How to Become the Legal Guardian of a Person Receiving
Services From the Division of Developmental Disabilities
(Superior Court of New Jersey, Chancery Division, Probate Part)

http://www.judiciary.state.nj.us/prose/10558.pdf
DESCRIPTION OF GUARDIANSHIP ACTION:
Guardianship over an incapacitated person over the age of 18 who is receiving services from
the Division of Developmental Disabilities (DDD) can be obtained in one of two ways. The
first way is that the Commissioner of the Department of Human Services can initiate
proceedings when it is determined that an individual is in need of a guardian. The second
method is that a private citizen can petition the court to have a guardian named. This packet
contains instructions for a private citizen to follow to obtain the appointment of a legal guardian
over an incapacitated person receiving Division of Developmental Disabilities services.
NOTE: These materials have been prepared by the New Jersey Administrative Office of the
Courts for use by self-represented litigants. The guides, instructions, and forms will be
periodically updated as necessary to reflect current New Jersey statutes and court rules. The
most recent version of the forms will be available at the county courthouse or on the Judiciary’s
Internet site (www.judiciary.state.nj.us). However, you are ultimately responsible for the content
of your court papers.
Click Here for a List of Where to Send your Completed Forms:
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THINGS TO THINK ABOUT BEFORE YOU REPRESENT YOURSELF IN COURT
TRY TO GET A LAWYER
The court system can be confusing and it is
a good idea to get a lawyer if you can. If
you cannot afford a lawyer, you may contact
the legal services program in your county to
see if you qualify for free legal services.
Their telephone number can be found in
your local yellow pages under “Legal Aid”
or “Legal Services.”
If you do not qualify for free legal services
and need help in locating an attorney, you
can contact the bar association in your
county. Their telephone number can also
be found in your local yellow pages. Most
county bar associations have a Lawyer
Referral Service. The county bar Lawyer
Referral Service can supply you with the
names of attorneys in your area willing to
handle your particular type of case and
sometimes consult with you at a reduced
fee.
There are also a variety of organizations of
minority lawyers throughout New Jersey,
and also organizations of lawyers who
handle specialized types of cases. Ask
your county court staff for a list of lawyer
referral services that include these
organizations.
WHAT YOU SHOULD EXPECT IF YOU
REPRESENT YOURSELF

While you have the right to represent
yourself in court, you should not expect any
special treatment, help, or attention from
the court. You must still comply with the
court rules, even if you are not familiar with
them. The following is a list of some things
the court staff can and cannot do for you.
Please read it carefully before asking the
court staff for help.
-We can explain and answer questions
about how the court works.
-We can tell you what the requirements are
to have your case considered by the court.
-We can give you some information from
your case file.
-We can provide you with samples of court
forms that are available.
-We can provide you with guidance on how
to fill out forms.
-We can usually answer questions about
court deadlines.
-We cannot give you legal advice. Only
your lawyer can give you legal advice.
-We cannot tell you whether or not you
should bring your case to court.
-We cannot give you an opinion about what
will happen if you bring your case to court.
-We cannot recommend a lawyer, but we
can provide you with the telephone number
of a local lawyer referral service.
-We cannot talk to the judge for you about
what will happen in your case.
-We cannot let you talk to the judge outside
of court.
-We cannot change an order issued by a
judge.
KEEP COPIES OF ALL PAPERS
Make and keep for yourself copies of all
completed forms and any canceled checks,
money orders, sales receipts, bills, contract
estimates, letters, leases, photographs,
and other important documents that relate
to your case.
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DEFINITIONS OF WORDS THAT MAY BE USED IN THIS PACKET
Alleged Incapacitated
Person: The individual over whom the plaintiff is seeking a guardian.
Affidavit: An affidavit is a written statement of facts confirmed by an oath taken before a notary public
or other official authorized to administer oaths. See certification.
Certification: A certification is a written statement of facts confirmed by a certification that under
penalty of law all information contained is true to the best of your knowledge and belief. See affidavit.
County of
Settlement: The county of settlement is the county responsible for a share of the charge incurred for
services provided to persons unable to pay. Typically, this is the alleged incapacitated
person’s county of residence at the time of application for eligible DDD services. However, it
is possible for the county of residence and the county of settlement may be different. It
depends on the residential history of the alleged incapacitated person.
File: To file means to give the appropriate forms and fee to the court to begin the court’s
consideration of your request.
Judgment: A judgment is the official decision of a court in a case.
Order: An order is a signed paper from the judge telling someone they must do something.
Interested
Party: An interested party is a person or government agency that has an involvement with the
incapacitated person that is the subject of the court action. It includes the alleged
incapacitated person’s next-of-kin who are his closest relatives, the county of settlement (the
county adjuster) and the administrator of the Division of Developmental Disabilities program
providing services to the alleged incapacitated person.
Plaintiff: The plaintiff is the party who starts the lawsuit.
Proof of
Service: A proof of service is a sworn statement that tells the court who was given notice of the
complaint and supporting pleadings in your case. It also tells the court how those persons
received these documents.

Return Date: Return date is the date the plaintiff and defendant are told to appear in court.
Service: Copies of your papers are personally delivered to the alleged incapacitated person and mailed
to the parties in interest and the attorney appointed to represent the alleged incapacitated
person.
Verified
Complaint: A verified complaint is a document in which you briefly tell the court the facts in your case and
the relief you want the court to grant. This is filed by the plaintiff.
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IMPORTANT INFORMATION ON GUARDIANSHIP ACTIONS
EXAMINATION
The forms provided in this packet are for
guardianships being obtained for persons
receiving services from the Division of
Developmental Disabilities and is often
called a Title 30 guardianship.
TITLE 30 GUARDIANSHIPS
Title 30 requires that one medical
physician or psychologist examine or
evaluate the individual and submit a written
report under oath. A second report under
oath is submitted by the chief executive
officer, medical director or other Division of
Developmental Disabilities official having
administrative control over the functional
program or services. Typically the regional
DDD administrator supplies the report.
From now on this package calls the report
provider the “DDD official.” The DDD
official must agree that the individual is in
need of guardian based on the agency’s
knowledge of his/her functional level.
PLENARY AND LI MI TED
GUARDIANSHIPS
It is important to recognize that DDD
regulations require that a guardianship
recommendation must be founded upon a
sound clinic basis and every effort must be
made to seek a solution that is the least
restrictive and intrusive to the person’s life
and, thereby, preserve the
person’s autonomy to the maximum extent
possible. Therefore, limited guardianships
may be recommended by the DDD official
where the alleged incapacitated person
can express some, but not all, decisions. A
plenary (full) guardianship is appropriate
for those persons incapable of making or
expressing any decisions.
PROCEDURE
Once the verified complaint, physician or
psychologist and the Division of
Developmental Disabilities official’s
affidavits or certifications are filed with the
Surrogate, a hearing date is set to
determine the need for a legal guardian.
The court orders that the next of kin be
notified by certified and regular mail of the
hearing date and also appoints an attorney
for the alleged incapacitated person. The
court appointed attorney will conduct an
investigation including a meeting with the
alleged incapacitated person and the
proposed guardian. Based on his/her
findings, the court appointed attorney will
make a recommendation to the court.
Payment
for the attorney’s services may be paid out
of the incapacitated person’s Social
Security. Personal notice is also given to
the alleged incapacitated person stating
that the alleged incapacitated person and
the court appointed attorney may oppose
the request for guardianship.
If the court appointed attorney does not
dispute the need for a guardianship or the
fitness of the proposed guardian, the
appointed attorney may recommend to the
court that a hearing is not necessary. If a
hearing is required, the court appointed
attorney and the proposed guardian must
attend. The alleged incapacitated person
does not need to attend if the court
appointed attorney or the evaluating
physician or psychologist recommend that
it is not in the best interest of the alleged
incapacitated person to attend.
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JUDGMENT AND LETTERS OF
GUARDIANSHIP
Once the court enters the judgment, the
guardian(s) will be requested to appear in
the Surrogate’s Court to qualify and sign
the necessary papers. Letters of
Guardianship will be issued by the
Surrogate and mailed to the guardian(s).
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HOW TO FILE A GUARDIANSHIP ACTION WITH THE COUNTY SURROGATE
The numbered steps listed below tell you what
forms you will need to fill out, and what to do with
them.
Each form should be typed or clearly printed on 8
½” x 11" white paper only. Forms may not be filed
on a different size or color paper. The text must be
double spaced.
STEPS FOR FILING YOUR COMPLAINT FOR
GUARDIANSHIP.
STEP 1: Fill out the VERIFIED COMPLAINT TO
APPOINT GUARDIAN. (FORM A)
This complaint must be verified either by an
affidavit (oath before a notary public) or certification
(shown in Form A).
STEP 2: Have a physician or psychologist
complete a certification form. (FORM B or C)
If you choose to have a physician complete the
certification form use FORM B. If you want a
psychologist to complete a certification use FORM
C. The physician or psychologist who completes
these forms must be the person who examined the
alleged incapacitated person.
Note: The examination of the alleged
incapacitated person cannot be more than 30 days
prior to the filing of the Complaint.
STEP 3: Obtain a Certification from the New
Jersey DDD Official
The DDD official will complete a form verifying that
the individual is a current client of the Division of
Developmental Disabilities (DDD) and is receiving
services.
This form is not included in this packet.
Contact your county Surrogate for information on
how to contact the regional DDD office.
STEP 4: Fill out the ORDER FOR HEARING
(FORM D)
This form will allow the court to insert the date and
time of hearing and assign an attorney for the
alleged incapacitated person. A copy of this order
is served on the alleged incapacitated person, the
attorney appointed to represent the alleged
incapacitated person and the parties-in-interest
(next of kin, county adjuster and regional DDD
official).
STEP 5: Complete the top portion of the
Judgment Appointing Guardian. (FORM E)
If the judge grants your request, this is the document
that he or she will sign naming you as guardian.
STEP 6: Check your completed forms and Make
Copies.
Check your forms to make sure they are complete.
Remove all instruction sheets. Make sure you have
signed all the forms whenever necessary. Make at
least three copies. One set will be your records.
STEP 7: Pay the Filing Fee.
The filing fee to file these forms is $200, payable by
check or money order. Make the check payable to
the Surrogate of the county in which you are filing.
STEP 8: Deliver or Mail your completed forms
(FORMS A, [B or C] and D), along with the
Certification of the DDD Official, to the County
Surrogate.
DO NOT send in Forms F or G at this time. You
must wait until you get copies of the SIGNED
Order for Hearing (FORM D) from the court
before you complete these forms. You can
deliver your completed forms in person or you can
mail them. If you mail them, we recommend you mail
them certified, return receipt requested. This will
provide you with proof that you mailed your forms.
Your post office can tell you how to send out mail
certified, return receipt requested. The county you
mail your papers to is the county where the alleged
incapacitated person lives. When you deliver or mail
your completed forms to the Surrogate, you must
supply the court with a self-addressed stamped
envelope so that the court can send you certified
copies of the order.
STEP 9: Review copies of the Order for Hearing
returned from the court for instructions on how
to proceed.
The court will return copies of the Order for Hearing
to you. Once you receive these copies, you must
follow the court’s instructions in the Order for Hearing
to complete your paperwork properly.
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STEP 10: Fill out the NOTICE OF PENDING
HEARING. (FORM F)
Once you get the signed Order for Hearing from
the court, complete the Notice of Pending Hearing.
This will inform the alleged incapacitated person of
the time, date and place of the hearing to
determine whether they are incapacitated. This
form MUST be personally delivered to the alleged
incapacitated person at least 20 days prior to the
date of the hearing.
STEP 11: Arrange to serve the Complaint
(FORM A), Physician’s or Psychologist’s
Certification (FORM B or C), DDD Official’s
affidavit or certification and the signed Order
for Hearing (FORM D) on the alleged
incapacitated person and on the other
interested parties.
Once you get back the Order for Hearing signed by
the judge, you must personally deliver a copy of the
complaint (Form A), physician’s or psychologist’s
certification (FORM B or C), regional director’s
affidavit or certification and the signed order (Form
D) to the alleged incapacitated person. You must
deliver copies of the same forms to all other parties
by certified mail, return receipt requested, and by
regular mail. You must also forward copies of the
complaint and order to the court appointed
attorney.
STEP 12: Complete the PROOF OF SERVICE
Form (FORM G) and the Judgment (FORM E).
After service on the parties-in-interest is
accomplished, complete the Proof of Service form
and the Judgment and mail or deliver both forms to
the Surrogate to show that the papers have been
properly served. This must be filed at least 5 days
prior to the hearing. This document lists all the
papers that were served personally on the alleged
incapacitated person and all papers that were
mailed (certified and regular mail) to the next of kin
and to the alleged incapacitated person’s attorney.
Attach photocopies of the return receipt cards
returned by the post office.
STEP 13: Call the Surrogate a few days prior
to the date set for the hearing to confirm the
hearing will be held.
If there has been no opposition to the guardianship
application, the judge may not require a hearing.
However, if a hearing is scheduled, you must attend
the hearing. Call to confirm whether a hearing will be
held.
STEP 14: Qualification. If the court declares the
alleged incapacitated person to be incapacitated
and appoints a guardian, then the appointed person
must appear in the Surrogate to qualify. This
involves signing acceptance documents and filing a
surety bond, if the court requires the same.
STEP 15: Legal Fee Payment. If the court
awards the attorney appointed to represent the
incapacitated person a fee, arrange to pay the same
from the incapacitated person’s assets or income.
DEADLINES YOU NEED TO MEET
Examinations by the physician or psychologist of the
alleged incapacitated person must be made no
more than 30 days prior to the filing of the complaint.
The alleged incapacitated person and all interested
parties listed in the complaint must have at least 20
days notice of the hearing date.
The Proof of Service (FORM F) must be filed with
the court at least 5 days prior to the date scheduled
for the hearing.
INTERPRETER OR ACCOMMODATION
If you need an interpreter or an accommodation for
a disability for the hearing, please contact the court
before the hearing date.
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INSTRUCTIONS FOR COMPLETING THE ATTACHED FORMS
INSTRUCTIONS FOR FORM A - VERIFIED COMPLAINT TO APPOINT GUARDIAN
A. In paragraph #1 type or print the information about the person over whom you are seeking to be
appointed guardian.
B. In paragraph #2 type or print the name of the person over whom guardianship is sought and the
disability that he or she has been diagnosed with. Type or print the name of the physician or
psychologist who completed either a physician’s or psychologist’s certification (FORM B or C) (See
step #2 for more information on this.)
C. In paragraph # 3 type or print the name of the person over whom guardianship is sought and indicate
where he/she is receiving services from the New Jersey Division of Developmental Disabilities.
D. In paragraph # 4 type or print the names of the next of kin of the person over whom a guardian is
sought. Insert the name and address of the appropriate county adjuster for the county of settlement
and the name and address of the DDD service provider administrator.
E. In paragraph # 5 insert your personal information
F. In paragraph #6 indicate whether the person over whom guardianship is sought owns any real or
personal property and his or her monthly income, if any. Type or print any employer’s name and the
salary of any employment by the alleged incapacitated person.
G. In paragraph #7 type or print any courses of instructions or other training the alleged incapacitated
person attends.
H. In paragraph #9 type or print the name of the person over whom guardianship is sought. Use the first
paragraph #9A if a plenary (full) guardianship is requested; use the second paragraph #9B if a
limited guardianship is requested.
I. In the relief demanded use the first letter (A1,B1 and C1) paragraphs, if a plenary (full) guardianship
is requested. Use the second letter (A2,B2 and C2) paragraphs, if a limited guardianship is
requested.
J. Sign and date the form where it asks you to do so.
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INSTRUCTIONS FOR FORM B -- PHYSICIAN CERTIFICATION
You must have a New Jersey licensed medical physician or psychologist complete a certification attesting
to the fact that the alleged incapacitated person is in fact incapacitated. The medical physician or
psychologist who completes this form must be the one to examine the alleged incapacitated person.

