLIST: Counseling Client in Admissions Process for Assisted Living Facilities
§ 6.04 Reviewing Regulations Governing Assisted Living Facilities in New Jersey
§ 6.05 Counseling Client as to Grounds and Procedures for Involuntary Discharge
§ 6.06 Navigating Medical Evaluation Process
§ 6.07 Assembling Financial Information
§ 6.08 Reviewing Contract with Assisted Living Facility
PART III: PLANNING FOR PAYMENT FOR ONGOING CARE IN ASSISTED LIVING FACILITY
§ 6.09 CHECKLIST: Planning for Payment for Ongoing Care in Assisted Living Facility
§ 6.10 Explaining Resident’s Obligation for Monthly Payment
§ 6.11 Reviewing Tax Considerations of Supplemental Payments
PART IV: PLANNING FOR ONGOING HEALTH CARE ISSUES IN ASSISTED LIVING FACILITY
§ 6.12 CHECKLIST: Planning for Ongoing Health Care Issues in Assisted Living Facility
§ 6.13 Advocating for Client at Semi-annual Review
§ 6.14 Negotiating Level of Care
§ 6.15 Advising Client About Managed Risk Agreement
§ 6.16 Advising Client About Nutritional Needs
§ 6.17 Pursuing Remedies if Negotiations Fail
Chapter 7 ELDER LAW PLANNING FOR PRIMARY RESIDENCE
PART I: STRATEGY
§ 7.01 Scope
§ 7.02 Objective and Strategy
PART II: ESTABLISHING CLIENT’S INTEREST IN PRIMARY RESIDENCE
§ 7.03 CHECKLIST: Establishing Client’s Interest in Primary Residence
§ 7.04 Understanding Client’s Concerns About Primary Residence
§ 7.05 Examining Deed and Other Documents Relating to Title to Primary Residence
§ 7.06 Reviewing Consequences of Form of Title
§ 7.07 Determining Interest and Capacity of Current Owners
§ 7.08 Determining Client’s Ability to Control Property
PART III: EVALUATING TAX IMPLICATIONS OF TRANSACTIONS INVOLVING PRIMARY RESIDENCE
§ 7.09 CHECKLIST: Evaluating Tax Implications of Transactions Involving Primary Residence
§ 7.10 Analyzing Income Tax Aspects of Transactions Involving Primary Residence
§ 7.11 Analyzing Federal and State Estate and Gift Tax Implications of Transaction Involving Primary Residence
PART IV: ASSESSING EFFECT OF TRANSFER OF PRIMARY RESIDENCE ON CLIENT’S ESTATE PLAN
§ 7.12 CHECKLIST: Assessing Effect of Transfer of Primary Residence on Client’s Estate Plan
§ 7.13 Considering Creation of Joint Tenancy as Alternative to Outright Gift
§ 7.14 Considering Transfer of Primary Residence to Trust
PART V: CONSIDERING IMPACT OF DEBTOR-CREDITOR ISSUES ON TRANSFER OF PRIMARY RESIDENCE
§ 7.15 CHECKLIST: Considering Impact of Debtor-Creditor Issues on Transfer of Primary Residence
§ 7.16 Determining if Debt Can Be Enforced Against Primary Residence
PART VI: ASSESSING EFFECT OF TRANSFER OF PRIMARY RESIDENCE ON MEDICAID ELIGIBILITY
§ 7.17 CHECKLIST: Assessing Effect of Transfer of Primary Residence on Medicaid Eligibility
§ 7.18 Establishing Whether Primary Residence Must Be Disposed of to Meet Medicaid Eligibility
§ 7.19 Evaluating Effect of Outright Transfer of Primary Residence by Gift on Medicaid Eligibility
§ 7.20 Considering Effect of Sale of Primary Residence on Medicaid Eligibility
§ 7.21 Evaluating Effect of Gift of Primary Residence with Reserved Life Estate on Medicaid Eligibility
§ 7.22 Determining Desirability of Purchasing Life Estate
§ 7.23 Assessing Sale of Remainder Interest
§ 7.24 Considering Impact of Medicaid Liens on Transfers of Real Property
Chapter 8 SOCIAL SECURITY DISABILITY AND SUPPLEMENTAL SECURITY INCOME
