Articles Archive

New Jersey Elder Law, Estate and Special Needs Planning, Mediation and Collaborative Family Law Articles

Vanarelli & Li, LLC is pleased to provide the following articles.

Divorce Articles

• This section under construction.

Elder Abuse Articles

• Protection of Legal Rights: Protections for Nursing Home, Assisted Living and CCRC Residents (10/08)

  Nursing home residents are provided with statutory protections under both federal and New Jersey state law. Federal protections to nursing home residents are provided by statute and regulation, under the Nursing Home Reform Act (“NHRA”). The NHRA requires nursing homes that participate in Medicare or Medicaid to provide various patient rights…
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• Elder Abuse, Neglect and Exploitation (5/03)

  Elder abuse is broadly defined as the infliction of harm on an older adult The physical or psychological abuse of an elderly person, the theft of an elderly person’s money or property, or the intentional or unintentional failure to take care of an elderly person, are examples of elder abuse, neglect and/or exploitation…
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Estate Planning and Probate

• Dying Intestate (9/11)

  Deciding how your affairs will be handled upon your death is never an easy task. For this and other reasons, many people simply choose not to execute a Last Will and Testament. But keep in mind that, by not making a will, you are making a decision to allow the intestacy laws of your state to dictate the manner in which your estate will pass, sometimes with unexpected (and undesired) results…
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• Insolvent Estates and Related Issues (12/07)

  An “insolvent estate” is defined by the New Jersey Rules of Court as an estate in which “the real and personal estate of the decedent is insufficient to pay debts.” R. 4:91-1(a)…
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• Unequal Distributions and the Disappointed Beneficiary: Avoiding Future Challenges to Elder’s Estate Plan (10/07)

  An elderly widower has an unmarried daughter who moves in with and cares for him for the last two years of his life. Although the father has two sons, they are both married and employed full-time, and they are unable to provide meaningful assistance to their father. The daughter arranges and takes her father to all of his appointments. When he tells her he wants to make a will, she accompanies him to a local attorney she finds in the telephone book. The father never discusses his estate plan with his children. But when he dies, his children discover that he has left the bulk of his estate to his daughter…
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• Let’s Make a Will: Special Situations (12/05)

  As discussed below, a special needs trust is a device used to protect funds belonging to a disabled person resulting from, for example, a tort action. An estate planning tool with similar features but important differences may be used to protect a disabled child’s inheritance from a parent: the testamentary supplemental benefits trust…
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• Estate Planning When a Spouse Is Confronting Health Issues (12/03)

  When one spouse is a resident of a nursing facility or medical institution (the “institutionalized spouse”), but the other spouse continues to live in the community (the “community spouse”), the community spouse may take a number of steps to retain a maximum level of resources without jeopardizing the institutionalized spouse’s Medicaid eligibility…
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• Wills (4/00)

  A Last Will and Testament is the cornerstone of your estate plan. Without a will, property that is not otherwise disposed of upon death passes by the laws of intestacy…
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• Advance Medical Directives: Durable Powers of Attorney for Health Care and Living Wills. (3/00)

  In New Jersey, Advance Medical Directives (or “Advance Directives”) are governed by the New Jersey Advance Directives for Health Care Act, N.J.S.A. 26:2H-53 et seq. Under this Act, three types of Advance Directives are recognized…
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• Financial Powers of Attorney (4/00)

  In New Jersey, Advance Medical Directives (or “Advance Directives”) are governed by the New Jersey Advance Directives for Health Care Act, N.J.S.A. 26:2H-53 et seq. Under this Act, three types of Advance Directives are recognized…
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Guardianship Articles

• Guardianship 101: A Practical Guide to Guardianships in New Jersey (12/11)

  When an individual is unable to manage his or her personal and/or financial affairs as a result of age or infirmity, a guardianship action may be commenced, seeking to have that person declared incapacitated and appointing a guardian for him or her. New Jersey statutes define an “incapacitated individual” as follows…
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• Fiduciary Responsibility: Property vs. Person (10/07)

  As a result of age or disability, an individual’s impairments may necessitate the appointment of a guardian. However, the fact that the ward is no longer able to manage his or her own affairs should not deprive the ward of his/her individual liberties. These individual liberties are what our courts have called the ward’s “common-law right of self-determination.” A guardian is a surrogate decision-maker who is entrusted with protecting the ward’s fundamental personal rights of self-determination. But what standards should the guardian employ in carrying out this important duty?…
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• Assessing the Need for Guardianship and Conservatorship (5/05)

