Hanlon Niemann Blog | A Freehold, New Jersey Law Firm

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

Often I have listened to a client’s moving story about his or her service as primary caregiver to their sick spouse.  Each speaks with both passion and pain, describing their care giving as “the loneliest time of my life.”  For this reason, each wants to speak out and be an encouragement to others who might be on the same road.

Managing spouses whose husband and/or wife have been diagnosed with Huntington’s Disease, a long-term illness that strikes at an average age of 39 is hard.  To paraphrase their words, “My husband/wife had the diagnosis, but the disease took them away from me.  I no longer had a lover, a soul mate, someone who could really share with me.  Our days as a couple were at an end.”  During this time of increasing illness, their spouse’s were not able to hold them, kiss them, or care for them for many years of the disease.
Each shared that during this illness, they had to sacrifice their own feelings for the benefit of their spouse.  An area of greatest hurt was the abandonment of their spouse by their own extended family.  Their burden could have been lighter if family and friends had stayed more involved.  Each related that when they called their husband’s or wife’s brothers or sisters and reminded them of how important it was to them to be able to see them from time to time; many responded with, “I just can’t stand to see him/her that way.”
“I was a widow with a living spouse,” each stated with sadness.

It seems to me that we could all do a much better job in helping others carry the load of long term illness.  We need to be more aware of what family members are going through during what may well be the loneliest and most difficult time of their lives.  We need to come alongside them and provide sympathy and support.

On a more positive note, I learned of another man who has been diagnosed with Huntington’s disease and whose male buddies have rallied around him.  They have intentionally gone out of their way to work together to take this man out of the house and to sporting events with them.  They have specifically set up time to talk with his wife to make sure they understand his care needs.  They work together to make it possible for him to go on their annual fishing trip.  These men are an extraordinary example of what it means to truly be a friend.

I hope that each one of us would choose to follow this model of true friendship if someone we know and love develops a long term illness.

For further information and advice in any elder care matter, do not hesitate to contact me toll-free at 888-800-7442, or e-mail me at fniemann@hnlawfirm.com.

Fredrick P. Niemann, Esq., NJ Elder Abuse and Financial Exploitation Lawyer

As the New Jersey economy worsens, examples of elder financial abuse are on the increase. The aging are vulnerable to scams and financial exploitation by family members in need of money.

Up to one million elderly Americans may be targeted yearly. Family members and caregivers are the perpetrators in 60% of cases, although financial losses are higher with investment fraud scams.

While no one can guarantee that a loved one is not the victim of financial abuse, there are some definite steps you can take to minimize the chances. One suggestion is to have more than one family member involved in caring for the loved one. Using a direct deposit is also helpful.  And of course you should always screen caregivers and verify references.

Financial abuse and exploitation can be very hard to detect.  Here are some signs that Fredrick P. Niemann has found to exist in elder abuse cases he has handled:

• The disappearance of valuable objects, especially valuable objects
• Large amounts of money are taken out, checks are made payable to cash, or consistent low bank balances even after regular  deposits
• A new “best friend” and isolation from other friends and family
• Large and unusual credit card transactions
• Signatures on persons checks look different or are inconsistent
• A name is added to a bank account or a joint bank account is created
• Indications of fear of caregivers

If you suspect someone of being financially abused, there are several actions you can take:

• Make a report by calling your County Adult Protective Services and/or the NJ Office of the Ombudsman for the Elderly.  File a police report if you believe the facts support a crime.
• Explore legal options with a qualified financial abuse of the elderly attorney.  In New Jersey, the Chancery Court is  available to address alleged legal abuse. The court can intervene if someone in the family is misusing a power of attorney or  their role as guardian or conservator.
• Contact advocacy organizations. The National Center on Elder Abuse offers guidance on how to investigate and seek justice  for elder abuse. New Jersey law has remedies available to deal with the situation and you may be able to get restitution for  breach of fiduciary duties.
• Try to get a temporary restraining order from a court while building your case.  Again, speak to a qualified elder law  attorney.

If you have any questions regarding an elder law and financial abuse, contact Fredrick P. Niemann, Esq. toll free at 888-800-7442, or e mail him at fniemann@hnlawfirm.com.  He is very experienced in these types of matters.  For further information, go to http://www.youtube.com/user/NJElderLawCenter#p/search/0/J2tM8-rqg8I to learn more.

We all must pay taxes.  But when we pay certain taxes is a choice we can each make, especially when the rules change.  Making the right decision about converting a traditional IRA to a Roth IRA could save your estate thousands of dollars in income and estate taxes.