This form is for medical physicians only. If a medical physician is the one who has conducted the evaluation
of the alleged incapacitated person, then this form should be used. Inform him/her that you are seeking to
be appointed guardian over the alleged incapacitated person and that you need him/her to complete this
form.
INSTRUCTIONS FOR FORM C -- PSYCHOLOGIST CERTIFICATION
You must have a New Jersey licensed medical physician or psychologist complete a certification attesting
to the fact that the alleged incapacitated person is in fact incapacitated. The medical physician or
psychologist who completes this form must be the one to examine the alleged incapacitated person. The
examination must take place no more than 30 days before you file this guardianship action.
This form is for psychologists only. If a psychologist is the one who has conducted the evaluation of the
alleged incapacitated person, then this form should be used. Inform him/her that you are seeking to be
appointed guardian over the alleged incapacitated person and that you need him/her to complete this form.
INSTRUCTION FOR FORM D - ORDER FOR HEARING
(This form is self explanatory. Fill in only the top portion.)
Note: The Public Defender, if available, may be appointed if only guardianship of the person is sought. If
you seek guardianship of the person and the estate or the public defender is not available, then the court
will appoint a private attorney.
INSTRUCTIONS FOR FORM E - JUDGMENT APPOINTING GUARDIAN
Where indicated, type or print your name, the name of the attorney appointed for the alleged incapacitated
person, the name of the physician or psychologist and the name of the Division of Developmental Disabilities
official who has completed the certification.
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INSTRUCTIONS FOR FORM F - NOTICE OF PENDING HEARING
(Portions that are not self explanatory)
A. Where shown, enter the docket number in this case. You will get this number when the court returns
the signed order to you. (FORM D)
B. Where it says “TO” type or print the name of the alleged incapacitated person.
C. Fill out the date, time, and place of the hearing. You will get this information when the court sends
back the signed order for hearing with all of this information on it.
D. Type or print the name of the proposed guardian in the last paragraph.
INSTRUCTIONS FOR FORM G - PROOF OF SERVICE
(Portions that are not self explanatory.)
A. In paragraph #1 type or print the name of the person who handled service of the pleadings.
B. In paragraph #2 type or print the date you personally mailed or delivered copies of FORMS A, [B or
C] & D to the alleged incapacitated person.
C. In paragraph # 4 type or print the date you mailed a copy of FORMS A, [B or C] & D to the next of kin
of the alleged incapacitated person and other interested parties.
D. Sign and date the form where it asks you to do so.
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FORM A -- VERIFIED COMPLAINT TO APPOINT GUARDIAN
Plaintiff(s) Type your name(s)
Address:
Telephone Number:
SUPERIOR COURT OF NEW JERSEY
CHANCERY DIVISION
COUNTY
PROBATE PART
In The Matter of

TYPE INCAPACITATED PERSON’S NAME
an Alleged Incapacitated Person
Docket No.
CIVIL ACTION
VERIFIED COMPLAINT TO APPOINT
GUARDIAN FOR PERSON RECEIVING
DIVISION OF DEVELOPMENTAL
DISABILITIES SERVICES
I/ We, the Plaintiff(s), and
, residing at
, City /Township /Borough
of , County of and State of
New Jersey, by way of verified complaint says:
1. The name, age, present resident address, length of time at residence,
permanent residence (domicile) and marital status of the alleged incapacitated person are:
A. Name:
B. Age:
C:
Present residence:
since .
D.
Permanent residence:
since .
E. Marital status: (Check one) __Married __Never Married__Divorced
F. Children: (Check one) __No Children __Children as listed in
Paragraph 4
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2. has been diagnosed as suffering from
as shown by the attached affidavit or certification
of (Medical Physician or Psychologist). Because
of this condition, lacks sufficient capacity to
govern himself/herself and manage his/her affairs.
3. has been receiving services from the
New Jersey Division of Developmental Disabilities at
since . He/She
continues to need such services, as shown by the attached affidavit or certification of
, Division of Developmental Disabilities official.
4. The names, residence addresses, and relationships of the spouse, next-of-kin
most closely related to the alleged incapacitated person (parents, siblings et cetera) and other
persons interested in the status of the alleged incapacitated person (custodian, county
adjuster, DDD program administrator) are as follows:
Name Address Relationship Age
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5. The name, address, age, telephone number and relationship to the alleged
incapacitated person of the proposed guardian(s) are as follows:
Name:
Address:
Age:
Telephone number
Relationship
6. The character and approximate value of the real and personal property and income
of the alleged incapacitated person are as follows:
A. Personal property:
(i) bank accounts $
(ii) stocks, bonds and mutual funds $
(iii) other personal property (specify) $ _________________
Total personal property value $
B. Real property (describe)
$
$
C. Periodic compensation and income from:
i. real property $ / month
ii personal property $ / month
iii pensions $ / month
iv public assistance benefits $ / month
v social security benefits $ / month
vi trust distributions: $ / month
vii other income sources (specify) $ / month
viii
wages (employer:) $ _________________/ month
Total monthly income $ / month
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7. (If applicable) , the alleged incapacitated
person, attends classes at .
8. The alleged incapacitated person does not have an attorney. It is requested that the
court appoint an attorney to serve as legal counsel for the alleged incapacitated person.
9A.
Because of ’s condition, he/she is
without the necessary cognitive capacity to understand personal, financial, health and medical
matters that affect his/her well-being and, therefore, he/she lacks the capacity to
govern himself /herself in all of his/her financial and personal affairs.
OR
9B.
Because of ’s condition, he/she is without the
necessary cognitive capacity to understand some of the personal, financial, health and medical
matters that affect his/her well-being and, therefore, he/she lacks the capacity to
govern himself/herself in the following financial and personal affair areas:
.
In all other respects, he/she is fully able at this time to govern himself/herself and
govern and manage his/her affairs.
WHEREFORE, the plaintiff(s) demand(s) judgment pursuant to N.J.S.A. 30:4-165.7:
A1. declaring to be suffering from a chronic
functional impairment and as a result is incapable and unable to govern himself/herself and
manage his/her affairs;
OR
A2. declaring to be suffering from a chronic
functional impairment and as a result is incapable and unable to govern himself/herself and
manage his/her affairs with respect to :
;
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B1.
Appointing the plaintiff(s) the guardian of his/her PERSON and issuing
Letters of Guardianship upon qualifying according to law;
OR
B2.
Appointing the plaintiff(s) the limited guardian of his /her PERSON and issuing
Letters of Limited Guardianship upon qualifying according to law;
C1.
Appointing the plaintiff(s) the guardian of his/ her ESTATE and issuing Letters
of Guardianship upon qualifying according to law.
OR
C2.
Appointing the plaintiff(s) the limited guardian of his/her ESTATE and issuing
Letters of Limited Guardianship upon qualifying according to law.
Date:

___________________________________
SIGNATURE OF PLAINTIFF

TYPE NAME
Date:

___________________________________
SIGNATURE OF PLAINTIFF

TYPE NAME
VERIFICATION
I/We, and , hereby certify and say:
1.
I/ We are the plaintiff(s).
2. The contents of the complaint are true to my (our) personal knowledge and belief.
I (We) hereby certify that the statements made by me are true. I am aware that if any
are wilfully false, I am (We are) subject to punishment.
Date: Date:
______________________________________________________ ________________________________________________
Signature of Plaintiff Signature of Plaintiff
Type Name Type Name
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FORM B -- PHYSICIAN’S CERTIFICATION
Plaintiff(s) TYPE YOUR NAME(s)
Address:
Telephone Number:
SUPERIOR COURT OF NEW JERSEY
CHANCERY DIVISION
COUNTY
PROBATE PART
IN THE MATTER OF
TYPE INCAPACITATED PERSON’S NAME
AN ALLEGED INCAPACITATED
PERSON
Docket No.
CIVIL ACTION
CERTIFICATION OF MEDICAL
PHYSICIAN
TYPE PHYSICIAN’S NAME
I, , M.D., with offices at
,
being of full age, do hereby certify and say as follows:
1. I am a permanent resident of the State of New Jersey and a physician licensed
to practice medicine in the State of New Jersey.
2. I am not a relative, either through blood or marriage, to
or of the proprietor, director
or chief executive of any private institution for the care and treatment of the mentally ill at which
he/she is living or at which it is proposed to place him/her, nor am I professionally employed
by the management thereof as a resident physician, nor do I have any financial interest therein.
3. I have reviewed the clinical data and history regarding
and personally examined
him/her on , 20 .
1
Note. Complete this paragraph if it is your opinion that the alleged
incapacitated person has sufficient capacity in certain areas that he or she should retain
decision making rights. This paragraph will set out the basis for the same for the court’s
consideration. Otherwise cross this paragraph out before signing.
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4. My opinion as to ’s capacity to govern
himself/herself and manage his/her affairs is based upon the following:
5. Based upon my personal examination and the aforementioned clinical data and
history, it is my conclusion that suffers from a significant
chronic functional impairment and lacks the cognitive capacity to make decisions for
himself/herself or to communicate, in any way, decisions to others. His/Her
significant chronic functional impairment includes, but is not limited to, a lack of
comprehension of concepts related to personal care, health care or medical treatment and
is, therefore, incapable of governing himself/herself or managing his/her
personal or financial affairs.
6.1 It is also my opinion that does have
sufficient capacity to make limited decisions in the areas of :

The reasons for my opinion that he/she has the ability to make the aforementioned
limited decisions are:
7. Based upon my personal examination and aforementioned clinic data and
history, it is my conclusion that he/she is (check one) ___capable ___incapable of
attending the hearing in this matter. If incapable, state reasons:
I certify that the foregoing statements made by me are true. I am aware that if
any of the foregoing statements made by me are willfully false, I am subject to punishment.
Date: _______________________________ M.D.
type name
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FORM C -- PSYCHOLOGIST’S CERTIFICATION
Plaintiff(s) TYPE YOUR NAME(s)
Address:
Telephone Number:
SUPERIOR COURT OF NEW JERSEY
CHANCERY DIVISION
COUNTY
PROBATE PART
In the Matter of
TYPE INCAPACITATED PERSON’S NAME
An Alleged Incapacitated Person
Docket No.
CIVIL ACTION
CERTIFICATION OF PSYCHOLOGIST
TYPE PSYCHOLOGIST’S NAME
I, , with offices at
, being of full age,
do hereby certify and say as follows:
1. I am a permanent resident of the State of New Jersey and a psychologist
licensed pursuant to N.J.S.A. 45:14B-1 et seq. to practice in the State of New Jersey.
2. I am not a relative, either through blood or marriage, to
or of the proprietor, director
or chief executive of any private institution for the care and treatment of the mentally ill at which
is living or at which it is proposed to place
him/her, nor am I professionally employed by the management thereof as a resident
physician, nor do I have any financial interest therein.
3. I have reviewed the clinical data and history regarding
and personally examined
him/her on the , 20 .
1
Note. Complete this paragraph if it is your opinion that the alleged
incapacitated person has sufficient capacity in certain areas that he or she should retain
decision making rights. This paragraph will set out the basis for the same for the court’s
consideration. Otherwise cross this paragraph out before signing.
19
4. My opinion as to ’s capacity to govern
himself/herself and manage his/her affairs is based upon the following:
5. Based upon my personal examination and the aforementioned clinic data and
history, it is my conclusion that suffers from a significant
chronic functional impairment and lacks the cognitive capacity to make decisions for
himself/herself or to communicate, in any way, decisions to others.
His/Her significant chronic functional impairment includes, but is not limited to,
a lack of comprehension of concepts related to personal care, health care or medical
treatment and is, therefore, incapable to governing himself/herself or managing
his/her personal or financial affairs.
6.1 It is also my opinion that does have
sufficient capacity to make limited decisions in the areas of :

The reasons for my opinion that he/she has the ability to make the aforementioned
limited decisions are:
7. Based upon my personal examination and aforementioned facts and history,
it is my conclusion that he/she is (check one) capable incapable
of attending the hearing in this matter. If incapable, state reasons:
I certify that the foregoing statements made by me are true. I am aware that if any of
the foregoing statements made by me are willfully false, I am subject to punishment.
Date:
_______________________________
TYPE PSYCHOLOGIST’S NAME
20
FORM D -- ORDER FOR HEARING
Plaintiff(s) TYPE YOUR NAME(S)
Address:

Telephone Number:
SUPERIOR COURT OF NEW JERSEY
CHANCERY DIVISION
COUNTY
PROBATE PART
In the Matter of
PRINT INCAPACITATED PERSON’S NAME
an Alleged Incapacitated Person
Docket No.
CIVIL ACTION
ORDER FIXING HEARING DATE AND
APPOINTING ATTORNEY FOR
ALLEGED INCAPACITATED PERSON
RECEIVING DIVISION OF
DEVELOPMENTAL DISABILITIES
SERVICES
This matter having been opened to the court on complaint of the plaintiff(s) for an order
seeking the appointment of a guardian for under R.4:86-10
and for such other relief as the court may deem just, and the court having read and considered
the verified complaint, the supporting affidavits or certifications and all other papers and
pleadings presented with this application, and for good cause shown:
(Do not write below this line - for court use only - except for the appropriate spaces where the name of the person over
whom guardianship is sought should be inserted.)
IT IS on this day of , 20___, ORDERED that:
1. This matter be set down for hearing before this court at the
County Court House, , New Jersey, before the Hon.
on the day of , 20 , at o’clock in the a.m. p.m.
or as soon thereafter as plaintiff(s) may be heard, to determine the issue of the legal
incapacity of and for the determination of the appointment of a
guardian; and
2. A copy of the complaint and supporting affidavits along with this order, shall be
served on , the alleged incapacitated person, by personal
service at least 20 days prior to the date scheduled for the hearing.
21
3. A separate notice advising the alleged incapacitated person of his
her right to a jury trial and to personally, or through legal counsel, appear and oppose the
application shall be personally served on the alleged incapacitated person at least 20 days
prior to the date scheduled for the hearing.
4. A copy of the complaint and supporting documents, along with this order, shall
be served on all the next of kin and other interested parties set out in the complaint by regular
and certified mail, return receipt requested, at least 20 days prior to the date scheduled for
the hearing.
5. , Esquire, whose address is
____________________________________and telephone is _____________________,
be and hereby is appointed as counsel for the alleged incapacitated person. Said attorney
shall be immediately served with copies of the complaint and supporting documents along
with this order. Said attorney shall personally interview the client, examine the medical
records, make inquiries of persons having knowledge of the alleged incapacitated person’s
circumstances, make reasonable inquiries to locate any will, powers of attorney or health care
directive previously executed by the alleged incapacitated person and prepare a written report
of findings and recommendations to be filed in court and with the plaintiff(s) pursuant to R.
4:86-10 at least ____ days prior to the hearing.
6. This court may summarily appoint a guardian of the person and estate without
a hearing if the attorney appointed for reports that
he/she on behalf of the alleged incapacitated person does not dispute either the need for
the guardianship or the fitness of the proposed guardian and the alleged
incapacitated person does not request a plenary hearing.

______________________________________
, J.S.C.
22
FORM E -- JUDGMENT APPOINTING GUARDIAN

Plaintiff(s) TYPE YOUR NAME(S)
Address:
Telephone Number:
SUPERIOR COURT OF NEW JERSEY
CHANCERY DIVISION
COUNTY
PROBATE PART
In the Matter of

TYPE INCAPACITATED PERSON’S NAME
An Incapacitated Person
Docket No.
CIVIL ACTION
JUDGMENT OF LEGAL INCAPACITY
AND APPOINTING A GUARDIAN OF THE
PERSON AND ESTATE FOR PERSON
RECEIVING DIVISION OF
DEVELOPMENTAL DISABILITIES
SERVICES
This matter having been opened to the court on the complaint of the plaintiff(s)
, and the court having
appointed as attorney for
and the court having reviewed the pleadings and the affidavits or certifications of
, M.D., (or licensed
psychologist) and , Division of Developmental Disabilities official,
and the report of , Esq., and it appearing that
suffers from a chronic functional impairment and that
he/she lacks cognitive capacity and as a result is incapable of governing himself/herself
and managing his/her affairs.
It is on this day of , 20__ ORDERED and ADJUDGED that:
1. is an incapacitated person and is unfit
and unable to govern himself/herself and manage his /her affairs because of a significant
chronic functional impairment, except, but subject to the right of the guardian(s) herein
appointed to seek to have this portion of the judgment vacated or modified for good cause,
is able at this time to govern himself /herself
and manage his/her own affairs with respect to the following areas:
_______________________________________________________________________
______________________________________________________________________
_____________________________________________________________________.
23
2: be and hereby is/are appointed
[Limited] Guardian(s) of the Person and Estate of
and that Letters of [Limited] Guardianship of the Person and Estate shall be issued upon
him/her /them (a) qualifying according to law, (b) acknowledging to the Surrogate of
________________ County, upon receipt of a copy of the guardian’s manual, the receipt
of the same and (c) entering into a surety bond unto the Superior Court of New Jersey
in the amount of $ , which bond shall contain the conditions set forth in N.J.S.A.
3B:15-7 and R. 1:13-3. The court shall approve the bond as to form and sufficiency.
3. The guardian(s) shall have authority to make any and all medical decisions
regarding including, but not limited to, the authority to consent or withhold
consent to surgical procedures and such other procedures reasonably attendant thereto, and
all decisions concerning withdrawal or denial of life support shall be exercised in full
compliance with existing statutory and case law.
4. Upon qualifying, the Surrogate of ________________ County shall issue
Letters of Guardianship of the Person and Estate to
thereupon he/she/they shall then be authorized to perform all the functions and duties of
a guardian as allowed by law, except as limited herein or in areas herein above set forth
where retains decision making rights.
5. The Guardian(s) of the Estate may not alienate, mortgage, transfer or otherwise
encumber or dispose of real property without court approval. Said limitation shall be stated
in the Letters of Guardianship.
6. The court having reviewed the affidavit or certification of services of
, Esq., previously filed with the
court, ____________________________ shall pay ______________________________,
court-appointed attorney for _________________________, a fee of $ for
professional services rendered and $ for expenses incurred, which
disbursements are hereby approved.
7. is hereby directed to advise the Surrogate of
_______________ County within ten (10) days of any changes in the address or telephone
number of himself or herself and/or the incapacitated person or of the death of the
incapacitated person.
8. shall cooperate fully with any court staff
or volunteers until the guardianship is terminated by the death or return to competency of
or the guardian’s death, removal or discharge.
9. The plaintiff shall serve a copy of this Judgment upon all interested parties and
attorneys of record within seven (7) days from the receipt hereof.

