DRIVING WITHOUT INSURANCE - STRICT LIABILITY AND SUBSTANTIAL PENALTIES
The mandatory penalties imposed for driving without insurance is greater than the first offender penalties for drunk driving or possession of marijuana. Mandatory penalties include automatic loss of license for one year, $300.00 fine and a period of community service to be determined by the Municipal Court. N.J.S.A. 39:6B-2 The no car insurance statute is one of the few strict liability statutes. "Every owner or registered owner of a motor vehicle registered or principally garaged in this state shall maintain motor vehicle coverage, under provisions approved by the Commissioner of Insurance." N.J.S.A. 39:6B-1 There are also court costs and insurance surcharges of $250.00 per year for three years. Failure to produce at the time of trial an insurance card or insurance policy covering the date of the offense creates a rebuttable presumption that the person was uninsured when charged with the offense.
In State v. Kopp, 171 NJ Super 528 (Law Div. 1980), the courts established that knowledge of lack of insurance is not a defense. The legislative intent is clear that knowledge of lack of insurance is not an essential element which must be proved in order to sustain a conviction of an owner who operates a car without insurance. However, the section which imposes penalties against an individual who operates a motor vehicle without liability insurance does not apply to a New Jersey resident who is driving an automobile owned by an out-of-state friend who had been in New Jersey for five weeks. State v. Arslanouk, 67 NJ Super 387 (App. Div. 1979)
The Appellate Division, in the State v. Hochman, 188 NJ Super 382 (App. Div. 1982) examined and reversed a conviction for operating without liability insurance where the State failed to carry its burden of proving that an automobile liability insurance was lawfully canceled. In this fact specific case, defendant was charged with operating a vehicle he owned without insurance. It was stipulated that because of long hours defendant worked, he had asked his wife to look after household matters, including insurance matters, and gave her several thousand dollars each month to pay for them. Defendant Hochman's wife arranged through an insurance broker to have Allstate insure the vehicle. The insurance broker then arranged to finance the insurance premiums through a "Lee Finance" financial service. The defendant's wife then paid the broker and agreed to pay the balance to the financial service in monthly installments of $48.00. Id at 384.
Thereafter, defendant Hochman's wife made payments to the financial service through October 13, 1979. On October 15, 1979 Allstate informed defendant's wife by mail that there was due and owing a premium of $331.00 and payment should be made immediately. The defendant's wife notified the broker that she had received a letter from Allstate and reminded the broker that the insurance premiums were being financed through the finance agency pursuant to financing agreement arranged by it and therefore she did not have to pay the balance of the account.
The insurance broker informed the Defendant Hochman's wife that it would investigate the problem and contact her. In January 1980, because the defendant's wife had not heard from the insurance broker, she again contacted the insurance broker and informed him that she had received no further correspondence from Allstate. She inquired into the status of the insurance of the vehicle, the broker informed the defendant's wife they were still investigating the problem and would contact her when it had been resolved. It was further stipulated in Court that defendant was never told by his wife of the finance agreement or of the difficulties she had encountered with the insurance. In May 1980, defendant was transferred to another office and needed to use the car to get to work. According to stipulated facts, defendant's wife told the defendant that the vehicle could be driven. Defendant, relying upon what his wife had told him and believing that the vehicle was insured, drove the vehicle until July 15, 1980 when he was charged with violating the compulsory insurance provisions of N.J.S.A. 39:6B-2.
The insurance broker, as an agent, had issued an insurance identification card indicating the insurance would remain in effect from the period August 28, 1979 to August 28, 1980. In December 1979 defendant and his wife moved from the residence in Montclair and left a forwarding address. Thereafter in preparing for trial defendant learned that in October and November 1979 Lee Finance had liquidated without informing its clients, including defendant's wife.
Although Allstate claimed it mailed a cancellation notice, it stipulated that it had mailed the cancellation notice to an incorrect address, mailing it to 313 Park Street rather than 314 Park Street. The broker, First City, never informed defendant's wife, despite her inquiry, that Allstate had canceled the insurance policy or that the finance agency had liquidated, or that she could reinstate the policy by paying the balance due on the annual premium. The Appellate Division noted that in order to convict a defendant-owner of operating a motor vehicle in violation of the insurance provisions, the State did not have to show a culpable mental state, i.e., that defendant knew his vehicle was uninsured. The State simply had the burden of proving beyond a reasonable doubt that (1) defendant owned the vehicle, (2) the vehicle was registered in New Jersey, (3) defendant operated the vehicle or caused it to be operated upon any public road or highway in this State, and (4) the vehicle was without liability insurance coverage required by N.J.S.A. 39:6B-1. Id at 387.
The Appellate Division held that the first three elements of the offenses were proven beyond a reasonable doubt. The pivotal issue was whether the State had proven beyond a reasonable doubt the fourth element of the defense, that the vehicle was uninsured. The question was thus whether the liability insurance policy had been lawfully and effectively canceled when Defendant Hochman was charged for the offense. The Court found that Allstate had not properly canceled the insurance policy. The Court held;
"A notice of cancellation of a policy of automobile liability insurance is effective in this State only if it is based on one or more statutorily enumerated reasons, including the nonpayment of premiums. N.J.S.A. 17:29C-7(A)(a). Moreover, prior to March 10, 1981, where, as here, the cancellation was for nonpayment of premiums, the notice of cancellation must have been mailed or delivered by the insurance carrier (here Allstate) to the insured (here either defendant or his wife) at least ten days prior to the effective date of cancellation and must have been accompanied by a statement of the reason given for such cancellation. N.J.S.A. 17:29C-8. Proof of mailing of the notice of cancellation to the named insured at the address shown in the policy was deemed sufficient proof of notice. N.J.S.A. 17:29C-10. Under this latter statue, cancellation was effective whether or not the insured actually received notice of cancellation because proof of mailing, not proof of receipt, was the determinative factor. See Weathers v. Hartford Ins. Group, 77 N.J. 228, 234 (1978. Proof of mailing the notice, however, is not conclusive on the issue. The insured may still offer proof that he never received the notice "for the purpose of refuting the hypothesis of mailing." Id. at 235. Thus, in Weathers, the Supreme Court held:
'Although the inference of non-mailing provided by evidence of non-receipt might in most cases be outweighed by the inferences of mailing which may be drawn from a certificate of mailing whose reliability has been established, we discern no cogent reason for depriving the trier of fact of such evidence by holding it inadmissible , they are not conclusive of that issue and do not preclude the existence of a genuine issue of material fact in the face of a claim of non-receipt so as to entitle the insurer to judgment as a matter of law. See Sudduth v. Commonwealth County Mutual Ins. Co., 454 S. W. 2d 196 (Tex. Sup. Ct. 1970); 9 Wigmore on Evidence (3d ed. 1940) Sec. 2519; cf. Fitzpatrick v. Merchants and Manufacturers Fire Ins. Co., 122 N.J.L. 468 (E. &A. 1939). The contrary holding of Womack v. Fenton, 28 N.J. Super. 345 (App. Div. 1953), on this point is hereby overruled. Permitting the fact finder to consider the addressee-insured's denial of receipt of the notice of cancellation does not improperly add to the insurer's statutory burden of proving mailing by requiring it to prove actual receipt of the notice since such testimony is admissible only as the basis for an inference of its non-mailing. The insurer still need only prove constructive notice by adequately establishing that the notice of cancellation was mailed. Hochman at 388-389 Weathers at 235-236
The court noted that although Allstate claimed that a notice of cancellation was sent to the defendant's wife, this did not establish that the notice satisfied the statutory requirement of N.J.S.A. 17:29C-8. There is no proof that the notice mailed to the named insured (assuming that defendant's wife was the insured named in the policy) or that it was mailed to the address shown in the policy, or that its contents complied with statutory requirements. The court held "thus, we are constrained to hold that the State failed to sustain its burden of proving beyond a reasonable doubt that the Allstate automobile liability insurance policy covering defendant's vehicle was lawfully canceled. The Allstate policy therefore was presumptively in full force and effect... and defendant's conviction for violating the compulsory insurance provisions of N.J.S.A. 39:6B-2 cannot stand. Hochman at 389-390.
The insurance statutes under Title 19 of the New Jersey laws contain provisions which sometimes provide that all members of a household are covered under a policy issued to one member even if their name is not set forth on the policy. The uninsured defendant who lives with someone who owns an insured car may be included under that person's policy.
Operation is different in non-insurance matters than in drunk driving cases. A defendant who is seated in the driver's seat, behind the steering wheel of a vehicle that is under tow and was in physical control of the vehicle did not "operate" the vehicle for the purposes of prohibiting operating the vehicle while suspended, operating uninsured vehicle and operating unregistered vehicle, where the vehicle did not have an engine and incapable of being operated under its own power. Counsel can argue the state must prove the defendant drove the vehicle. State v. Derby, 256 N.J. Super. 702, (Law Div. 1992).
In a case involving Personal Injury Protection/ No Fault PIP benefits the Appellate Division recently ruled that an insurance company did not properly mail a notice of cancellation, thus the policy was not canceled. In Hodges v. Pennsylvania National Insurance Company, _____ NJ Super. _____ (App. Div. 1992), plaintiff was in a motor vehicle accident operating a vehicle owned by her mother. Plaintiff filed a PIP suit against the insurance company which had refused to pay medical bills and property damage. Defendant's insurance company claimed it canceled Alva Hodge's policy on December 16, 1988 for failure to remit the premium payment. Defendant submitted two pages of a November 28, 1988 "JUA Mailing List," which indicated Alva Hodges as an insured who was scheduled to be sent a notice of cancellation. The mailing list contained two November 28 stamps of the Harrisburg Post Office and two stamps of postage for the numerous letters of $39.00 and $99.75. The two postage stamps together totaled $138.75. The list claimed a "total mailing" of 640 notices. Plaintiff pointed out that a mailing of 640 notices at $.25 per piece (the 1988 postage stamp price) should have totaled $160.00. Because defendant paid only $138.75, plaintiff contends that all the lists and notices may not have been mailed. The mailing list also contained a signature and certification of one of the defendant's employees.
Plaintiff's counsel in Hodges pointed out that the Post Office's standard proof of mailing procedure differed from defendant's use of a preprinted mailing list. Plaintiff pointed out that the US Postal Service utilizes a "Certificate of Mailing," PS Form 3817, for the purposes documenting proof of mailing by regular mail. Prior to the stamping of this receipt, the Postal Service employees individually compares the receipt with the item being mailed. These forms are available in advance from the Post Office. (A copy of the first class mailing Certificate of Mailing was included as a footnote to the Court's opinion.) The Hodges Court noted that N.J.S.A. 17:29C-10 specifically enumerates the circumstances on which a notice of cancellation is effective:
"no written notice of cancellation or of intention not to renew sent by an insurer to an insured in accordance with the provisions of an automobile insurance shall be effective unless a. (1) it is sent by certified mail, or (2) at the time of the mailing of said notice by regular mail, the insurer has obtained from the Post Office Department a date stamped proof of mailing showing the name and address of the insured and b. the insurer has retained a duplicate copy of the mailed notice which is certified to be true. Slip op at 6. [Emphasis added by the Court.]
In order to be effective, notice of cancellation "must be set in strict compliance with the provisions of N.J.S.A. 17:29C-10." Citing Lopez v. New Jersey Automobile Full Underwriting Association, 239 NJ Super. 13, 20, (App. Div.), certif. den. 122 N.J. 131 (1990) (absence of proof of personal knowledge of mailing by postal employee or insurer employee renders notice ineffective). The Court questioned whether the stamped proof of payment of money in postage was proof of mailing. The Appellate Division in Hodges noted that our Courts have interpreted the statute to require a precise proof of mailing, usually the official "U.S. Postal Service Certificate of Mailing."
In Celino v. General Accident Insurance, 211 N.J. Super. 538 (App. Div. 1986), the Court ruled that this specific postal certificate of mailing satisfied the statute's proof of mailing requirement. Celino at 540-541 (determining that the insurer's notice was ineffective because insured failed to retain a duplicate copy of the notice, thereby violating part (b) of the statute). The Appellate Division in Celino determined that defendant's proof of payment of postage and the employee's certification fell far short of the quality of proof inherent in an official post office certificate. Because the defendant's proofs were insufficient to establish compliance with the statute, there existed an unresolved issues of fact. The Appellate Division found that the trial court erred and granting in summary judgment and remanded the question as to notice for further proceedings.
If there is a question involving improper cancellation or improper notice, we would suggest your attorney prepare a subpoena to the insurance company and also a hand delivered subpoena to your insurance broker. You may discover notice of cancellation was improper or notices mailed to the wrong address. We all know the poor track record by JUA and MTF companies.
If a husband and wife, or both, are named in the policy, Lumbermens Mutual Casualty Co. v. Carriere 170 N.J. Super. 437, 450 (Law Div. 1979) supports the proposition that both husband and wife named in the policy should receive notice.
A cancellation notice is invalid if issued before the premium due date. Recently, in Christian v. Ormsby, _____ N.J. Super _____ (Law Div. decided December 18, 1992), the court held under N.J.S.A. 17:29C-8, an automobile insurer may not issue a cancellation notice to the insured for non-payment of premiums before the date on which the premium is due. (This case also dealt with the incompetent JUA.) The Christian notices of cancellation and a reminder notice were mailed by Liberty Mutual. However, the court found that the notice was ineffective to cancel the policy before the accident Plaintiff Christian was involved in. The court found that although the notice issued by Liberty Mutual to the Christians on October 21, 1987 stated its reason for cancellation as "non-payment of premium," the court found that, on the date the notice was mailed, the Christians' premium to the JUA was not past due and the Christians' were not yet in default.
The court also rejected the JUA's argument that the cancellation notice could have been mailed at any time after the premium notice, so long as it did not become effective until after the due date. The court interpreted the statutory language requires 15 days notice of cancellation in a language referring to "non-payment of premium" together to imply a legislative intent to provide with a 15-day grace period after default in the payment of an automobile insurance policy premium before the insurer is able to effectively cancel the policy. The purpose is to allow defaulting policyholders an opportunity during that grace period to pay their premiums and to keep the policy in force. Consequently, any cancellation notice issued before such default is premature and invalid.
A bad check will permit insurer to cancel insurance policy. In Abdel-Rahman v. Ludas, _____ NJ Super _____ (App. Div. decided July 7, 1993), an insurer's acceptance of a check in payment of a premium is conditioned upon payment by the drawee institution. An insured's failure to pay the premium, which occurs when the check is dishonored, entitles the insurer to cancel the policy. On August 13, 1990, Ohio Casualty issued a three-month, short-term reinstatement of policy. Included in the reinstatement letter to the insured was a notice advising the reinstatement would be considered void from its inception if the check accepted in payment of the reinstatement was dishonored when presented to the drawee bank.
On August 22, Ohio Casualty learned that the check was dishonored by the insured's bank. Having a policy of presenting a check twice for payment, Ohio Casualty redeposited the check that same date. The check was again returned for insufficient funds on August 24. On both occasions the bank mailed notices of the dishonoring to the insured. The insured's bank statement also indicated that the checks had been dishonored.
Ohio Casualty canceled insured Ludas' policy on September 6, 1990. On September 12, 1990, the company informed Ludas of the cancellation, which was retroactively effective July 29, 1990. The insured did no dispute the facts but claimed that the family made a mistake and deposited the money into the wrong account. Both the motion judge and the Appellate Division found that mere delivery of the check, "a worthless piece of paper," to the insurer was not enough to keep the policy in effect.
The non-insurance NJSBA 39:6B-2 statute provides there is a rebuttable presumption of no insurance if no card or policy produced. Remember, however, that a presumption does not equal guilty.
