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Helping Someone With Dementia Sell the Home

Selling the home through guadrianship

Sometimes, a home must be sold, but the homeowner is no longer able to sign a listing or sale agreement due to cognitive impairment, confusion, advanced dementia or severe and persistent addiction issues (i.e., Wernicke-Korsakoff syndrome), or new onset dementia after recovering from COVID-19.  covid-19-pneumonia-increases-risk-of-dementia-study-says  Others may be temporarily incapacitated due to cardiac issues, surgery, or severe illness.  These conditions can prevent an adult from being temporarily or permanently able to make important financial, medical or legal decisions.  Adults who can no longer make decisions may be incapacitated.  And in real estate bubble with many residential properties reaching their peak value, it’s critical to act fast to accept the best home sale offer.

Unfortunately, incapacitated adults are unable to enter into a binding contract, such as an agreement to list or sell the home. When this happens, one option may be to use a general durable power of attorney or a real estate power of attorney to sell the home.  But that can only be successful where there is already a valid general durable power of attorney or real estate power of attorney in place.  If there is a power of attorney, and the homeowner is able to make decisions, the home cannot be sold through a power of attorney without the homeowner’s consent to the sale.  Giving a power of attorney to a trusted adult child or friend is like giving them an extra set of keys to the car. You can always take back the keys when you wish.

More to the point, a power of attorney is an important legal document by which the principal (i.e., the person signing the power of attorney) gives authority to an agent to carry out the affairs of the principal.  The catch-22 is that in order to make a power of attorney, the principal must have legal capacity.  Unfortunately, there are many incapacitated persons who never bothered to obtain a power of attorney before they lost capacity.   Another risk is that there may be a valid power of attorney, but the agent named may be deceased, very ill, or no longer available to serve.  Once again, there is no one with legal authority to sign the home sale agreement and the house cannot be sold even if there is a buyer.

The solution is to seek a court order for authority to sell the home.  This involves filing a lawsuit in the Superior Court for a judgment of incapacitation and award of guardianship.  The guardianship process is not a simple one. There are several different types of guardianships and the correct type must be selected.  Various court rules, required information and forms must be complied with.

The guardianship process requires doctor’s reports and an investigation into the finances and health of the alleged incapacitated person. As part of the process, the Superior Court judge appoints an independent attorney to investigate these matters and to write a report.  This attorney is referred to as the court-appointed attorney.  Often, that attorney’s report carries great weight with the court.  Testimony by the doctors may be waived, or if the guardianship is disputed, there may be an adversarial hearing.  If the evidence, any testimony and the court-appointed attorney’s report indicates that the alleged incapacitated person cannot make any significant decisions as to his person or property, then a plenary guardianship may be awarded.

But this is only the first step in obtaining court-authority to sell the home of the incapacitated person, who may urgently need the anticipated net home sale proceeds to pay for long-term care.  The next step is to file a motion with the court to sell the home through the guardianship.  The court can potentially award the requested order.  Only when such an order is in place, can the home be legally sold.

Not surprisingly, this process requires additional legal work and documentation.  The guardian must show that the proposed sale is fair and reasonable and in the “best interests” of the incapacitated person. In deciding whether this standard is satisfied, the judge may consider whether the incapacitated person will ever be able to return to the home to live there independently or with the assistance of paid caregivers, provided there are sufficient funds.  The fair market value and the tax-assessed value of the home will also be considered, as will the outcome of any prior attempts to sell the property, the cost of continued homeownership, and whether the anticipated net house sale proceeds are needed to pay for long-term care. In many cases, the home must be sold as a condition of Medicaid eligibility for the former homeowner in a nursing home.

This process takes time.   In limited cases where the safety of the alleged incapacitated person is endangered, or a very good purchase offer may be lost without swift court approval, the guardianship process can be expedited in New Jersey.

The bottom line, is that when capacity is in issue, selling the home a general durable power of attorney or a real estate power of attorney is much more efficient than through a guardianship. However, selling the home through a guardianship can be done in the difficult cases where there is no legal authority in place to sell the home.

Questions, or if you need help clearing title to sell a home through a guardianship? Let Jane know.

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Avoiding a Medicaid Penalty Period

What is the Medicaid penalty period?

During the Medicaid look back period, you can’t give away your money (without receiving equal value in return) and go on Managed Long Term Services and Supports (MLTSS) Medicaid. If you do, a Medicaid penalty period will result. During the Medicaid penalty period, the Medicaid applicant is treated as if she still had the gifted funds. During this period, Medicaid will not pay for long-term care.