________________________________________
, J.S.C.
24
FORM F NOTICE OF PENDING HEARING
Plaintiff(s) TYPE YOUR NAME(s)
Address:
Telephone Number:
SUPERIOR COURT OF NEW JERSEY
CHANCERY DIVISION
COUNTY
PROBATE PART
In the Matter of
TYPE INCAPACITATED PERSON’S NAME
An Alleged Incapacitated Person
Docket No.
CIVIL ACTION
NOTICE OF PENDING HEARING, RIGHT
TO APPEAR AND RIGHT TO REQUEST
A JURY TRIAL
TO:
Be advised that a verified complaint has been filed with the New Jersey Superior
Court, Chancery Division, Probate Part seeking to have you declared to be an
incapacitated person and have a guardian appointed. If a guardian is appointed, you
could lose your individual rights.
The matter has been set down for a hearing on
at a.m./p.m. in the County Court House,
, New Jersey.
You have the right to be present in court. You have the right to be represented by
an attorney of your own choosing. You may appear in person or through legal counsel to
oppose the relief sought. You have the right to demand a trial by jury.
If either you or the attorney appointed for you do not dispute the need for a
guardianship or the fitness of the proposed guardian, and if you do not request a plenary
hearing, the court may summarily appoint
as guardian(s) without the necessity of a hearing.
Date: Date:
________________________________________ ____________________________________________
Signature of Plaintiff Signature of Plaintiff
Type Name Type Name

25
FORM G PROOF OF SERVICE
Pro Se Plaintiff(s) TYPE YOUR NAME(s)
Address:

Telephone Number:
SUPERIOR COURT OF NEW JERSEY
CHANCERY DIVISION
COUNTY
PROBATE PART
In the Matter of
TYPE INCAPACITATED PERSON’S NAME
an Alleged Incapacitated Person
Docket No.
CIVIL ACTION
PROOF OF SERVICE
1. I, , of full age, hereby certify and say:
2. On , I personally served
, the alleged incapacitated person, at
with copies of the following
documents regarding the above captioned matter:
A. Verified Complaint
B. Division of Development Disabilities Official’s Certification
C. (Check one) Physician’s Certification or Psychologist’s
Certification
D. Order for Hearing
E. Notice of Pending Hearing, Right to Appear and Right to Request a
Jury Trial.
3. The alleged incapacitated person has been afforded the opportunity to
appear personally or through an attorney in this matter, and he/she has been given or
afforded assistance to communicate with friends, relatives or attorneys concerning this
matter.
26
4. On , I served a copy of the Verified Complaint,
DDD official’s Certification, (check one) Physician’s Certification or
Psychologist’s Certification and Order for Hearing by certified mailed, return receipt
requested, and regular mail on:
Name Address Date Served
5. Copies of all return receipt cards for certified mail are attached.
I hereby certify that the statements made by me are true. I am aware that if
any are wilfully false, I am subject to punishment.
Date: ____________________________________
signature
type name
2002 Surrogates CLICK HERE TO RETURN TO FORM
Atlantic County Surrogate
1201 Bacharach Blvd.
Atlantic City, NJ 08402
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Hackensack, NJ 07601-7691
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Court Complex, First Floor
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Mount Holly, NJ 08060-1827
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New Brunswick, NJ 08903
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Freehold, NJ 07728-1265
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Elizabeth, NJ 07207-6001
Warren County Surrogate
Warren County Courthouse
413 Second Street
Belvidere, NJ 07823

Federal lawsuit filed against NJ to expand Medicaid eligibility Frugard v Velez

The Director of the NJ Division of Medical Assistance and Health Services refused to accept the well reasoned decision by Judge JOSEPH PAONE, ALJ and denied Medicaid eligibility to certain senior citizens. Director John Guhl wrote: held “Simply put, if you are seeking to shift the cost of nursing home care to the taxpayers by giving away assets so as to artificially create impoverishment, there must be a financial price to pay. Based on the basic eligibility rules, the penalty can only apply to those eligible for waiver services as the receipt of which is an eligibility requirement for that particular category.
I FIND that there is no comparability issue as this case deals with the
actual receipt of waiver services before Petitioners' penalty periods begin, not the
treatment of their assets and income. Moreover, it is disingenuous to argue the
same treatment as nursing home patients since the Petitioners are seeking
waiver services which is entirely based on permitting states to waiver of the
requirements of section 1902(a)(1) (relating to state-wideness), section
1902(a)(10)(B) (relating to comparability), and section 1902(a)(10)(C)(i)(III)
(relating to income and resource rules applicable in the community).
The income level in the community is much lower than the one afforded to
those seeking institutional level of care services either through nursing facility
services or services furnished under the waiver. If Petitioners want to be treated
like nursing facility patients, they need to enter such a facility. Without the receipt
of waiver services, Petitioners are not eligible under the waiver or entitled to the
higher income levels afforded waiver recipients. Without eligibility, there is no
start date for the penalty period.”

On of the losing plaintiffs in this case has filed a lawsuit in the United State District Court for the District of New Jersey seeking to force the NJ Department of Human Services and Division of Medical Assistance and Health Services to change this policy and permit Medicaid eligibility.

Portions of the Decisions are below:
Decision by John R. Guhl, Director
Division of Medical Assistance and Health Services


STATE OF NEW JERSEY
DEPARTMENT OF HUMAN SERVICES
DIVISION OF MEDICAL ASSISTANCE
AND HEALTH SERVICES



O.B., :
:
PETITIONER, : ADMINISTRATIVE ACTION
:
v. : FINAL AGENCY DECISION
:
DIVISION OF MEDICAL ASSISTANCE : OAL DKT. NO. HMA 6519-07
:
AND HEALTH SERVICES AND : CONSOLIDATED
:
MIDDLESEX COUNTY BOARD OF :
:
SOCIAL SERVICES, :
:
RESPONDENTS. :
________________________________________


As Director of the Division of Medical Assistance and Health Services, I
have reviewed the record in this case, including the Initial Decision, the OAL
case file, the briefs filed, the exceptions submitted by both parties and the
documents in evidence. Petitioners and Respondent filed exceptions.
Procedurally, the time period for the Agency Head to file a Final Agency Decision
in this matter is July 14 , 2008, in accordance with an Order of Extension.
Based on my review of the record, I hereby REVERSE the Initial Decision
as inconsistent with federal law. This matter concerns date on which the transfer
penalty should start for Petitioners. All admit that they transferred assets for the
purpose of impoverishing themselves to qualify for Medicaid. The transferred
amounts ranged from $41,927.81 (O.B.) to $128,986.26 (J.B.). They also are
not residing in nursing facilities but in the community. Petitioners were denied
Medicaid eligibility due the transfers.
Petitioners argue that New Jersey's actions regarding their eligibility have
created only two options (1) to enter the nursing facility for 30 days or (2) wait
five years. What Petitioners' fail to acknowledge that this situation is of their own
making and that they can have family members return the assets. They may
also seek a hardship waiver, however, to meet that criterion they would have to
take legal action against those relatives if they did not return the assets willingly.
Petitioners have failed to pursue either option and prefer to argue that they
should be able to wait out the penalty period in the community.
This case turns on the reading of the Medicaid provisions of the Deficit
Reduction Act of 2005, which was passed in large part to stop elder law
attorneys from "exploit[ing] loopholes to get people with means onto Medicaid."
http://finance.senate.gov/hearings/statements/020906cg.pdf. The section in
4
question deals with the start date of the transfer penalty, which Petitioners' all
agree should be imposed.
c) Taking into account certain transfers of assets.
(1)
(A) In order to meet the requirements of this subsection for
purposes of section 1902(a)(18) [42 USCS § 1396a(a)(18)], the
State plan must provide that if an institutionalized individual or the
spouse of such an individual (or, at the option of a State, a
noninstitutionalized individual or the spouse of such an individual)
disposes of assets for less than fair market value on or after the
look-back date specified in subparagraph (B)(i), the individual is
ineligible for medical assistance for services described in
subparagraph (C)(i) (or, in the case of a noninstitutionalized
individual, for the services described in subparagraph (C)(ii)) during
the period beginning on the date specified in subparagraph (D) and
equal to the number of months specified in subparagraph (E).
(B) (i) The look-back date specified in this subparagraph is a
date that is 36 months (or, in the case of payments from a trust or
portions of a trust that are treated as assets disposed of by the
individual pursuant to paragraph (3)(A)(iii) or (3)(B)(ii) of subsection
(d) or in the case of any other disposal of assets made on or after
the date of the enactment of the Deficit Reduction Act of 2005
[enacted Feb. 8, 2006], 60 months) before the date specified in
clause(ii).
(ii) The date specified in this clause, with respect to--
(I) an institutionalized individual is the first date as of which
the individual both is an institutionalized individual and has applied
for medical assistance under the State plan, or
(II) a noninstitutionalized individual is the date on which the
individual applies for medical assistance under the State plan or, if
later, the date on which the individual disposes of assets for less
than fair market value.
(C)
(i) The services described in this subparagraph with respect
to an institutionalized individual are the following:
(I) Nursing facility services.
(II) A level of care in any institution equivalent to that of
nursing facility services.
(III) Home or community-based services furnished under a
waiver granted under subsection (c) or (d) of section 1915 [42
USCS § 1396n(c) or (d)]
. . .
(D) (i) In the case of a transfer of asset made before the date of
the enactment of the Deficit Reduction Act of 2005 [enacted Feb. 8,
2006], the date specified in this subparagraph is the first day of the
first month during or after which assets have been transferred for
5
less than fair market value and which does not occur in any other
periods of ineligibility under this subsection.

(ii) In the case of a transfer of asset made on or after the date
of the enactment of the Deficit Reduction Act of 2005 [enacted Feb.
8, 2006], the date specified in this subparagraph is the first day of a
month during or after which assets have been transferred for less
than fair market value, or the date on which the individual is eligible
for medical assistance under the State plan and would otherwise be
receiving institutional level care described in subparagraph (C)
based on an approved application for such care but for the
application of the penalty period, whichever is later, and which does
not occur during any other period of ineligibility under this
subsection.