The charge of simple operation without insurance by the non-owner presents additional viable defenses to the charge of no insurance. There is not a strict liability provision involving mere operators. The State must prove the operator knew or should have known from the attendant circumstances that the motor vehicle was without motor vehicle liability coverage. Such facts can be gathered from the relationship between the parties, whether or not the vehicle had a valid inspection sticker and testimony by the owner who often is also issued an uninsured motorist charge.
In Matlad v. US Services, 174 NJ Super. 499 417 A. 2d 46 (App. Div. 1980), where husband canceled policy without telling wife, deletion was void as against public policy and coverage continued for wife. The defendant/owner must operate or cause the car to be operated. If a driver took the car without permission that day, the owner did not cause the vehicle to be operated.
The State is still required to provide discovery. Occasionally a case is dismissed because the State failed to provide discovery. The bottom line is never let your insurance expire. Mandatory penalties are automatic loss of license for one year, $300.00 fine and a period of community service to be determined by the Municipal Court. If you don't have insurance, don't drive.
No insurance penalties increased 2002
39:6B-2. Penalties
2. Any owner or registrant of a motor vehicle registered or principally garaged in this State who operates or causes to be operated a motor vehicle upon any public road or highway in this State without motor vehicle liability insurance coverage required by this act, and any operator who operates or causes a motor vehicle to be operated and who knows or should know from the attendant circumstances that the motor vehicle is without motor vehicle liability insurance coverage required by this act shall be subject, for the first offense, to a fine of not less than $300 nor more than $1,000 and a period of community service to be determined by the court, and shall forthwith forfeit his right to operate a motor vehicle over the highways of this State for a period of one year from the date of conviction.? Upon subsequent conviction, he shall be subject to a fine of up to $5,000 and shall be subject to imprisonment for a term of 14 days and shall be ordered by the court to perform community service for a period of 30 days, which shall be of such form and on such terms as the court shall deem appropriate under the circumstances, and shall forfeit his right to operate a motor vehicle for a period of two years from the date of his conviction, and, after the expiration of said period, he may make application to the Director of the Division of Motor Vehicles for a license to operate a motor vehicle, which application may be granted at the discretion of the director. The director's discretion shall be based upon an assessment of the likelihood that the individual will operate or cause a motor vehicle to be operated in the future without the insurance coverage required by this act. A complaint for violation of this act may be made to a municipal court at any time within six months after the date of the alleged offense.
Failure to produce at the time of trial an insurance identification card or an insurance policy which was in force for the time of operation for which the offense is charged creates a rebuttable presumption that the person was uninsured when charged with a violation of this section.
L.1972,c.197,s.2; amended 1983, c.141, s.1; 1987, c.46; 1988, c.156, s.15; 1990, c.8, s.49; 1997, c.151, s.12.
39:6B-3. Uninsured motorist prevention fund The Uninsured Motorist Prevention Fund (hereinafter referred to as the "fund" ) is established as a nonlapsing, revolving fund into which shall be deposited all revenues from the fines imposed pursuant to section 2 of P.L. 1972, c. 197 (C. 39:6B-2). Interest received on moneys in the fund shall be credited to the fund. The fund shall be administered by the Division of Motor Vehicles in the Department of Law and Public Safety.? Moneys in the fund shall be allocated and used for the purpose of the administrative expenses of the fund and enforcement of the compulsory motor vehicle insurance law, P.L. 1972, c. 197 (C. 39:6B-1 et seq.) by the Division of Motor Vehicles.
L.1983, c. 141, s. 2, eff. April 20, 1983.
Friday, October 9, 2009
Sunday, May 10, 2009
Latest Cases and Court Rules in Municipal Court program
Latest Cases and Court Rules in Municipal Court program Thursday, May 14
8 - 9:30 a.m.
Speaker: Kenneth Vercammen, Esq. Edison, NJ
The NJSBA 2009 Annual Meeting and Convention Municipal Court programs are Thursday, May 14. If you haven't already registered, what are you waiting for? Don't miss the opportunity to earn up to 10 CLE credits at over 60 informative and timely programs.
The NJSBA Municipal Court Section is sponsoring 4 seminars in one day on Thursday May 14, 2009 at the annual convention in AC. Get 6 credits plus breakfast and lunch for a one day fee:
Register online now!
Municipal Court Practice Track:
(includes full day convention access to all other tracks, vendors, and food buffets
Breakfast Buffet at Exhibition Hall
Municipal Court Practice Section Municipal COURT TRACK
8:00 am - The Latest Cases and Court Rules in Municipal Court
Thursday, May 14 8 - 9:30 a.m.
Speaker: Kenneth Vercammen, Esq. Edison, NJ
10:00 am - DWI in the Age of Chun, 1.5 credits
Speaker: Jeffrey Evan Gold, Esq.
Luncheon Buffet at Exhibition Hall
1:00 pm - What to Look for in Alcotest Discovery, 1.5 credits
Speaker: Arnold N. Fishman, Esq.
3:00 pm - Municipal Court Bench/Bar Forum. 1.5 credits
Panelists: Hon. Joan Robinson Gross, P.J.M.C.
Hon. Robert F. Schaul, JMC
Hon. E. Ronald Wright, JMC
Paris P. Eliades, Esq. Courter Kobert & Cohen, PC
Jeffrey E. Gold, Esq.
Deborah Veach, Esq. Municipal Prosecutor, Township of Teaneck
Other important programs:
-Equity Jurisprudence Committee Litigation TRACK (CHANCERY)
Thursday, May 14 1 - 2:30 p.m.
Chancery judges and general equity practitioners will discuss a variety of topics, including foreclosure mediation, equity practice in the current economic crisis and other priceless tips for chancery litigators.
Moderator: Alexandra V. Gallo, Esq., McElroy Deutsch, Mulvaney & Carpenter, LLP
Speakers: Hon. Harriet Derman, P.J.Ch.
Hon. Glenn Berman, J.S.C.
Hon. Harriet Farber Klein, J.S.C.
Frederick W. Alworth, Esq. Gibbons, PC
Thomas P. Scrivo, Esq. McElroy, Deutsch, Mulvaney & Carpenter, LLP
Kevin M .Wolfe, Esq. Chief Civil Practice Liaison, Administrative Office of the Courts
-Prosecuting and Defending the Police Officer
Criminal Law Section Litigation TRACK (CRIMINAL)
Thursday, May 14 3 - 4:30 p.m.
Moderator: Robert Brass, Esq. Picillo Caruso Pope Edell Picini, PC
Speakers: Paul J. Bradley, Esq. Supervising Assistant Prosecutor, Essex County Prosecutor's Office
Kevin P. McCann, Esq. NJSBA Treasurer
John L. Molinelli, Esq. Bergen County Prosecutor
Brian J. Neary, Esq
Anthony J. Pope, Esq. Picillo Caruso Pope Edell Picini, PC
Speaker: Kenneth Vercammen, Esq. Edison, NJ
The NJSBA 2009 Annual Meeting and Convention Municipal Court programs are Thursday, May 14. If you haven't already registered, what are you waiting for? Don't miss the opportunity to earn up to 10 CLE credits at over 60 informative and timely programs.
The NJSBA Municipal Court Section is sponsoring 4 seminars in one day on Thursday May 14, 2009 at the annual convention in AC. Get 6 credits plus breakfast and lunch for a one day fee:
Register online now!
Municipal Court Practice Track:
(includes full day convention access to all other tracks, vendors, and food buffets
Breakfast Buffet at Exhibition Hall
Municipal Court Practice Section Municipal COURT TRACK
8:00 am - The Latest Cases and Court Rules in Municipal Court
Thursday, May 14 8 - 9:30 a.m.
Speaker: Kenneth Vercammen, Esq. Edison, NJ
10:00 am - DWI in the Age of Chun, 1.5 credits
Speaker: Jeffrey Evan Gold, Esq.
Luncheon Buffet at Exhibition Hall
1:00 pm - What to Look for in Alcotest Discovery, 1.5 credits
Speaker: Arnold N. Fishman, Esq.
3:00 pm - Municipal Court Bench/Bar Forum. 1.5 credits
Panelists: Hon. Joan Robinson Gross, P.J.M.C.
Hon. Robert F. Schaul, JMC
Hon. E. Ronald Wright, JMC
Paris P. Eliades, Esq. Courter Kobert & Cohen, PC
Jeffrey E. Gold, Esq.
Deborah Veach, Esq. Municipal Prosecutor, Township of Teaneck
Other important programs:
-Equity Jurisprudence Committee Litigation TRACK (CHANCERY)
Thursday, May 14 1 - 2:30 p.m.
Chancery judges and general equity practitioners will discuss a variety of topics, including foreclosure mediation, equity practice in the current economic crisis and other priceless tips for chancery litigators.
Moderator: Alexandra V. Gallo, Esq., McElroy Deutsch, Mulvaney & Carpenter, LLP
Speakers: Hon. Harriet Derman, P.J.Ch.
Hon. Glenn Berman, J.S.C.
Hon. Harriet Farber Klein, J.S.C.
Frederick W. Alworth, Esq. Gibbons, PC
Thomas P. Scrivo, Esq. McElroy, Deutsch, Mulvaney & Carpenter, LLP
Kevin M .Wolfe, Esq. Chief Civil Practice Liaison, Administrative Office of the Courts
-Prosecuting and Defending the Police Officer
Criminal Law Section Litigation TRACK (CRIMINAL)
Thursday, May 14 3 - 4:30 p.m.
Moderator: Robert Brass, Esq. Picillo Caruso Pope Edell Picini, PC
Speakers: Paul J. Bradley, Esq. Supervising Assistant Prosecutor, Essex County Prosecutor's Office
Kevin P. McCann, Esq. NJSBA Treasurer
John L. Molinelli, Esq. Bergen County Prosecutor
Brian J. Neary, Esq
Anthony J. Pope, Esq. Picillo Caruso Pope Edell Picini, PC
Kenneth Vercammen named Super Lawyer for 2009
Kenneth Vercammen named Super Lawyer for 2009
ABOUT SUPER LAWYERS
Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.
Super Lawyers is published as a special supplement in leading newspapers and city and regional magazines across the country. Super Lawyers magazine, featuring articles about attorneys named to the Super Lawyers list, is distributed to all attorneys in the state or region, the lead corporate counsel of Russell 3000 companies and the ABA-approved law school libraries.
Polling, research and selection are performed by Law & Politics, a publication of Key Professional Media, Inc. Law & Politics has been publishing legal magazines since 1990 and Super Lawyers since 1991.
Super Lawyers magazine names attorneys in each state who received the highest point totals, as chosen by their peers and through the independent research of Law & Politics. Rising Stars names the state's top up-and-coming attorneys.
Super Lawyers magazine is published in all 50 states and reaches more than 13 million readers.
SUPER LAWYERS SELECTION PROCESS
OVERVIEW
In selecting attorneys for Super Lawyers, Law & Politics employs a rigorous, multiphase process. Peer nominations and evaluations are combined with third party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis.
The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.
The Super Lawyers selection process involves three basic steps: creation of the candidate pool; evaluation of candidates by the research department; and peer evaluation by practice area.
PUBLICATION
The final published list represents no more than 5 percent of the lawyers in the state. The lists are published annually in state and regional editions of Super Lawyers magazines and in inserts and special advertising sections in leading city and regional magazines and newspapers. All attorneys selected for inclusion in Super Lawyers, regardless of year, can be found on superlawyers.com.
http://www.superlawyers.com/new-jersey/lawyer/Kenneth-A-Vercammen/73f0b3a6-71c1-4ae1-a5d0-803ddb2739a9.html
ABOUT SUPER LAWYERS
Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.
Super Lawyers is published as a special supplement in leading newspapers and city and regional magazines across the country. Super Lawyers magazine, featuring articles about attorneys named to the Super Lawyers list, is distributed to all attorneys in the state or region, the lead corporate counsel of Russell 3000 companies and the ABA-approved law school libraries.
Polling, research and selection are performed by Law & Politics, a publication of Key Professional Media, Inc. Law & Politics has been publishing legal magazines since 1990 and Super Lawyers since 1991.
Super Lawyers magazine names attorneys in each state who received the highest point totals, as chosen by their peers and through the independent research of Law & Politics. Rising Stars names the state's top up-and-coming attorneys.
Super Lawyers magazine is published in all 50 states and reaches more than 13 million readers.
SUPER LAWYERS SELECTION PROCESS
OVERVIEW
In selecting attorneys for Super Lawyers, Law & Politics employs a rigorous, multiphase process. Peer nominations and evaluations are combined with third party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis.
The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.
The Super Lawyers selection process involves three basic steps: creation of the candidate pool; evaluation of candidates by the research department; and peer evaluation by practice area.
PUBLICATION
The final published list represents no more than 5 percent of the lawyers in the state. The lists are published annually in state and regional editions of Super Lawyers magazines and in inserts and special advertising sections in leading city and regional magazines and newspapers. All attorneys selected for inclusion in Super Lawyers, regardless of year, can be found on superlawyers.com.
http://www.superlawyers.com/new-jersey/lawyer/Kenneth-A-Vercammen/73f0b3a6-71c1-4ae1-a5d0-803ddb2739a9.html
Sunday, March 15, 2009
ABA GP Solo ELDER LAW COMMITTEE Newsletter Spring, 2009
ABA GP Solo ELDER LAW COMMITTEE Newsletter Spring, 2009
ABA General Practice, Solo and Small Firm Division
Chairs - Kenneth Vercammen, Edison, NJ and Jay Foonberg, Beverly Hills, CA
In this issue:
1. The Legal Authority for Requiring a Medicare Set-Aside Arrangement
2. NUTS & BOLTS OF ELDER LAW & ESTATE ADMINISTRATION SEMINAR
3. Elder Law, Estate Planning & Probate- New ideas to expand & excel your practice Sat. August 1, 2009
1 The Legal Authority for Requiring a Medicare Set-Aside Arrangement.
s Medicare Secondary Payer Act The authority for the Centers for Medicare and Medicaid Services (CMS) to require consideration of a plaintiff’s future medical expenses is found in the Medicare Secondary Payer Act (MSPA). Under the MSPA Medicare is generally precluded from paying the beneficiary’s medical expenses when payment “has been made or can reasonably be expected to be made under a worker’s compensation plan, an automobile or liability insurance policy or plan (including a self-insured plan) or under no-fault insurance. Medicare payments are conditional on reimbursement from the primary payer. The requirements for Medicare Set-Aside Arrangements (MSA) have developed over the years in a series of memoranda issued by CMS. The MSPA applies to both past and future medical expenses.
s Medicare, Medicaid and SCHIP Extension Act of 2007. Historically, CMS has enforced the provisions of the MSPA only in worker’s compensation cases. However, the passage of the Medicare, Medicaid and SCHIP Extension Act of 2007 requires all insurers, third party administrators for group health plans, self-insured plans, and self-administered plans to identify situations where the plan is or has been a primary plan to the Medicare program. There is a civil penalty of $1,000 per day for non-compliance. The plan shall determine whether a claimant is entitled to benefits under the Medicare program. If the claimant is determined to be so entitled, the plan must submit a report including the identity of the claimant and such other information as the secretary shall specify.
0. The reporting requirements for group health plans being January 1, 2009. The reporting for liability cases begins July 1, 2009. The report includes the contact information for the personal injury attorney.
s CMS Regional Coordinator Pronouncement. According to Sally Stalcup, Region VI, MSP Regional Coordinator, CMS, “At this time, the Centers for Medicare and Medicaid Services (CMS) is not soliciting cases solely because of the language provided in the general release. CMS does not review or sign-off on counsel’s determination of the amount to be held to protect the Trust Fund in most cases. If we do, however, urge counsel to consider this issue in settling the case and recommend that their determination as to whether or not the case provided recovery funds for future medicals (emphasis added) be documented in their records. Should they determine that future services are funded, these dollars must be used to pay for future otherwise Medicare covered case-related services. There is no formal CMS review process in the liability arena as there is for worker’s compensation. On rare occasions, when the liability is large enough or other unusual facts exist within the case, the CMS Regional Office will review the settlement and help make a determination on the amount to be available for future services.”
s Anticipated Impact of the Medicare, Medicaid and SCHIP Extension Act of 2007. The likely outcome of the reporting requirements of the Medicare, Medicaid and SCHIP Extension Act of 2007 is that insurance companies will begin to require MSAs in third party liability cases. There is no reason for insurance companies to run the risk of failing to establish an MSA.
