Will drafted after person deem incapacitated are invalid
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3743-06T23743-06T2
IN THE MATTER OF HARRY
SABLE, AN INCAPACITATED
PERSON,
MICHAEL SABLE,
Plaintiff-Respondent,
v.
BARRY SABLE,
Defendant-Appellant.
Submitted May 19, 2008 - Decided
Before Judges Stern, A. A. Rodr�guez and
Collester.
On appeal from Superior Court of New Jersey,
Chancery Division, Camden County, CP-03-05.
Fox Rothschild, attorneys for appellant
(Jeffrey M. Pollock, of counsel; Mr. Pollock
and Mukti N. Patel, on the brief).
Flaster Greenberg, attorneys for respondent
(Kenneth S. Goodkind and Vincent J. Nolan, III,
on the brief).
PER CURIAM
This appeal pits brother against brother over control of the personal estate and estate plan of their incapacitated octogenarian father.
Harry and Jean Sable were married for many years and resided at their condominium in Cherry Hill. They were the parents of three adult sons, plaintiff Michael Sable, defendant Barry Sable and Don, the middle son. Harry and two partners owned the LeGar building in Philadelphia where Harry conducted his jewelry business, advertising himself as the "King of Wedding Bands."
Harry and Jean had wills prepared by John Lolio, Esq., their personal attorney, to provide for each other and their three sons. Lolio prepared wills for Harry in 1994 and in 1998, with similar provisions. Harry left his entire estate to Jean if she survived him. If she did not survive him, Michael was to inherit the condominium and Harry's interest in the LeGar building; Barry was to receive property at 735 Sansom Street in Philadelphia, held in his name and Harry's name; and Don was to inherit the inventory of Harry Sable, Inc. Stocks and bonds were to be divided equally among the three brothers.
In addition to the wills, Lolio prepared in 1999 a financial power of attorney (POA) for Harry which named Barry as successor to Jean. In December 1999, Lolio prepared a health care POA for Harry which named Michael as successor to Jean. Jean also had a health care POA and, in 1999, she substituted Michael for Harry because of Harry's diminished capacity.
In 1999, the family started to notice Harry exhibiting symptoms of dementia. Although he still worked until late 1999, he became more confused and forgetful. In 2000, Harry was diagnosed with Alzheimer's by Dr. Cook at Pennsylvania Hospital and placed on medication. On February 26, 2001, Dr. Raphael, Harry's primary care doctor, said that Harry was not fully coherent and unable to care for himself or run his business. In July 2001, Dr. Barry Rovner examined Harry for memory problems and hallucinations, and he scored eighteen on the mini-mental exam, a widely used screening tool for assessing cognitive impairment. Harry was examined by Rovner again in July 2002 and scored fourteen on the mini-mental.
After Harry's dementia became apparent, Jean handled the family finances until she suffered a severe stroke in June 2002. At this time, Barry lived in Marlton, Don in Elkins Park, Pennsylvania, and Michael in Los Angeles, California. The following month, the three brothers met with Earl Morgenstern, their parents' accountant, and Lolio, the attorney, to determine how to pay for their parents' care. In the course of that meeting Morgenstern, the co-executor of the parents' estates, discussed estate plans with the brothers. In August 2002, Lolio sent the brothers a letter enclosing copies of the parents' wills and stating:
At the request of Harry Sable, Don Sable and Michael Sable, (the children of Harry Sable) and after receiving the medical evaluations of each parent, I am faxing a copy of your father's and mother's respective Wills dated February 4, 1998. It is my understanding that Earl Morganstern, CPA, who is the substitute Executor of each Will has already discussed the provisions and terms of the Will with each of you at a separate meeting held shortly after our initial meeting. Based on the medical evaluation of each parent, it is apparent that no changes can be made to their wills due to their mental impairments.
Barry and Don met with caregivers, as well as other attorneys and accountants regarding their parents' care, estate and financial planning. Don said neither Jean nor Harry were consulted because the brothers knew their parents "were unquestionably mentally incompetent, my father due to his Alzheimer's and to the degree to which it had progressed and my mother due to the dementia caused by her stroke."