  Guardianships and conservatorships are two types of legal actions conferring upon a designated individual (the guardian or conservator) the right to make surrogate decisions on behalf of another…
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• Court Approval for Estate and Medicaid Planning By Guardians (7/03)

  The concept of “Medicaid planning,” involving the strategic gifting or transfer of assets aimed at accelerating an individual’s eligibility for Medicaid, is generally viewed as a prudent technique by which an individual may preserve assets for his or her loved ones. This technique is one of a variety of possible estate planning options to be considered by elder law attorneys on behalf of their clients…
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Long-Term Care Planning Articles

• Personal Service Contracts in Long-Term Care Planning (8/11)

  When considering the concept of long-term care planning, one strategy to be considered is the use of the personal services contract (“PSC”) (also referred to as a family care agreement, a life care contract, or a personal care agreement). In many cases, an elder would have no choice but to move to a long-term care facility, were it not for the care provided at home by a family member…
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Mediation Articles

• The Development of Collaborative Law in New Jersey: Good News or Bad News for Divorce Mediators? (6/07)

  Collaborative law is an emerging dispute resolution technique in which each party retains a lawyer, but the lawyers pledge not to resort to the courts (or threaten to do so) to resolve issues. If the collaborative technique is unsuccessful, the lawyers must withdraw, and the parties start over through litigation…
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• Enhancing Family Decision Making Through Elder Mediation (5/07)

  Families frequently avoid making decisions when they are faced with disagreements and/or lack of information involving an aged loved one. Unfortunately, this avoidance can result in significant financial and emotional costs…
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• Preparing for Successful Probate Mediation (10/04)

  The judge, court staff, or the parties themselves may identify cases that are appropriate for mediation. While referral may take place at any point after filing of a complaint, the likelihood of success at cost savings is greatest when a case is referred to mediation early…
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Medicaid/Medicare Articles

• Medicaid Liens – Rules Governing Repayment Prior to Establishing Self-Settled Special Needs Trusts (9/14)

  There are different rules regarding the imposition and repayment of Medicaid liens prior to funding special needs trusts (as opposed to the imposition and recovery of Medicaid liens from estates of deceased recipients ). The differences depend on (1) whether the Medicaid benefits were correctly paid and (2) the source of the funds that will be funding the trust.
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  Emerging Medicaid Eligibility Strategies (2/09)

  In recent months, we have seen a number of administrative law decisions and cases that address various Medicaid planning issues. These new decisions provide valuable insight into the current feasibility of planning strategies in this evolving area of practice…
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  Financial Exploitation of the Elderly: Impact on Medicaid Eligibility (10/08)

  It is not uncommon for an elderly or disabled person to entrust his or her finances to a third party. For example, an elder may execute a power of attorney as a simple estate planning tool in order to ensure that his or her affairs are properly handled in the event that the elder is unable to act due to illness, injury, incapacity or other cause…
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• The Deficit Reduction Act of 2005: New Restrictions on Medicaid Planning (4/06)

  On February 8, 2006, as part of the Deficit Reduction Act of 2005 (“DRA”), the federal government imposed new, and significant, restrictions on an elder’s ability to qualify for Medicaid coverage of nursing care…
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• Medicaid Liens and Estate Recovery in New Jersey (11/05)

  There are both federal and state provisions for the recovery of correctly paid Medicaid benefits from the estate of a recipient. States such as New Jersey that participate in the Medicaid program are required to enact provisions in order to recover from the estate of a deceased Medicaid recipient all monies expended on behalf of that recipient during the recipient’s lifetime. According to 42 U.S.C.A. §1396p(b)(1)(B)…
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• NJ Courts Put an End to Medicaid’s Restrictive Treatment of Certain Annuities (2/05)

  Following the issuance of that opinion, the New Jersey Appellate Division issued two decisions that impact on Medicaid’s treatment of certain annuities. These two cases, Estate of F.K. v. DMAHS, 2005 WL 13252 (Jan. 4, 2005) and A.B. v. DMAHS, Docket No. A-4973-02T2 (Jan. 21, 2005)…
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• Medicaid’s Treatment of Testamentary Trusts (1/05)

  Any estate or asset protection plan must be based on current federal and state law. However, public benefits laws, particularly Medicaid, are in a constant state of flux. Changes in the law may affect your estate or asset protection plan. It is vital that your elder law attorney keep abreast of changes in the law, and revise your estate/Medicaid plan to address those changes…
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• Alimony and the Institutionalized Spouse: Consenting to Alimony Reduction May Jeopardize Medicaid Eligibility (6/04)