The Theory Behind a Medicare Set Aside Arrangement.
s Contrived Shift. Under the Medicare Secondary Payer Act, Medicare makes conditional payment for medical expenses for beneficiaries with the understanding that Medicare will be paid when the beneficiary receives payment from a third party. Medicare is opposed to any settlement that results in a contrived shift to Medicare of responsibilities of a claimant’s future medical care. In settling claims, Medicare’s interest must be considered. The solution to the problem of burden shifting is to establish a Medicare Set-Aside Arrangement (MSA).
s Past and Future Medical Bills. Medicare has a right of recovery for past medical bills up to the date of the settlement. The Medicare Secondary Payer Act also applies to third party liability situations in which the settlement or award includes payment for future medical expenses. Medicare is not bound by the release with respect to an allocation for future medical expenses. If Medicare determines that the injured party will have future medical expenses then a Medicare Set-Aside Arrangement is expected.
When is an MSA Required?
While the MSPA clearly establishes a requirement that Medicare’s interest be considered in liability cases, there are no rules or regulations under the MSPA. While there are no rules in Worker’s Compensation (WC) cases either, CMS has issued memos advising the establishment of MSA’s in WC cases, but there are no requirements. Obtaining CMS’ approval of a proposed MSA does provide assurance to the parties that the set aside amount is acceptable to CMS. The prudent course of action might be to follow those in liability cases. While an MSA is always required, it is not necessary to submit an MSA proposal to CMS:
• the settlement exceeds $25,000 and the claimant is currently
eligible for Medicare; or
• the settlement is for more than $250,000 and the plaintiff can
reasonably be expected to become eligible for Medicaid
within 30 months.
If an individual is in the process of filing, appealing or re-filing for SSDI, that person is included in the 30-month window notwithstanding the fact that a previous application may have been denied and have not been appealed. An individual who is 62 years and 6 months of age could be eligible within 30 months, and an individual suffering from End-Stage Renal Disease (ESRD), but who does not yet qualify for Medicare based on ESRD, would also be considered a person having a “reasonable expectation” of Medicare enrollment within 30 months.
If it is absolutely clear that there will be no future medicals as a result of the injury subject to the litigation, then no MSA is required.
It is important to note that a beneficiary may not waive his right to future Medicare in order to avoid establishing an MSA.
In determining whether the $250,000 threshold is met, if there is a structured settlement the value of the structure rather than the cost is used. Also, in determining whether the $250,000 threshold is met, past medicals, future medicals, attorney’s fees and costs are included.
What is the Risk to the Personal Injury Attorney for Failing to Establish an MSA?
s Double Damages. Plaintiff’s attorneys who fail Medicare’s interest are potentially responsible for double damages. CMS is authorized to bring an action “against any entity” including a beneficiary, provider, supplier, physician, attorney, state agency or private insurer that has received any portion of a third party payment directly or indirectly, if those third party funds – rather than Medicare – should have been paid for the injury-related medical expenses.
0.
s Potential Malpractice. In addition, there is a malpractice risk. Plaintiffs who have not established an MSA and who file future claims for Medicare may have those claims denied. CMS has taken the position that where no MSA has been established, the entire settlement can be considered for future medicals and Medicare will not pay the plaintiff’s medical bills until an amount equal to the entire settlement has been spent for the plaintiff’s medical care. Each personal injury attorney must decide how much risk he or she is willing to accept in order to avoid establishing an MSA.
How is the Set-Aside Amount Determined?
There are companies who will calculate the set-aside amount. The amount is determined by evaluating past medical treatment, current medical condition, and the probability of future medical needs, as well as other factors. Future medicals are limited only to those expenses that Medicare would pay that are related to the injury. Medicare does not pay all medical expenses. There are some services that are not covered; there are deductibles, co-payments and maximums per spell of illness. The MSA need not contain monies for those services that would not be covered by Medicare. In calculating the set-aside amount the plaintiff’s life expectancy is considered. It is often useful to obtain a rated age as a part of this process. The rated age shows that a person’s actual life expectancy may be considerably shorter than their actuarially life expectancy, so that less money is required to be set aside.
Once a Medicare Set-Aside amount is calculated in a worker’s compensation case, it is submitted to Medicare for approval. While CMS maintains that a set-aside is necessary in liability cases, there is no mechanism for approval at this time.
CMS is not bound by an allocation for future medicals made by the parties in the settlement agreement. CMS may disregard any such allocation and make its own calculation as to the cost of future medicals.
The cost of future prescription drugs must be considered in calculating the set-aside amount.
Administering the MSA.
There are four possibilities for administering an MSA:
s Self-Administered Accounts. These accounts are usually small accounts and are administered by the claimant. No formal agreement is necessary. The claimant must follow the same accounting rules as a professional administrator, but it is likely that most claimants will not comply, but the liability of the personal injury lawyer should terminate when the MSA is established.
s Custodial Account. A larger account is usually administered by a custodian. These are professional organizations that have expertise in medical claims administration. They charge a fee and are recommended where financially justified.
s Medicare Set-Aside Trusts. A Medicare Set-Aside Trust is a formal trust with a trustee. These are usually used for large accounts. They are also used in connection with Special Needs Trusts if the plaintiff is receiving means-tested public benefits such as SSI, Medicaid, Food Stamps, Veterans Benefits or Section 8 Housing.
s Pooled Trusts. In smaller cases where the plaintiff is receiving any of these means-tested public benefits, a Pooled Trust may be considered. A Pooled Trust is operated by a non-profit. The plaintiff’s money is pooled with other persons’ money for investment purposes, but each member has an individual sub-account. Whenever a trust or a Pooled Trust is used, a sub-trust is established for the Medicare Set-Aside funds.
Chart
No Public Benefits Public Benefits
Small Settlement
Self Administered
Pooled Trust
Large Settlement
Custodial Agreement/ Professional Administrator
Stand Alone Special Needs Trust
Note: As used above the term “Public Benefits” applies to only means tested public benefits where there are financial eligibility rules pertaining to income and/or assets of the beneficiary and/or his or her family or household. These benefits typically include SSI, Medicaid, Veteran’s Benefits, Section 8 Housing and Food Stamps. For purposes of the chart, public benefits does not only include SSDI and Medicare, but a MSA will always be required if the plaintiff is receiving or will receive these benefits.
How does a Structured Settlement fit into an MSA?
s Seed Money. An MSA must include seed money with is a cash amount equal to the amount of monies calculated to cover the first surgery procedure and/or replacement and two years of annual payments.
0.
s Structured Settlement. If there is a sizable MSA, the balance is usually funded with a structured settlement. The structured settlement is usually payable in annual installments. The remainder of the Set-Aside is divided by the remainder of the claimant’s life expectancy and the structured pays annual deposits into the MSA based on a “anniversary date” which cannot be more than one year after the settlement date. If the funds paid into the MSA from the structured settlement are exhausted before the next “anniversary date” Medicare pays until such time as the next structured settlement payment is received
0.
Recommendations for Personal Injury Attorneys.
• Recommendations for Personal Injury Attorneys wanting to protect themselves against the risk of future claims by Medicare or malpractice claims by clients are as follows:
0.
• Since no rules currently exist for third party liability cases,
follow the WC rules with respect to MSA.
• Arrange for the calculation of a Medicare Set-Aside amount.
• Submit the proposal to CMS. It is unlikely that CMS will respond,
but the personal injury attorney should be off the hook so far as his
or her obligation to consider Medicare’s interests.
• Establish an MSA and fund it with the amount calculated.
• Advise the plaintiff in writing with respect to the rules.
• Advise the client in writing of the potential for the denial of future
medical care coverage for the injury subject to the litigation.
• Paper your file.
__________________________________________
42 U.S.C.§1395y(b)(2); 42 CFR §46(d)(d)
2 42 U.S.C. §1395y(b)(2)(A)(ii)
3 42 U.S.C.§1395y(b)(2)(B)
4 42 U.S. C. 1305, Medicare, Medicaid and SCHIP Extension Act of 2007
5 Sally Stalcup, Region 6 MSP Regional coordinator
6 42 U.S.C. §1395y(b)(2)(B)(ii); 42 CFR §411.24
7 Medicare Set Aside Arrangements Transmittal (Patel Memo), July 23, 2001; Medicare Secondary Payer – Worker’s Compensation (WC) frequently Asked Questions; (undated) Thomas L. Grissom; Medicare Secondary Payer-Worker’s Compensation (WC) information May 7, 2004; Medicare Secondary Payer (MSP)-Worker’s Compensation (WC) additional frequently asked questions, May 23, 2003; Medicare Secondary Payer (MSP) Worker’s Compensation (WC) additional frequently asked questions, October 15, 2004; Medicare Secondary Payer (MSP) Worker’s Compensation (WC) additional frequently asked questions July 11, 2005; Part D and Worker’s Compensation Medicare Set-Aside Arrangements questions and answers, December 30, 2005; Worker’s Compensation Medicare Set-Aside Arrangements (WCMSAs) and revision of the Low Dollar Threshold for Medicare beneficiaries, October 25, 2006; Questions and Answers for Part D and Worker’s Compensation Medicare-Set Aside Arrangements, July 24, 2006
8 Medicare Set Aside Arrangements Transmittal (Patel Memo), July 23, 2001
9 Medicare Secondary Payer-Worker’s Compensation (WC) frequently asked questions (2)
10 Medicare Secondary Payer (MSP)- Worker’s Compensation (WC) additional frequently asked questions, May 23, 2003
11 42 U.S.C. 1395y(b)(3); 42 CFR§411.24(c)(2)
12 Medicare Secondary Payer (MSP)-Worker’s Compensation (WC) additional frequently asked questions A-5, October 15, 2004
13 Id
0.
__________________________________________
Quick Screen
Medicare Set-Aside Arrangements
Is the client receiving SSI or SSD at the time of settlement? □ Yes □ No
Has the client applied for SSDI, or has client applied and been denied but anticipates appealing the decision? □ Yes □ No
Is client in the process of appealing and/or refilling for SSDI benefits? □ Yes □ No
Is client age 62 years 6 months of age or older at the time of settlement □ Yes □ No
Does client suffer from end stage renal disease but does not yet qualify for Medicare based on ESRD? □ Yes □ No
Is the settlement in excess of $250,000? □ Yes □ No
Note: If client is already receiving Medicare, the threshold is $25,000.
Copyright 2009 by Begley & Bookbinder, P.C., an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.
The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-722
2. NUTS & BOLTS OF ELDER LAW & ESTATE ADMINISTRATION SEMINAR
Tuesday, April 28, 2009 5:30 PM to 9:30 PM
Pines Manor, Edison
Featuring:
THOMAS D. BEGLEY, JR., ESQ.,
2004 Clapp Laureate
Certified as an Elder Law Attorney by the ABA Accredited National Elder Law Foundation
Past Chair, NJSBA Elder & Disability Law Section
Author: "How to Develop and Manage a Successful Trusts & Estates/Elder Law
Practice" (NJICLE)
Co-Author: "Profitable Law Firm Management" (NJICLE)
Begley & Bookbinder, PC (Moorestown)
KENNETH A. VERCAMMEN, ESQ.
Chair, ABA General Practice Division Elder Law Committee
2006 NJSBA Municipal Court Practitioner of the Year
K. Vercammen & Associates (Edison)
KATHLEEN A. SHERIDAN, ESQ.
Law Offices of Kathleen A. Sheridan, PC (Ship Bottom)
MARTIN A. SPIGNER, ESQ.
M. Spigner, PC (Cranbury)
Elder law continues to offer the legal profession a booming opportunity for growth. As your current clients continue to grow older, you need to position yourself to be able to offer them and their families the legal services required by the elderly in today’s society. Or, you may be looking for lucrative areas in which to expand your current practice, including administering their estates.
This practical program is designed to provide the nuts and bolts of elder law practice & estate administration practice to general practitioners and young lawyers, as well as to more experienced lawyers seeking to expand into this field. A highly authoritative and experienced panel of elder law attorneys & estate planners will share proven techniques and experience it would take you years to gather on your own. You’ll also gain insight on how Federal Medicaid Reform will impact your practice. Register today!
Everything you need to know about elder law & estate administration including: • Why Have a Will? Gathering information; standard provisions; designation of fiduciaries; protective clauses; sample forms; Ethics - who is the client? • Powers of Attorney Types of POAs; what should be included; why clients need them; POAs and Living Wills; sample forms • Living Trusts (Revocable/Irrevocable) as an Estate Planning Tool Why it should be used; disadvantages; revocable vs. irrevocable; Insurance Trusts; sample forms • Basic Tax Considerations Jointly-held property; “I love you” Will; no Will at all; insurance owned by client; unlimited marital deduction; estate planning in the testamentary document; sample forms/letters • Estate Administration - New Probate Law in New Jersey Probate process; duties of executor/fiduciary; gathering of assets; tax returns; tax waivers; access to property; sample forms/checklists • Medicaid Planning in Light of Federal Medicaid Reform Countable assets of Medicaid applicant; income cap/Medical needy standard; look-back period; transfers of property; personal residence; Medicaid estate recovery rules …and more
Tuition fees Reg. Fee Reg. Type
General Tuition (REG) $159.00 REG
NJICLE Season Tickets (STX) 1 Season Ticket(s) STX
MEMBERS, CO-SPONSORING SECTION (COS*) $119.00 COS*
MEMBERS, NJSBA (NJB*) $129.00 NJB*
MEMBERS, NJSBA YLD (YLD*) $119.00 YLD*
Recent admittees (past 2 years) (YL) $135.00 YL
Paralegals (PAR) $109.00 PAR
Law Students (with Student ID) (STU) $0.00 STU
Full Time Judges (JUD) $0.00 JU
NUTS & BOLTS OF ELDER LAW & ESTATE ADMINISTRATION
Audio packages are available 2 weeks after the last date of the seminar.
New Jersey Institute for Continuing Legal Education The non-profit continuing education service of: The New Jersey State Bar Association Rutgers - The State University of New Jersey Seton Hall University One Constitution Square, New Brunswick, New Jersey 08901-1520 Phone: (732)214-8500 Fax: (732)249-0383 • CustomerService@njicle.com
3. Elder Law, Estate Planning & Probate- New ideas to expand & excel your practice Sat. August 1, 2009 2:00pm -3:30pm
ABA Annual meeting Chicago
Speakers: Jay Foonberg, Esq. - Author of Best Sellers "How to
Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA
Joan Burda, Esq.
Kenneth A. Vercammen, Esq. - co-author "Nuts & Bolts of Elder Law", Edison, NJ
Charles Sabatino, director of the ABA's Commission on Law & Aging
Parag Patel, Esq. Iselin, NJ
Elder Law program Primary Sponsors: General Practice Section
Co-sponsors: ABA Commission on Law & Aging, Health Law Section,
YLD, Senior Lawyers Division, Real Probate & Trust Section, Tax Law Section
Topics:
Forms you can use
Email newsletters
"Representing seniors- Doing well by doing good.-Do you know how?
Marketing with written fee agreements
-Ethics and marketing without violating the Rules of Professional Conduct
Elder Law may be the biggest practice area of your career. There are 50,000 baby boomers/ day turning 60 and soon to be on Social Security and will need legal advise. Elder Law is one of the biggest growth fields.