On November 19, 2002, Harry was examined by a neurologist, Dr. Brad J. Tinkelman, who found him disoriented and suffering from dementia, which he suspected was due to Alzheimer's. In March 2003 Harry was again examined by Dr. Rovner. This time he scored a nine on the mini-mental.
Things came to a head in August 2003, when Harry and Jean were at the New Jersey shore with two caretakers and Harry attacked Jean and a caregiver. The police were called and Harry was briefly jailed and involuntarily committed to the Carrier Clinic. Dr. Franco, the treating psychiatrist, said Harry was at times incoherent and dependent on others for basic needs. On September 3, 2003, he was examined by Dr. Ehab Tuppo at the Center for Aging of UMDNJ and was diagnosed with severe dementia. Dr. Tuppo reported Harry scored three on the mini-mental, but he was capable of eating and walking independently.
Meanwhile, also in September 2003, Jean was admitted to Cooper Hospital. Upon her discharge, Michael arranged for her placement at the Jewish Geriatric Home, a nursing home in Cherry Hill, where she remained until her death on January 21, 2005. Both Harry and Barry were upset at Jean's placement at the nursing home. Barry was angry he was not consulted, and Harry wanted Jean to come home. On two occasions Barry attempted to take Jean out of the nursing home, and the police were called.
A geriatric psychiatrist examined Harry on October 1, 2003, found him disoriented as to time and place and lacking understanding as to why Jean was in the nursing home.
Both Harry and Barry continued to press for Jean's discharge from the nursing home despite Michael's claim that she wished to remain. Finally, in October 2003 suit was filed by Michael Kouvatas, Esq., on behalf of Barry and Harry as co-plaintiffs against Michael and the nursing home to compel Jean's release and for appointment of Harry as Jean's guardian. The lawsuit was subsequently dismissed after Jean's death.
Also in October 2003, Barry took his father to Lolio's office for the purpose of changing Harry's will. After meeting with Harry alone, Lolio said Harry was not competent, and he refused to change the will. Lolio later testified that:
[Harry] was not competent to understand what I was saying, he didn't know where he was, didn't know the day of the week, didn't know the month, didn't know who the President was, just didn't have a general understanding of anything at that point in time. So I basically refused to continue
. . . preparing any new documents for Harry because I felt and believed that he wasn't competent enough to understand what he was doing.
Five days later on October 8, 2003, Harry was examined at his home by Dr. Murray H. Moliken, a doctor of geriatric medicine. The examination was videotaped, and the transcript indicates that Harry had difficulty answering, without assistance, many of Moliken's questions. Dr. Moliken did not review Harry's prior medical records, stating that he did not want other opinions to influence him. He was also not aware that Harry had been involuntarily admitted to Carrier Clinic in August 2003, or that Harry had been diagnosed with Alzheimer's.
Dr. Moliken said his questions to Harry were based on information obtained from Barry, Harry's caregiver, and attorney Kouvatas. He said he did not believe that Harry was capable of providing the necessary information for the examination. Dr. Moliken believed it was rational for Harry to be upset that Jean was in the nursing home. He concluded that Harry was mentally impaired to some extent but that he understood what he wanted for his wife and how his assets should be distributed. Dr. Moliken later testified to his opinion that Harry had testamentary capacity when he examined him in October 2003.
After Dr. Moliken's examination, Barry called Kouvatas and told him that Harry wanted to draft estate planning documents. On October 24, 2003, Harry revoked his health care POA naming Michael, and signed a new health care POA naming Barry with no alternate. Kouvatas also prepared a new will for Harry which made no disposition for Jean, although she was still living at that time, and left the entire estate to Barry. After Harry expressed some concern over the dispositions, Kouvatas prepared another will in November 2003 which provided that Harry's entire estate should go to Jean in trust if she survived him, and the remainder to Barry. The will also provided that if Jean predeceased Harry, the estate was to be divided with Barry receiving seventy-five percent and Don the remaining twenty-five percent. There was no disposition for Michael. Harry signed the will, witnessed by two attorneys, and executed another financial POA in favor of Barry granting him even broader powers over Harry's finances than the prior POA.
