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Wednesday, August 29, 2012
Tuesday, August 21, 2012
Review of Inaccessible Resources
In various posts, I have discussed the concept of inaccessible resources pursuant to N.J.A.C. 10:71-4.4(b)(6). Inaccessible resources are treated as excludable resources for Medicaid eligibility purposes.
The theory is that a countable resource is only such that can be converted to monies to pay nursing home costs.
Some examples of inaccessible resources are as follows:
1. Real estate owned by the applicant with someone else who refuses to sell. The same applies to property in probate, that is, if the community spouse becomes a beneficiary of an estate, the mere fact that the estate is in probate does not cause the inheritance to be a countable resource. It is only a resource if it is distributed.
2. Real estate which doesn't meet the zoning requirements may not be convertible into cash.
3. Monies owed to the community spouse if the payer is bankrupt should not be counted as an accessible resource.
However, resources that can be received only if a penalty is incurred, such as an IRA, are countable resources.
An arcane inaccessible resource arguably would be stocks subject to a buy sell agreement, which I discussed in post 172. The theory is that such resource is not convertible to cash since it is subject to a buy sell agreement. This argument once worked in an administrative hearing in Hunterdon county. I believe the argument is incorrect since the co-holder may not want to buy the stock if someone leaves during their lifetime. If they do not want to buy the stock, the stock may be offered to a third party and therefore may be countable as cash.
There are a myriad of examples of inaccessible resources. The purpose of this article is to provide a summary of the concepts.
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 209
The theory is that a countable resource is only such that can be converted to monies to pay nursing home costs.
Some examples of inaccessible resources are as follows:
1. Real estate owned by the applicant with someone else who refuses to sell. The same applies to property in probate, that is, if the community spouse becomes a beneficiary of an estate, the mere fact that the estate is in probate does not cause the inheritance to be a countable resource. It is only a resource if it is distributed.
2. Real estate which doesn't meet the zoning requirements may not be convertible into cash.
3. Monies owed to the community spouse if the payer is bankrupt should not be counted as an accessible resource.
However, resources that can be received only if a penalty is incurred, such as an IRA, are countable resources.
An arcane inaccessible resource arguably would be stocks subject to a buy sell agreement, which I discussed in post 172. The theory is that such resource is not convertible to cash since it is subject to a buy sell agreement. This argument once worked in an administrative hearing in Hunterdon county. I believe the argument is incorrect since the co-holder may not want to buy the stock if someone leaves during their lifetime. If they do not want to buy the stock, the stock may be offered to a third party and therefore may be countable as cash.
There are a myriad of examples of inaccessible resources. The purpose of this article is to provide a summary of the concepts.
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 209
Tuesday, August 7, 2012
Approach to Advice by an Elder Law Attorney
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
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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