Until this year, taxpayers could only convert funds to a Roth IRA if their adjusted gross income was under $100,000.00.  Starting in 2010 conversion is open to anyone regardless of annual income.

Why could converting to a Roth IRA be beneficial?  A traditional IRA allows tax deductions for contributions and grows, tax-deferred.  A Roth IRA does not provide up-front deductions, but earnings and withdrawals are tax-free.  And unlike a traditional IRA which requires minimum distributions starting at age 70 1/2, a Roth IRA does not require minimum distributions during your lifetime.  A Roth IRA could provide a number of advantages depending on your age, the growth rate of your funds, and your total retirement needs.  Say you have a $1 million IRA balance and $300,000 in other funds.  If you convert to a Roth you could use the $300,000 to pay taxes.  Then the $1 million Roth IRA and all future earnings on it will not be taxed at withdrawal.  Further, as the law stands, in 2011 anything over $1 million in your estate would be taxed at a rate of at least 41% at your death.  In this case, converting could save estate taxes of $124,000.

Should you make the switch?  If you convert, you can undo the conversion or “recharacterize”, until October 15, 2011, the extended due date for 2010 tax returns.  If a stock increases dramatically in value you may choose to stay in the Roth IRA since withdrawals are tax-free; if the stock falls, you could un-do the conversion.

Converting to a Roth IRA could reduce the value of your estate for tax purposes, let you take distributions tax-free, and avoid minimum distribution requirements.

Do you have a question(s) not addressed here?  If so, contact Fredrick P. Niemann, Esq. toll-free at (888) 800-7442 or e-mail him at fniemann@hnlawfirm.com to schedule a consultation about your particular needs.  He welcomes your calls and inquiries and you’ll find him very approachable and easy to talk to.

By Fredrick P. Niemann, Esq., a NJ Elder Law Attorney

An
interesting case was just decided in New Jersey on a person’s right to refuse
life supporting medical treatment.  A 42
year old female, was admitted to the hospital with renal failure.  J.M’s condition was so severe that her
treating physicians recommended immediate dialysis to save her life.  J.M. refused to undergo dialysis.  J.M. did not have a health care representative or a health care directive.

The
hospital filed a court action to appoint a special medical guardian for J.M.,
arguing J.M. was critically ill and lacked the mental capacity to consent to
medical treatment.  The court appointed a
representative to act as counsel for J.M. 
After conducting interviews with various individuals who knew and
treated J.M., the Court appointed representative made a recommendation to the
Court to appoint a special medical guardian so dialysis could begin against
J.M.’s wishes.  As a result, the Court
appointed a second attorney, to represent J.M.’s wishes. 

Three
psychiatrists testified to J.M.’s mental capacity.  Two of the three psychiatrists agreed that
J.M. was incompetent.  The third
psychiatrist concluded that she was making a voluntary choice, had the capacity
to refuse dialysis and understood the consequences of doing so.

J.M.,
also testified at the hearing.  She
testified that she was a devout Christian and she believed that Jesus would
heal her.  She also stated that as a
nursing assistant and home health aid, she had come into contact with elderly
people who were undergoing dialysis.  As
a result, she felt that she did not want to endure what she watched them going
through.  She also expressed financial
concerns involved with the treatment. 
She was a single mother and sole supporter of her seventeen-year old son
and the dialysis would take substantial time away from work.  When asked if she understood the consequences
of refusing dialysis, she told the Court she understood but she did not believe
that her refusal would result in death.

After
deliberations the Court decided to appoint a special medical guardian.  The Court analyzed whether J.M. was (1) able
to consent to the medical treatment; (2) was a general or natural guardian
available; (3) was immediate medical treatment necessary; and (4) did the
patient have a designated health care representative and/or a health care
directive.

Here
the only element in dispute was the issue of J.M.’s capacity to consent.  The Court ruled that a patient has the capacity
to consent to medical treatment if she (1) can reasonably understand her
condition, (2) the effect of the proposed treatment, and (3) the risks of both
undergoing and refusing treatment.  The
Court found it clear and convincing that J.M. did not have the capacity to
refuse dialysis because she refused to acknowledge the inherent risks in doing
so.  The Court also felt that J.M.’s past
medical choices to receive treatment demonstrated an unequivocal desire to
live, which was inconsistent with her decision to refuse dialysis.

As
a result of this decision, J.M. had dialysis treatment and was reported to be
feeling better. This decision reinforces the importance of a written and
executed advance medical directive.

Have questions, please contact Fredrick P. Niemann, Esq. at (888) 800-7442 or
email him at fniemann@hnlawfirm.com
for more information.

