How Much Can a Married Spouse Keep in Family Assets and Property If Their Husband or Wife Needs Medicaid – Part II

By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold, NJ Medicaid Eligibility Law Firm

Last week we were discussing the Community Spouse Resource Allowance (CSRA) and how to calculate it.  You may remember it is a formula that allows a stay at home spouse to keep a portion of his/her life’s savings.  I also explained that a mistake in determining that number can be quite costly.  Here’s how.

Using my example from last week, let’s say husband, Joe is in the nursing home and wife, Mary has calculated the CSRA amount that she can keep to be $100,000.  But, if that amount should really be $90,000, she still has to spend down another $10,000 but she doesn’t know it yet.

Mary then applies for Medicaid.  Because all county Boards of Social Services throughout New Jersey that process the applications are understaffed and overworked, it can take many months for them to actually review Joe’s application.  In some counties it takes months just to get an application assigned to a caseworker.

That means that for months no one will be looking at what Mary submitted.  If it take 6 months until the caseworker calculates the CSRA and informs Mary that she is wrong and has to spend down another $10,000, Mary cannot turn the clock back and change what she has done.  Once she spends down the extra $10,000, Joe will eligible in the 7th month but – and here is the critical piece of information – she has permanently lost Medicaid for those first 6 months, and is personally financially responsible for the shortfall.

Think about that.  So the inevitable question I get when I explain this to people is, “what happens then?”  The answer is that Mary must pay the nursing home at their private pay rate for those 6 months.  At $10,000 to $13,000 per month that could cost her a total of $60,000 to $78,000, leaving her with as little as $12,000 left for her own needs.

A very expensive mistake indeed and why it is so critical to get the proper advice and not try to “do it yourself”.

If you have questions any about Medicaid eligibility in New Jersey, contact me, Fredrick P. Niemann, Esq. toll-free at 855-376-5291, email me at fniemann@hnlawfirm.com, or visit me at www.njmedicaidattorney.com/protect-assets-and-income.

 

 

How Much Can a Married Spouse Keep in Family Assets and Property If Their Husband or Wife Needs Medicaid – Part I

By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold, NJ Medicaid Eligibility Law Firm

Families are terrified about losing a lifetime of income and savings to a nursing home, but there is hope.  Let’s discuss your options and start by using a term called “CSRA”.  CSRA is an acronym.  It stands for community spouse resource allowance.  This allowance is an amount of money that a healthy spouse can keep and still qualify the ill spouse for Medicaid.  Sounds simple but if misunderstood and misapplied, it can cost the healthy spouse tens of thousands of dollars (even hundreds of thousands of dollars) in lost assets and additional nursing home bills.  Allow me to explain.

First, let’s review New Jersey’s asset rules.  You may know (but probably don’t) that a Medicaid applicant (mom/dad/elderly person) must spend down his/her countable assets and most everything else to below $2000 by the end of the month in order to be eligible for Medicaid the following month.  However, what happens in the case of a married couple where one spouse needs Medicaid?  Can’t you just transfer all of the family assets over to the healthy spouse and get the sick spouse under $2000?  The answer is no!  Why?  Because Medicaid treats the married couple as one “person”.  It does not matter which spouse legally or technically “owns” the assets.

NJ Medicaid adds up all countable assets and divides the total value in half.  The healthy/community spouse gets to keep one-half of the countable assets, but only up to a maximum limit of $117,240.  This means that if the couple has $150,000, the healthy spouse can keep $75,000 (1/2).  If they have $250,000, the healthy spouse can only keep $117,240, not $125,000.  Remember, $117,240 is the maximum exception.

Sounds pretty simple, but then you may ask, “when is this calculation made?”  After all, investments and bank accounts can fluctuate in value over time, and assets may be spent.  That’s where the term “snapshot date” becomes important.  The law requires that the value of all countable assets be calculated as of the first day of the first month of continuous institutionalization.  That is the first day of the first month that the applicant enters a nursing home, intermediate care facility or hospital.

This calculation is critical to determine accurately because if you use the wrong date, when the amount of assets was higher, then your CSRA number will be too high if the value of your assets decline.  Let’s say I calculate the assets to be $200,000 at what I think is the correct snapshot date.  My spend down target is $100,000, or so I think.  But, if I use the wrong date, and my assets were valued at $180,000 on the correct snapshot date, then I must actually spend down to $90,000.  In my next post, I’ll explain how costly that mistake can prove to be.

If you have questions any about Medicaid eligibility in New Jersey, contact me, Fredrick P. Niemann, Esq. toll-free at 855-376-5291, email me at fniemann@hnlawfirm.com, or visit me at www.njmedicaidattorney.com/protect-assets-and-income.