_______________________
WE PUBLISH YOUR FORMS AND ARTICLES
To help your practice, we feature in this newsletter edition a few forms and articles PLUS tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please mail articles, suggestions or ideas you wish to share with others in our Tort and Insurance Committee.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
Send Us Your Marketing Tips
We are increasing the frequency of our newsletter. Send us your short tips on your great or new successful marketing techniques.
You can become a published ABA author. Enjoy your many ABA benefits.
Send us your articles & ideas
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
Who We Are- ABA GP Solo ELDER LAW COMMITTEE
This committee focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
We also seek articles on Elder Law, Probate, Wills, Medicaid and Marketing. Please send your marketing ideas and articles to us. You can become a published ABA author.
________________________________________
The Elder Law Committee of the ABA General Practice Division is directed towards general practitioners and more experienced elder law attorneys. The committee consistently sponsors programs at the Annual Meeting, the focus of which is shifting to advanced topics for the more experienced elder lawyer.
This committee also focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
Kenneth Vercammen, Esq. co-Chair
Jay Foonberg, Beverly Hills Co-chair, Author of Best Sellers "How to Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA JayFoonberg@aol.com>
We will also provide tips on how to promote your law office, your practice and Personal Marketing Skills in general. It does not deal with government funded "legal services" for indigent, welfare cases.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Kenv@njlaws.com
Central Jersey Elder Law www.centraljerseyelderlaw.com
NJ Elder Blog http://elder-law.blogspot.com/
ABA General Practice, Solo and Small Firm Division
Chairs - Kenneth Vercammen, Edison, NJ and Jay Foonberg, Beverly Hills, CA
In this issue:
1. The Legal Authority for Requiring a Medicare Set-Aside Arrangement
2. NUTS & BOLTS OF ELDER LAW & ESTATE ADMINISTRATION SEMINAR
3. Elder Law, Estate Planning & Probate- New ideas to expand & excel your practice Sat. August 1, 2009
1 The Legal Authority for Requiring a Medicare Set-Aside Arrangement.
s Medicare Secondary Payer Act The authority for the Centers for Medicare and Medicaid Services (CMS) to require consideration of a plaintiff’s future medical expenses is found in the Medicare Secondary Payer Act (MSPA). Under the MSPA Medicare is generally precluded from paying the beneficiary’s medical expenses when payment “has been made or can reasonably be expected to be made under a worker’s compensation plan, an automobile or liability insurance policy or plan (including a self-insured plan) or under no-fault insurance. Medicare payments are conditional on reimbursement from the primary payer. The requirements for Medicare Set-Aside Arrangements (MSA) have developed over the years in a series of memoranda issued by CMS. The MSPA applies to both past and future medical expenses.
s Medicare, Medicaid and SCHIP Extension Act of 2007. Historically, CMS has enforced the provisions of the MSPA only in worker’s compensation cases. However, the passage of the Medicare, Medicaid and SCHIP Extension Act of 2007 requires all insurers, third party administrators for group health plans, self-insured plans, and self-administered plans to identify situations where the plan is or has been a primary plan to the Medicare program. There is a civil penalty of $1,000 per day for non-compliance. The plan shall determine whether a claimant is entitled to benefits under the Medicare program. If the claimant is determined to be so entitled, the plan must submit a report including the identity of the claimant and such other information as the secretary shall specify.
0. The reporting requirements for group health plans being January 1, 2009. The reporting for liability cases begins July 1, 2009. The report includes the contact information for the personal injury attorney.
s CMS Regional Coordinator Pronouncement. According to Sally Stalcup, Region VI, MSP Regional Coordinator, CMS, “At this time, the Centers for Medicare and Medicaid Services (CMS) is not soliciting cases solely because of the language provided in the general release. CMS does not review or sign-off on counsel’s determination of the amount to be held to protect the Trust Fund in most cases. If we do, however, urge counsel to consider this issue in settling the case and recommend that their determination as to whether or not the case provided recovery funds for future medicals (emphasis added) be documented in their records. Should they determine that future services are funded, these dollars must be used to pay for future otherwise Medicare covered case-related services. There is no formal CMS review process in the liability arena as there is for worker’s compensation. On rare occasions, when the liability is large enough or other unusual facts exist within the case, the CMS Regional Office will review the settlement and help make a determination on the amount to be available for future services.”
s Anticipated Impact of the Medicare, Medicaid and SCHIP Extension Act of 2007. The likely outcome of the reporting requirements of the Medicare, Medicaid and SCHIP Extension Act of 2007 is that insurance companies will begin to require MSAs in third party liability cases. There is no reason for insurance companies to run the risk of failing to establish an MSA.
The Theory Behind a Medicare Set Aside Arrangement.
s Contrived Shift. Under the Medicare Secondary Payer Act, Medicare makes conditional payment for medical expenses for beneficiaries with the understanding that Medicare will be paid when the beneficiary receives payment from a third party. Medicare is opposed to any settlement that results in a contrived shift to Medicare of responsibilities of a claimant’s future medical care. In settling claims, Medicare’s interest must be considered. The solution to the problem of burden shifting is to establish a Medicare Set-Aside Arrangement (MSA).
s Past and Future Medical Bills. Medicare has a right of recovery for past medical bills up to the date of the settlement. The Medicare Secondary Payer Act also applies to third party liability situations in which the settlement or award includes payment for future medical expenses. Medicare is not bound by the release with respect to an allocation for future medical expenses. If Medicare determines that the injured party will have future medical expenses then a Medicare Set-Aside Arrangement is expected.
When is an MSA Required?
While the MSPA clearly establishes a requirement that Medicare’s interest be considered in liability cases, there are no rules or regulations under the MSPA. While there are no rules in Worker’s Compensation (WC) cases either, CMS has issued memos advising the establishment of MSA’s in WC cases, but there are no requirements. Obtaining CMS’ approval of a proposed MSA does provide assurance to the parties that the set aside amount is acceptable to CMS. The prudent course of action might be to follow those in liability cases. While an MSA is always required, it is not necessary to submit an MSA proposal to CMS:
• the settlement exceeds $25,000 and the claimant is currently
eligible for Medicare; or
• the settlement is for more than $250,000 and the plaintiff can
reasonably be expected to become eligible for Medicaid
within 30 months.
If an individual is in the process of filing, appealing or re-filing for SSDI, that person is included in the 30-month window notwithstanding the fact that a previous application may have been denied and have not been appealed. An individual who is 62 years and 6 months of age could be eligible within 30 months, and an individual suffering from End-Stage Renal Disease (ESRD), but who does not yet qualify for Medicare based on ESRD, would also be considered a person having a “reasonable expectation” of Medicare enrollment within 30 months.
If it is absolutely clear that there will be no future medicals as a result of the injury subject to the litigation, then no MSA is required.
It is important to note that a beneficiary may not waive his right to future Medicare in order to avoid establishing an MSA.
In determining whether the $250,000 threshold is met, if there is a structured settlement the value of the structure rather than the cost is used. Also, in determining whether the $250,000 threshold is met, past medicals, future medicals, attorney’s fees and costs are included.
What is the Risk to the Personal Injury Attorney for Failing to Establish an MSA?
s Double Damages. Plaintiff’s attorneys who fail Medicare’s interest are potentially responsible for double damages. CMS is authorized to bring an action “against any entity” including a beneficiary, provider, supplier, physician, attorney, state agency or private insurer that has received any portion of a third party payment directly or indirectly, if those third party funds – rather than Medicare – should have been paid for the injury-related medical expenses.
0.
s Potential Malpractice. In addition, there is a malpractice risk. Plaintiffs who have not established an MSA and who file future claims for Medicare may have those claims denied. CMS has taken the position that where no MSA has been established, the entire settlement can be considered for future medicals and Medicare will not pay the plaintiff’s medical bills until an amount equal to the entire settlement has been spent for the plaintiff’s medical care. Each personal injury attorney must decide how much risk he or she is willing to accept in order to avoid establishing an MSA.
How is the Set-Aside Amount Determined?
There are companies who will calculate the set-aside amount. The amount is determined by evaluating past medical treatment, current medical condition, and the probability of future medical needs, as well as other factors. Future medicals are limited only to those expenses that Medicare would pay that are related to the injury. Medicare does not pay all medical expenses. There are some services that are not covered; there are deductibles, co-payments and maximums per spell of illness. The MSA need not contain monies for those services that would not be covered by Medicare. In calculating the set-aside amount the plaintiff’s life expectancy is considered. It is often useful to obtain a rated age as a part of this process. The rated age shows that a person’s actual life expectancy may be considerably shorter than their actuarially life expectancy, so that less money is required to be set aside.
Once a Medicare Set-Aside amount is calculated in a worker’s compensation case, it is submitted to Medicare for approval. While CMS maintains that a set-aside is necessary in liability cases, there is no mechanism for approval at this time.
CMS is not bound by an allocation for future medicals made by the parties in the settlement agreement. CMS may disregard any such allocation and make its own calculation as to the cost of future medicals.
The cost of future prescription drugs must be considered in calculating the set-aside amount.
Administering the MSA.
There are four possibilities for administering an MSA:
s Self-Administered Accounts. These accounts are usually small accounts and are administered by the claimant. No formal agreement is necessary. The claimant must follow the same accounting rules as a professional administrator, but it is likely that most claimants will not comply, but the liability of the personal injury lawyer should terminate when the MSA is established.
s Custodial Account. A larger account is usually administered by a custodian. These are professional organizations that have expertise in medical claims administration. They charge a fee and are recommended where financially justified.
s Medicare Set-Aside Trusts. A Medicare Set-Aside Trust is a formal trust with a trustee. These are usually used for large accounts. They are also used in connection with Special Needs Trusts if the plaintiff is receiving means-tested public benefits such as SSI, Medicaid, Food Stamps, Veterans Benefits or Section 8 Housing.
s Pooled Trusts. In smaller cases where the plaintiff is receiving any of these means-tested public benefits, a Pooled Trust may be considered. A Pooled Trust is operated by a non-profit. The plaintiff’s money is pooled with other persons’ money for investment purposes, but each member has an individual sub-account. Whenever a trust or a Pooled Trust is used, a sub-trust is established for the Medicare Set-Aside funds.
Chart
No Public Benefits Public Benefits
Small Settlement
Self Administered
Pooled Trust
Large Settlement
Custodial Agreement/ Professional Administrator
Stand Alone Special Needs Trust
Note: As used above the term “Public Benefits” applies to only means tested public benefits where there are financial eligibility rules pertaining to income and/or assets of the beneficiary and/or his or her family or household. These benefits typically include SSI, Medicaid, Veteran’s Benefits, Section 8 Housing and Food Stamps. For purposes of the chart, public benefits does not only include SSDI and Medicare, but a MSA will always be required if the plaintiff is receiving or will receive these benefits.
How does a Structured Settlement fit into an MSA?
s Seed Money. An MSA must include seed money with is a cash amount equal to the amount of monies calculated to cover the first surgery procedure and/or replacement and two years of annual payments.
0.
s Structured Settlement. If there is a sizable MSA, the balance is usually funded with a structured settlement. The structured settlement is usually payable in annual installments. The remainder of the Set-Aside is divided by the remainder of the claimant’s life expectancy and the structured pays annual deposits into the MSA based on a “anniversary date” which cannot be more than one year after the settlement date. If the funds paid into the MSA from the structured settlement are exhausted before the next “anniversary date” Medicare pays until such time as the next structured settlement payment is received
0.
Recommendations for Personal Injury Attorneys.
• Recommendations for Personal Injury Attorneys wanting to protect themselves against the risk of future claims by Medicare or malpractice claims by clients are as follows:
0.
• Since no rules currently exist for third party liability cases,
follow the WC rules with respect to MSA.
• Arrange for the calculation of a Medicare Set-Aside amount.
• Submit the proposal to CMS. It is unlikely that CMS will respond,
but the personal injury attorney should be off the hook so far as his
or her obligation to consider Medicare’s interests.
• Establish an MSA and fund it with the amount calculated.
• Advise the plaintiff in writing with respect to the rules.
• Advise the client in writing of the potential for the denial of future
medical care coverage for the injury subject to the litigation.
• Paper your file.
__________________________________________
42 U.S.C.§1395y(b)(2); 42 CFR §46(d)(d)
2 42 U.S.C. §1395y(b)(2)(A)(ii)
3 42 U.S.C.§1395y(b)(2)(B)
4 42 U.S. C. 1305, Medicare, Medicaid and SCHIP Extension Act of 2007
5 Sally Stalcup, Region 6 MSP Regional coordinator
6 42 U.S.C. §1395y(b)(2)(B)(ii); 42 CFR §411.24
7 Medicare Set Aside Arrangements Transmittal (Patel Memo), July 23, 2001; Medicare Secondary Payer – Worker’s Compensation (WC) frequently Asked Questions; (undated) Thomas L. Grissom; Medicare Secondary Payer-Worker’s Compensation (WC) information May 7, 2004; Medicare Secondary Payer (MSP)-Worker’s Compensation (WC) additional frequently asked questions, May 23, 2003; Medicare Secondary Payer (MSP) Worker’s Compensation (WC) additional frequently asked questions, October 15, 2004; Medicare Secondary Payer (MSP) Worker’s Compensation (WC) additional frequently asked questions July 11, 2005; Part D and Worker’s Compensation Medicare Set-Aside Arrangements questions and answers, December 30, 2005; Worker’s Compensation Medicare Set-Aside Arrangements (WCMSAs) and revision of the Low Dollar Threshold for Medicare beneficiaries, October 25, 2006; Questions and Answers for Part D and Worker’s Compensation Medicare-Set Aside Arrangements, July 24, 2006
8 Medicare Set Aside Arrangements Transmittal (Patel Memo), July 23, 2001
9 Medicare Secondary Payer-Worker’s Compensation (WC) frequently asked questions (2)
10 Medicare Secondary Payer (MSP)- Worker’s Compensation (WC) additional frequently asked questions, May 23, 2003
11 42 U.S.C. 1395y(b)(3); 42 CFR§411.24(c)(2)
12 Medicare Secondary Payer (MSP)-Worker’s Compensation (WC) additional frequently asked questions A-5, October 15, 2004
13 Id
0.
__________________________________________
Quick Screen
Medicare Set-Aside Arrangements
Is the client receiving SSI or SSD at the time of settlement? □ Yes □ No
Has the client applied for SSDI, or has client applied and been denied but anticipates appealing the decision? □ Yes □ No
Is client in the process of appealing and/or refilling for SSDI benefits? □ Yes □ No
Is client age 62 years 6 months of age or older at the time of settlement □ Yes □ No
Does client suffer from end stage renal disease but does not yet qualify for Medicare based on ESRD? □ Yes □ No
Is the settlement in excess of $250,000? □ Yes □ No
Note: If client is already receiving Medicare, the threshold is $25,000.
Copyright 2009 by Begley & Bookbinder, P.C., an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.
The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-722
2. NUTS & BOLTS OF ELDER LAW & ESTATE ADMINISTRATION SEMINAR
Tuesday, April 28, 2009 5:30 PM to 9:30 PM
Pines Manor, Edison
Featuring:
THOMAS D. BEGLEY, JR., ESQ.,
2004 Clapp Laureate
Certified as an Elder Law Attorney by the ABA Accredited National Elder Law Foundation
Past Chair, NJSBA Elder & Disability Law Section
Author: "How to Develop and Manage a Successful Trusts & Estates/Elder Law
Practice" (NJICLE)
Co-Author: "Profitable Law Firm Management" (NJICLE)
Begley & Bookbinder, PC (Moorestown)
KENNETH A. VERCAMMEN, ESQ.
Chair, ABA General Practice Division Elder Law Committee
2006 NJSBA Municipal Court Practitioner of the Year
K. Vercammen & Associates (Edison)
KATHLEEN A. SHERIDAN, ESQ.