Fredrick P. Niemann, Esq., a NJ Special Needs Trust Attorney

One of the most pressing needs for disabled beneficiaries is medical care.

Medical Insurance
It is crucial that the disabled beneficiary obtain some form of medical insurance. Options include the following:

• Private Medical Insurance. Typically, the only source of private medical insurance at regular rates is through the parent’s coverage with the parent’s employer. Parents of such child must make every effort not to lose their jobs.
• COBRA. The Consolidated Omnibus Budget Reconciliation Act of 1996 (COBRA) allows former employees and their dependents to continue the employer’s coverage for a limited period of time, commonly 18 months. However, if the employee became disabled within two months of the qualifying event causing him to lose medical insurance coverage, COBRA coverage may be extended for 29 months. If the former employee died, divorced, or became entitled to Medicare, then the employee’s dependents are eligible for 36 months of coverage.
• State-Mandated High-Risk Pools. Many states have high-risk pools to cover persons who are uninsurable in the private market. This coverage often tends to be very expensive.
• Medicare. Medicare is only available to persons under 65 if they are disabled and have 20 quarters of coverage. If they receive SSD, then two years after the determination of disability they are entitled to Medicare. Persons receiving Medicare should obtain a Medicare supplement policy. There is usually a very limited open enrollment period to obtain this coverage after which it becomes impossible to obtain because of pre-existing conditions.
• Medicaid. Persons receiving SSI also receive Medicaid. In non-SSI states having a Medically Needy program, persons qualify for Medicaid by spending down their income if income is above a certain amount. Some states have income caps. Other ways of obtaining Medicaid are through state Medicaid waiver programs, including various Kid Care programs available in many states. Eligibility rules vary. A Katie Beckett waiver program is very desirable, because the income and assets of the parent are not deemed to the children. Some states do not call their programs Katie Beckett, which is a specific categorically eligible group of Medicaid recipients, but the effect is the same because those state identify groups of children with disabilities and provide for Medicaid eligibility so the waiver services are available. Slots tend to be extremely limited.

Non-Covered Medical Expenses
Typically, Medicaid pays for 100 percent of covered expenses. However, very often, psychological services, certain types of testing and some special therapies are not covered. It is appropriate for a trustee to pay for these non-covered services. It is also appropriate for a trustee to pay for dental care, prescriptions, and podiatrist care.

Provider Non-Acceptance
Some providers do not accept Medicaid, because of the low reimbursement rate. It is difficult to find a dentist participating in the program. Some persons with disabilities choose physicians who do not accept Medicaid. It is appropriate for a special needs trust to pay for services from those physicians.

Out-of-Pocket
If the person with a disability receives Medicare, rather than Medicaid, there may be co-payments, deductibles and payments for services that Medicare does not cover. It is appropriate to pay for those costs from a special needs trust.

If you have any questions concerning Medicaid or a trust for a disabled or handicapped child, contact Fredrick P. Niemann, Esq. at 732-863-9900, or fniemann@hnlawfirm.com.  He is happy to answer your inquiries.

Fredrick P. Niemann, Esq., NJ Elder Law Attorney

As the economy worsens, incidences of elder financial abuse are reportedly on the rise. The elderly are particularly vulnerable to scams or to financial abuse by family members in need of money.

A recent study found that up to one million older Americans may be targeted yearly. Family members and caregivers are the culprits in 55 percent of cases, although financial losses are higher with investment fraud scams.

While it is impossible to guarantee that an elderly loved one is not the victim of financial abuse, there are some steps you can take to reduce the chances. One option is to have more than one family member involved in caring for the loved one. You can also encourage the elder to get involved in community activities to ensure he or she has a wide range of support. Using direct deposit as much as possible is also helpful. And of course you should always screen caregivers carefully and verify references.

Financial abuse can be very difficult to detect. The following are some signs that a loved one may be the victim of this kind of abuse:

• The disappearance of valuable objects
• Withdrawals of large amounts of money, checks made out to cash, or low bank balances
•  A new “best friend” and isolation from other friends and family
• Large credit card transactions
•  Signatures on checks look different
•  A name added to a bank account or newly formed joint accounts
•  Indications of fear of caregivers

If you suspect someone of being financially abused, there are several actions you can take:

• Make a report by calling your local or County Adult Protective Services and/or the NJ Office of the Ombudsman for the Elderly. File a police report if you believe the facts support a crime.
• Explore legal options with a qualified attorney.  In New Jersey, the Chancery Court is available to address alleged legal abuse. The court can intervene if someone in the family is misusing a power of attorney or their role as guardian or conservator.
• Contact advocacy organizations. The National Center on Elder Abuse offers guidance on how to investigate and seek justice for elder abuse. State laws vary, but some have people available to deal with the situation and may be able to get restitution for breach of fiduciary duties.
• Try to get a temporary restraining order from a court while building your case.  Again, speak to a qualified elder law attorney.