PART I: STRATEGY
§ 8.01 Scope
§ 8.02 Objective and Strategy
PART II: ESTABLISHING ELIGIBILITY FOR SOCIAL SECURITY DISABILITY (SSD)
§ 8.03 CHECKLIST: Establishing Eligibility for Social Security Disability (SSD)
§ 8.04 Determining Whether Client Is Insured
§ 8.05 Establishing that Client Is Disabled
§ 8.06 Applying for Social Security Disability Benefits
PART III: UNDERSTANDING RELATIONSHIP BETWEEN SOCIAL SECURITY DISABILITY BENEFITS AND OTHER AREAS OF ELDER AND DISABILITY LAW
§ 8.07 CHECKLIST: Understanding Relationship Between Social Security Disability Benefits and Other Areas of Elder and Disability Law
§ 8.08 Understanding Relationship Between Social Security Disability Benefits and Medicaid
§ 8.09 Understanding Relationship Between Social Security Disability Benefits and Medicare
§ 8.10 Understanding Relationship Between Social Security Disability Benefits and Alimony and Child Support
PART IV: EXPLORING ELIGIBILITY FOR SUPPLEMENTAL SECURITY INCOME (SSI)
§ 8.11 CHECKLIST: Exploring Eligibility for Supplemental Security Income (SSI)
§ 8.12 Understanding Purpose of Supplemental Security Income (SSI)
§ 8.13 Determining Whether Client Qualifies for Supplemental Security Income (SSI) Benefits
§ 8.14 Determining Whether Client Must Apply for Other Benefits
PART V: EXAMINING RELATIONSHIP BETWEEN SUPPLEMENTAL SECURITY INCOME AND OTHER AREAS OF ELDER AND DISABILITY LAW
§ 8.15 CHECKLIST: Examining Relationship Between Supplemental Security Income and Other Areas of Elder and Disability Law
§ 8.16 Understanding Relationship Between Supplemental Security Income and Medicaid
§ 8.17 Understanding Relationship Between Supplemental Security Income and Support Obligations
PART VI: FOLLOWING ADMINISTRATIVE PROCEDURES FOR APPEAL FROM DENIAL OF SOCIAL SECURITY DISABILITY OR SUPPLEMENTAL SECURITY INCOME BENEFITS
§ 8.18 CHECKLIST: Following Administrative Procedures for Appeal from Denial of Social Security Disability or Supplemental Security Income Benefits
§ 8.19 Appealing Denial of Benefits
§ 8.20 Submitting Forms to Collect Attorney’s Fee
§ 8.21 Pursuing Subsequent Administrative and Litigation Remedies
Chapter 9 MATRIMONIAL ISSUES IN ELDER LAW
PART I: SCOPE AND OBJECTIVE
§ 9.01 Scope
§ 9.02 Objective and Strategy
PART II: EVALUATING CIRCUMSTANCES IN WHICH DIVORCE MAY BE APPROPRIATE FOR ELDER CLIENT
§ 9.03 CHECKLIST: Evaluating Circumstances in Which Divorce May Be Appropriate for Elder Client
§ 9.04 Examining Married Elder Client’s Financial Situation and Need for Medicaid
§ 9.05 Coordinating Divorce Action with Medicaid Application
PART III: REPRESENTING SPOUSE OF DISABLED PARTNER
§ 9.06 CHECKLIST: Representing Spouse of Disabled Partner
§ 9.07 Managing Issue of Legal Capacity of Disabled Spouse
§ 9.08 Weighing Medicaid Benefits Against Alimony and Equitable Distribution
§ 9.09 Applying for Order of Support from Institutionalized Spouse
PART IV: REPRESENTING ILL OR DISABLED SPOUSE
§ 9.10 CHECKLIST: Representing Ill or Disabled Spouse
§ 9.11 Ascertaining Legal Capacity of Client to Initiate or Defend Matrimonial Action
§ 9.12 Assessing Client’s Needs for Care and Ability to Provide for Care
§ 9.13 Assess Impact of Divorce on Client’s Ability to Finance Care