Law Offices of Kathleen A. Sheridan, PC (Ship Bottom)
MARTIN A. SPIGNER, ESQ.
M. Spigner, PC (Cranbury)
Elder law continues to offer the legal profession a booming opportunity for growth. As your current clients continue to grow older, you need to position yourself to be able to offer them and their families the legal services required by the elderly in today’s society. Or, you may be looking for lucrative areas in which to expand your current practice, including administering their estates.
This practical program is designed to provide the nuts and bolts of elder law practice & estate administration practice to general practitioners and young lawyers, as well as to more experienced lawyers seeking to expand into this field. A highly authoritative and experienced panel of elder law attorneys & estate planners will share proven techniques and experience it would take you years to gather on your own. You’ll also gain insight on how Federal Medicaid Reform will impact your practice. Register today!
Everything you need to know about elder law & estate administration including: • Why Have a Will? Gathering information; standard provisions; designation of fiduciaries; protective clauses; sample forms; Ethics - who is the client? • Powers of Attorney Types of POAs; what should be included; why clients need them; POAs and Living Wills; sample forms • Living Trusts (Revocable/Irrevocable) as an Estate Planning Tool Why it should be used; disadvantages; revocable vs. irrevocable; Insurance Trusts; sample forms • Basic Tax Considerations Jointly-held property; “I love you” Will; no Will at all; insurance owned by client; unlimited marital deduction; estate planning in the testamentary document; sample forms/letters • Estate Administration - New Probate Law in New Jersey Probate process; duties of executor/fiduciary; gathering of assets; tax returns; tax waivers; access to property; sample forms/checklists • Medicaid Planning in Light of Federal Medicaid Reform Countable assets of Medicaid applicant; income cap/Medical needy standard; look-back period; transfers of property; personal residence; Medicaid estate recovery rules …and more
Tuition fees Reg. Fee Reg. Type
General Tuition (REG) $159.00 REG
NJICLE Season Tickets (STX) 1 Season Ticket(s) STX
MEMBERS, CO-SPONSORING SECTION (COS*) $119.00 COS*
MEMBERS, NJSBA (NJB*) $129.00 NJB*
MEMBERS, NJSBA YLD (YLD*) $119.00 YLD*
Recent admittees (past 2 years) (YL) $135.00 YL
Paralegals (PAR) $109.00 PAR
Law Students (with Student ID) (STU) $0.00 STU
Full Time Judges (JUD) $0.00 JU
NUTS & BOLTS OF ELDER LAW & ESTATE ADMINISTRATION
Audio packages are available 2 weeks after the last date of the seminar.
New Jersey Institute for Continuing Legal Education The non-profit continuing education service of: The New Jersey State Bar Association Rutgers - The State University of New Jersey Seton Hall University One Constitution Square, New Brunswick, New Jersey 08901-1520 Phone: (732)214-8500 Fax: (732)249-0383 • CustomerService@njicle.com
3. Elder Law, Estate Planning & Probate- New ideas to expand & excel your practice Sat. August 1, 2009 2:00pm -3:30pm
ABA Annual meeting Chicago
Speakers: Jay Foonberg, Esq. - Author of Best Sellers "How to
Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA
Joan Burda, Esq.
Kenneth A. Vercammen, Esq. - co-author "Nuts & Bolts of Elder Law", Edison, NJ
Charles Sabatino, director of the ABA's Commission on Law & Aging
Parag Patel, Esq. Iselin, NJ
Elder Law program Primary Sponsors: General Practice Section
Co-sponsors: ABA Commission on Law & Aging, Health Law Section,
YLD, Senior Lawyers Division, Real Probate & Trust Section, Tax Law Section
Topics:
Forms you can use
Email newsletters
"Representing seniors- Doing well by doing good.-Do you know how?
Marketing with written fee agreements
-Ethics and marketing without violating the Rules of Professional Conduct
Elder Law may be the biggest practice area of your career. There are 50,000 baby boomers/ day turning 60 and soon to be on Social Security and will need legal advise. Elder Law is one of the biggest growth fields.
_______________________
WE PUBLISH YOUR FORMS AND ARTICLES
To help your practice, we feature in this newsletter edition a few forms and articles PLUS tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please mail articles, suggestions or ideas you wish to share with others in our Tort and Insurance Committee.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
Send Us Your Marketing Tips
We are increasing the frequency of our newsletter. Send us your short tips on your great or new successful marketing techniques.
You can become a published ABA author. Enjoy your many ABA benefits.
Send us your articles & ideas
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
Who We Are- ABA GP Solo ELDER LAW COMMITTEE
This committee focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
We also seek articles on Elder Law, Probate, Wills, Medicaid and Marketing. Please send your marketing ideas and articles to us. You can become a published ABA author.
________________________________________
The Elder Law Committee of the ABA General Practice Division is directed towards general practitioners and more experienced elder law attorneys. The committee consistently sponsors programs at the Annual Meeting, the focus of which is shifting to advanced topics for the more experienced elder lawyer.
This committee also focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
Kenneth Vercammen, Esq. co-Chair
Jay Foonberg, Beverly Hills Co-chair, Author of Best Sellers "How to Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA JayFoonberg@aol.com>
We will also provide tips on how to promote your law office, your practice and Personal Marketing Skills in general. It does not deal with government funded "legal services" for indigent, welfare cases.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Kenv@njlaws.com
Central Jersey Elder Law www.centraljerseyelderlaw.com
NJ Elder Blog http://elder-law.blogspot.com/
Sunday, March 8, 2009
RECENT CHANGES IN MUNICIPAL COURT LAW SEMINAR
RECENT CHANGES IN MUNICIPAL COURT LAW SEMINAR
Monday, May 04, 2009
5:30 PM to 9:30 PM
New Jersey Law Center, New Brunswick
Are you prepared to prosecute or defend your client in new Alcotest cases?
This informative guide to Municipal Court practice and procedure will familiarize you with the most recent developments affecting cases that are heard in Municipal Court.
An authoritative panel of experienced attorneys will be joined by a Presiding Municipal Court Judge to explore a wide variety of matters that you are likely to encounter. They will also bring you up to date on recent developments you need to understand in order to effectively represent your clients.
Program Preview...
5:30 Criminal Case Law and Legislative Update - Kenneth A. Vercammen, Esq.
6:15 The Prosecutor’s Perspective: DWI, no-insurance cases, recent directives from the Attorney General and Prosecutor, plea agreements in drug cases, double
jeopardy issues - Denis F. Driscoll, Esq.
7:00 Judicial Perspective: Expert arguments, important court rules, common errors by defense attorneys and prosecutors, how to impress the court and not annoy the court staff - Hon. Joan Robinson Gross, PJMC
7:45 Refreshment break
7:55 Recent developments in traffic law, merged traffic tickets and more
8:40 DWI and Chun - John Menzel, Esq.
9:25 Ask the Experts
Plus..
The Municipal Court Practice Committee's Proposed Rule Amendments will be discussed.
Moderator:
KENNETH A. VERCAMMEN, ESQ.
Past Chair, NJSBA Municipal Court Section
2005-2006 Municipal Court Attorney of the Year
Law Offices of Kenneth A. Vercammen (Edison)
Speakers include:
HON. JOAN ROBINSON GROSS, PJMC
(Union County)
DENIS F. DRISCOLL, ESQ.
Municipal Prosecutor (Denville, Montville & Victory Gardens)
Resch & Driscoll, PC (Hackensack)
JOHN MENZEL, ESQ.
Moore & Menzel (Point Pleasant)
Tuition fees Program S1507-10062 Reg. Fee Reg. Type
SPECIAL RECESSION BUSTER TUITION
Register by 3/31/09 $109.00 EB
General Tuition $149.00 REG
NJICLE SEASON TICKETS (STX) 1 Season Ticket(s) STX
MEMBERS, NJSBA CO-SPONSORING SECTION (COS*) $110.00 COS*
MEMBERS, NJSBA (NJB*) $119.00 NJB*
MEMBERS, NJSBA YLD (YLD*) $110.00 YLD*
Recent admittees (past 2 years) (YL) $129.00 YL
Paralegals (PAR) $95.00 PAR
Law Students (with Student ID) (STU) $0.00 STU
Full Time Judges (JUD) $0.00 JUD
DOOR REGISTRATIONS: $169
Advance registration closes at noon of the day preceding the program. After that time you may still register, space permitting, for the Door Registration Fee. PLEASE CALL FIRST to confirm the seminar schedule and space availability.
* NJSBA Member Price – To qualify for this reduced price, you must provide your NJSBA Member# at the time you place your order. If you place your order without providing your NJSBA Member#, you will be charged the regular price.
Presented in cooperation with the NJSBA Municipal Court Section and the NJSBA Young Lawyers’ Section
Additional details: http://www.njicle.com/seminar.aspx?sid=735
New Jersey Institute for Continuing Legal Education The non-profit continuing education service of: The New Jersey State Bar Association Rutgers - The State University of New Jersey Seton Hall University One Constitution Square, New Brunswick, New Jersey 08901-1520 Phone: (732)214-8500 Fax: (732)249-0383 • CustomerService@njicle.com
Monday, May 04, 2009
5:30 PM to 9:30 PM
New Jersey Law Center, New Brunswick
Are you prepared to prosecute or defend your client in new Alcotest cases?
This informative guide to Municipal Court practice and procedure will familiarize you with the most recent developments affecting cases that are heard in Municipal Court.
An authoritative panel of experienced attorneys will be joined by a Presiding Municipal Court Judge to explore a wide variety of matters that you are likely to encounter. They will also bring you up to date on recent developments you need to understand in order to effectively represent your clients.
Program Preview...
5:30 Criminal Case Law and Legislative Update - Kenneth A. Vercammen, Esq.
6:15 The Prosecutor’s Perspective: DWI, no-insurance cases, recent directives from the Attorney General and Prosecutor, plea agreements in drug cases, double
jeopardy issues - Denis F. Driscoll, Esq.
7:00 Judicial Perspective: Expert arguments, important court rules, common errors by defense attorneys and prosecutors, how to impress the court and not annoy the court staff - Hon. Joan Robinson Gross, PJMC
7:45 Refreshment break
7:55 Recent developments in traffic law, merged traffic tickets and more
8:40 DWI and Chun - John Menzel, Esq.
9:25 Ask the Experts
Plus..
The Municipal Court Practice Committee's Proposed Rule Amendments will be discussed.
Moderator:
KENNETH A. VERCAMMEN, ESQ.
Past Chair, NJSBA Municipal Court Section
2005-2006 Municipal Court Attorney of the Year
Law Offices of Kenneth A. Vercammen (Edison)
Speakers include:
HON. JOAN ROBINSON GROSS, PJMC
(Union County)
DENIS F. DRISCOLL, ESQ.
Municipal Prosecutor (Denville, Montville & Victory Gardens)
Resch & Driscoll, PC (Hackensack)
JOHN MENZEL, ESQ.
Moore & Menzel (Point Pleasant)
Tuition fees Program S1507-10062 Reg. Fee Reg. Type
SPECIAL RECESSION BUSTER TUITION
Register by 3/31/09 $109.00 EB
General Tuition $149.00 REG
NJICLE SEASON TICKETS (STX) 1 Season Ticket(s) STX
MEMBERS, NJSBA CO-SPONSORING SECTION (COS*) $110.00 COS*
MEMBERS, NJSBA (NJB*) $119.00 NJB*
MEMBERS, NJSBA YLD (YLD*) $110.00 YLD*
Recent admittees (past 2 years) (YL) $129.00 YL
Paralegals (PAR) $95.00 PAR
Law Students (with Student ID) (STU) $0.00 STU
Full Time Judges (JUD) $0.00 JUD
DOOR REGISTRATIONS: $169
Advance registration closes at noon of the day preceding the program. After that time you may still register, space permitting, for the Door Registration Fee. PLEASE CALL FIRST to confirm the seminar schedule and space availability.
* NJSBA Member Price – To qualify for this reduced price, you must provide your NJSBA Member# at the time you place your order. If you place your order without providing your NJSBA Member#, you will be charged the regular price.
Presented in cooperation with the NJSBA Municipal Court Section and the NJSBA Young Lawyers’ Section
Additional details: http://www.njicle.com/seminar.aspx?sid=735
New Jersey Institute for Continuing Legal Education The non-profit continuing education service of: The New Jersey State Bar Association Rutgers - The State University of New Jersey Seton Hall University One Constitution Square, New Brunswick, New Jersey 08901-1520 Phone: (732)214-8500 Fax: (732)249-0383 • CustomerService@njicle.com
Tuesday, March 3, 2009
Brendan Vercammen wins Region 5 wrestling championship and advances to All State Tournament in Atlantic City!
South Brunswick wrestlers & Coach earn honors at District championship
Brendan Vercammen wins Region 5 wrestling championship and advances to All State Tournament in Atlantic City! He set a record with 16 pins this season, most in the first period. He was a finalist at the Greater Middlesex County Tournament.
South Brunswick's Brendan Vercammen (171) also won the District 20 wrestling championship on February 21. He defeated a defending champ from Old Bridge. South Brunswick's Joe Dougherty was named the District 20 Coach of the Year.
Winning 2nd place and earning a trip to the Region 5 tournament were Cody Shelcusky, Colin Preacher, Kevin Wadiak and James Pagano. Finishing 3rd place and also participating in the Region 5 championships were Tyler Jaramillo and Jeff Goldhagen.
Joe Dougherty of South Brunswick led his squad to a third-place finish in the Districts and a 19-9 record this season to be named district Coach of the Year. Also helping this great team record were seniors Manny Ortiz, Edmund Jasabe, Josh Weinstein, plus Mike Blaine and the super freshmen Fran White, Drew Seroka, and Justin Lopez.
The All- State Championships are at Convention Hall in Atlantic City Friday & Saturday March 6 & 7. Come out & support the team.
Home News:
http://www.mycentraljersey.com/apps/pbcs.dll/article?AID=2009902210354
Star Ledger
http://www.nj.com/hssports/results/wrestling/index.ssf/2009/02/district_20_results_high_schoo.html
Wrestling Blog: http://blogs.mycentraljersey.com/onthemat/?s=vercammen
Brendan Vercammen wins Region 5 wrestling championship and advances to All State Tournament in Atlantic City! He set a record with 16 pins this season, most in the first period. He was a finalist at the Greater Middlesex County Tournament.
South Brunswick's Brendan Vercammen (171) also won the District 20 wrestling championship on February 21. He defeated a defending champ from Old Bridge. South Brunswick's Joe Dougherty was named the District 20 Coach of the Year.
Winning 2nd place and earning a trip to the Region 5 tournament were Cody Shelcusky, Colin Preacher, Kevin Wadiak and James Pagano. Finishing 3rd place and also participating in the Region 5 championships were Tyler Jaramillo and Jeff Goldhagen.
Joe Dougherty of South Brunswick led his squad to a third-place finish in the Districts and a 19-9 record this season to be named district Coach of the Year. Also helping this great team record were seniors Manny Ortiz, Edmund Jasabe, Josh Weinstein, plus Mike Blaine and the super freshmen Fran White, Drew Seroka, and Justin Lopez.
The All- State Championships are at Convention Hall in Atlantic City Friday & Saturday March 6 & 7. Come out & support the team.
Home News:
http://www.mycentraljersey.com/apps/pbcs.dll/article?AID=2009902210354
Star Ledger
http://www.nj.com/hssports/results/wrestling/index.ssf/2009/02/district_20_results_high_schoo.html
Wrestling Blog: http://blogs.mycentraljersey.com/onthemat/?s=vercammen
Monday, February 16, 2009
WILLS, PROBATE AND ELDER LAW- Adult and Community Education
WILLS, PROBATE AND ELDER LAW- Adult and Community Education
WHEN: Monday, March 30, 2009 7 – 8:30P.M.