42 U.S.C.A. 1396p

The Initial Decision reads the clause "would otherwise be receiving
institutional level care described in subparagraph (C)" in isolation and finds that
since it is in future tense, Congress permits the penalty period to run while the
individual is in the community.
However, the both clauses must be read together. For Petitioners "the
date on which the individual is eligible for medical assistance under the State
plan" is contingent on their actual receipt of waiver services. In the Stipulation of
Facts, Petitioners claim that but for the uncompensated transfer they were
eligible for benefits under the waiver program. This is not the same as being
eligible for medical assistance under the State plan.
Due to Petitioners' income level, they could only be found eligible for State
plan services by virtue of residing in a nursing home or through the waiver
program. As they are not in a nursing home, they must show that they are
eligible through the waiver program. As Petitioner are not receiving waiver
services, they are not eligible for services under the State plan.
6
To be eligible under a section 1915 waiver, a person must actually be
receiving services. Further, 42 U.S.C.A 1915(c)(1) states that "The Secretary
may by waiver provide that a State plan approved under this title may include as
“medical assistance” under such plan payment for part or all of the cost of home
or community-based services (other than room and board) approved by the
Secretary which are provided pursuant to a written plan of care to individuals
with respect to whom there has been a determination that but for the provision of
such services the individuals would require the level of care provided in a
hospital or a nursing facility or intermediate care facility for the mentally retarded
the cost of which could be reimbursed under the State plan." No such services
are being provided to Petitioners.
42 C.F.R. 435.217 provides that a state may provide services in the
community to individuals that would be eligible for Medicaid if institutionalized
and that individual actually "receives the waivered services." Since the home
and community based waiver program uses the institutional income limit (300%
of the Federal Benefit Rate) to access both waiver and State Plan services, the
individual must actually be receiving a waiver service in order to access State
Plan services. For example, if an individual stops using waiver services, they are
no longer eligible for the waiver and lose access to State Plan services. Similarly
if a waiver program's slots are full, those individuals on the waiting list are not
considered eligible and cannot access services. Their eligibility is contingent on
the receipt of waiver services. Without the provision of waiver services,
Petitioners' Medicaid eligibility does not exist.
Nor can an individual procure similar home and community based services
outside a waiver so as to mimic eligibility. Congress was very general in defining
7
the first two levels of care as nursing facility and level of care services equivalent
to nursing facility services. 42 U.S.C.A. 1396p(c)(1)(C). However, when
describing home and community services, Congress defined those services
furnished under a waiver. There was no need to qualify 42 U.S.C.A.
1396p(c)(1)(C) "is receiving" services since by virtue of the definition of
institutional level services, Congress specified that the waiver services must be
furnished under 42 U.S.C.A. 1396n(c). In the community, there is no way to
ascertain whether the individual is receiving services so that Congress specified
that the penalty period begins only if home and community based services are
furnished under a waiver, thus penalizing the individual for the transfer as those
services would no longer be paid for by Medicaid.
The Initial Decision finding would permit individuals in the community to
operate under the old rules, whereby the penalty period can lapse before any
financial hardship on the individual. Under the old rules the start date was the
date of transfer. Individuals were coached to transfer assets in such a way as to
either wait out the penalty period or the look back period. The DRA sought to
stop the choreographed transfers that resulted in little, if any, penalty and create
a financial burden that would give pause to individuals who sought to protect
assets at the taxpayers' expense.
The DRA was designed to make the penalty period more onerous as a
disincentive for individuals who transferred assets. Under Petitioners' argument,
individuals, such as themselves would have a different outcome than those in a
nursing facility. In a nursing facility, Medicaid's refusal to pay for care creates a
financial burden as medical charges are accrued. There is no penalty as
Medicaid cannot refuse to pay for services as there are no services furnished
8
under the waiver being accessed. Thus, Congress crafted a start date of the
penalty period that would have some teeth – namely not permit individuals to wait
out the penalty in the community.
Simply put, if you are seeking to shift the cost of nursing home care to the
taxpayers by giving away assets so as to artificially create impoverishment, there
must be a financial price to pay. Based on the basic eligibility rules, the penalty
can only apply to those eligible for waiver services as the receipt of which is an
eligibility requirement for that particular category.
I FIND that there is no comparability issue as this case deals with the
actual receipt of waiver services before Petitioners' penalty periods begin, not the
treatment of their assets and income. Moreover, it is disingenuous to argue the
same treatment as nursing home patients since the Petitioners are seeking
waiver services which is entirely based on permitting states to waiver of the
requirements of section 1902(a)(1) (relating to state-wideness), section
1902(a)(10)(B) (relating to comparability), and section 1902(a)(10)(C)(i)(III)
(relating to income and resource rules applicable in the community).
The income level in the community is much lower than the one afforded to
those seeking institutional level of care services either through nursing facility
services or services furnished under the waiver. If Petitioners want to be treated
like nursing facility patients, they need to enter such a facility. Without the receipt
of waiver services, Petitioners are not eligible under the waiver or entitled to the
higher income levels afforded waiver recipients. Without eligibility, there is no
start date for the penalty period.


9

THEREFORE, it is on this 14TH day of JULY 2008,
ORDERED:
That the Initial Decision is hereby REVERSED.



/S/
John R. Guhl, Director
Division of Medical Assistance and Health Services


The well reasoned decision by Judge JOSEPH PAONE, ALJ
State of New Jersey

OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION

SUMMARY DECISION CONSOLIDATED


O.B., OAL DKT. NO. HMA6519-07
Agency Final Decision
Petitioner,
v.
DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES AND MIDDLESEX COUNTY BOARD OF SOCIAL SERVICES,
Respondents.
__________________________________________

E.B., OAL DKT. NO. HMA8059-07
Petitioner,
v.
DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES AND OCEAN COUNTY BOARD OF SOCIAL SERVICES,
Respondents.
__________________________________________
E.A.F., OAL DKT. NO. HMA8310-07
Petitioner,
v.
DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES AND MONMOUTH COUNTY BOARD OF SOCIAL SERVICES,
Respondents

Record Closed: April 8, 2008 Decided: April 9, 2008

BEFORE JOSEPH PAONE, ALJ:
STATEMENT OF THE CASE AND PROCEDURAL HISTORY

Petitioners O.B., E.B., E.A.F., J.B. and R.M. each appeal their denial of Medicaid eligibility. Each filed for a fair hearing and the Division of Medical Assistance and Health Services (DMAHS) transmitted the contested cases to the Office of Administrative Law between August 15, 2007, and February 27, 2008. N.J.S.A. 52:14B-1 through -15; N.J.S.A. 52:14F-1 through -13. Their respective cases were consolidated at the request of their attorneys because the cases presented a common question of law. (Second Amended Order, dated April 8, 2008). Petitioners contend that when an applicant for a Medicaid waiver program makes an uncompensated transfer of an asset during the look-back period, the penalty period begins to run the month the transfer is made and the applicant is otherwise eligible for Medicaid benefits but for the application of the penalty period. Respondent DMAHS posits that a penalty period never commences in such a situation.

All parties moved for summary decision and submitted initial briefs and multiple reply briefs. Oral argument was heard on March 17, 2008. Upon receipt of the final stipulation of facts, related to the R.M. case, on April 8, 2008, the record closed.

STATEMENT OF FACTS
The parties have stipulated to the following relevant FACTS:
1. Petitioners are each elderly individuals within the meaning of the regulations governing the Medicaid program.
2. Petitioners have each applied for benefits under a community-based services Medicaid waiver program established pursuant to 42 U.S.C.A. ��1396n(c). O.B. applied for benefits on December 8, 2006; E.B. applied on May 1, 2007; E.A.F. on April 16, 2007; J.B. on January 29, 2007; and R.M. on June 4, 2007
3. Petitioners have each made certain uncompensated transfers of assets after February 8, 2006. O.B. transferred $34,400.66 on July 27, 2006, and $7,527.15 on August 18, 2006. E.B. transferred $80,000 on March 2, 2007. E.A.F. transferred $115,447 on April 11, 2007. J.B. transferred $128,986.26 between November 2, 2006, and January 25, 2007. R.M. transferred $47,817.25 on March 22, 2007.
4. Petitioners have each been denied Medicaid benefits under their respective community-based services Medicaid waiver program as a result of the transfers.
5. But for the uncompensated transfer of assets, petitioners were each eligible for benefits under a community-based services Medicaid waiver program.
CONCLUSIONS OF LAW
Since it is undisputed that petitioners are otherwise eligible for a community-based services Medicaid waiver program but for an uncompensated transfer of assets made after February 8, 2006, and during the look-back period, and are each subject to a period of ineligibility for those services as a result of the transfer, there are no genuine issues of material fact. Therefore, pursuant to N.J.A.C. 1:1-12.5(b) and Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 523 (1995), the matter is ripe for summary decision.
The Medicaid Act was established in 1965 pursuant to Title XIX of the Social Security Act. 42 U.S.C.A. �� 1396 et seq. The joint federal-state program provides medical assistance to “aged, blind, or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical care.” 42 U.S.C.A. � 1396. These individuals are known as the “categorically needy.” Although participation is not obligatory, if a state chooses to participate in the program, it must submit a state plan to the Secretary of the United States Department of Health and Human Services for approval, which must comply with the comprehensive requirements provided in 42 U.S.C.A. � 1396a. The Medicaid Act also allows a participating state to offer coverage to a class of individuals known as “optionally needy.” 42 U.S.C.A. ��1396a(a)(10)(A)(ii)(I) to (XVIII). Individuals eligible for community-based waiver services (42 U.S.C.A. � 1396a(a)(10)(A)(ii)(VI)), as well as individuals residing in a nursing facility for at least thirty consecutive days (42 U.S.C.A. � 1396a(a)(10)(A)(ii)(V)), are included in this category. As a participant in the program offering coverage to the optionally needy, the State of New Jersey is responsible for enforcement of the Medicaid Act in New Jersey. N.J.S.A. 30:4D-1 et seq. Medicaid eligibility is based upon an applicant's income and resources. When it is determined that an applicant has transferred a resource for less than fair market value during a specified period of time known as a “look-back period,” a penalty period arises. 42 U.S.C.A. � 1396p(c)(1). Compare N.J.A.C. 10:71-4.7(a); N.J.A.C. 10:72-4.5(b)(3). A penalty period is a measurable period of time during which the applicant is ineligible for an institutional level of services. 42 U.S.C.A. � 1396p(c)(1).

The Deficit Reduction Act of 2005 (DRA) modified the Medicaid Act by increasing the look-back period from three to five years. The State of New Jersey has not enacted any statute or regulation implementing the DRA. The DRA provides that the look-back begins on the “first date as of which the individual both is an institutionalized individual and has applied for medical assistance under the State plan.” 42 U.S.C.A. ��1396p(c)(1)(B)(ii)(I). Accordingly, “if an institutionalized individual . . . disposes of assets for less than fair market value on or after the look-back date . . . the individual is ineligible for medical assistance services described in subparagraph (C)(i) . . . during the period beginning on the date specified in subparagraph (D) . . . .” 42 U.S.C.A. ��1396p(c)(1)(B)(i). The length of the period of ineligibility is governed by 42 U.S.C.A. ��1396p(c)(1)(E), and is not an issue in dispute in this case. 42 U.S.C.A. ��1396p(c)(1)(C)(i) lists the following medical assistance services:

(I) Nursing facility services.

(II) A level of care in an institution equivalent to that of nursing facility services.
(III) Home or community-based services furnished under a waiver granted under [42 U.S.C.A. � 1396n(c) or (d)].
42 U.S.C.A. � 1396p(h)(3) defines an “institutionalized individual” as one
who is an inpatient in a nursing facility, who is an inpatient in a medical institution and with respect to whom payment is made based on a level of care provided in a nursing facility, or who is described in [42 U.S.C.A. � 1396(a)(10)(A)(ii)(VI)].

