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East Hanover New Jersey Elder Law Blog

Contemplating elder law issues during one's lifetime

When it comes to end of life issues, there are many thoughts that may be swirling in a person's head. Of course, people in New Jersey who are contemplating their eventual death can find the process to be upsetting in a variety of ways. However, one thing that can put a person's mind at ease is taking care of their legal needs with regards to their end of life issues while they are still able to do so.

Some issues have to do with a person's health. For example, it may be helpful to execute an advance health care directive where one can state what type of medical care they want at the end of their life. This can include whether they want to be on life support, whether they would prefer to die in a hospital or hospice care center or whether they'd prefer in-home hospice care. This document will come into play once a person is no longer able to make decisions on their own. In general though, it is nonbinding. To create a binding document dictating whether a physician should stop treating a person medically or conversely whether to keep them on life support, a person will want to execute a living will. If a person wants to have a certain loved one make health care decisions on their behalf if they are incapacitated, they may want to execute a health care power of attorney.

Long term care planning and the 'sandwich generation'

Many middle-aged adults in New Jersey these days find themselves part of the "sandwich generation" -- raising children while simultaneously caring for their aging parents. While these may be acts of love, it does take money. An elderly individual may have medical conditions that must be attended to and they may need help with basic daily activities. Some people may have planned on using Medicaid to meet some of these expenses, but when the time comes may find out their loved one is not eligible for Medicaid. When that happens, what other means do people have to pay for the care of an aging loved one?

One option if their loved one is no longer living on their own is to hold an estate sale. In this sale, they can sell possessions their loved one will not need anymore, such as furniture and household goods. This can provide cash on hand, and can reduce the size of their loved one's estate. Similarly, selling their loved one's home if they are no longer living there or automobiles if they no longer need them can also provide one with the finances needed to care for their loved one.

Can I do estate planning when I have dementia?

If you have recently been diagnosed with Alzheimer's or another form of dementia, you may be grieving and feeling overwhelmed. There is a lot you need to do, and you are unsure how much time you have to do it. One of your concerns might be whether you can still do estate planning. For example, if you draw up a will, would a court recognize it since you made it after your diagnosis?

The good news is that if you are in the early stages of dementia, you probably understand what you are doing and can undertake comprehensive estate planning. That minimizes the chances of legal issues down the road. Even if your dementia (or your loved one's dementia) is fairly bad, estate planning is still beneficial and you may be able to participate.

Using estate planning for asset protection

Many people in East Hanover may be planning for the fact that they may eventually need to enter a nursing home. While they may put a lot of thought into which facility would provide them with the best quality of care, they also will have to consider how they will pay for nursing home care. And nursing homes aren't cheap. A 2012 survey reported that, depending on where they are located, a stay in a nursing home could cost anywhere from $6,600 to $15,000 monthly. This is a huge expense that must be accounted for.

Some people may decide to pay for such care through Medicaid. However, in order to qualify for this government program, there is a limit to how much a person can have in the way of "countable assets." Generally, this limit is capped at $2,000 for a single person or $3,000 for married spouses, although the exact limit will vary from state-to-state.

How can a special needs trust help disabled children as they age?

New Jersey parents of children with disabilities love their children and want to provide them with the best care possible. They may rely on government benefits to assist in meeting their child's health care and life needs. But, as parents age, they may have concerns about how their child will be cared for once their child is an adult, and especially after the parents pass away. They will want to see that their disabled child is taken care of financially, but also that the child still receives the government benefits they need to maintain a good quality of life. A special needs trust may be the estate planning vehicle that addresses parents' concerns in situations like this.

Many government benefits are only available to those with few assets and a minimal income. However, in a special needs trusts, parents are able to fund the trust with their disabled child being the beneficiary, while still allowing the child to qualify for government benefits. The funds in a special needs trust can be used to pay for expenses that government benefits do not cover.

Changes to Medicaid requirements may affect Medicaid planning

Many people in New Jersey rely on the availability of Medicaid services to allow them to pay for their health care both now or in the future. However, the U.S. Centers for Medicare & Medicaid Services has issued guidelines regarding states' rights to make it mandatory for certain people who receive Medicaid benefits to work in order to keep receiving benefits. This is a big departure from how the Medicaid and Medicare programs have operated in the past. For example, under these guidelines, if a person does not have a disability and is of a working age, then in order to receive benefits the state could require that person to get a job, volunteer or go back to school. Caregiving may fulfill this requirement.

The CMS cites studies that suggest going to work or performing volunteer activities can keep a person in good health. However, not everyone is on board with this change. Some believe that it would result in many people being left without a source of health insurance. It is probable that these mandates will be challenged in court.

More people in New Jersey, nationwide, becoming 'elder orphans'

As people in New Jersey reach their elder years, living alone becomes more difficult. People who were once able to live independently now may find that they need assistance taking care of themselves and their homes. Some people may even need in-home health care. It can be a blow to one's ego to find that they need help with basic activities, but it is something that a person should anticipate might happen to them some day.

When planning for care in your elder years, people used to rely on family to help them when they needed it. However, what if a person is not married or does not have children? These "elder orphans" may face problems when it comes to elder care. In fact, the AARP reports that as many as 8.6 million individuals who are above 65-years-old fall into this category. And, it is anticipated that by 2050, this number will have grown two-fold -- something Baby Boomers should keep in mind.

Two issues facing you in the sandwich generation

People in the sandwich generation are those who are caring for aging parents as well as children, either minors or young adults. People 45 to 65 years old tend to make up this generation, and the task of balancing their caregiving responsibilities along with work and emotional fulfillment can be immense.

So, if you find yourself in this generation, what are some of the top issues you are likely to face?

As lifespans increase, so does the need for long-term care

Due to advances in medical care, more people in New Jersey and across the nation are living longer than ever. However, not everyone is lucky enough to be able to take care of themselves on their own until their dying day. It is more likely that, as a person ages, he or she will need help with daily activities and will have health care needs. Therefore, more people can anticipate needing in-home health care or needing to reside in a nursing home. This makes long-term care planning more important than ever.

Long-term care planning can help people shape their futures should they be unable to live independently. Some people will have a loved one help them out or even live with them. Others will choose professional in-home health care, which will allow them to stay in their homes as long as possible. And, others will decide that their needs would best be taken care of if they reside in a nursing home.

Seeking help when guardianship is the only option

Sometimes, if a person in East Hanover is suffering from dementia, Alzheimer's disease or has some other mental condition that renders them incapacitated, the only alternative available to them is guardianship. In fact, in New Jersey they only grounds upon which an individual can pursue guardianship over another individual is if that other individual is incapacitated. This is different than incompetency.

New Jersey recognizes two types of guardianship. They are guardian of the property, who oversees financial issues, and guardian of the person, who oversees caretaking and other nonfinancial issues. Sometimes one individual will be appointed to both these roles, but in other circumstances there may be one individual appointed as guardian of the property and another individual appointed as guardian of the person. New Jersey also recognizes limited guardianships, in which the disabled person is able to make decisions regarding his or her care, but needs some one else to oversee decisions regarding their finances.

McHugh & Macri
49 Ridgedale Avenue
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East Hanover, NJ 07936

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