East Brunswick Adult & Community Education Program
East Brunswick HIGH SCHOOL, Cranbury Rd
WILLS, PROBATE AND ELDER LAW
Course # SBC ..............................................................Fee: $29
Mon. 7:00–8:30 pm ..........................................1 session: 3/30
You don’t have to be wealthy or near death to do some thinking about a will. Here is your opportunity to listen to an experienced attorney who will discuss how to distribute your property as you wish and avoid many rigid
provisions of the state law. Topics covered by author of “Answer to Questions about Probate” will include: wills, revocable trusts, irrevocable trusts, power of attorney, living will, state administration, inheritance taxes, plus the opportunity to ask questions.
Instructor: Kenneth Vercammen, Esq. of Edison
(Co-Author- NJ Elder Law & Probate)
COMPLIMENTARY MATERIAL: Brochures on Wills, “Probate and Administration of an Estate”, Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.
You don’t have to be wealthy or near death to do some thinking about a will. Here is your opportunity to listen to an experienced attorney who will discuss how to distribute your property as you wish and avoid many rigid provisions of the state law. Topics covered by author of “Answer to questions about Probate” will include: Wills, revocable trusts, irrevocable trusts, power of attorney, living will, long term care insurance, reverse mortgage, plus the opportunity to ask questions.
Here is your opportunity to listen to an experienced attorney who will answer questions how to distribute your property and avoid many rigid provisions of state law. For more information on Elder law, visit the Website www.CentralJerseyElderLaw.com. You can also subscribe to the free email Elder Law newsletter by visiting the website, or sending an email to Kenv@njlaws.com.
Call the East Brunswick Adult Education Office for registration information 732- 613-6989
WHEN: Monday, March 30, 2009 7 – 8:30P.M.
East Brunswick Adult & Community Education Program
East Brunswick HIGH SCHOOL, Cranbury Rd
WILLS, PROBATE AND ELDER LAW
Course # SBC ..............................................................Fee: $29
Mon. 7:00–8:30 pm ..........................................1 session: 3/30
You don’t have to be wealthy or near death to do some thinking about a will. Here is your opportunity to listen to an experienced attorney who will discuss how to distribute your property as you wish and avoid many rigid
provisions of the state law. Topics covered by author of “Answer to Questions about Probate” will include: wills, revocable trusts, irrevocable trusts, power of attorney, living will, state administration, inheritance taxes, plus the opportunity to ask questions.
Instructor: Kenneth Vercammen, Esq. of Edison
(Co-Author- NJ Elder Law & Probate)
COMPLIMENTARY MATERIAL: Brochures on Wills, “Probate and Administration of an Estate”, Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.
You don’t have to be wealthy or near death to do some thinking about a will. Here is your opportunity to listen to an experienced attorney who will discuss how to distribute your property as you wish and avoid many rigid provisions of the state law. Topics covered by author of “Answer to questions about Probate” will include: Wills, revocable trusts, irrevocable trusts, power of attorney, living will, long term care insurance, reverse mortgage, plus the opportunity to ask questions.
Here is your opportunity to listen to an experienced attorney who will answer questions how to distribute your property and avoid many rigid provisions of state law. For more information on Elder law, visit the Website www.CentralJerseyElderLaw.com. You can also subscribe to the free email Elder Law newsletter by visiting the website, or sending an email to Kenv@njlaws.com.
Call the East Brunswick Adult Education Office for registration information 732- 613-6989
Saturday, February 14, 2009
COMMUNITY VOLUNTEER ACTIVITIES
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
COMMUNITY VOLUNTEER ACTIVITIES
JANUARY - 2009
Jan. 3 Freezing Cold Hashathon Trial Run
Jan. 17 Office Dinner – Main St. Bistro, Matawan
Jan. 24 USATF Awards
Jan. 26 NJ Bar Municipal Court Meeting
Jan. 27 Edison Annual State of the Town Address
FEBRUARY - 2009
Feb. 7 RVRR Awards - 6pm-11pm Arrive on Time
Feb. 8 FARC Party
Feb. 7 JSRC Party –
Feb. 11 Cynthia’s birthday
Feb. 18 Shannon’s birthday-
Feb. 22 Irish Cocktail - K of C Avenel
Feb. 23 NJ Bar Municipal Court Meeting
MARCH - 2009
March 1 Belmar Parade (1st Sunday)
March 6 Friendly Sons Friday
March 8 St Patrick Parade - Woodbridge
March 18 Middlesex Bar Awards Dinner - Sunny Palace, East Brunswick
March 23 Edison Chamber - Taste of Middlesex-Pines
March 30 East Brunswick Will / Probate
March __ NJ State Bar Mun Ct Section
APRIL - 2009
April __ Edison Elks Installation
April 19 JSRC Relay
April 27 NJ Bar Municipal Court Meeting
April 28 ICLE Nuts and Bolts of Elder Law
MAY – 2009
May 4 Recent Charges in Mun Ct
May__ EMS Week - Emergency Medical Service
First Aid & Emergency Personal Week ____
May 11 National Police Week
May __ NJSBA Convention- DWI Materials - Borgota
May 20 Mid Bar- Dinner- Article on Marketing
- Practice Video
- Publicize - Prepare Labels
- Drop off Flyer to Mun Ct Offices
May 22 Legends of Belmar Night - Friday
May 23 Spring Lake 5
May 25 Memorial Day- Free USA calendar and flag
JUNE - 2009
June 2 Primary Election
June 5-7 Elks Convention- Patriotism Parade; Pens, Mints, Water Bottles
June 15 President's Cup Race - Gifts
June __ Elks Picnic - Beer cups, Can Holders, Water Bottle
June __ NJSBA - Mun Ct Section Meeting
JULY – 2009
July 18 Ken’s Summer Blast - South Brunswick - Adults only; Saturday Night
July __ Elks Beef and Beer
July __ 12:30 - Will, Probate and Estate Admin. Annual Free Seminar in office
AUGUST - 2009
Aug. __ Legal Check ups $275.00; clients free
Aug. 1 Elder Law Program - ABA Chicago; Elder Law Program 2-3:30
SEPTEMBER - 2009
Sept. __ Cranbury Day
Sept. 12 Brendan's Birthday
Sept. __ Edison Family Festival
Sept. __ Municipal Court Seminar
Sept. __ Middlesex World's largest networking
Sept. __ MID Bar - Pines - Civil Rules; 5 pm
Sept. __ Elks Pig Roast
Sept. __ Keyport Festival
Sept __ Jersey Shore JSRC racetrack
Sept. __ NJSBA Municipal Court Meeting
Sept. __ Mid Bar Legislation Breakfast
Sept. __ Sea Bright Restaurant Tour
Sept. __ Irish Festival Sea Girt
Sept. __ Pt. Pleasant Sea Food Festival
OCTOBER – 2009
Oct. 3 Metuchen Fair
Oct. __ 1:30 Biz Mania
Oct. __ South Brunswick Unity Day
Oct. __ Wills East Brunswick 7:00-8:30 Tuesday
Oct. __ NJ Bar Municipal Court Meeting
NOVEMBER - 2009
Nov. 3 Election Day
NJ Bar- Cross Exam Seminar- Orlando
Nov. __ Barter Depot social- bring flyers - NJ Expo Sunday
Nov. __ NJ Bar Municipal Court Meeting
Nov. 27 Thanksgiving- Born to Run Race - free calendars and magnets for runners
DECEMBER - 2009
Dec __ RVRR Pub Crawl
Dec __ RVRR Holiday Party
Dec __ NJ Bar Municipal Court Meeting
ATTORNEY AT LAW
COMMUNITY VOLUNTEER ACTIVITIES
JANUARY - 2009
Jan. 3 Freezing Cold Hashathon Trial Run
Jan. 17 Office Dinner – Main St. Bistro, Matawan
Jan. 24 USATF Awards
Jan. 26 NJ Bar Municipal Court Meeting
Jan. 27 Edison Annual State of the Town Address
FEBRUARY - 2009
Feb. 7 RVRR Awards - 6pm-11pm Arrive on Time
Feb. 8 FARC Party
Feb. 7 JSRC Party –
Feb. 11 Cynthia’s birthday
Feb. 18 Shannon’s birthday-
Feb. 22 Irish Cocktail - K of C Avenel
Feb. 23 NJ Bar Municipal Court Meeting
MARCH - 2009
March 1 Belmar Parade (1st Sunday)
March 6 Friendly Sons Friday
March 8 St Patrick Parade - Woodbridge
March 18 Middlesex Bar Awards Dinner - Sunny Palace, East Brunswick
March 23 Edison Chamber - Taste of Middlesex-Pines
March 30 East Brunswick Will / Probate
March __ NJ State Bar Mun Ct Section
APRIL - 2009
April __ Edison Elks Installation
April 19 JSRC Relay
April 27 NJ Bar Municipal Court Meeting
April 28 ICLE Nuts and Bolts of Elder Law
MAY – 2009
May 4 Recent Charges in Mun Ct
May__ EMS Week - Emergency Medical Service
First Aid & Emergency Personal Week ____
May 11 National Police Week
May __ NJSBA Convention- DWI Materials - Borgota
May 20 Mid Bar- Dinner- Article on Marketing
- Practice Video
- Publicize - Prepare Labels
- Drop off Flyer to Mun Ct Offices
May 22 Legends of Belmar Night - Friday
May 23 Spring Lake 5
May 25 Memorial Day- Free USA calendar and flag
JUNE - 2009
June 2 Primary Election
June 5-7 Elks Convention- Patriotism Parade; Pens, Mints, Water Bottles
June 15 President's Cup Race - Gifts
June __ Elks Picnic - Beer cups, Can Holders, Water Bottle
June __ NJSBA - Mun Ct Section Meeting
JULY – 2009
July 18 Ken’s Summer Blast - South Brunswick - Adults only; Saturday Night
July __ Elks Beef and Beer
July __ 12:30 - Will, Probate and Estate Admin. Annual Free Seminar in office
AUGUST - 2009
Aug. __ Legal Check ups $275.00; clients free
Aug. 1 Elder Law Program - ABA Chicago; Elder Law Program 2-3:30
SEPTEMBER - 2009
Sept. __ Cranbury Day
Sept. 12 Brendan's Birthday
Sept. __ Edison Family Festival
Sept. __ Municipal Court Seminar
Sept. __ Middlesex World's largest networking
Sept. __ MID Bar - Pines - Civil Rules; 5 pm
Sept. __ Elks Pig Roast
Sept. __ Keyport Festival
Sept __ Jersey Shore JSRC racetrack
Sept. __ NJSBA Municipal Court Meeting
Sept. __ Mid Bar Legislation Breakfast
Sept. __ Sea Bright Restaurant Tour
Sept. __ Irish Festival Sea Girt
Sept. __ Pt. Pleasant Sea Food Festival
OCTOBER – 2009
Oct. 3 Metuchen Fair
Oct. __ 1:30 Biz Mania
Oct. __ South Brunswick Unity Day
Oct. __ Wills East Brunswick 7:00-8:30 Tuesday
Oct. __ NJ Bar Municipal Court Meeting
NOVEMBER - 2009
Nov. 3 Election Day
NJ Bar- Cross Exam Seminar- Orlando
Nov. __ Barter Depot social- bring flyers - NJ Expo Sunday
Nov. __ NJ Bar Municipal Court Meeting
Nov. 27 Thanksgiving- Born to Run Race - free calendars and magnets for runners
DECEMBER - 2009
Dec __ RVRR Pub Crawl
Dec __ RVRR Holiday Party
Dec __ NJ Bar Municipal Court Meeting
Sunday, January 25, 2009
ABA GP|Solo Elder Law Committee Newsletter • Winter 2009
ABA GP|Solo Elder Law Committee Newsletter • Winter 2009
Chairs:
Kenneth Vercammen (Edison, NJ)
Jay Foonberg (Beverly Hills, CA)
In this issue:
1. Spending Down Medicaid Planning
2. Social Networking Websites for Business and Exposure
3. Exempt Medicaid Transfers
1. Spending Down Medicaid Planning
By Thomas D. Begley, Jr., Esquire
The client who engages in Medicaid planning is usually a person of modest means who has been diagnosed with an illness and therefore the option of long-term care insurance is no longer available. A typical client may own a home and have countable assets of between $100,000 and $400,000. Most clients' goals are as follows:
To obtain the best quality of care for the institutionalized person
To maintain the standard of living of the community spouse, including providing sufficient income and assets so that the community spouse can continue to reside in the family home
Avoid Medicaid liens being placed on the home
Preserving a modest legacy for the children
Addressing tax issues, including:
Federal and state income taxes
Federal and state gift taxes
Federal estate tax
State estate tax
State inheritance tax
At the beginning of the initial client meeting, the attorney must begin the process of managing client expectations.
There are many strategies available to obtain or accelerate Medicaid eligibility. Significant factors include whether the client is married; whether the client is in crisis; the nature and extent of the client's assets; and the size of the IRAs of the respective spouses.
Spending Down
Most states limit a Medicaid recipient to approximately $2,000 of countable resources. One way to achieve this limit is to "spend down" all but the permissible amount of countable resources. What clients typically want to avoid is spending all of their assets on nursing home care. There are several ways a client might spend down his assets.
Pay Off Debts
Repayment of a debt is not considered a transfer, because the individual is receiving fair market value, and transfers are penalized only if the transferor does not receive fair market value. Typical debts clients might have include mortgages, home equity loans, car loans, and credit card bills. In order for the spend down to be accomplished, the check must actually be written and delivered. An outstanding debt is simply a liability that does not reduce assets for Medicaid eligibility purposes.
Payment for Services
Payment for services, including medical bills and legal fees, does not constitute a transfer. The services performed by the attorney are the value the client receives for the payment. Therefore, there is no uncompensated transfer of funds.
Prepayment of Real Estate Taxes
In situations where the home is occupied by a community spouse it makes sense to prepay real estate taxes. Since the home is occupied by the community spouse it is a non-countable resource. Expenditure of the funds for payment of the real estate taxes constitutes valid spend down.
Buy Household Goods or Personal Effects
Personal effects and household goods are excluded to the extent that the total equity value of such resources does not exceed $2,000. In practice, Medicaid does not appear to enforce the $2,000 limit.
The personal effects actually should be used by the community spouse. An excellent example of a violation of the "pig principle" is a recent New Jersey case. In that case, a 92-year-old grandmother was penalized for transfer of assets. The grandmother lived in a nursing home and purchased a computer that was kept at her granddaughter's home. The court held that there was no evidence that the Medicaid applicant received anything of value for her $1,478.61 expenditure.
Make Home Improvements
Making home improvements is a way to convert countable assets (i.e., cash and securities) into a non-countable asset (i.e., a personal residence). A home and lot used as a principal residence are excludable resources.
Purchase New Home
Occasionally, when one spouse enters a nursing home, the community spouse decides that the current home is too big and decides to move to a smaller home or a condominium. Since the home is a non-countable resource, if the home is sold and the proceeds of sale from the original principal residence are reinvested into a more expensive home, the additional funds spent on the new home are converted from a countable asset to a non-countable asset. This strategy relies on the principal residence exemption.
Purchase Life Estate from Children
The Deficit Reduction Act-2005 exempts from the transfer of assets penalties the purchase of a life interest in another individual's home if the purchaser resides in the home for a period of at least one year after the date of the purchase. The Act is silent as to how the life estate is to be valued, but elsewhere there are references to the publication of the Office of Chief Actuary of the Social Security Administration.
In a New Jersey case, a parent purchased a life estate in a child's house for $126,665.10. The decision noted that a life estate entitles the person to use and occupy the home. There was no evidence that the daughter or her family vacated the home. The daughter and her family had no legal right to remain in the home absent payment of rent.
