Involuntary Commitment: When Is It Time To Bring In Counsel?

Restoration of Capacity

Last month, the Montana Supreme Court affirmed the district court’s involuntary commitment of a married, successful business owner in her late fifties (“Maggie”) to the Montana State Hospital because she showed evidence that she was unable to provide for her own basic needs, including refusing to take medication to treat her diagnosed bipolar disorder, showed signs of insomnia, lacked insight into her illness and her inability to protect her own health and safety.

Below is Maggie’s story. If you, or someone you know, is experiencing similar life-altering symptoms, it’s important to know that retaining counsel as early as possible in a psychiatric emergency situation is essential in preventing an unnecessary involuntary commitment.

What is an involuntary commitment? It is a legal proceeding to obtain a court order requiring a mentally ill individual to receive necessary psychiatric treatment that he needs but has not agreed to.  The process of obtaining the order is often initiated through a mental health screening and requires a determination that the person to be held is at risk of endangering himself or others. If it is determined that the individual can afford to pay for the cost of psychiatric care, they may be ordered to pay for the care from their own income and resources.

Why is it important to involve counsel early in the process? Retaining counsel can:

  • protect your rights
  • help you legally limit your financial responsibility where appropriate
  • provide valuable information regarding long-term care placement options and can review admissions agreements, and where the individual who is involuntarily committed is married, and cannot return to the home, counsel can help protect assets and income for the healthy spouse.
  • offer guidance regarding the next steps to take, whether it be a conservatorship, guardianship or a Medicaid or charity care application

Here’s Maggie’s story:

In 2018, Maggie lost twenty pounds and developed a sleep disorder. Over a period of approximately one week, she made multiple visits to the emergency room to obtain medical attention.  She was diagnosed with insomnia, prescribed a sleep regimen and sleep medicine, was otherwise healthy and had no history of self-harm or dangerous behavior. Maggie reported that she elected to stop driving due to the insomnia.

Fast forward to one week later, Maggie returned to the emergency department with her family due to continuing sleep issues and “high energy behaviors.” A licensed clinical social worker concluded that she was experiencing a manic episode and bipolar disorder and filed a report recommending her involuntary commitment.  The state filed its response the next day and Maggie was ordered to be held overnight pending the involuntary commitment hearing at a residential mental health facility.

Shortly after getting admitted, an evaluation was conducted and the examiner testified at the involuntary commitment hearing that Maggie had pressured speech, tangential thinking, poor judgment and insight, inability to consent to taking medication and that she exhibited paranoia with respect to the side effects of the medication prescribed.  The examiner testified that Maggie was advised that the appellant was a danger to herself due to her multiple emergency room visits, her refusal to take medication, and because she drank too many Pedialyte beverages in attempt to correct an imbalance in her electrolytes.  At the involuntary commitment hearing, the court found that Maggie presented a danger to herself and that her condition might decompensate without intervention and ordered her involuntarily committed to the state hospital.

On review, the supreme court admitted that this case was not as compelling as several prior cases in which an involuntary commitment was upheld.  However, the lower court’s decision was sustained, based on testimony that the woman had poor insight into her illness, lacked the ability to make decisions protective of her own health and safety, and was unwilling to take any medication that would resolve her manic symptoms.

Questions? Let Jane know.

Jane Fearn-Zimmer is a shareholder in the Elder and Disability LawTaxation, and Trusts and Estates Groups. She dedicates her practice to serving clients in the areas of elder and disability law, special needs planning, asset protection, tax and estate planning and estate administration. She also serves as Chair of the Elder & Disability Law section of the NJSBA.

National Caregivers Day, February 21, 2020: An Expression of Appreciation

national caregiver Day 2020

These days, it seems that everywhere I turn, I find caregivers working with unselfish devotion to the people they serve. Caregiving can be formal (i.e., health care professionals working in the hospital, long-term care and hospice industries) or informal (i.e., family members providing care in the home) but it is always an act of service. In honor of National Caregivers day and all the hard working caregivers serving seniors and the disabled, here is a special blog to express my appreciation and thankfulness for all you do!