If you have any questions regarding an elder law or estate planning matter, contact Fredrick P. Niemann, Esq. at 732-863-9900, or fniemann@hnlawfirm.com.  He is happy to answer your inquiries.

Fredrick P. Niemann, Esq., a NJ Elder Law Attorney

Medical science has made great strides in the last 30 years.  We are certainly living longer.  Illnesses and injuries that in the past resulted in death, now do not.  However, the recovery period can be a long one, especially for the elderly, whose recuperative abilities are not the same as younger patients.  As a result, patients remain hospitalized longer and bounce back and forth between nursing home and hospital, in so many cases.

That’s where the long-term acute care hospital or LTACH, comes in.  General hospitals are typically paid a standard fee for a diagnosis so they earn more for a quicker patient discharge.  At the same time, the patient may not quite be ready for a sub-acute facility in a nursing home, which focuses primarily on rehabilitation but can’t provide the medical care of a hospital.  The LTACH can bridge that gap.  Patients receive the benefit of physicians on duty around the clock as well as nurses, respiratory therapists, case managers, physical and occupational therapists, dieticians and pharmacists, all on staff.  LTACHs provide more nursing care than on a medical-surgical floor of a hospital but less than is provided in an intensive care unit.

Many LTACH patients use ventilators to breath and are recovering from multiple medical conditions such as heart failure, major surgery, etc.  They may have developed complications such as bed sores.  The specialty hospital can concentrate on weaning the patient off of the ventilator or providing wound care, for example, that can require weeks of care, that the general hospital won’t receive payment for.  For those on Medicare, LTACHs are covered under Part A.  The average stay in an LTACH is 25 days.

There are over 400 LTACHs nationwide and 8 in New Jersey.  Most are housed in general hospitals, however, some are freestanding, such as Select Specialty Hospital in Rochelle Park, New Jersey which is owned by the same company that also owns Kessler Institute, the facility that specializes in the treatment of spinal cord injuries.  The long term acute care hospital is definitely an option families should explore for their critically ill or catastrophically injured loved one.  It may very well improve the recovery process and increase the chance that a loved one can ultimately return home.

For further information and advice in any elder law matter, do not hesitate to contact me at 732-863-9900, or fniemann@hnlawfirm.com.

Fredrick P. Niemann, Esq., a NJ Elder Law Attorney

I recently read of a moving story from a widow who had served as her husband’s primary caregiver for sixteen years.  She spoke with both passion and pain, describing her caregiving as “the loneliest time of my life.”  For this reason, she wanted to speak out and be an encouragement to others who might be on the same road.

Her husband had been diagnosed with Huntington’s Disease, a long-term illness that strikes at an average age of 39.  To paraphrase her words, “My husband had the diagnosis, but the disease took him away from me.  I no longer had a lover, a soul mate, someone who could really share with me.  Our days as a couple were at an end.”  During the time of her husband’s increasing illness, he was not able to hold her, kiss her, or care for her for at least eleven of the sixteen years of his disease.

She shared that during his illness, she had to sacrifice her own feelings for the benefit of her spouse.  An area of greatest hurt was the abandonment of her husband by his own extended family.  Her burden could have been lighter if family and friends had stayed more involved.  She related that when she called her husband’s brothers and reminded them of how important it was to her husband to be able to see them from time to time, they responded with, “I just can’t stand to see him that way.”

“I was a widow with a living husband,” she stated with sadness.

It seems to me that we could all do a much better job in helping others carry the load of long term illness.  We need to be more aware of what family members are going through during what may well be the loneliest and most difficult time of their lives.  We need to come alongside them and provide sympathy and support.

On a more positive note, I learned of another man who has been diagnosed with Huntington’s Disease and whose male buddies have rallied around him.  They have intentionally gone out of their way to work together to take this man out of the house and to sporting events with them.  They have specifically set up time to talk with his wife to make sure they understand his care needs.  They work together to make it possible for him to go on their annual fishing trip.  These men are an extraordinary example of what it means to truly be a friend.

I hope that each one of us would choose to follow this model of true friendship if someone we know and love develops a long term illness.

For further information and advice in any elder law matter, do not hesitate to contact me at 732-863-9900, or fniemann@hnlawfirm.com.