Chapter 10 LIVING WILLS AND ADVANCE DIRECTIVES FOR HEALTH CARE; PHYSICIAN ORDERS FOR LIFE-SUSTAINING TREATMENT (“POLST”); MEDICAL AID IN DYING FOR THE TERMINALLY ILL ACT
PART I: STRATEGY
§ 10.01 Scope
§ 10.02 Objective and Strategy
PART II: DETERMINING CLIENT’S WISHES IN EVENT OF INCAPACITY
§ 10.03 CHECKLIST: Determining Client’s Wishes in Event of Incapacity
§ 10.04 Determining Whether Client Has Valid Advance Directive for Health Care, Living Will, or Health Care Proxy
§ 10.05 Establishing Client’s Capacity to Execute Advance Directive for Health Care, Living Will, or Health Care Proxy
§ 10.06 Establishing Client’s Objectives in Advance Planning for Health Care Decisions
§ 10.07 Discussing Organ Donation
PART III: SELECTING APPROPRIATE INSTRUMENT AND AGENT TO MAKE MEDICAL DECISIONS
§ 10.08 CHECKLIST: Selecting Appropriate Instrument and Agent to Make Medical Decisions
§ 10.09 Using Instructive Directive or Living Will to State Client’s Health Care Wishes
§ 10.10 Using Health Care Proxy to Designate Health Care Representative to Make Decisions if Client Becomes Incapacitated
§ 10.11 Discussing Selection of Designated Health Care Representative
§ 10.12 Considering Effect of Client’s Religious Beliefs on Provisions in Advance Directive for Health Care
PART IV: CREATING EFFECTIVE ADVANCE DIRECTIVES FOR HEALTH CARE
§ 10.13 CHECKLIST: Creating Effective Advance Directives for Health Care
§ 10.14 Complying with Health Insurance Portability and Accountability Act (HIPAA)
§ 10.15 Advising Female Client About Pregnancy Provisions
§ 10.16 Executing Advance Directive for Health Care
§ 10.17 Considering Audiotaping or Videotaping Advance Directive for Health Care
PART V: MODIFYING OR REVOKING ADVANCE DIRECTIVE FOR HEALTH CARE
§ 10.18 CHECKLIST: Modifying or Revoking Advance Directive for Health Care
§ 10.19 Advising Client How to Modify or Revoke Advance Directive for Health Care
PART VI: INITIATING USE OF ADVANCE DIRECTIVE FOR HEALTH CARE
§ 10.20 CHECKLIST: Initiating Use of Advance Directive for Health Care
§ 10.21 Understanding When Advance Directive Becomes Operative
§ 10.22 Examining How Health Care Institution Determines Mental Capacity of Patient
§ 10.23 Reviewing Process for Communicating and Contesting Determination of Incapacity
PART VII: IMPLEMENTING ADVANCE DIRECTIVE FOR HEALTH CARE
§ 10.24 CHECKLIST: Implementing Advance Directive for Health Care
§ 10.25 Resolving Disagreements Between Health Care Institution and Agent Appointed in Advance Directive for Health Care
§ 10.26 Implementing Advance Directive for Health Care if Terms Are Unclear
PART VIII: ADVISING CLIENTS REGARDING PHYSICIAN ORDERS FOR LIFE-SUSTAINING TREATMENT (“POLST”)
§ 10.27 CHECKLIST: Advising Clients Regarding Physician Orders for Life-Sustaining Treatment (“POLST”)
§ 10.28 Understanding When POLST Becomes Operative
§ 10.29 Understanding Requirements for Validly Executed POLST
§ 10.30 Resolving Disagreements Amongst Patient, Physician and Patient’s Representative Concerning POLST
PART IX: ADVISING CLIENTS REGARDING THE MEDICAL AID IN DYING FOR THE TERMINALLY ILL ACT
§ 10.31 CHECKLIST: Advising Clients Regarding The Medical Aid in Dying For The Terminally Ill Act
§ 10.32 Legal Authority and Requirements for Physician-Assisted Suicide
§ 10.33 Understanding Definition of “Terminal Illness”
