Tag: Jane Fearn Zimmer

National Caregiver’s Day: A Look at Elder Care in the Age of COVID-19

On By Jane Fearn-Zimmer, Esq.In Caregivers Resources, Elder Law, Elder Law & COVID-191 Comment

It’s National Caregiver’s Day, and another year filled with countless and unimaginable changes has passed. This year especially, my heart goes out to caregivers and their loved ones everywhere! Even before the COVID-19 pandemic, caregiving was no bed of roses. But this year, caregivers are facing an onslaught of new challenges, not the least of which are combatting senior isolation and reduced access to face-to-face therapies and delayed medical examinations. 

How has the COVID-19 pandemic changed care options?  Adult medical day care centers are not providing in person care at their customary location but may deliver services via telehealth and in person visits in the home. This leaves care in the home and care in a long-term care facility as the remaining options for senior care.  

The long-term care industry has been hard hit by the pandemic. From a medical standpoint, until the pandemic subsides, full-time care in the home is probably the safest option. A good option for private care in the home would be hiring a home health aide through an agency.  Benefits of a full-time caregiver (whether hired or by a loved one) include stronger protection of the vulnerable senior, since the caregiver is not moving from home to home (or from home to a nursing home) caring for multiple patients in multiple settings. It can also give the family members or friends who are overseeing the care an opportunity to recharge, which is important to prevent burn out. The right caregiver can provide social companionship to the senior.  

Families considering this option will want to keep in mind that the cost of private, hired live in care will include the cost of groceries for the home health aide, as well as worker’s compensation insurance if the caregiver is providing only companion and housekeeping care. . In such cases, the homeowner’s carrier should be put on notice of the arrangement and the family should work with an accountant to ensure that an accountant or payroll company to ensure compliance with withholding and state insurance requirements. The home’s layout should include a private area with a door that closes for the caregiver, who will need to rest and recharge while the senior is sleeping.  An employment agreement with the caregiver can protect the homeowner and the employer’s rights and ensure that minimum wage and hour requirements are met. If the senior needs care from a certified home health aide, keep in mind that such care can only be provided through a licensed home health care agency with a nurse supervising the implementation of the doctor’s plan of care. Hiring a caregiver to provide such comprehensive care outside of an agency is illegal and potentially places the senior’s well-being at risk.  Agencies do screen their prospective employees, and may be able to identify unsuitable caregivers.  If the caregiver is willing to break state law, how amenable will the caregiver be to calling 9-1-1 if the senior needs emergency medical care of doing so means the caregiver is risking getting caught breaking the law?  The family may expect to save money with an unlicensed, under the table caregiver arrangement, but in addition to being illegal, the fallout from such arrangements tends to be extremely expensive and can take a terrible toll on the senior’s health.  

Another option is care in the home financed through the Veteran’s Special Improved pension/Aid and Attendance, which is a government benefits program for eligible United States military veterans or their surviving spouses to help defray the cost of care.  In cases where the senior qualifies for Medicaid, and is able to remain in the home, programs such as the Personal Preferences Program (PPP), “can provide a source of funding for the senior to choose and hire their preferred caregivers, which can include relatives and friends.” Under the PPP program, the senior chooses the services and schedule they desire. 

The remaining option is care in a long term facility. This may be the best option where the care recipient is a two person assist, has behavioral quirks, or requires a team of trained medical professionals to stabilize and maintain their condition.  In some situations, Medicare dollars can be used for limited periods of time as “key” money to admit the senior to the best facility possible, with the goal of later transitioning to payment for the best care through the   Medicaid program and the senior’s income. 

These are just a few important considerations. For help sorting through your options, consultation with an elder law attorney is recommended.  

For more information about elder care in the age of COVID-19, please feel free to reach out.

Jane Fearn-Zimmer is an Elder and Disability Law, Taxation, and Trusts and Estates attorney. 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.

Social Security Increases for 2021

On By Jane Fearn-Zimmer, Esq.In Elder Law, Social SecurityLeave a comment

The new numbers reflecting the 2021 cost-of-living increase Social Security benefits are now available!  Here are some of the more the important 2021 federal numbers:

If you would like to see your new Social Security benefit amount for 2021, it is expected to be accessible online beginning in early December, 2020.  Hard copies of the 2021 Social Security benefit award letters will be mailed beginning in December, 2020. 

Jane Fearn-Zimmer is an Elder and Disability Law, Taxation, and Trusts and Estates attorney. 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.

The Free Britney Movement: How the Pop-Star’s Conservatorship Would Play Out in New Jersey

On By Jane Fearn-Zimmer, Esq.In Conservatorship, Elder LawLeave a comment

The Free Britney Movement: How the Pop-Star’s Conservatorship Would Play Out in New Jersey

If you follow pop-star Britney Spears on social media, you’re well aware that her posts as of late seem like less album promoting and more like a cry for help. These posts have gotten the attention of her fans near and far, who are responsible for starting the #FreeBritney movement in an effort to help end an almost two-decade long conservatorship her father has over her, which puts him in full control over everything from her money to her health and almost every aspect of her daily routine. In this post, I’m going to break down what a conservatorship is in New Jersey, what it means, how someone qualifies for one and what you need to do to get one granted.

