Gifts made during the Medicaid look-back period result in a penalty, or period of ineligibility, unless the applicant can prove that the gifts were made exclusively for some purpose other than to qualify for Medicaid. S.L. v. Division of Medical Assistance and Health Services, Docket No. A-3520-11T4 (App. Div., September 2, 2014) In December 2009,.. read more →

In A.H. v. Division of Medical Assistance and Health Services, 2014 N.J. Agen. LEXIS 91 (OAL Dkt. No. HMA 00531-13, Jan. 27, 2014), fifteen months elapsed between the assisted living facility resident’s application for Medicaid benefits under the “Global Options” program and the formal denial of the claim. During this time, in which there were.. read more →

The Medicaid programs in New Jersey which help residents pay long-term care costs are about to get a major overhaul. Currently, there are three (3) Medicaid programs in New Jersey that pay for long-term care costs. The Medicaid-Only Medicaid program pays the costs of caring for nursing home residents. A companion program, Global Options for.. read more →

A recent ethics opinion from the California State Bar Association, Formal Opinion Interim No. 11-0004, begins as follows: “An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and then become integrated with the practice of law.” Gulp! In other words, the law bans luddites, or those opposed to, or slow.. read more →

In re Estate of Klausner, 2014 N.J. Super. Unpub. LEXIS 1517 (App. Div. June 23, 2014) involved Gerald Klausner, who was appointed executor of his late uncle’s estate, and Gerald’s brother Ronald, who was one of the beneficiaries of the estate. Following his appointment as executor, Gerald discovered transactions that he believed demonstrated that Ronald.. read more →

A nursing home resident’s adult child who signs an admission agreement as the “Responsible Party” can be sued in his/her individual capacity for services rendered to the resident, if the adult child fails to use the resident’s financial resources to pay for care provided by the facility. Manahawkin Convalescent v. O’Neill, 217 N.J. 99 (2014)… read more →

New Jersey appeals court ruled pro se litigants who bungle their own cases can seek redress under the same rules as litigants whose cases are bungled by negligent lawyers. The Ridge at Back Brook v. Klenert, Docket No. A-2345-12T1 (App. Div., August 12, 2014) Plaintiff, The Ridge at Back Brook, owns an 18-hole golf course.. read more →

In a case recently decided by the United States Court of Appeals for the Third Circuit, a New Jersey ethics rule restricting lawyers from using complimentary statements by judges in attorney advertising was found to violate the constitutional right to free speech. Dwyer v. Cappell, Docket No. 13-3235 (3d Cir., August 11, 2014) In 2007,.. read more →

(In Zahner v. Mackereth (U.S. Dist. Ct., W.D. PA, Jan. 16, 2014), a federal district court ruled that long-term annuities, that is, annuities with payment terms of 5-years or more, purchased by Medicaid applicants were not transfers for less than fair market value and, therefore, were not subject to a penalty period, but that shorter-term annuities.. read more →

In a very unusual ruling, a New York appeals court ruled that, despite transferring significant assets to family members, an applicant still qualified for Medicaid because the transfers were made exclusively for a purpose other than to qualify for benefits. Matter of Safran v. Shah, Docket No. D42144 (App. Div., 2nd Dept., July 2, 2014).. read more →

The Uniform Law Commission, a national law group, approved a new law on July 16, 2014 which provides access to digital assets by executors, guardians, agents under powers of attorney and other fiduciaries. The purpose of the Uniform Fiduciary Access To Digital Assets Act (UFADAA) is to provide fiduciaries with the authority necessary to access,.. read more →

New Jersey trial judge ruled that a litigant may not appear at trial in a divorce case through an agent appointed by the litigant in a power of attorney (POA). Marsico v Marsico, Docket No. FM-15-1152-13-N (Chancery Div., Ocean County, Hon. L.R. Jones, J.S.C.) Louis and Beverly Marsico are both in their eighties, and married.. read more →

When confronting the prospect of guardianship for a loved one, a threshold issue is who will apply to become the guardian. However, a natural concern of many prospective guardians involves the possibility that the ward might cause harm to another person or property: would the guardian be held liable for the resulting damages? The simple.. read more →

In Brill v. Velez (U.S. Dist. Ct., D. N.J., No. 1:13-cv-05643 (NLH/AMD), June 27, 2014), a federal district judge ruled that an applicant’s claim against the State of New Jersey for denying Medicaid benefits based upon the purchase of an annuity survived a motion to dismiss even though the State reversed the denial because the applicant.. read more →

In the May 30, 2014 Kongtcheu v. Secaucus Healthcare Center decision, the United States District Court for the District of New Jersey denied the defendant nursing home’s motion to dismiss a claim against it brought by nursing home resident Philbert F. Kongtcheu. In Kongtcheu, the pro se nursing home resident brought a variety of claims.. read more →

On June 23, 2014, the Government Accountability Office (GAO) released its report, Financial Characteristics of Approved Applicants and Methods Used to Reduce Assets to Qualify for Medicaid, which Sens. Tom Coburn (R-OK) and Richard Burr (R-NC) and Reps. Darrell Issa (R-CA) and Trey Gowdy (R-SC) requested. The GAO report confirmed that about 95% of approved.. read more →

A New Jersey trial judge dismissed a lawsuit asserted by an alleged abuser against a group of defendants who had either reported or investigated claims of elder abuse and neglect by the abuser. Rizzo v Bergen County Board of Social Services, Docket No. BER – L – 2926 – 12 (Law Div., June 10, 2014)… read more →