§ 10.34 Understanding that Terminally Ill Patient Must Make Three Requests for Life-Ending Medication
Chapter 11 PROTECTIVE ARRANGEMENTS, GUARDIANSHIPS AND CONSERVATORSHIPS
PART I: STRATEGY
§ 11.01 Scope
§ 11.02 Objective and Strategy
PART II: ASSESSING APPROPRIATENESS OF PROTECTIVE ARRANGEMENTS AND APPOINTMENT OF SPECIAL GUARDIANS
§ 11.03 CHECKLIST: Assessing Appropriateness of Protective Arrangements and Appointment of Special Guardians
§ 11.04 Requesting Protective Arrangement for Alleged Incapacitated Person
§ 11.05 Understanding Types of Actions Protective Arrangement Can Authorize or Ratify
§ 11.06 Reviewing Factors Court Must Consider Before Approving Protective Arrangement
§ 11.07 Requesting Appointment of Special Guardian to Assist with Accomplishment of Protective Arrangement
§ 11.08 Requesting Compensation for Special Guardian
PART III: INSTITUTING GUARDIANSHIP PROCEEDINGS FOR MENTALLY INCAPACITATED ADULTS
§ 11.09 CHECKLIST: Instituting Guardianship Proceedings for Mentally Incapacitated Adults
§ 11.10 Considering Alternatives to Guardianship Proceedings
§ 11.11 Determining if Person Is Incapacitated
§ 11.12 Deciding Who Has Priority to Receive Letters of Guardianship for Mentally Incapacitated Adult
§ 11.13 Deciding Whether to Request Limited or General Guardianship
§ 11.14 Preparing Verified Complaint Requesting Adjudication of Mental Incapacity and Appointment of Guardian for Alleged Mentally Incapacitated Person
§ 11.15 Obtaining Affidavits or Certifications of Physicians or Licensed Practicing Psychologist
§ 11.16 Preparing Affidavit Regarding Fair Market Value of Assets of Alleged Mentally Incapacitated Person
§ 11.17 Including Certification Setting Forth Criminal and Civil Judgment History of Proposed Guardian(s)
§ 11.1817 Submitting Order to Show Cause with Complaint for Appointment of Guardian
§ 11.1918 Serving Order to Show Cause and Pleadings on Interested Parties and Alleged Mentally Incapacitated Person
§ 11.2019 Preparing and Filing Proof of Service and Affidavit of Plaintiff
§ 11.2120 Reviewing and Answering Report of Court-Appointed Attorney
§ 11.2221 Submitting Form of Model Judgment to Court
§ 11.2322 Arranging for Surety Bond for Guardian if Required by Court
§ 11.2423 Ensuring that Guardian Qualifies with Surrogate Within 30 Days After Entry of Judgment
§ 11.2524 Handling Jurisdictional Disputes: New Jersey Adult Guardianship and Protective Proceedings Jurisdiction Act
PART IV: INSTITUTING CONSERVATORSHIP PROCEEDINGS FOR ADULTS
§ 11.2625 CHECKLIST: Instituting Conservatorship Proceedings for Adults
§ 11.2726 Deciding Whether to Commence Action to Appoint Conservator for Person Who Is Infirm
§ 11.2827 Deciding Who Should Bring Action for Appointment of Conservator
§ 11.2928 Reviewing Order of Priority for Appointment as Conservator
§ 11.3029 Preparing Verified Complaint for Appointment of Conservator
§ 11.3130 Preparing Affidavit or Certification Regarding Assets of Conservatee
§ 11.3231 Submitting Order to Show Cause to Court
§ 11.3332 Serving Order to Show Cause and Pleadings on Interested Parties and Conservatee
§ 11.3433 Arranging for Surety Bond for Conservator if Required by Court
§ 11.3534 Filing Power of Attorney on Behalf of Conservator
Chapter 12 POWERS OF ATTORNEY
PART I: STRATEGY
§ 12.01 Scope
§ 12.02 Objective and Strategy