 

Global Options for Long Term Care in New Jersey

By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Monmouth County, New Jersey Medicaid Eligibility Attorney

The Global Options program (GO) is a great alternative to a nursing home.  The New Jersey Department of Services, Division of Aging operates the Medicaid Waiver program specifically for older adults age 65+, or persons with physical disabilities between the ages 21-64, who are medically capable of receiving home and community-based services instead of living in a nursing home.

GO participants are assigned to and thereafter work with a Care Manager to create an individualized and personalized Plan of Care based on their assessed care needs.  GO participants even have the option to hire and direct their own service providers.  I’ll discuss this further later on.  Once the Plan of Care is approved, the Care Manager will arrange service providers and contact the participants monthly to ensure that their services continue to meet their care needs.

Global Options is NOT intended to replace an applicant’s family community support network.  Instead, it offers support to fill the gaps that cannot be met by family and friends.  GO strengthens the ability of caregivers to continue in their critical role as the main support providers.

There are limits to what is available and permitted.  Service agencies must be approved by Medicaid and some support services may not be available in your county.  The State sets the rates that agencies are paid and the individual cost cap that participants cannot exceed, and prior authorization for certain services may be required.  Payments are made on a fee-for-service basis and paid directly to service agencies.  Money is NOT distributed to participants or caregivers under any circumstances.  It is also important to understand that in all cases, Medicaid is considered the payer of last resort.

WHAT ARE THE CRITERIA TO RECEIVE ELIGIBILITY FOR GO

In order to be eligible for Global Options, an applicant must meet all of the following criteria:

  • Be a resident of New Jersey
  • Be 65 years old or older, or is between the ages of 21-65 and determined physically disabled by the Social Security Administration or by the Disability Review Section of the Division of Medical Assistance and Health Services.
  • Qualify for Medicaid financial eligibility by:
    • Qualifying for SSI in the community, or
    • Qualifying for Medicaid Only – Institutional Level, or
    • Qualifying for New Jersey Care (with income at or below 100% of the federal Poverty Level and resources at or below $4,000).
    • Meet Clinical eligibility, which is determined by a State or county professional as needing Nursing Facility Level of Care.
    • Reside in an approved community living arrangement.
    • Want to enroll and receive Waiver services rather than live in a nursing home.

When Is An Individual Not Eligible for GO Under Current Regulations

  • Individuals between the ages of 21 and 64 who are chronically mentally ill, intellectually disabled or developmentally disabled are ineligible for Global Options for Long-Term Care enrollment.

Once enrolled, participants may remain on Global Options as long as they choose, provided they remain eligible and abide by program rules.

At any time, if a GO participant no longer meets these eligibility and enrollment criteria, he or she may be terminated from the program due to ineligibility.

SERVICES

What Services are Provided By the State Under the Global Options Program?

The following services may be available if approved and included as your personalized care plan.  These services are taken directly from the state’s website and policy manual.

  • Assisted Living/Adult Family Care Assistance
  • Personal Attendant Care
  • Caregiver Participant Training
  • Care Management
  • Chore Services
  • Community Transition Services
  • Environmental Accessibility Adaptations
  • Home-Based Supportive Care (HBSC)
  • Home Delivered Meal Services
  • Personal Emergency Response Systems
  • Respite
  • Special Medical Equipment and Supplies
  • Social Adult Day Care
  • Transitional Care Management
  • Transportation

 

GO participants can also be eligible for additional services under the Medicaid State Plan including:

  • Adult Day Health
  • Advanced Practice Nurse
  • Chiropractic
  • Clinic
  • Dental
  • Hearing Aid
  • Home Health
  • Hospital
  • Hospital Outpatient
  • Laboratory
  • Medical Supplies Equipment
  • Nursing facility
  • Optometric
  • Optical Appliances
  • Personal Care Assistant (PCA)
  • Pharmaceutical
  • Physician
  • Podiatric
  • Prosthetic and Orthotic Devices
  • Rehabilitation Therapies
  • Transportation

 

There Are Limitations to the Services Available

The services of a Personal Care Assistant (PCA) and Home Based Supportive Care (HBSC) are mutually exclusive of one another.  That means that a participant must choose either a PCA or HBSC, but cannot receive both.

All GO services are subject to limitations.  These limitations are described generally as follows:

  • Services are to be cost-effective, while supporting a person’s care needs.
  • Services are designed to supplement, not replace, the assistance already being provided by family, friends and neighbors.
  • Services are for the GO participant, NOT other household members.
  • Services are designed according to the Plan of Care.
  • GO cannot be used to pay for what currently is being paid privately or through another program.
  • GO Waiver services are not available while an individual is an inpatient of a hospital or nursing home for an acute medical stay.

 

Who Is Eligible to Provide These Services to Qualified Persons?