[Emphasis added.]
42 U.S.C.A. � 1396a(a)(10)(A)(ii)(VI) adds that an institutionalized individual is one
who would be eligible under the State plan under [42 U.S.C.A. �� 1396 et seq.] if [she] were in a medical institution, with respect to whom there has been a determination that but for the provision of home or community based services described in [42 U.S.C.A. ��1396n(c),(d), or (e)] [she] would require the level of care provided in a hospital, nursing facility or intermediate care facility for the mentally retarded the cost of which could be reimbursed under the State plan, and who will receive home or community-based services pursuant to a waiver granted by the Secretary under [42 U.S.C.A. � 1396n(c), (d), or (e)].
[Emphasis added.]
Petitioners additionally urge consideration of N.J.A.C. 10:71-4.7(b)(3) and N.J.A.C. 10:71-4.10(b)(2), which the parties agreed in their Joint Stipulation were enacted to implement 42 U.S.C.A. � 1396p(c)(1)(B), and which also define an institutionalized individual as “a person seeking benefits under a home or community care waiver program” (emphasis added). Neither the federal statute nor the State regulation requires the actual receipt of home- or community-based services in order for a person to be characterized as an institutionalized individual. Therefore, I CONCLUDE that petitioners' applications seeking community-based waiver services are sufficient to classify petitioners as institutionalized individuals.
Since the parties have stipulated that each petitioner made an uncompensated transfer of an asset within months, and in E.A.F.'s case days, of their respective applications seeking community-based waiver services, I CONCLUDE, as the parties agreed during oral argument, that the uncompensated transfers of assets in question were each made during the look-back period. And I further CONCLUDE that as institutionalized individuals, the petitioners must each be subject to a penalty period or period of ineligibility for community-based services furnished under a waiver.
The issue in dispute in this matter is at what point the penalty period begins when an applicant for a Medicaid waiver program has made an uncompensated transfer of an asset during the look-back period. While the DMAHS agrees with petitioners that they are subject to a penalty period, the DMAHS contends that a penalty period can never begin because an applicant seeking community-based waiver services must await the expiration of the look-back period before she can seek those services. Petitioners, however, contend that if an applicant is otherwise eligible for Medicaid benefits but for the transfer of assets, the penalty period must start the month the uncompensated transfer of the asset is made.
The DRA added 42 U.S.C.A. � 1396p(c)(1)(D)(ii), a new subclause, to the Medicaid Act. Prior to enactment of the DRA, the penalty period resulting from an uncompensated transfer of assets commenced the month that the applicant made the uncompensated transfer, irrespective of what resources remained in the applicant's name. Since the parties have stipulated that the transfers were made after February 8, 2006, their periods of ineligibility must commence
the first day of a month during or after which assets have been transferred for less than fair market value, or the date on which the individual is eligible for medical assistance under the State plan and would otherwise be receiving institutional level care described in subparagraph (C) [a community-based waiver service] based on an approved application for such care but for the application of the penalty period, whichever is later, and which does not occur during any other period of ineligibility under this subsection.
[42 U.S.C.A. � 1396p(c)(1)(D)(ii) (emphasis added).]
Petitioners persuasively argue that according to the plain-language canon, the statute means what it says “and no further search is necessary or appropriate in the absence of clear ambiguity.” In re M.G., 307 N.J. Super. 348, 354 (App. Div. 1998), certif. denied, 154 N.J. 607 (1998). This cardinal doctrine of statutory construction directs that the penalty period assessed against an applicant must begin when the applicant 1) is eligible for medical assistance under the state plan, and 2) would otherwise be receiving home- or community-based services furnished under a waiver based on an approved application for such care, 3) but for the application of the penalty period. Simply stated, the penalty start date is the point in time when the applicant is eligible and would otherwise be receiving services, but for the penalty period. Petitioners submit that the insertion of “would otherwise be” and “but for” in the statute creates the grammatical tense known as the “present unreal conditional,” which is used to express what one would do in an unreal or imaginary situation. They urge that the application of this grammatical analysis to the statute makes it apparent that the statute intends that the penalty period begins when “an applicant for Medicaid benefits would otherwise be receiving services furnished under a waiver but for the fact that the applicant made an uncompensated transfer.” The applicant, however, isn't really receiving those services.
The DMAHS argues that the penalty period for an uncompensated transfer cannot start against an applicant for community-based waiver services until she is eligible for medical assistance under the State plan and is actually receiving community-based waiver services. But, as the DMAHS's reasoning continues, such an applicant cannot actually receive waiver services because the uncompensated transfer of assets prohibits receipt of waiver services. In reaching this circuitous position, the DMAHS relies on an enclosure that accompanied a letter to the State Medicaid Director from the Centers for Medicare and Medicaid Services (CMS), dated July 27, 2006. The CMS enclosure provides that
[f]or transfers of assets made on or after February 8, 2006, the period of ineligibility will begin with the . . . date on which the individual is eligible for medical assistance under the State plan and is receiving institutional level of care services (based on an approved application for such services) that, were it not for the imposition of the penalty period, would be covered by Medicaid.
[Emphasis added.]
The CMS enclosure, however, misquotes the statute, and the DMAHS's reliance on it is, thus, misplaced. In order to accommodate the language of the CMS enclosure, the DMAHS is obligated to take an inherently contradictory position. While the DMAHS deems petitioners “institutionalized individuals” in determining the look-back period start date, it denies that petitioners are “institutionalized individuals” for purposes of determining the penalty period start date. The DMAHS reasons that an applicant must be receiving waiver services in order to be denominated an institutionalized individual. Otherwise, the penalty period cannot commence. But, as had been previously noted, an “institutionalized individual” is not only an inpatient in a nursing facility or medical institution, but also, as the federal statute provides, one who would be eligible for community-based waiver services if she were in a medical institution, or, as State regulations allow, is seeking those services. 42 U.S.C.A. � 1396p(c)(1)(D)(ii) does not require that one actually receive institutional-level care as respondent contends. The statute merely demands that one “would otherwise be receiving institutional level care�.�.�. but for the application of the penalty period.”
Petitioners proffer that the Congressional Record refutes the DMAHS's construction. A proposed House Bill had provided that the beginning date for a period of eligibility be


[t]he date on which the individual is eligible for medical assistance under the State plan and is receiving services described in subparagraph (C) based on an approved application for such care but for the application of the penalty period.
[151 Cong. Rec. H10571 (daily ed. Nov. 17, 2005) (emphasis added).]
But the “is receiving services” language in the proposed legislation was later changed by Conference Agreement to the present text — “would otherwise be receiving institutional level care.” Id. at H12709-H12710. Petitioners point out that the use of the present participle “is receiving” would have suggested that the applicant must actually be receiving waiver services. But the verb tense change made during Conference Committee demonstrates that Congress was aware that an applicant for benefits under a community-care waiver program, who had made an uncompensated transfer of an asset, could not be receiving waiver services before applying for those services.
The purpose of the DRA is to deter self-impoverishment in order to qualify for Medicaid by penalizing those who transfer assets for less than fair market value. There is no evidence in the legislative record cited by the DMAHS that Congress intended to eliminate community-based waiver services completely to those who made such transfers. Application of the DMAHS's tortured construction of the DRA, however, would entirely eliminate the imposition of a penalty period and require anyone making uncompensated transfers within a look-back period and seeking waiver services to wait up to five years from the date of the transfer before an application could be made for home- or community-based waiver services. While the DMAHS suggests that its interpretation is consistent with the DRA's objective, which was to lighten the taxpayers' burden, its interpretation would actually encourage placement in a nursing facility over less-costly waiver services and undermine the impetus for the DRA's enactment.
The plain meaning of 42 U.S.C.A. � 1396p(c)(1)(D)(ii) is clear and the DMAHS's strained interpretation is conflicting, contrived and inconsistent with the statute's legislative history. I, therefore, CONCLUDE that the penalty period for an applicant for a Medicaid waiver program who has made an uncompensated transfer of an asset during the look-back period begins on the date on which she is otherwise eligible for Medicaid waiver services based on an application that would be approved, but for the transfer of assets. Thus the penalty period for each petitioner should commence on the date each petitioner submitted her application for community-based waiver services.
ORDER
Accordingly, I hereby ORDER that a penalty shall be assessed against each petitioner as a result of her uncompensated transfer of an asset and that the start date of the penalty period shall be the date on which the application for waiver services was made after the uncompensated transfer.
I hereby FILE my initial decision with the DIRECTOR OF THE DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES for consideration.
This recommended decision may be adopted, modified or rejected by the DIRECTOR OF THE DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES, the designee of the Commissioner of the Department of Human Services, who by law is authorized to make a final decision in this matter. If the Director of the Division of Medical Assistance and Health Services does not adopt, modify or reject this decision within forty-five (45) days and unless such time limit is otherwise extended, this recommended decision shall become a final decision in accordance with N.J.S.A. 52:14B-10.

Within seven (7) days from the date on which this recommended decision was mailed to the parties, any party may file written exceptions with the DIRECTOR OF THE DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES, Mail Code #3, P.O. Box 712, Trenton, New Jersey 08625-0712, marked “Attention: Exceptions.” A copy of any exceptions must be sent to the judge and to the other parties.

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: __________________________

Free Office Space for Attorney- Edison, NJ
Law Office also has space sharing opportunity for new lawyer to get experience and go to court.
Attorney will be provided with their own office to start their practice, rent free. In return they will handle municipal court appearances, Will signings and other legal work and criminal law website updates in lieu of rent for maximum 5 hours per week.
Go to court and get trial experience. Excellent opportunity to jump start your career. You will get to represent people in Municipal Courts in Middlesex, Union and Monmouth County and meet the top Prosecutors and Judges. Must be admitted in NJ and have a car.
Learn to interview potential Municipal Court/Criminal clients. Also learn to draft Wills and work on Litigation files. Attorney may also help provide legal assistance to members of prepaid legal plans and public defender clients. Follow up contact calls with clients, courts, prosecutors and bar associations.
Excellent mentoring position for the right attorney. Are you hardworking and aggressive? Visit our website: www.njlaws.com to learn about our office.

The following is included with office use:
1. Desk space on our 2nd floor
2. Use of 2nd floor conference table for meetings or depositions by appointment
3. Use of our audio tape and video library.
4. Use of the front room reception area
5. Ability to put a file cabinet in basement to store your old file
6. Lighting/ Utilities
7. Bathroom Supplies
8. Landscaping / Snow Removal
9. Cleaning of Common Area
10. Hot water, municipal water/sewer charge paid
Call KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030

WILLS, PROBATE AND ELDER LAW- Adult and Community Education
WHEN: Tuesday October 21, 2008 7 - 9 P.M.

East Brunswick Adult & Community Education Program
East Brunswick HIGH SCHOOL, Cranbury Rd
Course # FBB ...............................................................Fee: $29

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.
Tues. 7:00–8:30 pm .......................................1 session: 10/21

Call the Adult Education Office for registration information 732- 613-6989
http://www.ebnet.org/Community_Programs/downloads/Fall_2008_Web.pdf
Please make checks payable to Adult and Community Education and mail to: Director, East Brunswick Adult and Community Education, EBHS, 380 Cranbury Road, East Brunswick, NJ 08816-3095.
About the Speaker: Kenneth Vercammen is an Elder Law and Litigation Attorney in Edison, NJ. He often lectures for the American Bar Association and New Jersey State Bar Association on Elder Law, personal injury, and criminal / municipal court matters. He has published 125 articles in national and New Jersey publications on legal topics. He speaks as a volunteer on Wills and Elder law to Adult Community Schools and non profit groups including Edison, Metuchen, Woodbridge, East Brunswick, North Brunswick, South Brunswick, Piscataway, Sayreville, Old Bridge, Spotswood and Perth Amboy Seniors. He has established New Jersey’s most popular Elder law website on the Internet to provide information on Probate, Elder Law and Traffic matters located at www.centraljerseyelderlaw.com.
East Brunswick Wills rev 9/30/08Macbook

In the Matter of the Estate of Madeleine Stockdale, Deceased (A-121-06)


Argued October 9, 2007 -- Decided July 22, 2008HOENS, J., writing for a unanimous Court.

In this appeal, the Court considers the circumstances in which it is appropriate to award punitive damages against a party in a Probate Part proceeding who has engaged in undue influence in the creation of a will or testamentary trust, or in securing an inter vivos transfer of property in lieu thereof.