Little background on Brit:

Britney’s original conservatorship order was entered by a California court to establish a protective arrangement for Britney, as an adult who cannot make her own decisions, similar to a guardianship under New Jersey law. Since every state is so different when it comes to this topic, among other things, I’m going to focus on New Jersey conservatorships since this is the state in which I’ve helped countless families obtain protective arrangements, like guardianship and conservatorship orders, for friends and family.

What is a conservatorship under New Jersey law and how can a conservatorship order benefit the conservatee (the person who is subject to a conservatorship order) and the caregiver of the conservaee?

In New Jersey, there are different types of protective arrangements for adults, depending on whether they are able to make their own decisions (incapacitated) or for whatever reason, even if they are able to make decisions, they are not able to manage their affairs independently.  A judgment of incapacitation awarding guardianship is a judicial order finding an adult person incapacitated (legally unable to make decisions) and can be entered against the wishes of the incapacitated person.  In contrast, a judgment of conservatorship is a voluntary arrangement under court order whereby another adult is appointed by the court to assist an adult who is competent but cannot function independently. As a court ordered arrangement, a conservatorship is more rigid and entails more supervision than a general durable power of attorney.  Because a conservatorship involves an individual with capacity (the ability to make decisions), in ordered to be entered, a conservatorship must be consented to by the proposed conservatee and close family members of the proposed conservatee must be notified.

How does a conversatorship differ from a power of attorney? A conservatorship differs from a power of attorney in that there is annual court oversight, through the filing of accountings and reports to the court regarding the well-being and the finances of the conservative.

When in New Jersey would a conservatorship be entered?

The case of In re Conservatorship of Halley, 777 Ad 68 (N.J.App.Div. 2001) is a classic example. There, a 92 year old man was hospitalized for injuries sustained in a motor vehicle accident and upon his discharge from the hospital, arranged for a local attorney who had managed his legal affairs for approximately seven years to serve as his power of attorney.  Although he had a brother and sister-in -aw in another state, he wanted to maintain control of his finances and living arrangements. The attorney managed Mr. Halley’s affairs and his finances and hired home health aides to care for him in his home, as per his wishes, and arranged for him to travel on a Disney cruise and to take a trip to Daytona Beach.

A former aide from the home health care company filed a complaint with Adult Protective Services alleging that the attorney and the home health care company were taking advantage of Mr. Halley. The APS social worker met with Mr. Halley and determined that he was competent after administering a mini mental status examination. APS filed a complaint and the court appointed an attorney to represent Mr. Halley in the proceedings. A guardianship could not be obtained over Mr. Halley, because he was intelligent, conversant, and clearly oriented to person, time and place and was able to make some decisions, but not necessarily to carry them out independently.

Mr. Halley’s nephew, upon being notified through his father of the conservatorship proceedings, attempted to intervene in the proceedings to secure his own appointment and an accounting of his uncle’s finances.  Mr. Halley expressed his concerns that his nephew was only after his money. The court-appointed attorney for Mr. Halley interviewed the attorney who was serving under the power of attorney, Mr. Halley’s physician, and others closely connected with Mr. Halley, and after reviewing medical and financial records, found that the attorney who was serving as the power of attorney should be appointed as Mr. Halley’s conservator. As a result, the attorney originally serving under the power of attorney was appointed as the conservator of Mr. Halley.

There is an old saying that sunlight is the best disinfectant. In the Halley case, the court’s scrutiny of the arrangement, which ultimately was determined to be beneficial to Mr. Halley in allowing him to maintain his independence and some control over his affairs, worked to the benefit of both Mr. Halley and the attorney who was helping him. This is a great example of how a conservatorship can protect both the conservator and the conservatee.  Mr. Halley was able to maintain his independence in the home, and manage his own affairs through the conservatorship arrangement. The attorney serving as the conservator remained subject to court oversight for the protection of Mr. Halley and no one could reasonably question her professional integrity or judgment in caring for Mr. Halley once the court became involved and essentially ratified her work for Mr. Halley

How long does it take to get a conservatorship in New Jersey?

The New Jersey judiciary is one of the best in the nation; however, due to the courts’ heavy dockets, getting a conservatorship will not be a fast process. You will have to schedule examinations with two doctors and obtain completed paperwork from those doctors and then a court filing (called a verified complaint and order for hearing) must be made.  Once the papers are filed with the court, they are reviewed by the Surrogate, sent to the judge for review and assignment of a hearing date, and there is typically a delay of anywhere from 30 days to up to two months between the date of filing and the hearing date.