Services can be provided to qualified persons, County and/or local Medicaid community agencies, qualified third parties and even family members but all service providers must meet qualification requirements determined by the State of New Jersey.

 

What Does a Care Manager Do, If I Qualify For One?

A Care Manager is a person who is experienced in working with older adults and adults with physical disabilities.  Every Global Options participant must receive Care Management as a Waiver service.

Care Managers will help GO participants by:

  • Continually reassessing their care needs for Waiver services;
  • Developing and reviewing the Plan of Care;
  • Authorizing Services;
  • Coordinating services and providers;
  • Making sure that services are delivered according to the Plan of Care;
  • Monitoring participants’ general health and welfare through regular contacts and home visits;
  • Monitoring the participant’s individual cost cap; and
  • Determining the cost share of Assisted Living/Adult Family Care participants.

These services are mandatory according to the state’s published materials.


What is a Plan of Care And What Does It Mean to Me?

The Plan of Care is a plan created for the individual based on his/her assessed care needs.  It outlines what services and supports are necessary to achieve your reasonable health care requirements.  Each Plan of Care is individualized for every GO participant.  The Plan of Care is reviewed continually, and updated at least annually, to ensure that each participant is getting the appropriate services that he or she needs.

 

What Does Participant-Directed Care Mean?

Global Options was designed to provide independence to participants so they have more control over managing their care.

If medically capable, a participant can choose to direct their own care, including managing their own state-authorized budget and/or hiring their own state-approved employee, possibly even friends or family.

Participant-Directed Care also means that a participant, with the help of your Care Manager, will:

  • Determine what services you need;
  • Select who will provide them;
  • Determine when and how they should be delivered; and
  • Make sure services are provided as listed in the Plan of Care.

 

Is There a Cost for GO Services?

There is no cost to the participant for GO services except for the Assisted Living or Adult Family Care services.  For those services, a person is always responsible to pay Room and Board fees.  GO participants who live in an Assisted Living facility or Adult Family Care home are expected to contribute to the cost of their services.  This is called a “Cost Share”.  The amount of your Cost Share depends on a participant’s income.

Cost Share liability is determined after a participant is approved for GO.

Determining the Cost Share amount involves these steps:

  1. Listing your income from all sources;
  2. Subtracting Allowable Deductions such as the cost permitted to cover medical insurance premiums;
  3. Using the remainder to determine how much you will pay as your Cost Share.

If you have questions regarding Medicaid eligibility for the Global Options Program, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.

 

JOINT ACCOUNTS: DEFEATING A CLAIM OF OWNERSHIP BY ACCOUNT HOLDER

By Fredrick P. Niemann, Esq. of Hanlon Niemann, a NJ Probate and Will Contest Attorney

Recently I received another inquiry about ownership of non-probate assets that were jointly owned by the deceased mother and her son who is a well known CPA in the area.  In this case, the sister was not named on the account and as a result, her brother received over $700,000 upon his mother’s death while his sister received $2,453.78.

Joint bank accounts, joint brokerage accounts, virtually anything jointly owned can provide that the survivor of the joint owners be entitled (by virtue of their right of survivorship) to the proceeds left in the account upon the death of the other joint owner.

If you look at joint accounts created by a parent naming an adult child as the joint owner, there are two common reasons why these joint accounts were set up.  The joint account “could” have been set up in order to purposely give the remaining money to the child.  In other words, the parent intended to make a “gift” to the child upon the parent’s death with the child receiving the balance of the money left in the joint account.  Alternatively, a joint account may be set up for the child to access the money in the joint account to assist the parent with paying bills, but with the unstated intention that the balance in the account, upon the parent’s death, be distributed according to the parent’s Last Will.  In this example, the funds in the account become part of the parent’s probate or trust estate meaning that the account will be subject to the parent’s Last Will or living trust.

In New Jersey, where the intention of the parents is not clear, it is up to the child challenging the ownership of the joint account, to prove that the deceased parent did not intend to gift the balance of the account to the surviving child.  If the child is able to prove that the intention was to gift the balance to all child(ren), or in accordance with a Last Will or trust, the courts will find that the balance left in the joint account forms part of the deceased parent’s estate to be distributed according to the parent’s Will.

Where the intention is not clear, disputes over what the parent intended often results in protracted litigation between the Estate (or its beneficiaries) and the child, with significant legal expenses being incurred by all.  And so is what is happening in the recent inquiry I just received.

