Dispute About Mother’s Nursing Home Turns Hostile

A New Jersey appeals court rules that an ugly dispute between two brothers over their mother's placement in a nursing home did not amount to domestic violence. R.G. v. R.G. (N.J. Super. Ct., App. Div., No. A-0945-15T3, March 14, 2017).

R.G was the attorney-in-fact and primary caregiver for his parents. After R.G.'s mother fell ill, R.G. wanted to place his mother in a nursing home. R.G's brother objected to this plan, but R.G. went ahead and had his mother admitted to a nursing home without his brother's consent. R.G.'s brother sent angry and threatening texts and emails to R.G. as well as emails expressing his desire to find a way to care for their parents in their home. Eventually, the men got into a physical altercation in which R.G.'s brother shoved R.G.

R.G. filed for a restraining order against his brother under the Prevention of Domestic Violence Act. The trial judge ruled that R.G. was harassed and assaulted and issued the restraining order. R.G.'s brother appealed, arguing that R.G. did not meet the definition of a victim of domestic violence.

The New Jersey Superior Court, Appellate Division, reverses, holding that R.G.'s brother's actions did not amount to domestic violence. The court finds that there was insufficient evidence that R.G.'s brother purposely acted to harass R.G., ruling that "a mere expression of anger between persons in a requisite relationship is not an act of harassment."

(For the full text of this decision, go to: http://www.judiciary.state.nj.us/opinions/a0945-15.pdf)

It’s difficult to get all family members on the same page if you wait too long to discuss care plans.  Our advice is to talk about it early and often.  If, however, a situation you're involved in becomes contested, our firm is prepared to represent you and your interests to the fullest extent.  Call us today for a free initial consultation

To read more on these related issues, click Here

Article posted by:

Aaron E. Connor, Esq. 

Partner at Pierro, Connor & Associates, LLC

For more information on how we can help, or to get in touch with Aaron E. Connor, Esq. please contact Beth Wurtmann, Marketing Director at Pierro, Connor & Associates, LLC:

Tel: 866-951-PLAN

Email: info@pierrolaw.com

Reviewing the Three New ABLE Programs Available Nationwide

able act-small.jpg

ABLE accounts are a relatively new planning tool available to individuals with disabilities.  The Achieving a Better Life Experience (ABLE) Act, signed by President Obama in 2014, allows individuals who meet certain criteria to open and hold assets in an account that will not be counted as a resource for the purposes of public benefits.  At the same time, the account beneficiary has more control and access to the funds than with a traditional special needs trust.

Because ABLE accounts are created under the same IRS regulations that allow for 529 accounts used to fund higher education, they are qualified savings accounts that receive preferred federal tax treatment. In order to use an ABLE account, the individual’s disability must have had its onset prior to the age of 26.  The disability must also meet the requirements for either the Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI) programs and the individual must be receiving those benefits or certify that he or she has the documentation of a physician regarding disability.

To date, 17 states have ABLE programs and several others, including New York, are developing their programs.  Even if your state does not have a program yet, this does not mean that you or a loved one is barred from opening an ABLE account.  A person with disabilities may open an account in any state that has an ABLE program allowing out-of-state residents to open ABLE accounts. It is important to note, however, that an individual cannot have more than one ABLE account.

Here are details on three state programs that allow out-of-state residents to open accounts:

Michigan launched the MiABLE program on November 1, 2016. The account can be opened by the individual, a parent, an agent under a power of attorney, or a legal guardian. There are five different investment options for MiABLE beneficiaries that vary in degree of risk and in cost. This means that you have the option to grow your money in a way that suits your risk tolerance. Michigan also allows for a state income tax deduction of $5,000 for individuals and $10,000 for joint filers. Another interesting feature of the account is that MiABLE has given beneficiaries the ability to create public profiles to solicit donations from friends, family, and even strangers, similar to the format used for websites like GoFundMe which typically have been considered available funds to the beneficiaries. 

Oregon launched its national program called ABLE for All in 2016. The program offers three investment options: Conservative, Moderate and Aggressive. There is also an FDIC-insured cash option that is appropriate for those planning on spending money from the account in the near future. ABLE for All will also soon be launching prepaid cards that beneficiaries can use to access their funds. An interactive website dashboard allows beneficiaries to set savings goals for themselves.

Virginia opened ABLE Now Virginia in 2016 and it is available nationwide to eligible individuals regardless of their state of residency. The account offers an ABLEnow Debit Card that gives individuals immediate access to their account. The first $2,000 deposited in the account is automatically allocated to the FDIC-insured deposit account linked to the card. Like Oregon’s ABLE for All, Virginia’s account offers three investment options -- Conservative, Moderate and Aggressive -- as well as a money market account that is 100 percent cash and cash equivalents.

These three programs are only a sample of the programs available.  It is important to do your research when selecting an account and to make a determination based on what is best for you or your loved one.  Your special needs planner can assist in this evaluation process especially as programs are created in your state.