Key takeaway: If you are caring for a friend or neighbor and you have a professional license, obtaining a judicial blessing of the caregiving relationship through a conservatorship can protect your license and your career from the stress and adverse consequences, which could otherwise result from an investigation and/or complaint by Adult Protective Services. Based on my example above, if Mr. Halley and his attorney had sought a conservatorship from the beginning, they likely would not have had to deal with an APS investigation initiated by a disgruntled former home care company employee.

For more information about conservatorships, guardianships and a power of attorney, please feel free to reach out.

Jane Fearn-Zimmer is an Elder and Disability Law, Taxation, and Trusts and Estates attorney. 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.

Some Practical Steps You Can Take to Protect Your Loved Ones from Elder Abuse

On By Jane Fearn-Zimmer, Esq.In Caregivers Resources, Elder LawLeave a comment

Every year, the United Nation marks a special day to raise awareness of elder abuse, which is very prevalent, especially among individuals over the age of 60 with dementia.

America is, at heart, a nation built by patriots, immigrants and pioneers. At our core, we are people who are willing to fight and die for freedom.  We cherish our freedoms, especially the freedom to live independently.  Most adult children want to keep their parents at home as long as possible. Out of love and respect, they may hesitate to ask personal questions about their parents’ finances, legal documents, medical conditions and care, and who is coming in and out of their parents’ home when their adult children are not present.

The ugly truth is that unless a care plan is put into place and carefully managed, with appropriate checks and balances, staying home alone can be isolating and can expose an individual, especially one living with dementia, to a heightened risk of abuse.  I am not just being alarmist.

Consider what happened in the actual case of Sally Dinoia. In the matter of the guardianship of Sally Dinoia, Docket No. A-5276-17T3 (N.J.App.Div. December 26, 2019). Sally was 85 years old, widowed with several children, and was living in her former marital home with her adult son, John.  John had cared for her for years.  Someone raised a concern about Sally’s well-being and Adult Protective Services (APS) investigated. She was noted to have poor hygiene, fungus and bug bites on her body.  Bedbugs were discovered in her home and on her person. An exterminator was called to treat her home, but John refused to let the exterminator inside. John interfered with the attempts of a physician to examine his mother and filed litigation against APS and the local police, which were both responsible for various aspects of the investigation into his mother’s welfare.

The APS failed to investigate Sally’s finances as required. Eventually, a guardian was appointed for Sally, and that guardian was faced with the colossal task of opposing John, who was extremely litigious, in court. In the process, counsel for the guardian racked up a legal bill of over $43,000, which Sally had no money to pay. APS, which did not investigate as it should have, was ordered to pay the bill, resulting in an appeal brought by APS to overturn the judge’s order requiring APS to pay Sally’s bill.

As you can see from Sally’s case, trying to clean up the elder abuse can be like trying to wade through quicksand.  A much better option is to put a plan into place at the first moment you are reasonably sure that something more than ordinary aging or an adjustment reaction to a stressful situation is responsible for your aging parent’s memory or behavioral issues.

Here are some important steps you can take to prevent elder abuse before it happens.

  • Make sure you have legal authority to act on behalf of your aging parent. Like insurance, it’s a bad idea to put off getting it until you need it. If possible, get a power of attorney in place for financial or medical purpose.  If your parent can no longer sign a power of attorney or is unwilling to do so, apply for a guardianship or conservatorship without delay.  Don’t wait until after there is a problem to get legal authority in place.
  • Review their finances. This includes their health insurance and their eligibility for public benefits, such as the Veteran’s Improved Pension and Aid and Attendance and Medicaid. Is your parent signed up for Medicare when first eligible? Does he or she have a Medicare supplemental plan or a Medicare Part D plan?
  • Work with their doctor to put a care plan and supports in place. The goal is to limit the parent’s decline.  You can’t make your parent young again, but you can help them live their best life at home as long as possible.  Enlist the services of a geriatric care manager to make sure that the home environment is safe and to make appropriate referrals to the services and supports your parent needs.
  • Get affordable care in the home through an agency. I am a fan of home health care agencies.  They screen the care providers, handle payroll, income tax reporting, and are licensed and bonded.  They can send a replacement quickly if needed.  Having multiple team members in the home can provide your aging parent with social stimulation and enough oversight.  There is also safety in numbers.  An aging parent is less likely to be a target of abuse if he or she is surrounded by several other individuals. A care team by its nature can provide a built in system of checks and balances.
  • Work with an elder law attorney. They can help you ensure that your parent has the best care and that your parent is able for that care for the rest of his or her life, using public benefits if necessary.

Questions? Let Jane know.

Jane Fearn-Zimmer is an Elder and Disability Law, Taxation, and Trusts and Estates attorney. 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.

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

On By Jane Fearn-Zimmer, Esq.In Disability Law, Involuntary CommitmentLeave a comment

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 an Elder and Disability Law, Taxation, and Trusts and Estates attorney. 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.