PART II: DETERMINING WHETHER POWER OF ATTORNEY IS APPROPRIATE FOR CLIENT’S NEEDS
§ 12.03 CHECKLIST: Determining Whether Power of Attorney Is Appropriate for Client’s Needs
§ 12.04 Interviewing Client to Determine Whether Power of Attorney Is Desirable
§ 12.05 Discussing Requirements for Power of Attorney
§ 12.06 Determining Whether Client Has Capacity to Execute Power of Attorney
PART III: SELECTING APPROPRIATE TYPE OF POWER OF ATTORNEY
§ 12.07 CHECKLIST: Selecting Appropriate Type of Power of Attorney
§ 12.08 Discussing Scope of Power of Attorney with Client
§ 12.09 Explaining General Power of Attorney
§ 12.10 Determining Whether Limited or Special Power of Attorney Is Appropriate for Client
§ 12.11 Determining Whether Durable Power of Attorney Is Appropriate for Client
§ 12.12 Determining Whether Springing Power of Attorney Is Appropriate for Client
PART IV: EXPLAINING POWERS OF ATTORNEY-IN-FACT
§ 12.13 CHECKLIST: Explaining Powers of Attorney-in-Fact
§ 12.14 Explaining that Attorney-in-Fact Is Fiduciary Under New Jersey Law
§ 12.15 Explaining that Power of Attorney Is Governing Instrument Under New Jersey Probate Code
§ 12.16 Deciding Which Specific Authorized Actions to Include in Power of Attorney
§ 12.17 Drafting Clauses Authorizing Attorney-in-Fact to Conduct Banking Transactions
§ 12.18 Considering Inclusion of Power to Delegate Duties
§ 12.19 Designating Person to Serve as Attorney-in-Fact
PART V: EXPLAINING DUTIES OF ATTORNEY-IN-FACT
§ 12.20 CHECKLIST: Explaining Duties of Attorney-in-Fact
§ 12.21 Explaining Attorney-in-Fact’s Responsibilities as Fiduciary
§ 12.22 Explaining Attorney-in-Fact’s Duty to Account
§ 12.23 Identifying to Whom Attorney-in-Fact Must Account
§ 12.24 Maintaining Books and Records as Attorney-in-Fact
PART VI: CREATING EFFECTIVE POWER OF ATTORNEY
§ 12.25 CHECKLIST: Creating Effective Power of Attorney
§ 12.26 Meeting Statutory Requirements for Power of Attorney
§ 12.27 Meeting Requirements for Valid Execution of Power of Attorney
§ 12.28 Determining Whether Executed Power of Attorney Should Be Recorded
§ 12.29 Deciding Who Should Take Possession of Original Power of Attorney
§ 12.30 Evaluating Use of Photocopies of Power of Attorney
PART VII: REQUESTING OR COMPELLING ACCOUNTING BY ATTORNEY-IN-FACT
§ 12.31 CHECKLIST: Requesting or Compelling Accounting by Attorney-in-Fact
§ 12.32 Requesting Accounting
§ 12.33 Compelling Judicial Accounting
§ 12.34 Determining Jurisdiction and Venue of Proceeding
§ 12.35 Bringing Summary Proceeding on Order to Show Cause
§ 12.36 Determining Necessary Parties to Accounting Proceeding
§ 12.37 Compensating Attorney-in-Fact
PART VIII: TERMINATING AUTHORITY OF ATTORNEY-IN-FACT
§ 12.38 CHECKLIST: Terminating Authority of Attorney-in-Fact
§ 12.39 Terminating Authority of Attorney-in-Fact upon Expiration or Completion of Purpose
§ 12.40 Revoking Authority of Attorney-in-Fact
§ 12.41 Delivering Notice of Revocation to Attorney-in-Fact
Chapter 13 ESTATE PLANNING
PART I: STRATEGY
§ 13.01 Scope
§ 13.02 Objective and Strategy
PART II: COMMENCING ESTATE PLANNING PROCESS
§ 13.03 CHECKLIST: Commencing Estate Planning Process
§ 13.04 Identifying Client and Determining Ability to Represent Client
§ 13.05 Commencing Legal Representation of Client
§ 13.06 Completing Estate Planning Fact Sheet with Client