The CMS Guidance contains some troubling language: "Unless a state has a provision for excluding the value of life estates in its approved State Medicaid Plan, or the property in which the individual has purchased a life estate qualifies as the individual's exempt home, the value of the life estate should be counted as a resource in determining Medicaid eligibility."
The child would not receive a Section 121 exclusion from the sale of a principal residence, because he did not sell his entire interest in the residence.
Prepaid Funeral
Most states do not count funds in an irrevocable funeral trust as countable assets. Also, most states do not have a dollar limit on the amount that can be expended for the funeral. The monies must be put in an irrevocable trust; the trust must be for the benefit of the Medicaid applicant; and the trust must be established by an individual who reasonably anticipates applying for or receiving Medicaid benefits.
An alternative to an irrevocable funeral trust is an irrevocable assignment of a life insurance policy in exchange for funeral services of the same or greater value as the cash surrender value of the policy. Funeral directors require a paid-up policy.
Irrevocable policies issued by companies, such as Choices or Forethought, are also acceptable to Medicaid and to most funeral homes. One of the nice features of these policies is that insurance companies having significant assets back them and they can be used in most funeral homes.
Purchase of burial spaces for adult children and their spouses do not constitute transfers for Medicaid penalty purposes. The burial space resource exemption applies to burial spaces for the Medicaid Applicant and also any member of his or her immediate family. Immediate family means an individual's minor or adult children, including adopted children and stepchildren, an individual's brothers, sisters, parents, adoptive parents, and the spouses of those individuals. Neither dependency nor living in the same household will be a factor in determining whether a person is an immediate family member.
Purchase New Car
Frequently, when one spouse enters a nursing home, the other spouse is driving an old car with high mileage. A good strategy is to have the community spouse purchase a new car as part of the spend down. Under current law the best time to purchase the car would be after the institutionalized spouse enters a nursing home. Under federal law, the first $4,500 of the value of a car is excluded from the calculation of countable assets. However, if the car is used for medical transportation or transportation in connection with employment, the entire value of the car is non-countable. Many states simply permit one car to be non-countable regardless of value or use.
Copyright 2008 by Begley & Bookbinder, P.C., an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.
The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-722
2. Social Networking Websites for Business and Exposure
A newer way to connect with friends and obtain business is become active in online social networking websites. At the ABA Annual meeting the GP Solo Division held a program which looked at online social networking. For example, schedule a free seminar on Probate & Estate Planning for Accountants and Financial Planners. Visit some of the below Social networking site for ideas. These are examples of Ken Vercammen’s profile. :
Facebook:
http://www.facebook.com/event.php?sid=f89130f4cec290fe43c099fe37a58d31&eid=56435283974
Linkedin.com:
http://www.linkedin.com/in/kennethvercammen
Myspace:
http://www.myspace.com/kennethvercammen
Twitter:
http://twitter.com/vercammen
Meet the Elite:
http://www.MeetTheElite.net/vercammen
Google:
http://www.google.com/s2/profiles/105523288807097339409
Flickr:
http://www.flickr.com/photos/kenvercammen/
YouTube:
http://www.youtube.com/user/kvercammen
Justia Lawyer Directory:
http://lawyers.justia.com/lawyer/mr-kenneth-albert-vercammen-esq-1171249/
JD Supra:
http://www.jdsupra.com/profile/KennethVercammen/
Athlinks:
http://www.athlinks.com/racer.aspx?rid=23481836
Avvo Legal rating:
http://www.avvo.com/attorneys/08817-nj-kenneth-vercammen-571594.html?edit=true
Friendfeed.com:
http://friendfeed.com/vercammen
Gather:
http://vercammen.gather.com/
Mixx:
http://www.mixx.com/users/vercammen
Orkut:
http://www.orkut.com/Main#Profile.aspx?rl=ls&uid=17513593040289518671
Plaxo:
http://KennethVercammen.myplaxo.com/
Virb.com:
http://www.virb.com/backend/kenvercammen/events
3. Exempt Medicaid Transfers
By Thomas D. Begley, Jr., Esquire
As a general rule, when assets are transferred to third parties, the transfer results in a period of Medicaid ineligibility. Some transfers, however, are exempt and do not result in the imposition of a period of ineligibility for Medicaid. It is important to make transfers that are consistent with the estate planning goals of the client. If inconsistent transfers are made, they may result in litigation from beneficiaries of the estate who consider themselves to be treated unfairly.
1. The Family Home
There are four exceptions from the general transfer rules relating to a principal residence. These transfers are exempt.
Community Spouse
The residence can be transferred to the community spouse without penalty. A married couple can simply deed the house to the community spouse. There is no transfer penalty because the transfer is between spouses. In a typical situation, husband and wife own the home as tenants by the entirety. If one spouse enters a nursing home, and the community spouse predeceases that spouse, then by operation of law, title to the home will vest in the institutionalized spouse. The institutionalized spouse would then be required to sell the home and use the proceeds for nursing home care. In states that have a broad definition of estate for purposes of Medicaid estate recovery, the home should always be transferred to the community spouse to avoid Medicaid estate recovery.
If the property is deeded to the community spouse, and that spouse dies first, the property can be left by the will of the community spouse to a special needs trust for the benefit of the institutionalized spouse or to the children. The elder law attorney must also be aware of the state elective share statute, which prohibits a person from disinheriting a spouse. Medicaid could, conceivably, take the position that failure of the surviving spouse to exercise his rights under the elective share statute constitutes a transfer, subject to the transfer penalty provisions.
Child Under 21, Blind, or Disabled
The home can be transferred to a child of the institutionalized individual who is under the age of 21, or a child of any age who is blind or disabled. For example, a person about to enter a nursing home has a daughter who is blind. The potential Medicaid applicant can transfer the home to the blind daughter as an exempt transfer, and there will be no transfer penalty. In a second marriage situation, the question remains whether the institutionalized individual could transfer ownership of the home to a stepchild who met the criteria of caregiver.
Sibling
The home can be transferred to a brother or sister of the institutionalized individual who already had an equity interest in the home prior to the transfer and who was residing in the home for a period of at least one year immediately before the individual becomes an institutionalized individual. It may not be necessary for the sibling to be named on the deed to the property for a year prior to the transfer. The sibling may have an equity interest if he or she has paid taxes or other expenses and has actually lived in the home for a period of time. For example, a potential Medicaid applicant is not married and lives in his home with his brother. Each owns a portion of the house as tenants in common and they have been living together for more than one year. The potential Medicaid applicant would simply deed the property to the healthy sibling, and there would be no transfer penalty.
Caregiver Child
The home can be transferred to a caregiver child. A caregiver is defined as a son or daughter of the institutionalized individual who is residing in the individual's home for a period of at least two years immediately before the date the individual becomes an institutionalized individual, and who has provided care to such individual that permitted the individual to reside at home rather than in an institution or facility. The care provided by the son or daughter must have been essential to the safety of the individual and consisted of activities such as, but not limited to, supervision of medication, monitoring of nutritional status, and ensuring the safety of the individual.
There may be an issue as to when the transfer of the home to the caregiver child must take place. In a New Jersey case, the Burlington County Board of Social Services contended that a deed transferred 90 days after institutionalization did not qualify, and that such transfers need be made within 30 days of institutionalization. The Administrative Law Judge held and the Director affirmed that there is no time set forth in the regulation as to when the deed must be given. The only reference to time is that the home must be the home in which the individual resided immediately prior to entering the nursing home. Based on this case, it would appear that a deed could be given at any time prior to, or subsequent to, entering a nursing home. For example, a potential Medicaid recipient is about to enter a nursing home. His daughter has lived with him for two years and provided a level of care sufficient to keep him out of a nursing home. The deed to the house can simply be deeded to the daughter. There would be no transfer penalty, because this is an exempt transfer.
Special California Ruling
The California Department of Health Services has ruled that transfer of a home may be an exempt transfer. The letter states that the home is an exempt resource so long as the individual files a written notice of intent to return home. Exempt property can be retained without affecting Medicaid eligibility. Since the transfer is not made for purposes of establishing Medicaid eligibility it is an exempt transfer.
2. Non-Home Assets
Community Spouse
The transfer penalties do not apply to a transfer of assets to the community spouse. This is also an exempt transfer. The assets forming a part of the Community Spouse Resource Allowance (CSRA) must be transferred to the community spouse within 90 days of Medicaid eligibility; otherwise, they are no longer exempt as part of the CSRA.
For example, a husband is ready to enter a nursing home. The husband transfers all of his assets to his wife. All assets in the names of the husband and wife are also transferred to the wife. This protects the assets as a part of the wife's CSRA. If the wife dies prematurely, her will leaves the assets to a special needs trust for the benefit of the husband, and on the death of the husband to their children.
Exempt Children
Transfers from the institutionalized individual or the community spouse to the institutionalized individual's child, who is blind or permanently and totally disabled, are exempt. Therefore, there is no transfer penalty. For example, a potential Medicaid applicant is single and has $100,000 of assets. He could transfer the $100,000 to his blind daughter immediately prior to entering a nursing home. There would be no period of ineligibility due to the transfer.
Sibling
The home can be transferred to a brother or sister of the institutionalized individual who already had an equity interest in the home prior to the transfer and who was residing in the home for a period of at least one year immediately before the individual becomes an institutionalized individual. It may not be necessary for the sibling to be named on the deed to the property for a year prior to the transfer. The sibling may have an equity interest if he or she has paid taxes or other expenses and has actually lived in the home for a period of time. For example, a potential Medicaid applicant is not married and lives in his home with his brother. Each owns a portion of the house as tenants in common and they have been living together for more than one year. The potential Medicaid applicant would simply deed the property to the healthy sibling, and there would be no transfer penalty.
Taxation
In transferring a home to an exempt child, consideration must be given to the gift tax rules, carry over basis, and the capital gains tax exclusion from the sale of a principal residence.
Copyright 2009 by Begley & Bookbinder, P.C., an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.
The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-722
We Publish Your Forms & Articles
To help your practice, we feature in this newsletter edition a few forms and articles PLUS tips on marketing and improving service to clients. But your Editor and Chairs can't do it all. Please mail articles, suggestions or ideas you wish to share with others in our Committee. Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
Send Us Your Marketing Tips
We are increasing the frequency of our newsletter. Send us your short tips on your great or new successful marketing techniques. You can become a published ABA author. Enjoy your many ABA benefits.
Send Us Your Articles & Ideas
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and Chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
General Practice, Solo and Small Firm Division:
Elder Law Committee and the ESTATE PLANNING, PROBATE & TRUST COMMITTEE
Who We Are
The Elder Law Committee of the ABA General Practice Division is directed towards general practitioners and more experienced elder law attorneys. The committee consistently sponsors programs at the Annual Meeting, the focus of which is shifting to advanced topics for the more experienced elder lawyer.
This committee also focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
We also seek articles on Elder Law, Probate, Wills, Medicaid and Marketing. Please send your marketing ideas and articles to us. You can become a published ABA author.
Jay Foonberg, Co-Chair, Author of Best Sellers "How to Start and Build a Law Practice" and "How To Get and Keep Good Clients", Beverly Hills, CA JayFoonberg@aol.com
We will also provide tips on how to promote your law office, your practice and Personal Marketing Skills in general. It does not deal with government funded "legal services" for indigent, welfare cases.
Kenneth Vercammen, Esq. Chair
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Kenv@njlaws.com
Central Jersey Elder Law Law www.centraljerseyelderlaw.com
NJ Elder Blog http://elder-law.blogspot.com/
This email list is a service of the ABA General Practice, Solo and Small Firm Division.
To remove yourself from this listserv, please click here
Visit the ABA GP|Solo Website: http://www.abanet.org/genpractice/
Chairs:
Kenneth Vercammen (Edison, NJ)
Jay Foonberg (Beverly Hills, CA)
In this issue:
1. Spending Down Medicaid Planning
2. Social Networking Websites for Business and Exposure
3. Exempt Medicaid Transfers
1. Spending Down Medicaid Planning
By Thomas D. Begley, Jr., Esquire
The client who engages in Medicaid planning is usually a person of modest means who has been diagnosed with an illness and therefore the option of long-term care insurance is no longer available. A typical client may own a home and have countable assets of between $100,000 and $400,000. Most clients' goals are as follows:
To obtain the best quality of care for the institutionalized person
To maintain the standard of living of the community spouse, including providing sufficient income and assets so that the community spouse can continue to reside in the family home
Avoid Medicaid liens being placed on the home
Preserving a modest legacy for the children
Addressing tax issues, including:
Federal and state income taxes
Federal and state gift taxes
Federal estate tax
State estate tax
State inheritance tax
At the beginning of the initial client meeting, the attorney must begin the process of managing client expectations.
There are many strategies available to obtain or accelerate Medicaid eligibility. Significant factors include whether the client is married; whether the client is in crisis; the nature and extent of the client's assets; and the size of the IRAs of the respective spouses.
Spending Down
Most states limit a Medicaid recipient to approximately $2,000 of countable resources. One way to achieve this limit is to "spend down" all but the permissible amount of countable resources. What clients typically want to avoid is spending all of their assets on nursing home care. There are several ways a client might spend down his assets.
Pay Off Debts
Repayment of a debt is not considered a transfer, because the individual is receiving fair market value, and transfers are penalized only if the transferor does not receive fair market value. Typical debts clients might have include mortgages, home equity loans, car loans, and credit card bills. In order for the spend down to be accomplished, the check must actually be written and delivered. An outstanding debt is simply a liability that does not reduce assets for Medicaid eligibility purposes.
Payment for Services
Payment for services, including medical bills and legal fees, does not constitute a transfer. The services performed by the attorney are the value the client receives for the payment. Therefore, there is no uncompensated transfer of funds.
Prepayment of Real Estate Taxes
In situations where the home is occupied by a community spouse it makes sense to prepay real estate taxes. Since the home is occupied by the community spouse it is a non-countable resource. Expenditure of the funds for payment of the real estate taxes constitutes valid spend down.
Buy Household Goods or Personal Effects
Personal effects and household goods are excluded to the extent that the total equity value of such resources does not exceed $2,000. In practice, Medicaid does not appear to enforce the $2,000 limit.
The personal effects actually should be used by the community spouse. An excellent example of a violation of the "pig principle" is a recent New Jersey case. In that case, a 92-year-old grandmother was penalized for transfer of assets. The grandmother lived in a nursing home and purchased a computer that was kept at her granddaughter's home. The court held that there was no evidence that the Medicaid applicant received anything of value for her $1,478.61 expenditure.
Make Home Improvements
Making home improvements is a way to convert countable assets (i.e., cash and securities) into a non-countable asset (i.e., a personal residence). A home and lot used as a principal residence are excludable resources.
Purchase New Home
Occasionally, when one spouse enters a nursing home, the community spouse decides that the current home is too big and decides to move to a smaller home or a condominium. Since the home is a non-countable resource, if the home is sold and the proceeds of sale from the original principal residence are reinvested into a more expensive home, the additional funds spent on the new home are converted from a countable asset to a non-countable asset. This strategy relies on the principal residence exemption.
Purchase Life Estate from Children
The Deficit Reduction Act-2005 exempts from the transfer of assets penalties the purchase of a life interest in another individual's home if the purchaser resides in the home for a period of at least one year after the date of the purchase. The Act is silent as to how the life estate is to be valued, but elsewhere there are references to the publication of the Office of Chief Actuary of the Social Security Administration.
In a New Jersey case, a parent purchased a life estate in a child's house for $126,665.10. The decision noted that a life estate entitles the person to use and occupy the home. There was no evidence that the daughter or her family vacated the home. The daughter and her family had no legal right to remain in the home absent payment of rent.
The CMS Guidance contains some troubling language: "Unless a state has a provision for excluding the value of life estates in its approved State Medicaid Plan, or the property in which the individual has purchased a life estate qualifies as the individual's exempt home, the value of the life estate should be counted as a resource in determining Medicaid eligibility."