The facts considered by the courts when courts try to decide what a parent intended include:

  1. Facts and conduct of the parties before and after the joint account was created – although the court seeks to determine the intention at the time the joint account was created, subsequent conduct by the joint owners may shed light on the original intention.  Who had control and use of the funds in the joint account may show the original intention – if the parent, whose money was deposited into the joint account, continued to control the money after transferring it to the joint account, it may indicate that the account was created for convenience only and not intended to be a gift to the surviving child;
  2. The wording of the bank, brokerage, annuity, and other documents that created the joint account is important as is the mental health of the grantor.  For example, did the creator understand the legal effect of creating a joint account?
  3. Who legally owned the funds that were originally deposited into the joint account – if only the parent deposited their funds to the account, then the ownership of the funds may have been intended to remain with the parent.  By contrast, if both the parent and the child contributed to the joint account, then it may be more likely that the intent was truly “share the funds”;
  4. Was a power of attorney given to the jointly named owner (the child), which may suggest that the account was not set up for convenience as the jointly named owner could have accessed the account using the power of attorney.  This is a critical factor given the strong fiduciary relationship between a power of attorney and his or her principal;
  5. Who paid the taxes on interest earned from the money in the joint account?  If the parent, then what does this suggest?  Why did just the parent pay the taxes?

Other factors that may be considered included:

  1. where the evidence establishes that the parent was aware of the consequences of creating a joint account (ie; perhaps they had prior experience with joint assets), this will weigh heavily in determining that the parent intended to gift the balance in the account to the child; and
  2. evidence of a close relationship between the co-owners may be considered by the court when determining the intention of the parent who created the joint account.

The burden of proof rests on the surviving joint owner (the child) to satisfy the court that the parent intended for the child to receive the balance left in the account on the death of the co-owner parent, if there is doubt of the intention, the balance in the account will go to the deceased parent’s estate.

Therefore, to ensure the money in a joint account is distributed as desired, a parent who creates a joint account would be wise to ensure others (ie; people other than the child who is the joint owner) are aware of their intentions – this may include other family members, as well as the parent’s lawyer and/or accountant, or other financial adviser.  Failing to clearly set out the parent’s intention (in writing) can result in expensive and protracted litigation and possibly the money going to someone other than to whom the parent desired.

If you have questions about estate planning, please contact Fredrick P. Niemann, Esq. toll-free at 855-376-5291 or email him at fniemann@hnlawfirm.com.  He welcomes your inquiries.  Then visit our website, www.probateattorneyinnewjersey.com for a more thorough discussion of this topic.

 

Ethical Issues in Representing Seniors, Persons with Disabilities and their Families

By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold, NJ Elder Care Attorney

Background to the Issue:

Elder care law is defined as an approach to the practice of law in which the attorney focuses on the needs of the aging client as a whole, rather than a particular isolated area of the law, such as tax law or contract law.  However, this approach is often different than with the conventional attorney-client relationships.

Life Planning vs. Traditional Estate Planning

From the perspective of a “traditional” estate planner, one of the key distinctions between Estate Planning and Life Care Planning is the Elder Law attorney’s focus on “Life Planning” as opposed to “transfer by death” planning.  Elder law attorneys tend to emphasize the issues facing individuals as life experiences increase rather than on death-related transfers.  Elder care law recognizes that what concerns today’s aging population the most are health related issues, the fear of isolation and financial ruin brought about by long term care expenses. These concerns are the very heart of the practice of elder care and elder law.

The challenge to us in the field is to integrate these different emphases into a unified legal, beneficial way.

The Ethical Challenges Facing Elder Law Attorneys

Often, an elder law attorney is approached by family members at a time of crisis.  It is not uncommon for the children of a declining senior who reside out of town or out of state attorney.  You often sense the tensions and anxieties that overwhelm the family members.  As a consequence, my first responsibility is to adopt as objective judgment and reasoned analysis the very things the family members consult an elder law attorney.

Thereafter, as our relationship evolves and as a result of the family involvement, I often face questions that have never been encountered before and often must provide answers to previously un-asked questions (often hypothetical questions) before the facts of the particular situation are fully known and analyzed.  As an experienced elder law attorney, I must identify and establish the following issues:

  • Who is my client, the aging parent(s) or their adult children?
  • If action must be taken, who has authority to act on behalf of the client?
  • If the issues involve someone in a medical crisis or suffering from a terminal condition, is there sufficient time to accomplish the tasks contemplated?
  • Is sufficient information regarding the issues that need to be addressed available to me so that I can provide an informed opinion in a minimum amount of time?
  • What resources are available to assist me as the attorney (and the client) in gathering this information?  Today’s laws make this issue very frustrating.
  • In dealing with multiple parties, often the children with competing ideas and interests, what ethical issues must be dealt with?

So you see, it’s not easy to satisfy the ethical issues presented when a new family comes to me in crisis.  As you read this post, was I speaking to you and your family?

To discuss your elder care and NJ elder law matter, please contact me toll-free at (855) 376-5291 or email me at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.