Lexis Nexis LexisNexis Practice Guide: New Jersey Elder Law
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The purpose of the publication is to enable new and established practitioners to creatively coordinate the many areas of the law that impact on each client of an elder and disability practice and to deliver the high quality services that clients rightfully expect. The publication consists of text, forms, checklists, and easy-to-find reference tools.
The previous edition's ISBN is 9781663363589.
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Featured Authors
Peggy Sheahan Knee
Peggy Sheahan Knee is a member of The Knee Law Firm, L.L.C. located in Hackensack, focusing on estate planning, elder law, and probate and estate administration. She is a graduate of Fordham College, Fordham University School of Law, and New York University School of Law (LL.M., Taxation). Ms. Knee is certified as an elder law attorney by the National Elder Law Foundation, an organization accredited by the American Bar Association and she is a member of the Council of Advanced Practitioners of the National Academy of Elder Law Attorneys. She is a fellow of the American College of Trust and Estate Counsel, a fellow of the American Bar Foundation and a member of the American Bar Association, the Bergen County Bar Association, and a Past President of the New Jersey State Bar Association where she served as President from May 2008 through May 2009. She is a member and Past Chair of the New Jersey State Bar Association’s Real Property, Trust and Estate Law Section. Ms. Knee received the Dorothy G. Black Award from the Real Property, Trust and Estate Law Section of the New Jersey State Bar Association for outstanding service. Ms. Knee writes and lectures frequently on estate administration and estate planning topics. She served as Chair of the New Jersey State Bar Association’s subcommittee that drafted proposed revisions to the revised New Jersey Probate Code, which were enacted in 2004 and effective in 2005. She is co-author of the LexisNexis New Jersey Practice Guide on Elder Law.
Linda S. Ershow-Levenberg
Linda S. Ershow-Levenberg is the managing attorney of the firm Fink Rosner Ershow-Levenberg Marinaro LLC in Clark, NJ, where her practice concentrates in Elder Law, including planning, litigation and administration. Linda has been certified in Elder Law by the National Elder Law Foundation, the accrediting body which is recognized by the New Jersey Supreme Court and the American Bar Association, since 1999. She is a member of the National Academy of Elder Law Attorneys, the NJ Bar Association, and the Union County Bar Association. She is Past Chairman of the New Jersey State Bar Association’s Elder & Disability Law Section. She is the past Chairman of the Union County Bar Association’s Elder Law Committee.
Linda argued before the NJ Supreme Court on behalf of amicus curiae N.J. Chapter of the National Academy of Elder Law Attorneys in In re Keri, the seminal case on Medicaid planning by Guardians, for which she received an Appreciation Award from the Guardianship Association of New Jersey (GANJI). She has obtained important administrative Final Agency Decisions in several cases involving the use of immediate irrevocable annuities in Medicaid planning, which confirmed that properly structured annuities are not countable resources: M.W. v. Division of Medical Assistance and Health Services and Union County Board of Social Services, OAL DKT no. HMA 2998-2013, (2014) and P.K. vs Union County Board of Social Services and DMAHS, OAL docket no. HMA7069-09N, Final Agency Decision issued March 4, 2010. She has published articles on elder and disability law in Aspatore Books’ Inside the Minds: Best Practices for Long-Term Planning and Nursing Home Protection (Thompson Reuters Publications 2011); New Jersey Lawyer Magazine (2010); the Marquette Elder’s Advisor, NAELA News, NJ Lawyer Newspaper, and other professional publications for attorneys, and lectures on elder law issues to professional and community groups.
Linda received her B.A. magna cum laude from Douglass College (at Rutgers University) where she was a member of Phi Beta Kappa, and her J.D. from Rutgers Law School-Newark. She was admitted to the Bar in 1984, clerked for the late Honorable Lawrence Lasser, Chief Judge of the New Jersey Tax Court, and has been in practice in New Jersey since 1985. She resides in Elizabeth, New Jersey with her husband David and has 4 children.
Table of contents
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
Index