The child would not receive a Section 121 exclusion from the sale of a principal residence, because he did not sell his entire interest in the residence.
Prepaid Funeral
Most states do not count funds in an irrevocable funeral trust as countable assets. Also, most states do not have a dollar limit on the amount that can be expended for the funeral. The monies must be put in an irrevocable trust; the trust must be for the benefit of the Medicaid applicant; and the trust must be established by an individual who reasonably anticipates applying for or receiving Medicaid benefits.
An alternative to an irrevocable funeral trust is an irrevocable assignment of a life insurance policy in exchange for funeral services of the same or greater value as the cash surrender value of the policy. Funeral directors require a paid-up policy.
Irrevocable policies issued by companies, such as Choices or Forethought, are also acceptable to Medicaid and to most funeral homes. One of the nice features of these policies is that insurance companies having significant assets back them and they can be used in most funeral homes.
Purchase of burial spaces for adult children and their spouses do not constitute transfers for Medicaid penalty purposes. The burial space resource exemption applies to burial spaces for the Medicaid Applicant and also any member of his or her immediate family. Immediate family means an individual's minor or adult children, including adopted children and stepchildren, an individual's brothers, sisters, parents, adoptive parents, and the spouses of those individuals. Neither dependency nor living in the same household will be a factor in determining whether a person is an immediate family member.
Purchase New Car
Frequently, when one spouse enters a nursing home, the other spouse is driving an old car with high mileage. A good strategy is to have the community spouse purchase a new car as part of the spend down. Under current law the best time to purchase the car would be after the institutionalized spouse enters a nursing home. Under federal law, the first $4,500 of the value of a car is excluded from the calculation of countable assets. However, if the car is used for medical transportation or transportation in connection with employment, the entire value of the car is non-countable. Many states simply permit one car to be non-countable regardless of value or use.
Copyright 2008 by Begley & Bookbinder, P.C., an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.
The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-722
2. Social Networking Websites for Business and Exposure
A newer way to connect with friends and obtain business is become active in online social networking websites. At the ABA Annual meeting the GP Solo Division held a program which looked at online social networking. For example, schedule a free seminar on Probate & Estate Planning for Accountants and Financial Planners. Visit some of the below Social networking site for ideas. These are examples of Ken Vercammen’s profile. :
Facebook:
http://www.facebook.com/event.php?sid=f89130f4cec290fe43c099fe37a58d31&eid=56435283974
Linkedin.com:
http://www.linkedin.com/in/kennethvercammen
Myspace:
http://www.myspace.com/kennethvercammen
Twitter:
http://twitter.com/vercammen
Meet the Elite:
http://www.MeetTheElite.net/vercammen
Google:
http://www.google.com/s2/profiles/105523288807097339409
Flickr:
http://www.flickr.com/photos/kenvercammen/
YouTube:
http://www.youtube.com/user/kvercammen
Justia Lawyer Directory:
http://lawyers.justia.com/lawyer/mr-kenneth-albert-vercammen-esq-1171249/
JD Supra:
http://www.jdsupra.com/profile/KennethVercammen/
Athlinks:
http://www.athlinks.com/racer.aspx?rid=23481836
Avvo Legal rating:
http://www.avvo.com/attorneys/08817-nj-kenneth-vercammen-571594.html?edit=true
Friendfeed.com:
http://friendfeed.com/vercammen
Gather:
http://vercammen.gather.com/
Mixx:
http://www.mixx.com/users/vercammen
Orkut:
http://www.orkut.com/Main#Profile.aspx?rl=ls&uid=17513593040289518671
Plaxo:
http://KennethVercammen.myplaxo.com/
Virb.com:
http://www.virb.com/backend/kenvercammen/events
3. Exempt Medicaid Transfers
By Thomas D. Begley, Jr., Esquire
As a general rule, when assets are transferred to third parties, the transfer results in a period of Medicaid ineligibility. Some transfers, however, are exempt and do not result in the imposition of a period of ineligibility for Medicaid. It is important to make transfers that are consistent with the estate planning goals of the client. If inconsistent transfers are made, they may result in litigation from beneficiaries of the estate who consider themselves to be treated unfairly.
1. The Family Home
There are four exceptions from the general transfer rules relating to a principal residence. These transfers are exempt.
Community Spouse
The residence can be transferred to the community spouse without penalty. A married couple can simply deed the house to the community spouse. There is no transfer penalty because the transfer is between spouses. In a typical situation, husband and wife own the home as tenants by the entirety. If one spouse enters a nursing home, and the community spouse predeceases that spouse, then by operation of law, title to the home will vest in the institutionalized spouse. The institutionalized spouse would then be required to sell the home and use the proceeds for nursing home care. In states that have a broad definition of estate for purposes of Medicaid estate recovery, the home should always be transferred to the community spouse to avoid Medicaid estate recovery.
If the property is deeded to the community spouse, and that spouse dies first, the property can be left by the will of the community spouse to a special needs trust for the benefit of the institutionalized spouse or to the children. The elder law attorney must also be aware of the state elective share statute, which prohibits a person from disinheriting a spouse. Medicaid could, conceivably, take the position that failure of the surviving spouse to exercise his rights under the elective share statute constitutes a transfer, subject to the transfer penalty provisions.
Child Under 21, Blind, or Disabled
The home can be transferred to a child of the institutionalized individual who is under the age of 21, or a child of any age who is blind or disabled. For example, a person about to enter a nursing home has a daughter who is blind. The potential Medicaid applicant can transfer the home to the blind daughter as an exempt transfer, and there will be no transfer penalty. In a second marriage situation, the question remains whether the institutionalized individual could transfer ownership of the home to a stepchild who met the criteria of caregiver.
Sibling
The home can be transferred to a brother or sister of the institutionalized individual who already had an equity interest in the home prior to the transfer and who was residing in the home for a period of at least one year immediately before the individual becomes an institutionalized individual. It may not be necessary for the sibling to be named on the deed to the property for a year prior to the transfer. The sibling may have an equity interest if he or she has paid taxes or other expenses and has actually lived in the home for a period of time. For example, a potential Medicaid applicant is not married and lives in his home with his brother. Each owns a portion of the house as tenants in common and they have been living together for more than one year. The potential Medicaid applicant would simply deed the property to the healthy sibling, and there would be no transfer penalty.
Caregiver Child
The home can be transferred to a caregiver child. A caregiver is defined as a son or daughter of the institutionalized individual who is residing in the individual's home for a period of at least two years immediately before the date the individual becomes an institutionalized individual, and who has provided care to such individual that permitted the individual to reside at home rather than in an institution or facility. The care provided by the son or daughter must have been essential to the safety of the individual and consisted of activities such as, but not limited to, supervision of medication, monitoring of nutritional status, and ensuring the safety of the individual.
There may be an issue as to when the transfer of the home to the caregiver child must take place. In a New Jersey case, the Burlington County Board of Social Services contended that a deed transferred 90 days after institutionalization did not qualify, and that such transfers need be made within 30 days of institutionalization. The Administrative Law Judge held and the Director affirmed that there is no time set forth in the regulation as to when the deed must be given. The only reference to time is that the home must be the home in which the individual resided immediately prior to entering the nursing home. Based on this case, it would appear that a deed could be given at any time prior to, or subsequent to, entering a nursing home. For example, a potential Medicaid recipient is about to enter a nursing home. His daughter has lived with him for two years and provided a level of care sufficient to keep him out of a nursing home. The deed to the house can simply be deeded to the daughter. There would be no transfer penalty, because this is an exempt transfer.
Special California Ruling
The California Department of Health Services has ruled that transfer of a home may be an exempt transfer. The letter states that the home is an exempt resource so long as the individual files a written notice of intent to return home. Exempt property can be retained without affecting Medicaid eligibility. Since the transfer is not made for purposes of establishing Medicaid eligibility it is an exempt transfer.
2. Non-Home Assets
Community Spouse
The transfer penalties do not apply to a transfer of assets to the community spouse. This is also an exempt transfer. The assets forming a part of the Community Spouse Resource Allowance (CSRA) must be transferred to the community spouse within 90 days of Medicaid eligibility; otherwise, they are no longer exempt as part of the CSRA.
For example, a husband is ready to enter a nursing home. The husband transfers all of his assets to his wife. All assets in the names of the husband and wife are also transferred to the wife. This protects the assets as a part of the wife's CSRA. If the wife dies prematurely, her will leaves the assets to a special needs trust for the benefit of the husband, and on the death of the husband to their children.
Exempt Children
Transfers from the institutionalized individual or the community spouse to the institutionalized individual's child, who is blind or permanently and totally disabled, are exempt. Therefore, there is no transfer penalty. For example, a potential Medicaid applicant is single and has $100,000 of assets. He could transfer the $100,000 to his blind daughter immediately prior to entering a nursing home. There would be no period of ineligibility due to the transfer.
Sibling
The home can be transferred to a brother or sister of the institutionalized individual who already had an equity interest in the home prior to the transfer and who was residing in the home for a period of at least one year immediately before the individual becomes an institutionalized individual. It may not be necessary for the sibling to be named on the deed to the property for a year prior to the transfer. The sibling may have an equity interest if he or she has paid taxes or other expenses and has actually lived in the home for a period of time. For example, a potential Medicaid applicant is not married and lives in his home with his brother. Each owns a portion of the house as tenants in common and they have been living together for more than one year. The potential Medicaid applicant would simply deed the property to the healthy sibling, and there would be no transfer penalty.
Taxation
In transferring a home to an exempt child, consideration must be given to the gift tax rules, carry over basis, and the capital gains tax exclusion from the sale of a principal residence.
Copyright 2009 by Begley & Bookbinder, P.C., an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.
The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-722
We Publish Your Forms & Articles
To help your practice, we feature in this newsletter edition a few forms and articles PLUS tips on marketing and improving service to clients. But your Editor and Chairs can't do it all. Please mail articles, suggestions or ideas you wish to share with others in our Committee. Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
Send Us Your Marketing Tips
We are increasing the frequency of our newsletter. Send us your short tips on your great or new successful marketing techniques. You can become a published ABA author. Enjoy your many ABA benefits.
Send Us Your Articles & Ideas
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and Chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
General Practice, Solo and Small Firm Division:
Elder Law Committee and the ESTATE PLANNING, PROBATE & TRUST COMMITTEE
Who We Are
The Elder Law Committee of the ABA General Practice Division is directed towards general practitioners and more experienced elder law attorneys. The committee consistently sponsors programs at the Annual Meeting, the focus of which is shifting to advanced topics for the more experienced elder lawyer.
This committee also focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
We also seek articles on Elder Law, Probate, Wills, Medicaid and Marketing. Please send your marketing ideas and articles to us. You can become a published ABA author.
Jay Foonberg, Co-Chair, Author of Best Sellers "How to Start and Build a Law Practice" and "How To Get and Keep Good Clients", Beverly Hills, CA JayFoonberg@aol.com
We will also provide tips on how to promote your law office, your practice and Personal Marketing Skills in general. It does not deal with government funded "legal services" for indigent, welfare cases.
Kenneth Vercammen, Esq. Chair
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Kenv@njlaws.com
Central Jersey Elder Law Law www.centraljerseyelderlaw.com
NJ Elder Blog http://elder-law.blogspot.com/
This email list is a service of the ABA General Practice, Solo and Small Firm Division.
To remove yourself from this listserv, please click here
Visit the ABA GP|Solo Website: http://www.abanet.org/genpractice/
Sunday, January 11, 2009
Free Seminar- 2009 update Wills and Estate Planning
Free Seminar- 2009 update Wills and Estate Planning
WHEN: January 28, 2009 12:30-1:10 PM
WHERE: Law Office of Kenneth Vercammen, 2053 Woodbridge Ave, 2nd floor, Edison, NJ
The cost for this program when held at Middlesex County College was $29.00. If you mail back you can attend for free
COST: Free if you pre-register. This program is limited to 15 people
Complimentary Sandwiches to pre-registered persons at 12:10
SPEAKER: Kenneth Vercammen, Esq.
(Author- Answers to Questions About Probate)
The new NJ Probate Law made a number of substantial changes in Probate and the administration of estates and trusts in New Jersey.
Main Topics:
1. The New Probate Law and preparation of Wills
2. 2009 increases in Federal Estate and Gift Tax exemption
3. NJ Inheritance tax
4. Power of Attorney
5. Living Will
6. Administering the Estate/ Probate/Surrogate
7. Question and Answer
COMPLIMENTARY MATERIAL: Brochures on Wills, "Answers to Questions about Probate" and Administration of an Estate, Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.
Here is your opportunity to listen to an experienced attorney who will answer questions how to distribute your property as you wish and avoid many rigid provisions of state law.
To attend or for Information: Mike McDonald 732-572-0500
or email kenvnjlaws@verizon.net
Can’t attend? We can email you materials
Send email to kenvnjlaws@verizon.net
Our recent NJ Laws Email Newsletter discussed increased duties of the Executor or Administrator. The email newsletter also discussed how the revised NJ Probate Law makes a number of substantial changes in Probate and the administration of estates and trusts in New Jersey. If you send us your e-mail address we can provide you with a Free report on the changes in the law which may affect you. We also recently established the NJ Elder Law blog at http://elder-law.blogspot.com.
Website www.njlaws.com now provides Legal Information on Probate and Elder Law.
Very truly yours,
KENNETH VERCAMMEN
Chair ABA Elder Law Committee, Solo & Small Firm Division
To receive the njlaws Free Legal newsletter via email with Estate Administration & Probate information, email us at kenvnjlaws@verizon.net or fax us your email address.
Fax 732-572-0030
We send the newsletter via email only.
Email address: __________________________
WHEN: January 28, 2009 12:30-1:10 PM
WHERE: Law Office of Kenneth Vercammen, 2053 Woodbridge Ave, 2nd floor, Edison, NJ
The cost for this program when held at Middlesex County College was $29.00. If you mail back you can attend for free
COST: Free if you pre-register. This program is limited to 15 people
Complimentary Sandwiches to pre-registered persons at 12:10
SPEAKER: Kenneth Vercammen, Esq.
(Author- Answers to Questions About Probate)
The new NJ Probate Law made a number of substantial changes in Probate and the administration of estates and trusts in New Jersey.
Main Topics:
1. The New Probate Law and preparation of Wills
2. 2009 increases in Federal Estate and Gift Tax exemption
3. NJ Inheritance tax
4. Power of Attorney
5. Living Will
6. Administering the Estate/ Probate/Surrogate
7. Question and Answer
COMPLIMENTARY MATERIAL: Brochures on Wills, "Answers to Questions about Probate" and Administration of an Estate, Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.
Here is your opportunity to listen to an experienced attorney who will answer questions how to distribute your property as you wish and avoid many rigid provisions of state law.
To attend or for Information: Mike McDonald 732-572-0500
or email kenvnjlaws@verizon.net
Can’t attend? We can email you materials
Send email to kenvnjlaws@verizon.net
Our recent NJ Laws Email Newsletter discussed increased duties of the Executor or Administrator. The email newsletter also discussed how the revised NJ Probate Law makes a number of substantial changes in Probate and the administration of estates and trusts in New Jersey. If you send us your e-mail address we can provide you with a Free report on the changes in the law which may affect you. We also recently established the NJ Elder Law blog at http://elder-law.blogspot.com.
Website www.njlaws.com now provides Legal Information on Probate and Elder Law.
Very truly yours,
KENNETH VERCAMMEN
Chair ABA Elder Law Committee, Solo & Small Firm Division
To receive the njlaws Free Legal newsletter via email with Estate Administration & Probate information, email us at kenvnjlaws@verizon.net or fax us your email address.
Fax 732-572-0030
We send the newsletter via email only.
Email address: __________________________
Subscribe to:
Posts (Atom)