Madeleine Stockdale, the testatrix, owned a large home on Monroe Avenue in Spring Lake. Following her husband's death and despite her considerable wealth, she lived frugally and her house eventually fell into disrepair. She talked of selling her home to someone who would restore the home to its former grandeur and agree not to subdivide it. Stockdale was distant from others and distrustful, believing that they were only interested in her for her money. She had no children and no family except for two nephews, George and Peter Lawrence, with whom she had little contact. Stockdale was reclusive, associating with only a few people whom she considered to be her "acquaintances." The Pattersons and the DiFeos were among Stockdale's acquaintances and, in general, they looked after her. Stockdale was impressed with the good work of the volunteers of the Spring Lake First Aid Squad (SLFAS). She intended to leave her entire estate to charity out of respect for the selfless acts of kindness and because it would keep her assets away from the control of the government and limit estate taxes.

In September 1997, Stockdale listed her home for sale for the price of $1.4 million. A neighbor, Ronald Sollitto, was interested in the Stockdale home. He introduced himself directly to Stockdale and shortly thereafter, he and his wife began to help Stockdale around her home and to bring her food, continuing to express how much they liked her home.

In March 1998, Stockdale executed the first of the two wills ("1998 Will") that were eventually offered for probate and that are at the center of this appeal. At that time, Stockdale was in her late 80's or early 90's, was living alone in the Monroe Avenue house, and was in declining health. The 1998 Will was prepared by William Soons, the attorney who handled Stockdale's legal affairs. The 1998 Will named Soons and Peter Kuzmick co-executors of her estate. Stockdale directed that her home be sold on her death and that the proceeds be included in her residuary estate. The 1998 Will also included a substantial number of specific bequests and named SLFAS as the residuary beneficiary.

On the same day that the 1998 Will was executed, Stockdale entered into a new listing agreement for the sale of her home at a price of $1.65 million. In March 1999, Sollitto made an offer on the home that Stockdale rejected; nonetheless, the two continued to discuss Sollitto's purchase of the home. Sollitto claims he promised that he would not subdivide the property; would restore the home to its original grandeur; and would allow Stockdale to remain in the home until she was ready to leave. Although none of these promises was reduced to writing, Stockdale was induced to sign a proposed contract to sell the property to Sollitto for $1.3 million. That contract was prepared by Thomas Foley, an attorney retained by Sollitto. The contract made no mention of the various promises Sollitto had made to Stockdale and included a variety of terms that were unfavorable to her. Stockdale retained Soons to review the contract and to represent her in the sale of her home. Soons contacted Foley in respect of his concerns about the unfavorable terms in the contact. Rather than continuing the negotiations with Soons, Foley prepared an addendum to the contract and gave it to Sollitto, who brought it directly to Stockdale for her signature. Soons was led to believe that the deal was off, even though the parties continued to move forward with the agreement.

In December 1999, Stockdale fell and broke her hip, causing a further deterioration in her already declining health. She was eventually transferred to a rehabilitation facility where Sollitto visited and continued to discuss the pending house sale. Sollitto sent Michael A. Casale, a very close personal friend, to advise Stockdale on the sale. On December 21, 1999, Casale visited Stockdale at the rehab facility but did not reveal his very close personal relationship with Sollitto. According to Casale, Stockdale told him that she wanted to sell her home to Sollitto because he would not demolish it. Casale stated that she asked about a power of attorney and declared her desire to change her 1998 Will. Casale met with Stockdale again on December 27, 1999 where, according to Casale, Stockdale agreed to accept $50,000 from Sollitto at closing, with the remainder of the purchase price to be paid through a note and purchase money mortgage at 5% interest, which was two to three points below the current market rate. Casale testified that Stockdale had crossed out the clause in the 1998 Will leaving her residual estate to the SLFAS because she no longer wanted to leave them her money. On or about December 29, 1999, Casale met with Stockdale for a third time at which time Casale claims Stockdale decided to make Sollitto her residual beneficiary and replace her existing co-executors with Casale as the sole executor of the estate. In addition, she agreed to put a provision in her new will to forgive any mortgage debt that might be owed. Casale and Sollitto spoke regularly after Casale's meetings with Stockdale.

Because of Stockdale's imminent throat surgery, Casale executed the new will and closing documents on January 3, 2000 without the assistance or presence of Sollitto's attorney. The employees of the rehab facility who witnessed the signing of the new will ("2000 Will") were unable to testify whether Stockdale had the requisite testamentary capacity, although the facility's director did testify that Stockdale likely did not have the requisite capacity based on her ingestion of pain medication and her increased signs of confusion. On that day, Stockdale also signed a deed ("2000 Deed") transferring to Sollitto title to her house.

Once discharged from the rehab facility, Sollitto eventually moved Stockdale to an apartment that he rented in her name, secluded from her acquaintances. He and his family had moved into the Stockdale's home. In early February, Sollitto wrote a check to pay for utility charges on the Monroe Avenue home using his Power of Attorney to access Stockdale's funds. The record also shows that Sollitto removed Stockdale's antique furniture and pictures from her home. At the time of her death in April 2000, the Monroe Avenue home was worth significantly more than the purchase price. Moreover, Stockdale's estate taxes under the 2000 Will were considerably more than what would have been owed under the 1998 Will.

On March 1, 2000, Casale offered the 2000 Will for probate; on April 28, 2000, Soons, unaware of the existence of the 2000 Will, offered the 1998 Will for probate. Shortly thereafter, SLFAS, the residuary beneficiary under the 1998 Will, lodged a caveat against the 2000 Will. Casale filed a complaint in the Probate Part, seeking to dismiss the caveat and admit the 2000 Will to probate. SLFAS answered the complaint and filed a third-party complaint against Sollitto and Casale, claiming that the 2000 Will was procured by undue influence and fraud, and that the inter vivos transfer of the title to Stockdale's home by deed was similarly flawed. SLFAS sought both compensatory and punitive damages, together with attorneys' fees. Stockdale's previously disinherited nephews were allowed to intervene in the matter to protect any potential interests in the estate.

Following extensive discovery and a lengthy trial, the probate judge found that Sollitto and Casale were not credible and that Stockdale's 2000 Will was unenforceable as a product of undue influence. The probate judge also found that the 2 000 Deed and the 1999 real estate contract ("1999 Contract of Sale") transferring Stockdale's property to Sollitto were invalid as a product of undue influence and "sharp dealing." The judge set aside the 2000 Deed, voided the 1999 Contract for Sale, sustained the caveat, rejected the 2000 Will, and directed that the 1998 Will be admitted to probate. Relying on this Court's decision in In re Niles, the judge awarded SLFAS attorneys' fees as a form of punitive damages, finding that undue influence is a form of intentional tort that provides the basis for awarding punitive damages. Sollitto and Casale were required to pay attorneys' fees to SLFAS in the amount of $1,174,264.87.

The Appellate Division affirmed all but the award of attorneys' fees, remanding for consideration of punitive damages, noting that the trial court was mistaken in its view that an award of attorneys' fees under Niles is or may be a substitute for punitive damages.

The Supreme Court granted certification.

HELD: Actions arising from disputed wills and related documents designed to dispose of estate assets and which rest on allegations of undue influence are most often resolved through the equitable remedies available in the Probate Part. Although a finding that a party in an estate has engaged in undue influence may also, consistent with common-law notions of making an injured party whole and deterring particularly egregious behavior, support an award of punitive damages, the circumstances in which a punitive damage award is permitted is limited. Because the Appellate Division based its analysis on the assumption that punitive damage remedy is broadly available, its judgment is affirmed with modifications.

1. In a probate matter, the burden of proving undue influence ordinarily is on the will contestant. However, when there is a confidential relationship coupled with suspicious circumstances, undue influence is presumed and the burden of proof shifts to the will proponent to overcome the presumption. If there is a conflict of interest on the part of an attorney coupled with confidential relationships between testator and the beneficiary as well as the attorney, the presumption must be rebutted by clear and convincing evidence rather than a preponderance of the evidence. An attorney-client relationship is inherently a confidential relationship and because suspicious circumstances need only be slight, the existence of that relationship often results in both the shifting of the burden and the imposition of a clear and convincing standard of proof. (Pp. 30-34)

2. In probate matters, a tort-based claim can only arise if someone has acted so as to deplete or reduce the estate of its assets. In probate proceeding, there is generally neither compensatory damage-type award nor, by extension, the underpinnings needed for imposition of a punitive award. (Pp. 33-37)

3. In Niles, the Court emphasized New Jersey's strong public policy against shifting counsel fees from one party to another. A narrow exception exists for circumstances in which the executor or trustee commits the tort of undue influence that would enable the estate to be made whole by an assessment of all reasonable counsel fees against the fiduciary that were incurred by the estate. There is also the possibility of a punitive damage award arising from the "pernicious tort of undue influence." However, the availability of that remedy is limited to those situations in which ordinary remedies for breach of fiduciary duty will not lie or will be inadequate. The remedy is limited to situations were one who is essentially a stranger to the testator gains access to her through undue influence and then carries out a scheme to place himself into a position to seize control of that testator's assets through inter vivos transfer or by bequest. Any punitive damage award arising in the Probate Part must be in compliance with the Punitive Damages Act. This remedy will be infrequent, limited to circumstances in which the actor is not entitled to take from the estate by inheritance or through commissions, and thus an accounting and a surcharge remedy will be inadequate to restore the estate to its proper balance. (Pp. 37-45)

4. Sollitto and Casale were strangers to Stockdale, thus the surcharge remedy would be insufficient. There are distinctions between this matter and Niles. Because the claim in this case was brought by a putative beneficiary rather than by the substitute executor, no counsel fee could be awarded. The record includes ample facts and circumstances that would support a compensatory award and, potentially, a punitive one as well. Only the apparent confusion about the parameters of the available remedies prevented the Probate Part and the Appellate Division from engaging in the appropriate analysis of the record. It may well be that a punitive award is appropriate. It is left to the sound discretion of the Probate Part to consider the record in light of the Court's further guidance. (Pp. 45-51)

Judgment of the Appellate Division is AFFIRMED as MODIFIED and the matter is remanded to the Chancery Division, Probate Part, for further proceedings consistent with this opinion.

Elder Law 2008- Expanding and Marketing an Elder Law Practice

Saturday, August 9, 2008 2:00 - 3:30 p.m.
American Bar Association Annual Meeting, New York City
Hilton New York

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

Charles Sabatino, director of the ABA's Commission on Law & Aging

Kenneth A. Vercammen, Esq. - co-author "Nuts & Bolts of Elder Law", Edison, NJ

Parag Patel, Esq. Iselin, NJ

Joan Burda, Ohio


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:
Medicaid Law changes in 2006-2007- Protect yourself from inaccurate advice and malpractice
Getting referrals from other professionals
The aftermath of the Terry Schiavo case and Living Wills.
Forms you can use
Email newsletters
"Representing seniors- Doing well by doing good.-Do you know how?
- Foonberg's 10 page check list."
How to get more referrals and repeat business
How to manage telephone conversations with your clients
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 Medicaid and will need legal advise. Elder Law is one of the biggest growth fields. Substantial changes in Medicaid law requires attorneys to learn ideas to avoid Medicaid/ nursing home liens.

[Contact Kenneth Vercammen, Esq. for program information 732-572-0500]

Contact American Bar Association's Experient at 800-421-0450 or at aba@experient-inc.com for registration & tickwets to events

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com

N.E. v. New Jersey Division of Medical Assistance and Health Services, et al.