Fredrick P. Niemann, Esq., a NJ Elder Law Attorney

Although the typical Social Security Disability Insurance (SSDI) recipient has worked for a fairly long time before the onset of his disabling condition, an adult who became disabled before turning 22 can also qualify for SSDI if she has a parent who meets certain qualifications.

SSDI is a federal program primarily designed to aid people who have become disabled after having worked for a certain amount of time. Unlike Supplemental Security Income (SSI), SSDI is not a needs-based program, which means that there are no income and asset restrictions. Instead, a beneficiary typically has to have paid into the Social Security system for at least 10 years prior to his disability. An SSDI benefit depends on the beneficiary’s income before he became disabled, the size of his family, and the amount he paid into the Social Security system. Finally, SSDI recipients can receive Medicare two years after qualifying for SSDI.

Most people who have a serious disability before turning 22 are not able to assemble the necessary work record to qualify for SSDI on their own. But people in this situation may instead be able to qualify for SSDI on their parents’ work record, in certain situations.

First, the “adult disabled child” (the Social Security Administration’s (SSA) term for a person with a disability that manifested itself before age 22) must be completely disabled according to the SSA’s adult disability standards. Second, the disability must have occurred before the potential beneficiary turned 22. Third, the potential beneficiary’s parent must have paid into the Social Security system for the required number of quarters. Finally, and most importantly, the potential beneficiary’s parent must be either dead, permanently disabled, or receiving Social Security retirement benefits.

If an adult disabled child and her parent meets all of these qualifications, then the “child” should be able to receive a substantial benefit, often greater than an SSI award. On top of the monetary gain, the child does not have to worry about her own unearned income or assets, since SSDI does not take these into account. However, if a child earns enough income through employment, the SSA may determine that she is no longer disabled and cancel her SSDI benefits. The parent’s own retirement benefits are not affected by their child’s receipt of SSDI, and the child can still qualify for SSI benefits if her SSDI payments, which count as unearned income for SSI purposes, do not disqualify her.

Parents who have not begun to receive their own Social Security income but who think that their child may qualify for SSDI in the future may want to have their child screened by the Social Security system for his disability before he reaches age 22. If this is not possible, it pays to have the child’s physician clearly document all of the information surrounding the child’s disability from as early an age as possible. This way, when the parent does retire, the child has a long record showing the presence of the disabling condition before he turned 22, making the SSDI application easier.

For further information and advice in any elder law matter, do not hesitate to contact me at 732-863-9900 Ext. 101 or 105, or fniemann@hnlawfirm.com.

Fredrick P. Niemann, Esq., NJ Elder Law Attorney
 
Often times when I meet with new clients, the first appointment is not with the parent(s) but with the children.  Commonly, they come to us after or during a crisis, such as a parent’s hospital or nursing home stay.  Just as often they have little or no information about what is going on with the parent, medically and financially, and cannot provide much of the information we need to assist them.

Communication between parent and child before a crisis is so important and can provide peace of mind and reduce stress for both.  The following are some of the questions that families should discuss, which will often begin a dialogue about the type of preplanning parents can do before a crisis occurs.

1. Children should know roughly how much and where their parents’ assets are.  Do they have enough to sustain the healthy spouse should one spouse become ill and need extended hospitalization and/or nursing home care?

2. What does the income picture look like?  If one spouse dies, how much income will the surviving spouse be left with?  Will there be a significant drop in income?  Often time’s steps can be taken before that spouse passes to help boost the surviving spouse’s income.

3. Is financial support anticipated?  People are living longer than ever.  Many people are at risk of outliving their money.   Answering this question means not simply looking at current expenses vs. income but looking at the next step in the elder care journey and the next step after that and asking “Do I have enough to pay for long term care and if so, for how long?  And if not, what is my plan then?

4. What types of insurance are there (ie., health, long term care, life)?  Is coverage adequate? If not, can coverage be increased?  You certainly want to do that before you become uninsurable.

5. Are there a power of attorney and a health care directive and where are they?  Are they up to date or stale?  If these documents are not in place then the only alternative is a costly and time-consuming process called guardianship.  The court will be involved in your family’s affairs and you may not get the result you want.

6. Is there an up to date will?  A clear, thought out estate plan can avoid family squabbles after the parent passes away. Even people with small estates should have a will.  Also, make sure the original will can be located. Probating a copy is difficult and expensive.

For further information and advice in any elder law or estate planning matter, do not hesitate to contact me at 732-863-9900 Ext. 101 or 105, toll-free at 888-800-7442, or fniemann@hnlawfirm.com.