Working with individuals with dementia can be very physically and emotionally demanding.  That is why self-care is so important.  While paid caregivers may have access to training and co-workers to support them, unpaid caregivers seldom have these resources. Fortunately, for those seeking guidance on how to identify and redefine their needs and responsibilities as unpaid caregivers in the home, there is a helpful book filled with practical tips on the subject. Your Caregiver Relationship Contract (2019), by Debra Hallisey, is available through Amazon.  Her book offers a peaceful framework for caregivers to change an established relationship with a parent who still regards the child caring for them as their little one, not an adult with needs and obligations of her own.  Topics covered include how to deal with guilt and anger, setting boundaries, building a support network and strategies for difficult conversations. Here are some of the tips Ms. Hallisey shares:

  • Start important conversations in the car or while sharing an intimate experience with the person you are caring for, such as baking together or combing hair.
  • Bring up a topic up multiple times in varied settings and eventually your loved one’s no may become a yes.
  • Use “I” words (I need help) and don’t blame.
  • When setting a boundary, be honest and direct. Start the conversation with an expression of caring.
  • Use words that validate your loved one’s choices. Words and tone of voice matter.
  • Compassion fatigue is real. Combat it through self-care.

Questions? Let Jane know.

Jane Fearn-Zimmer is a shareholder in the Elder and Disability LawTaxation, and Trusts and Estates Groups. She dedicates her practice to serving clients in the areas of elder and disability law, special needs planning, asset protection, tax and estate planning and estate administration. She also serves as Chair of the Elder & Disability Law section of the NJSBA.

Increase in the SSI Federal Benefit Rate for 2020

Jane Fearn Zimmer Elder Law Attorney

The federal government recently released its 2020 Supplemental Security Income (SSI) and Spousal Impoverishment guidelines.  The guidelines, which took effect on January 1, 2020, set the SSI Federal benefit rate at $783.00 for an individual and $1,175 for a couple.

SSI is a monthly cash benefit to blind, disabled or elderly individuals with low income and resources.  Subject to the exclusion of certain sources of income, the SSI monthly income cap is set at $2,349 for an individual.  In order to qualify for the SSI benefit, the applicant must have a disability or diseases severe enough such that the applicant cannot engage in substantial gainful activity.  An applicant who is earning more than a set monthly amount of income is considered to be engaging in substantial gainful activity.  In 2020, the substantial gainful activity monthly limit for an elderly or disabled individual who is not blind, is $1,260 in earned income.

Questions? Let Jane know.

Jane Fearn-Zimmer is a shareholder in the Elder and Disability LawTaxation, and Trusts and Estates Groups. She dedicates her practice to serving clients in the areas of elder and disability law, special needs planning, asset protection, tax and estate planning and estate administration. She also serves as Chair of the Elder & Disability Law section of the NJSBA.

 

SECURE Act May Put A Stop To Most Stretch Individual Retirement Account Planning

SECURE ACT elder law attorney jane fearn zimmer

Good things come when you least expect them, but for wealthy retirees and their children and grandchildren, the Setting Every Community Up for Retirement Enhancement (SECURE) Act (passed in the United States House of Representatives on May 23, 2019) may not be one of them.

Congress presently has until December 20, 2019 to balance the federal budget for fiscal year 2020. The SECURE Act could become law as part of the new budget package.

For most Americans, their home and their retirement accounts are their largest assets. Viewed from the vantage point of retirees with large individual retirement accounts or qualified retirement accounts hoping to transfer much of their wealth to future generations, the SECURE Act is Trojan horse.

The SECURE Act would change the existing IRA and qualified retirement plan distribution rules, derailing many existing estate plans which incorporate stretch-IRA planning.  Stretch-IRA planning is a distribution strategy popular under the current federal income tax law because it facilitates deferred taxation of retirement account income well beyond the lifetime of the original account owner.