§ 13.07 Determining Ownership of Elder’s Assets
PART III: CONSIDERING APPROPRIATE WILL PROVISIONS FOR ELDER CLIENT
§ 13.08 CHECKLIST: Considering Appropriate Will Provisions for Elder Client
§ 13.09 Drafting Will for Unmarried Client
§ 13.10 Drafting Will for Client Who Is Married, Member of Civil Union or Domestic Partner
§ 13.11 Drafting Will for Client Who Has Disabled Spouse, Civil Union Partner, Domestic Partner or Child
PART IV: ESTATE PLANNING FOR NON-PROBATE ASSETS
§ 13.12 CHECKLIST: Estate Planning for Non-probate Assets
§ 13.13 Planning for Property Held in Joint Tenancy
§ 13.14 Planning with Revocable Trusts
§ 13.15 Planning with Life Insurance, Annuities, and Pay-on-Death Accounts
PART V: ESTATE PLANNING TO AVOID RECOVERY OF MEDICAID LIEN
§ 13.16 CHECKLIST: Estate Planning to Avoid Recovery of Medicaid Lien
§ 13.17 Planning Asset Transfers to Community Spouse if Spouse Is Institutionalized and Is, or Will Be, Receiving Medicaid
§ 13.18 Planning for Gifts of Assets to Individuals or Irrevocable Trusts to Avoid Medicaid Lien Recovery
§ 13.19 Planning to Preserve Assets in Estate of Deceased Community Spouse
PART VI: INSTITUTING COURT PROCEEDINGS TO REFORM WILLS AND TRUSTS
§ 13.20 CHECKLIST: Instituting Court Proceedings to Reform Wills and Trusts
§ 13.21 Commencing Proceedings in Appropriate County in Summary Manner upon Order to Show Cause
§ 13.22 Serving Pleadings upon Interested Parties
§ 13.23 Appearing on Return Date of Order to Show Cause
§ 13.24 Commencing Court Proceeding to Create d(4)(A) Special Needs Trust
Chapter 14 ELDER ABUSE
PART I: STRATEGY
§ 14.01 Scope
§ 14.02 Objective and Strategy
PART II: DETERMINING IF ELDER ABUSE IS PRESENT
§ 14.03 CHECKLIST: Determining if Elder Abuse Is Present
§ 14.04 Understanding Elder Abuse
§ 14.05 Determining Whether Elder Is Being Abused
§ 14.06 Determining Whether Elder Is Being Neglected
§ 14.07 Considering Whether Elder Is Being Exploited
PART III: DETERMINING MENTAL CAPACITY OF ALLEGED VICTIM OF ELDER ABUSE
§ 14.08 CHECKLIST: Determining Mental Capacity of Alleged Victim of Elder Abuse
§ 14.09 Considering Elder’s Mental Capacity in Context of Representation by Counsel
§ 14.10 Advocating for Elder Client
§ 14.11 Contacting County Adult Protective Services (APS) if Elder Lacks Mental Capacity and Lives in Community
§ 14.12 Contacting Office of Ombudsman if Elder Resides in Nursing Home or Assisted Living Facility
§ 14.13 Contacting County Prosecutor if Elder Is Being Physically Harmed or Financially Exploited
PART IV: CRAFTING LEGAL STRATEGIES FOR CLIENT AT RISK OF ELDER ABUSE WHO HAS MENTAL CAPACITY
§ 14.14 CHECKLIST: Crafting Legal Strategies for Client at Risk of Elder Abuse Who Has Mental Capacity
§ 14.15 Creating and Revoking Power of Attorney
§ 14.16 Commencing Conservatorship Proceedings
§ 14.17 Protecting Assets of Competent Elder
§ 14.18 Protecting Person of Elder
PART V: INSTITUTING GUARDIANSHIP PROCEEDINGS FOR MENTALLY INCAPACITATED ELDERS
§ 14.19 CHECKLIST: Instituting Guardianship Proceedings for Mentally Incapacitated Elders
§ 14.20 Commencing Action for Protective Proceedings and Appointment of Special Guardian
§ 14.21 Commencing and Proceeding in Action for Guardianship
§ 14.22 Selecting Appropriate Guardian
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