If you or a loved one are interested in learning more about ABLE accounts or establishing one for your loved one with disabilities, please contact Pierro, Connor & Associates for a free consultation.

Article posted by:

Kevin T. Horner, Esq.

Pierro, Connor & Associates, LLC

For more information on how we can help, or to get in touch with Kevin T. Horner, Esq. please contact Beth Wurtmann, Director of Marketing at Pierro, Connor & Associates, LLC:

Tel: 866-951-PLAN

Email: info@pierrolaw.com

Medicare Coverage for Skilled Maintenance Therapy Clarified by Federal Court

Imagine a scenario where your elderly parent urgently needs skilled nursing care to maintain his or her health condition.  In this case, the doctors believe your parent’s condition probably won’t improve, but with proper care, could maintain the current condition or, at least, slow any decline.

The complex question facing many families is: are these services covered by Medicare?

Fortunately, a federal court recently clarified this question, by approving a “Corrective Statement” to the landmark settlement case, Jimino v. Sebelious. The Statement will be used by the government in its Corrective Action Plan that must be fully implemented by September 4, 2017.

In its decision, the Court paves the way for the Centers for Medicare and Medicaid Services (CMS) to reject use of an “Improvement Standard” for Medicare coverage. This means that skilled nursing and therapy services would not be covered if a patient’s health is improving; however, Medicare would pay for skilled care for a beneficiary “to maintain function or to prevent or slow decline or deterioration (provided all other coverage criteria are met).”

This is a significant ruling because the court recognizes that some providers, contractors and adjudicators may have mistakenly thought Medicare covered therapy and nursing services in cases where patients’ health could get better. The Corrective Statement leaves no doubt that the Medicare program governs therapy for maintenance or slow deterioration. “We are hopeful this will truly advance access to Medicare and necessary care for people with long-term and debilitating conditions,” said Judith Stern, CMA executive director and plaintiffs’ counsel, who described the Corrective Statement as, “absolutely clear.”

For law firms, such as Pierro, Connor & Associates, who represent families with loved ones in this situation, the Court decision guides short and long term planning for Medicare expenses. For clients with chronic and progressive conditions such as Parkinson’s disease, ALS and multiple sclerosis, there is clear guidance on a “maintenance coverage standard” under these benefits.

Article posted by:

Aaron E. Connor, Esq. 

Partner at Pierro, Connor & Associates, LLC

For more information on how we can help, or to get in touch with Aaron E. Connor, Esq. please contact Beth Wurtmann, Marketing Director at Pierro, Connor & Associates, LLC:

Tel: 866-951-PLAN

Email: info@pierrolaw.com

Whether Rich or Poor, There Are Four Reasons Why Medicaid Is Priceless

Say you or a loved one with special needs just won a multi-million-dollar lawsuit award or settlement.  While the case was pending, Medicaid was paying the medical bills.  By setting up a special needs trust, you can preserve the beneficiary's eligibility for Medicaid and other government benefits.  However, many newly “wealthy” clients ask what the value is of staying on Medicaid.  After all, shouldn’t millions of dollars be sufficient to pay for health care?  Wouldn’t it be nice to forget about income and asset limits?  Why do we need a special needs trust?

There are a number of reasons why this is typically not a good idea, and staying on Medicaid is the far better choice. 

First, without health insurance, the person with special needs may not be able to get any treatment at all.  Medical providers – such as doctors, hospitals, laboratories – typically want to bill some type of insurer and the individual may not be able to obtain coverage for the services they need.  Medicaid solves this health care access problem (as long as the provider accepts Medicaid, of course). 

Second, even the best private health insurance does not provide the full range of home and community based services that Medicaid often provides. Moreover, Medicaid can provide residential services that you'll never find covered in standard private insurance policies. 

Third with Medicaid, you will not be paying the provider’s regular “fee-for-service” rate but rather the state’s far lower pre-negotiated rates for services.  In addition, according to federal law, the provider can’t bill the patient for the difference between what Medicaid pays and what the provider charges, called “balance billing”.

The following illustrates an example of an actual case for the total cost of all services rendered to a Medicaid beneficiary over a two-and-a-half-year period:

Providers billed: $1,034,079.35 

Medicaid paid:   $   129,524.04 

You can see that with these kinds of costs, even a large award could be quickly consumed by non-Medicaid medical bills.

Finally, Medicaid’s bill doesn’t come due until the beneficiary dies, which could be 40 or 50 years down the road, and there is no interest on this Medicaid debt.  On the contrary, inflation should reduce the size of the debt in real dollar terms, and Medicaid is repaid only if there are funds remaining at the time of death. 

These are four major reasons why special needs planners recommend establishing a special needs trust to preserve Medicaid in most cases, even after a seemingly large award or settlement.