In the May 19, 2014 J.P. v. Division of Medical Assistance and Health Services decision, New Jersey’s Appellate Division affirmed the final agency decision of the Director of the Division of Medical Assistance and Health Services (“DMAHS”), resulting in the imposition of a transfer penalty on the petitioner’s Medicaid application. After the ALJ had accepted the.. read more →

Effective on July 7, 2014, the Department of Veterans Affairs (VA) is changing its monetary burial benefits regulations to simplify the program and pay eligible survivors quicker and more efficiently. Under the current regulations, VA pays for burial and funeral expenses on a reimbursement basis, which requires survivors to submit receipts before receiving any payments… read more →

(On June 16, 2014, I was a speaker at the 71st Semi-Annual Tax & Estate Planning Forum presented by the New Jersey Institute for Continuing Legal Education. My topic was entitled “House Ownership Options When a Parent and Adult Child Live Together: Tax, Medicaid and Personal Issues.” I presented a PowerPoint  slide show and a.. read more →

A New Jersey appeals court upheld a substantial fee award exceeding the amount in controversy for work preformed by law firm in a probate litigation when representing the estate of a man manipulated into modifying his will through undue influence because the wrongdoer’s actions contributed to, and greatly increased, the time and effort required to.. read more →

A federal district court in New Jersey ruled that a Medicaid applicant was not entitled to a preliminary injunction to prevent the State from counting her annuity as an available resource. Matrangolo v. Velez (U.S. Dist. Ct., D. N.J., No. 13-6289 (MAS) (LHG), May 30, 2014). Plaintiff Marie Matrangolo, an 88-year-old woman who has been a.. read more →

In general, an incapacitated person is to be represented in any litigation by a guardian, or “if no such guardian has been appointed or a conflict of interest exists between a guardian and ward or for other good cause, by a guardian ad litem appointed by the Court.” R. 4:26-2(a); Village Apartments v. Novack, 383.. read more →

Hon. Robert B. Kugler, United States District Judge for the District of New Jersey, reversed a denial of an application for Medicaid benefits by ruling that a pension benefit from the Department of Veterans Affairs (“DVA”) may not be counted as income for the purposes of any Medicaid program to the extent that the DVA.. read more →

In the April 28, 2014 Karlson v. Colvin decision, New Jersey’s Federal District Court reversed an Administrative Law Judge and granted a Social Security recipient’s request for waiver of his Social Security Disability (“SSD”) overpayment. Karlson v. Colvin, 2014 U.S. Dist. LEXIS 58942 (D.N.J. 2014) Under the Social Security Act, if an individual incorrectly receives an.. read more →

A United States District Court recently ruled that a nursing home resident does not have a private right to assert a lawsuit against a nursing home for involuntary discharge under the Nursing Home Reform Act. Schwerdtfeger v. Alden Long Grove Rehabilitation and Health Care Center (U.S. Dist. Ct., N.D. Ill., No. 13 C 8316, May.. read more →

Decision-making capacity involves four (4) key abilities: the ability to understand information relevant to a decision, to retain the information relevant to the decision, to use the information relevant to the decision as part of the decision-making process and to communicate the decision once it is made. But since decision-making capacity involves mental abilities, how.. read more →

Trial lawyers must know where the ethical line is drawn between properly investigating jurors and improperly communicating with them. In today’s Internet-saturated world, the line is increasingly blurred. Therefore, the ethics committee of the American Bar Association (ABA) recently issued an opinion describing a trial lawyer’s ethical obligation when reviewing jurors’ information on the Internet in.. read more →

Although the petitioner in this case, A.G., succeeded in obtaining Medicaid benefits after filing a complaint in federal court (which I’ve blogged about in the past here, here and here), the State of New Jersey recently denied benefits back to the date of the original application after an administrative appeal was filed in the state.. read more →

The Affordable Care Act (ACA) is an historic effort by the government to extend medical insurance coverage to all Americans, increase the quality of care, increase accountability, and reduce cost. It’s been said that the ACA changes the relationship between government, health care providers and all who receive health care in the U.S. However, at.. read more →

A New Jersey appeals court held that payments made by a Medicaid applicant to her daughter pursuant to a written care agreement under which the daughter provided various services were actually gifts and subject to a transfer penalty. P.W. v. Division of Medical Assistance and Health Services (N.J. Super. Ct., App. Div., No. A-4756-11T3, April 29,.. read more →

On April 23, 2014, the Social Security Administration (SSA) issued Emergency Message 14026 providing instructions for the regional centralization of Supplemental Security Income (SSI) trust reviews to help improve the accuracy and consistency of SSI trust resource determinations. Under the new policy, effective April 28, 2014 a member of the new Regional Trust Reviewer Team.. read more →

A Memorandum (or Letter) of Intent communicates and documents your preferences regarding the care of a disabled family member or friend who is the beneficiary of the special needs trust you created. It provides guidelines for those who will become responsible for your disabled family member after you pass away or become so disabled yourself.. read more →

A California appeals court held that a trial court’s order directing a trial attorney to remove posts from her law firm website touting her successes constituted an unlawful prior restraint on the trial attorney’s constitutional right to free speech. Christie Steiner v. Superior Court of Santa Barbara County, 2d Civil No. B235347 (Super. Ct. No… read more →

Even after a guardian is appointed for an incapacitated person, our courts will seek to preserve the incapacitated person’s right to self-determination, to the extent possible. This challenging task was addressed by the New Jersey Supreme Court in M.R., 135 N.J. 155 (1994): Unless they endanger themselves or others, competent people ordinarily can choose what.. read more →