Take the example of Mr. Jones.  Supposed Mr. Jones is age 70, has $500,000 in his individual retirement account and has not begun taking any minimum required distributions.  Mr. Jones is married and his wife is five years younger.  If Mr. Jones dies at 70, and has not begun taking any required minimum distributions, his wife can roll the entire $500,000 from her late husband’s IRA into her own IRA and name a new, younger beneficiary. Assume that the wife has enough assets and income outside of the retirement accounts to pay for her care.  Assume also that she dies at age 65 and prior to her death, names her 37 year old daughter as the individual retirement account beneficiary.

The daughter is much younger and has a longer actuarial life expectancy. Now the daughter will be the “measuring life” for the retirement account and under the current tax law, the daughter’s required minimum distribution could be approximately $11,000 per calendar year.  If the daughter chooses, she may leave the remaining funds in the inherited IRA and can expect the funds to grow tax-free within the account for many years.  Let’s assume that the daughter takes only the minimum required distribution with a 4% rate of return until she reaches the age of 56. At that time, her minimum required distribution may be approximately $23,000 annually and she can expect the account value to have increased to over $600,000.  Using the stretch-IRA strategy, the father, mother and daughter in this illustration are able to defer taxable income for many years.

The SECURE Act would curtail stretch retirement account planning for account owners who die before beginning to take their required minimum distributions by forcing their younger, non-spouse beneficiaries to take large distributions of income over a compressed ten year period of time beginning after the death of the original account owner.

If the SECURE Act were passed in its current form, and if the father and mother in the example above died after December 31, 2019, the daughter would have to distribute out the entire $500,000 from the retirement account within a ten year period.  During this period, she could potentially be in her peak earning years and in a higher income tax bracket, than she might expect to be after her own retirement.  This provision of the SECURE Act threatens to dramatically increase the collection of income tax dollars by forcing distributions from retirement accounts over a compressed period of time.  The tradeoff for the repeal of the stretch IRA is the SECURE Act’s deferral of the required beginning date for taking required minimum distributions to age 72. The SECURE Act also facilitates the ownership of annuities within retirement accounts.

For retirees with large IRA’s or retirement accounts wishing to transfer their retirement account proceeds to their children, grandchildren or other non-spouse beneficiaries, it is very important to contact an estate planning attorney to review their options in light of the changes the SECURE Act will probably bring.

The silver lining is that retirees whose intended beneficiaries have special needs or chronic illness will have important planning opportunities under the new law.

Questions? Let Jane know.

Jane Fearn-Zimmer is a shareholder in the Elder and Disability LawTaxation, and Trusts and Estates Groups. She dedicates her practice to serving clients in the areas of elder and disability law, special needs planning, asset protection, tax and estate planning and estate administration. She also serves as Chair of the Elder & Disability Law section of the NJSBA.

Changes to Social Security in 2020

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The year 2020 will bring important changes to the Social Security program, including a 1.6 percent Social Security benefit increase and an increased annual earnings cap for the Old Age, Survivors and Disability Insurance (OASDI) tax, which is a component of the Federal Insurance Contributions Act (FICA) tax.  Beginning in 2020, the maximum annual amount of earnings subject to the OASDI will increase to $137,700 from the current limit of $132,900 applicable in 2019.

Also beginning in 2020, the maximum retirement earnings test exempt amounts will be $18,240 annually (or approximately $1,520 monthly) for individuals under full retirement age.  That means that for every two dollars earned in excess of that limit, one dollar in Social Security benefits will be withheld.

In addition, starting in 2020, the SSI federal payment standard will increase to $783 monthly for an individual and to $1,175 per couple. Here is a helpful fact sheet summarizing these and other important 2020 Social Security numbers.

Questions? Let Jane know.

Jane Fearn-Zimmer is a shareholder in the Elder and Disability LawTaxation, and Trusts and Estates Groups. She dedicates her practice to serving clients in the areas of elder and disability law, special needs planning, asset protection, tax and estate planning and estate administration. She also serves as Chair of the Elder & Disability Law section of the NJSBA.