April 10, 2008 A-2276-06T2

The Division of Medical Assistance and Health Services
correctly found that N.E. was not eligible for "Medicaid Only" benefits because, on the date as of which N.E.'s eligibility was determined, his resources exceeded the maximum amount permitted by N.J.A.C. 10:71-4.5(c), and pursuant to New Jersey's regulatory scheme, the income that N.E. was receiving and reasonably expected to receive had to be allocated to his spouse for her "Minimum Monthly Maintenance Needs Allowance" before more of his resources could be allocated to the spouse.

In the Matter of the Trust Created by Agreement Dated December 20, 1961, by and between John Seward Johnson, Grantor, et al.

April 3, 2008 (A-70/71/72-06)

Notwithstanding the trial judge’s reliance on some testimony that should not have been admitted, there was substantial credible evidence in the record as a whole to support the trial judge’s conclusion that J. Seward Johnson wanted a broad class of possible beneficiaries, including surviving spouses. The trial court’s finding that the word “spouses” was intended to include widows and widowers is affirmed substantially for the reasons expressed by the Appellate Division majority.

ABA GP Solo ELDER LAW COMMITTEE Newsletter Spring, 2008
ABA General Practice, Solo and Small Firm Division

Chairs - Kenneth Vercammen, Edison, NJ and Jay Foonberg, Beverly Hills, CA

In this issue:

1. TYPES OF SPECIAL NEEDS TRUSTS
By Thomas D. Begley, Jr., Esquire
2 Elder Law 2008- Expanding and Marketing an Elder Law Practice Program at ABA Annual Meeting
3 New articles added in June, 2008 to Elder Law website:

1. TYPES OF SPECIAL NEEDS TRUSTS
By Thomas D. Begley, Jr., Esquire

There are essentially two types of special needs trusts: third party trusts and self-settled trusts. This article will discuss the features that are common to both trusts. In addition, there are pooled trusts. Pooled trusts can be either third party or self-settled. The distinction between a third party special needs trust and a self-settled special need trust is the source of funds. If the assets funding the trust are not the assets of the beneficiary but belong to a third party, then the trust is a third party trust. If the assets funding the trust are assets of the disabled beneficiary, then the trust is a self-settled trust.
Some trusts are pooled trusts in which the assets of many trusts are combined for investment purposes, but are managed individually for distribution purposes. There is a master trust document that is adopted to govern the trust. A pooled trust can be a self-settled trust or a third party trust, depending on whether the assets used to fund the trust belong to the person with disabilities or to a third party. Some pooled trusts provide that assets remaining in the pool upon the death of the person with disabilities is retained by the trust. Not all pooled trusts qualify under 42 U.S.C. §1396p(d)(4)(C). Some trusts simply pool assets together for investment purposes, but do not qualify under OBRA ‘93.
Third Party Trust
The first type of special needs trust that disability law attorneys commonly draft is a third party special needs trust, which is established by the third party with assets of the third party for the benefit of a person with a disability. Typically, these trusts are established by a parent for the benefit of a child with a disability. In drafting third party special needs trusts, the attorney need not be concerned with Medicare claims, Medicaid liens, or age limits relating to the beneficiary. There is no requirement that the state Medicaid agency be paid back funds on the death of the beneficiary. If income from the trust is distributed to the beneficiary, it may reduce or eliminate public benefits. Therefore, income should be distributed to third parties to pay for goods and services delivered to the beneficiary. Similarly, the assets in the trust must not be available to the beneficiary. Therefore, the attorney has great flexibility in structuring the trust to achieve the income, gift and estate tax goals of the settlor.
There is no federal statutory authority for a third party special needs trust. However, the Social Security administration has policy regarding the effect of these trusts on benefits.[1]
Self-Settled Trust
The federal statutory authority for a self-settled special needs trust is found at 42 U.S.C. §1396p(d)(4)(A)(payback trusts) and d(4)(C) (pooled trusts) and at HR 3443 Foster Care Independence Act of 1999 §205.[2] A self-settled special needs trust most frequently is a (d)(4)(A) trust and is referred to that way. It is established with the assets of the person with a disability. It must be established by the parent, grandparent, guardian of the person with a disability, or by a court. Only the person with a disability can be the beneficiary of the trust. These trusts are frequently used when an injured party receives money as a result of a tort action. The trust must be an inter vivos trust, rather than a testamentary trust, and it must be irrevocable. Prior to establishing the trust, the attorney must be concerned with the existence of any Medicare claim and Medicaid lien as well as claims for reimbursement from third party liability insurers. The trust cannot be established if the beneficiary is over age 65. On the death of the beneficiary, assets remaining in the trust must be used to pay back any state Medicaid agency providing benefits. There is considerably less flexibility with respect to achieving tax goals.
Special Needs Trust Comparison
Issue Third Party SNT Self-Settled SNT
Established By Third Party Parent, Grandparent, Guardian, or Court
Funded by Assets of Third Party Person with a Disability
Beneficiary Person with a Disability Person with a Disability and Nondisabled Person Only
Grantor Trust Can Be Yes
Grantor Trustee Can Be No
Discretionary Yes Yes
Inter Vivos Yes Yes
Testamentary Yes No
Revocable Can Be No
Gift Tax Annual Exclusion Can Use Cannot Use
Estate Tax Can Be Excluded Includable

Distributions Payments to Third Parties Payments to Third Parties
Disability SSA Definition SSA Definition
Pay Back Provision No Yes
Medicare Claim No Yes
Medicaid Lien No Yes
Age Limit None Under 65
Qualified Disability Trust Yes No


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 800-533-7227.


2 Elder Law 2008- Expanding and Marketing an Elder Law Practice Program at ABA Annual Meeting

Saturday, August 9, 2008 2:00 - 3:30 p.m.
American Bar Association Annual Meeting, New York City
Hilton New York

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

Charles Sabatino, director of the ABA's Commission on Law & Aging

Kenneth A. Vercammen, Esq. - co-author "Nuts & Bolts of Elder Law", Edison, NJ

Parag Patel, Esq. Iselin, NJ

Joan Burda, Ohio


Primary Sponsors: General Practice Section
Requested co-sponsors: ABA Commission on Law & Aging, Health Law Section,
YLD, LPM, Senior Lawyers Division, Real Probate & Trust Section, Tax Law Section

Topics:
Medicaid Law changes in 2006-2007- Protect yourself from inaccurate advice and malpractice
Getting referrals from other professionals
The aftermath of the Terry Schiavo case and Living Wills.
Forms you can use
Email newsletters
"Representing seniors- Doing well by doing good.-Do you know how?
- Foonberg's 10 page check list."
How to get more referrals and repeat business
How to manage telephone conversations with your clients
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 Medicaid and will need legal advise. Elder Law is one of the biggest growth fields. Substantial changes in Medicaid law requires attorneys to learn ideas to avoid Medicaid/ nursing home liens.

[Contact Kenneth Vercammen, Esq. for program information 732-572-0500]

Contact American Bar Association's ITS at 800-421-0459 for registration

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com




3 New articles added in June, 2008 to Elder Law website:

Guardian Law Changes
Guardianship of Disabled Adults
If Undue Influence was 'Clear,' the Will of the Elderly Testatrix is Denied Admission to Probate.
If you have no Will
Letters of Administration if No Will
Letters of Instruction
Life Insurance Trusts
Action for Guardianship of a Mentally Incapacitated Person, Rule 4:86
Administration of Estates, Probate and Decedents
Answers to Probate Questions
Application to Surrogate's Court for Probate or Administration, Rule 4:80
Codicil to a Will
Compelling the Sale of Jointly Owned Houses-The Partition Suit
Elective Share of Spouse
Estate Planning/ Guardianship Interview Form
Estate/Will/Trust Inheritance Contests
Executor - Duties & Responsibilities

_______________________

-. 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.

General Practice, Solo and Small Firm Division:
Elder Law Committee and the ESTATE PLANNING, PROBATE & TRUST COMMITTEE


Who We Are

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/

Robert Oberhand v. Director, Division of Taxation
(A-106-06) 2-27-08

The July 2002 Amendment to N.J.S.A. 54:38-1 applies to the
estates, but under the circumstances presented, the doctrine of
manifest injustice bars retroactive application of the Amendment
to plaintiffs.

WILLS, PROBATE AND ELDER LAW- Adult and Community Education
WHEN: Tuesday April 8, 2008 7 - 8:30 P.M.
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.
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.
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.

East Brunswick Adult & Community Education Program
East Brunswick HIGH SCHOOL, Cranbury Rd
Course # SPS ....... Fee: $29
Tues. 7:00–9:00 pm ........ 1 session: 4/8

$ 29.00 registration fee required by adult school for all others. Call the Adult Education Office for registration information 732- 613-6989
http://www.ebnet.org/Community_Programs/downloads/Spring_2008_Web.pdf
Please make checks payable to Adult and Community Education and mail to:
Director, East Brunswick Adult and Community Education,
EBHS, 380 Cranbury Road, East Brunswick, NJ 08816-3095.

About the Speaker: Kenneth Vercammen is an Elder Law and Litigation Attorney in Edison, NJ. He often lectures for the American Bar Association and New Jersey State Bar Association on Elder Law, personal injury, and criminal / municipal court matters. He has published 125 articles in national and New Jersey publications on legal topics. He speaks as a volunteer on Wills and Elder law to Adult Community Schools and non profit groups including Edison, Metuchen, Woodbridge, East Brunswick, North Brunswick, South Brunswick, Piscataway, Sayreville, Old Bridge, Spotswood and Perth Amboy Seniors. He has established New Jersey's most popular Elder law website on the Internet to provide information on Probate, Elder Law and Traffic matters located at www.centraljerseyelderlaw.com.

Elder Care Law 2008 Program

WHERE: Jack Cooper's Restaurant, Tano Mall, 1199 Amboy Ave., Edison, NJ

WHEN: February 20, 2008
8:30am Hot Buffet Breakfast
9:00am Meeting Starts

Cost: $15.00 Member of Insurance & Financial Advisors $25.00 Non-Member


Sponsor: Middlesex- Somerset Insurance and Financial Advisors



Information? Tom Schreiner, LUTCF, RFC, CSA, FIC
Email: thomas.schreiner@kofc.org or call 908-722-6336
President of Insurance and Financial Advisors of Middlesex, Somerset, and
Union Counties

SPEAKER: Kenneth Vercammen, Esq. of Edison (Co-Author- NJ Wills & Probate)

Main Topics:
1. Wills and the changes to the NJ Probate Law
2. Power of Attorney with new HIPPA provisions
3. 2008 maximum $$$ per month Medicaid recipient
2008 maximum $$$ per month Medicaid spouse
2008 Lump Sum Medicaid recipient allowed to keep
2008 Lump Sum spouse allowed to keep
Five year look back starts when? 4. Question and Answer

COMPLIMENTARY MATERIAL: Brochures on Wills, "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 and avoid many rigid provisions of state law. For more information on Elder law, visit the Website www.CentralJerseyElderLaw.com

About the Speaker: Kenneth Vercammen is an Elder Law and Litigation Attorney in Edison, NJ. He often lectures for the American Bar Association and New Jersey State Bar Association on Elder Law and litigation matters. He has published 125 articles in national and New Jersey publications on legal topics. He speaks as a volunteer on Wills and Elder law to Adult Community Schools and non profit groups including Edison, Metuchen, Woodbridge, East Brunswick, North Brunswick, South Brunswick, Piscataway, Sayreville, Old Bridge, Spotswood and Perth Amboy Seniors. He has established New Jersey's most popular Elder law website on the Internet to provide information on Probate, Elder Law and Traffic matters located at www.njlaws.com