How long with the Medicaid penalty period be?

The sum of all the gifts made during the look back period is added. Then the total of those gifts is divided by the applicable Medicaid divisor. The result of this equation is the Medicaid penalty period.

Example. The Medicaid penalty divisor is $374.39 per day, or $11,387.69 per month. If I give away the sum of $11,387.69 during the look back period, the total gifts ($11,387.69) are divided by the Medicaid divisor of $374.39 per day. The resulting penalty is just over 30 days. A penalty period of about one month will apply on my Medicaid application, without an exemption.

Why can even a short Medicaid penalty period be a big problem? During the Medicaid penalty period, Medicaid will not pay for my long-term care. If I am already poor and living in a nursing home, how will I get the money to pay my nursing home bill? This can be a real challenge. No nursing home or assisted living facility will provide free care.

Increase in the Medicaid penalty divisor.

The higher the divisor, the shorter the penalty period will be. On May 24, 2022, the State of New Jersey increased the Medicaid penalty divisor to a rate of $374.39 per day. The new divisor applies to Medicaid applications filed on or after April 1, 2022.  Increase_in_the_Penalty_Divisor_Effective_4-1-2022.

Medicaid Penalty Traps

Unfortunately, the Medicaid penalty period can be a trap for the unwary. A penalty period can be imposed even with no gifts during the Medicaid look back period. The recent decision of H.L. v. Division of Medical Assistance and Health Services et als. shows what can go wrong. The Final Agency Decision is available online at H.L.vDMAHS&MonmouthCty

In that case, a Medicaid application was filed on behalf of H.L. with the Monmouth County Medicaid office. The Medicaid office reviewed H.L.’s bank records. H.L. withdrew about $58,000 during the Medicaid look back period. No gifts were made. The cash was spent on everyday living expenses, including rent. Some of the withdrawals were made after H.L. moved into a nursing home.

The Medicaid office computed a 162 day Medicaid penalty period. H.L. was now in a difficult situation. Unless the Medicaid penalty period was removed, H.L. would have an unpaid long-term care bill of approximately $60,000.

Reducing the Penalty with a Medicaid Fair Hearing.

The solution in H.L.’s case was to file for a Fair Hearing. On Fair Hearing, the Medicaid penalty period was reduced by the amount of the rent. The penalty period might have been avoided with better documentation of H.L.’s expenses.

How An Elder Law Attorney Can Help You.

Applying for Medicaid may appear simple, until it’s not. Doing it yourself or using a non-attorney Medicaid advisory service) can be like wading through quicksand. You may not realize you are in trouble until it is too late. Once assessed, a. Medicaid penalty can be difficult to remove. Fortunately, a seasoned elder law legal team can help obtain Medicaid coverage with as little stress as possible.

For more information on how we can help you with your New Jersey Medicaid planning and application, contact Archer Brogan, LLP at telephone number (609) 842-9200 or visit our firm’s website at https://archerbrogan.com.

Gun Ownership & Safety Tips for Seniors

Advice For Caregivers

The Pew Research Center reports that just over 40% of adults report there is a gun in their household. While the majority of gun owners are white men, the typical demographics of gun owners are changing. For example, when it comes to gun ownership for seniors, owning a firearm is becoming even more common than it was decades ago. Current estimates report that more than 17 million Americans over the age of 65 own a fiream.

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Estate Planning for Gen Z’s and College Students

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Going away to school is exciting.

But before taking Junior to college or to his first apartment, don’t forget legal matters. There are key financial and legal documents you need in place. These documents are a general durable power of attorney, health care proxy and living will for Junior. Once Junior attains the age of majority, his doctor, nurse, academic registrar, landlord or bank needs these documents to speak with you.

Having the documents in place can bring peace of mind. Busy Gen Z’s need time to learn how to “adult.” They feel overwhelmed by the financial side of “living their best life.”

If you insist that Junior sign his legal documents before leaving home, you have done him a favor.

With these documents, you can lead Junior by example in dealing responsibly with adult challenges. These could be “surprise medical bills,” health insurance reimbursements, credit card billing, income tax issues. Once you shown him how to manage such challenges, he will thrive. And you can relax and just be the proud parent!

Since Gen Z’s are the digital generation, make sure you have a well-crafted durable power of attorney with digital asset powers. If the unthinkable happens, you will want to be able to access Junior’s Instagram or other social media accounts in an emergency.