  When a divorced elder is receiving Medicaid benefits, alimony payments the elder may be receiving will do little, if anything, to improve the elder’s standard of living. Thus, an ex-spouse’s attempt to reduce court-ordered alimony might be seen as an opportunity to accomplish Medicaid-planning transfers, ultimately for the benefit of the divorced couple’s children. But can the institutionalized elder consent to an alimony reduction without jeopardizing his/her Medicaid eligibility?…
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• Medicaid Planning in the Wake of Keri (7/03)

  The concept of “Medicaid planning,” involving the strategic transfer of assets aimed at accelerating an individual’s eligibility for Medicaid, is generally viewed as a prudent estate planning technique by which an individual may preserve assets for his or her loved ones. However, the continued rights of an incapacitated person to engage in Medicaid planning through his or her guardian was called into question by the recent Appellate Division decision inIn re Keri, No. A-5949-01T5 (App. Div. Dec. 19, 2002)…
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• Recent Developments in the Medicare Program (5/03)

  Outcomes Based Quality Improvement (OBQI) System for Home Health Agencies (HHAs): The CMS is implementing this system, in which CMS contractors will provide training and technical assistance to Home Health Agencies in order to assist the HHAs in interpreting outcome reports, targeting, developing and implementing plans to improve outcomes for improvement…
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Miscellaneous Articles

• What is a Certified Elder Law Attorney? (10/06)

  The elderly population today faces legal issues that are increasing in both number and complexity. The issues affecting our elders include ever-changing laws and regulations governing Medicare, Medicaid, and Social Security, as well as related issues such as estate planning, disability and long term care planning, guardianships, elder abuse, and nursing home litigation, to name just a few. But how do you sift through the number of practicing attorneys to find a suitable attorney to fit your needs?…
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• New Jersey Domestic Partnership Act (10/04)

  On July 10, 2004, the New Jersey Domestic Partnership Act, N.J.S.A. 26:8A-1 et seq., became effective. The Act, which was signed by Governor James E. McGreevey on January 12, 2004, affords legal status to same-sex couples and to unmarried opposite-sex couples over the age of sixty-two. With its passage, New Jersey became one of only five (5) states in the country (along with California, Massachusetts, Vermont and Hawaii) to grant to same-sex domestic partners some of the same rights afforded to married couples…
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Social Security Articles

• Social Security Issues: Social Security Disability and Supplemental Security Income (2/07)

  Social Security Disability (SSD) and Supplemental Security Income (SSI) are two programs available from the Social Security Administration (SSA) that may play an important role in an elder law practice…
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Special Needs Planning Articles

• Assignment of Income Streams to Special Needs Trusts and Supplemental Benefits Trusts (10/11)

  Special needs trusts are estate planning devices that are specifically permitted under federal and state Medicaid law, which further New Jersey’s public policy regarding the rights of the disabled….
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• Special Needs Issues: Did You Know…? (8/07)

  Parents of children with special needs face many legal issues that may be critical to the care and welfare of their children. Below are just a few of the issues that parents of children with special needs should be aware of…
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• Supplemental (Special) Needs Trusts and Inheritance: Will Reformation and Other Techniques (6/07)

  A trust designed to supplement, and not to supplant, impair or diminish, public benefits a beneficiary is receiving, or may in the future be receiving. Designed to (1) protect the trust corpus in the event that the beneficiary is, or becomes, eligible for public benefits and (2) protect the beneficiary’s eligibility for benefits, which might otherwise be in jeopardy by an outright distribution of the trust corpus…
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• Supplemental (Special) Needs Trusts: Planning for the Disabled and Sheltering Personal Injury Awards (4/07)

  A trust containing the assets of an individual under age 65 who is disabled…and which is established for the benefit of such individual by a parent, grandparent, legal guardian of the individual, or a court if the State will receive all amounts remaining in the trust upon the death of such individual up to an amount equal to the total medical assistance paid on behalf of the individual under a State plan under this subchapter…
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• Let’s Make a Will: Special Situations (12/05)

  As discussed below, a special needs trust is a device used to protect funds belonging to a disabled person resulting from, for example, a tort action. An estate planning tool with similar features but important differences may be used to protect a disabled child’s inheritance from a parent: the testamentary supplemental benefits trust…
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For additional information regarding New Jersey Elder Law, Probate, Estate and Special Needs Planning, Mediation and Collaborative Family Law, call us at 908-232-7400 or click here to contact us online.