At Pierro, Connor & Associates, we frequently work with individuals and their personal injury lawyers to establish special needs trusts to manage awards or settlements for the beneficiary and protect his or her benefits.

If you are receiving or anticipate receiving a lawsuit award or settlement and want to preserve or obtain benefits, please contact our firm today for a free consultation.

2016_Kevin.jpg

Article posted by:

Kevin T. Horner, Esq.

Pierro, Connor & Associates, LLC

For more information on how we can help, or to get in touch with Kevin T. Horner, Esq. please contact Sarah Beach, Director of Marketing at Pierro, Connor & Associates, LLC:  Tel: 866-951-PLAN

Email: info@pierrolaw.com

Why "I Love You" Wills Really Don't Say "I Love You"

As February brings heart-shaped chocolate boxes and roses by the dozen into your imagination, seize the moment to learn about the drawbacks of “I love you” Wills and introduce yourself to the estate planning move that’s actually going to ensure you do well by your loved ones: a lifetime beneficiary trust.

Rise above the misconceptions

No aspect of estate planning brings out as much emotional decision-making as the division of assets. Many people think, “I love you,” so I’ll leave you everything. To understand why “I love you” wills are, contrary to their name, not the most caring of estate planning gestures, it’s important to understand the risks of “I love you” wills.

Simply put, an “I love you” will is a common name for a will in which the maker leaves all of his or her assets outright to his or her beneficiary. Many people consider or even use this approach because they think that leaving assets in a trust shows they don’t trust their loved ones. They may also think that a lack of federal estate taxes protects their assets from getting into the wrong hands. Sadly, many people also think that a will can be used to avoid probate. Unfortunately, none of these things are true.

Understand why “I love you” wills aren’t effective

Say you want to make sure your beneficiary, Lisa, gets access to your assets upon your death. In the case of an “I love you” will, Lisa will have to go to the Surrogate’s Court to validate your will and ultimately transfer the assets. Since Lisa receives the assets outright, Lisa’s estate plan will eventually control the distribution of whatever assets are left at her death. This could be a significant problem because Lisa could alter her estate plan at any time. Any verbal agreements about what will be done with those assets could go out the window, contrary to your wishes or any agreements you may have made.

  • You could inadvertently disinherit your children. If you use an “I love you” will,     your assets are now Lisa’s assets for her to leave however she wants. For example, Lisa could leave her assets to her own kids, a charity, or a new husband. Likewise, assets left outright to children could be lost in a divorce.
     
  • Basic planning with outright inheritance sets your heirs up for asset protection issues. Once your assets are owned outright by your beneficiaries through a direct inheritance, those assets can be seized by creditors, divorcing spouses, or lost in bankruptcy. Even if your estate is below the exemption for estate tax, predatory creditors and lawsuits could still spell trouble.
     
  • These wills still have to go through probate. Surviving spouses do not receive an exemption from probate. Even a simple will still has to go through the process, which you may not be anticipating — especially if you had hoped to keep the details of the will private. Trusts, however, don’t need to go through probate.
     
  •  An “I love you will” does not protect against guardianship court involvement for you or for your beneficiaries. For example, if you leave all of your assets to Lisa and she develops dementia, her entire estate (her assets plus the inheritance she received from you) could be under the control of a guardianship or conservatorship court.
     
  • Basic plans add more assets into beneficiaries’ taxable estates. Although portability between spouses can help, portability isn’t available for non-spouse beneficiaries and there is no portability for New York estate tax purposes. This will only affect a very narrow group of people, and we don’t know yet what will happen with tax policy under the new Trump presidency. In a changing tax policy landscape, keeping yourself as informed as possible is an important tactic for ongoing success.

Explore lifetime beneficiary directed trusts

Comprehensive, trust-based estate planning with beneficiary trusts is a better option than outright inheritance for beneficiaries. If you leave your assets in beneficiary trusts, you retain control over where assets end up in the long run. Plus, your beneficiaries obtain asset protection features that can keep assets safe from courts, creditors, and divorcing spouses. Your family’s private information can stay out of public record. You can also take advantage of more sophisticated tax planning than you can with a basic will or trust with outright distributions.

With this approach, you can focus on enjoying your life with the knowledge that a qualified estate planning attorney is working for your best interests now as well as down the road. Now that’s something to love and truly expresses “I love you” to your beneficiaries.

This newsletter is for informational purposes only and is not intended to be construed as written advice about a Federal tax matter. Readers should consult with their own professional advisors to evaluate or pursue tax, accounting, financial, or legal planning strategies.

2016_David.jpg

Article posted by:

David S. Staggs, LL.M., Esq.

Attorney at Pierro, Connor & Associates, LLC

For more information on how we can help, or to get in touch with David S. Staggs, Esq. please contact Sarah Beach, Director of Marketing at Pierro, Connor & Associates, LLC:

 

 Tel: 866-951-PLAN

Email: info@pierrolaw.com