If Junior doesn’t execute a health care proxy, you will wish he did when he is in an urgent care facility located ten hours away!

Junior should also share a list of credit card and financial accounts with the customer service number for each account. That way, if he misplaces his credit card, it is easy to report. Also note his digital accounts numbers, usernames and passwords (i.e., student identification username and password, and the health insurance username and password).

For more practice tips on estate planning for your family, contact Jane. 

Seniors, Mental Health and Firearms: A safety plan.

As of July 16, 2022, the suicide prevention and crisis hotline can be reached by dialing 988 in New Jersey (and nationwide.) There is also a chat feature. The 1-800-273-8255 hotline will continue in effect.   You can find additional details online at Department of Human Services | 988 Suicide & Crisis Lifeline (nj.gov).

Sadly, suicide affects people of all ages. It is a leading cause of death among white males over the age of 65.  Approximately 15 individuals pass away from this daily. The use of firearms is a leading contributing factor.  See James H. Price, Jagdish Khubchandani, Firearm Suicides in the Elderly:  A Narrative Review and Call to Action, Journal of Community Health 46:1050-1058 (February 5, 2021).  The full study is available online at Firearm Suicides in the Elderly: A Narrative Review and Call for Action | SpringerLink. Letters Against Isolation | Write letters to Self-isolating seniors.

This is not a political statement. Many seniors have firearms for protection and sport. When not in use, guns should be locked away, preferably in a gun case. You may want to reconsider keeping a firearm in the home of a senior with a serious vision impairment (i.e., blindness or macular degeneration), a condition which will impair coordination (i.e., multiple sclerosis, Parkinson’s Disease, cerebral palsy, stroke with paralysis, traumatic brain injury, and brain tumors) or a diagnosis or signs of dementia, confusion and/or cognitive impairment (i.e., Alzheimers and/or vascular dementia). Article for Gun Ownership & Safety Tips for Seniors

What are the societal factors driving these grim statistics? The elderly are confronted with physical and mental illness, isolation, loss of independence in the home, family and friendships, and must navigate life without any sense of meaning or productivity usually provided by gainful employment. They must face their struggles with limited income, limited financial resources and limited social support.  They are often invisible in our media.  Unlike younger adults, older individuals facing overwhelming challenges may be less likely to hang in there, until the situation improves for them. 

What You Can Do To Help.

These problems are a wake-up call.  What can we do to better the situation?   A good place to start is with little things. If you are so inclined, you could make a donation to non-profits that fight hunger, such as Feeding America and Meals on Wheels. Some churches have casserole programs, where you can prepare an extra meal, freeze in a foil container, and donate it to your local church or soup kitchen. Fostering a sense of connection is another way to help. It doesn’t take much to make a telephone or Facetime call, send a short note or card, share a meal, or to express your thanks to a loved one who helped shape you into who you are today. If your parents and grandparents are no longer with us, I am sorry for loss, but you are not off the hook! If you want to help and are inclined to write, consider volunteering with a cause like Letters Against Isolation, which fights senior loneliness with letters to bring joy. For more information, visit https://www.lettersagainstisolation.com/.

New Elder Justice Resources

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Elder financial abuse involves the misuse of an elderly persons’s money, credit or property. Unfortunately, this is a growing and often unreported problem.

Fortunately, there are resources available to fight elder abuse. One is the statewide criminal referral hotline, found on the elder justice website of the New Jersey courts. Additional information and resources are available online at https://www.njcourts.gov/public/elder-justice.html.

Financial professionals, in particular, should remain alert for behavioral red flags of elder financial abuse. These can include:

  • new contact information for a financial account (address, email, or telephone)
  • unusual purchases or withdrawals on the account of someone who is cognitively impaired
  • an elderly person who seems withdrawn, anxious or afraid
  • an elderly person who cannot answer simple questions about her account activity
  • someone new taking great interest in the finances of an elderly person
  • repeated unsuccessful attempts to contact an elderly account holder
  • someone without proper identification trying to help an elderly person with bank or brokerage transactions

More information is contained in a government report to financial institutions found online at Advisory on Elder Financial Exploitation

What to Do if You Suspect Elder Abuse.

Your legal recourse may include criminal or civil prosecution, revoking a power of attorney, executing a new power of attorney and/or a guardianship or conservatorship. For strategies and solutions for your unique situation, contact Archer Brogan, LLP at https://archerbrogan.com