Many years ago, the federal government held that a lawyer committed a crime if he advised a client how to protect assets. Although the decision was ridiculous, it was the law for a period of time.
Eventually, the government came to its senses and realized that the issue was not the right of the lawyer to advise, but the right of the public to know. Therefore, the government reversed itself and held it certainly is not a crime for a lawyer to advise a client to protect assets. Clearly, as in all areas of law (particularly constitutional law), the public's right to know is paramount.
A similar situation is in Post 174 , in which the Supreme Court of New Jersey held that you may call yourself a Super Lawyer if the language has the proper restrictions. Again, it is not the First Amendment right of the lawyer to advise, but rather the First Amendment right of the public to know.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© May 2012, Post 198
Tuesday, May 29, 2012
Monday, May 21, 2012
The Pros and Cons of Owning a Home with a Sibling
Suppose a Medicaid applicant inherits a home which she owns jointly with a sibling. If the sibling refuses to sell the home, the home is an inaccessible resource. However, after the applicant gets Medicaid, one half the "net" income must be used on the home. For these purposes, "net" income is defined as income from the home without paper deductions such as depreciation. I am assuming of course that the home is rental property.
Therefore, the home will not prevent Medicaid. However, upon the death of the applicant the lien will not be enforced immediately as the sister is a family member - N.J.A.C. 10:49-14.1(g). However, after the sister dies or moves out of the home, the lien is enforced to the extent of the interest of the Medicaid recipient.
This is a unique example of protection of a second home and delay of the lien.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© May 2012, Post 197
Therefore, the home will not prevent Medicaid. However, upon the death of the applicant the lien will not be enforced immediately as the sister is a family member - N.J.A.C. 10:49-14.1(g). However, after the sister dies or moves out of the home, the lien is enforced to the extent of the interest of the Medicaid recipient.
This is a unique example of protection of a second home and delay of the lien.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© May 2012, Post 197
Monday, May 14, 2012
What Comes First the Chicken or the Egg (i.e. Or Other Advisors)
It has been suggested that counsel has an affirmative obligation to advise a potential donor of the alternative of purchasing long-term care insurance before undertaking such plan (see NAELA News, Volume 7, No. 4, July 1995, "Long-Term Care Insurance - A Necessary Option to Consider", by Barreira, Brian E.). Also, the elder law attorney may be presented with a situation in which it has not been determined where a potential client will reside (i.e. home care, assisted living or nursing home). Therefore, I have often suggested that before clients see me, they should consult with a geriatric care manager.
It is the obligation of any attorney to give the best advice available. However, that advice may not be possible before the client sees other experts (i.e. see above). The ideal situation, if a determination has not been made as to where a person should reside, is the individual should meet with a geriatric care manager and the attorney so that the legal and residential requirements can be discussed together.
The answer to the "chicken or the egg" quandary, is that the chicken (long-term care expert, geriatric care manager) comes first. That is, the elder law attorney should not be overly aggressive about planning, when all information is not available.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© May 2012, Post 196
Wednesday, May 9, 2012
Determination of the Community Spouse Resource Allowance
The statute refers to the date of determination of the community spouse resource allowance (C.S.R.A.) as the first day of the first month of institutionalization. The date of institutionalization is actually the earlier of the first day of the first month of (i) entering a nursing home, (ii) entering a hospital or (iii) receiving home care.
A thirty day break in any of the above requires a re-determination.
Recent Medicaid Communications have indicated that if during the time of the application process before receipt of Medicaid there is an increase in the C.S.R.A., the applicant gets the benefit of the increase.
Many of the blogs have indicated that often the state is more restrictive than the federal statute, and therefore, violates federal pre-emption. In this instance, where one receives an increase in the C.S.R.A., the state is more lenient and it is an opportunity that should not be missed.
Also, as indicated in many blogs, after determination of Medicaid, the C.S.R.A. is not limited. This provides many planning opportunities, which have been discussed in previous blogs.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© May 2012, Post 195
A thirty day break in any of the above requires a re-determination.
Recent Medicaid Communications have indicated that if during the time of the application process before receipt of Medicaid there is an increase in the C.S.R.A., the applicant gets the benefit of the increase.
Many of the blogs have indicated that often the state is more restrictive than the federal statute, and therefore, violates federal pre-emption. In this instance, where one receives an increase in the C.S.R.A., the state is more lenient and it is an opportunity that should not be missed.
Also, as indicated in many blogs, after determination of Medicaid, the C.S.R.A. is not limited. This provides many planning opportunities, which have been discussed in previous blogs.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© May 2012, Post 195
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