As my posts have indicated, the law is uncertain in many areas. Failure of New Jersey to follow federal law has been discussed many times in areas such as spousal refusal, waiver of elective share as a transfer and IRA of community spouse as a resource.
The attorney must be very careful about giving concrete advice. My thinking is that the elder law attorney must point out the federal law, the state law, any conflicts and if there is a conflict, whether the conflict can be waived or should be waived.
That is, an elder law attorney should not be dictatorial, but should point out the options, possibly make recommendations, and advise the client, in writing, of any ambiguities. The attorney should state that he or she has rendered advice and informed the client of any conflicts, but not has mandated what steps the client should take.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© August 2012, Post 208
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