In January 2005, Michael filed a complaint, later amended, to have Harry declared incapacitated, to remove Barry as Harry's guardian, to appoint a new guardian, to void POAs and any will executed by Harry after October 1, 2003, due to Harry's incapacity and Barry's undue influence, and for costs and attorney fees. Barry filed an answer and counterclaim to be named guardian of Harry's person and property. On March 21, 2005, Judge Vogelson held a pretrial hearing following which he determined that Harry was incapacitated, and appointed a temporary guardian for his person. Subsequently, on March 20, 2006, the court granted Michael's motion and appointed a permanent care manager for Harry after removing Barry as guardian over Harry's property on grounds he had mismanaged the accounts and used Harry's assets for personal gain. Martin Abo, CPA, was appointed as a temporary guardian over Harry's property, and he directed Barry to provide him with financial records to review transactions of Harry's assets after October 1, 2003.
The trial began in May 2006 and continued over several trial days. Since there was no dispute that Harry was incapacitated, the central issue was whether he was incapacitated and lacked testamentary capacity when he executed the will and other documents in October and November 2003.
Michael presented the testimony of Dr. Jeffrey M. Kargman, who was qualified as an expert in geriatric psychiatry. Dr. Kargman reviewed reports of various physicians who had examined Harry dating back to 2001, all of which stated Harry suffered from dementia. He conducted a clinical interview of Harry, reviewed the discovery and discussed the matter with doctors at Carrier Clinic as well as Dr. Moliken. He concluded that Harry suffered from dementia, Alzheimer's type, since at least 2001 and opined that, as of October 1, 2003, Harry did not have the capacity to execute a will and related documents. He found that Harry did not understand his own financial status at that time and did not have the capacity to understand concepts necessary to knowingly execute a will such as a trust. Moreover, he found that Harry was very susceptible to Barry's influence.
Don Sable testified that Barry restricted Harry's access to his other sons and instructed his caregiver not to permit Harry to meet with them alone. Other witnesses testified to examples of Barry bullying Harry and pressuring him to speak in accordance with Barry's instructions.
Evidence was also presented of Barry's misapplication and misappropriation of Harry's assets. Barry was also unable to document how he had spent significant amounts of his father's money. He conceded that he had borrowed $78,000 without any documentation showing that it was paid back as he claimed. He moved all the inventory from his father's store to his own business, claming it was for reasons of security. He also removed jewelry and cash worth about $30,000 from a safe deposit box, most of which he never returned. In August 2004, he used his POA to deed 735 Sansom Street, which had been held in his name and Harry's, to himself alone, claiming Harry's name was only on the deed because Harry had originally lent him the down payment, which he repaid. He said he paid $254,176 in legal bills on behalf of his father but could only document about $60,000. Moreover, he lost a check for $35,000, and that created a cash flow problem that he solved by withdrawing $30,000 of Harry's IRA assets, resulting in an unnecessary tax liability.
On December 14, 2006 after testimony had concluded, Judge Vogelson issued a lengthy oral opinion setting forth his findings and legal conclusions. He found the testimony of Michael's witnesses to be credible. He accepted Dr. Kargman's opinion that Harry suffered from dementia Alzheimer's type dating back to at least 2000, that his cognitive dysfunction worsened over succeeding years so that he did not have the mental capacity in 2003 to execute a last will and testament or power of attorney, and that could be easily controlled or manipulated by Barry. He found that attorney Lolio and CPA Morgenstern were credible in their judgments that both Jean and Harry were so mentally incapacitated that they could not modify their wills or execute other estate planning documents. He further found credible Lolio's recollection of the incident when Barry brought Harry to his office for the purpose of changing his will and Lolio's refusal to do so after meeting alone with Harry and determining that Harry lacked the mental and legal capacity to do so. Judge Vogelman noted that Barry denied ever taking Harry to Lolio's office to change his will and found that to be "incredible" and unworthy of belief.
In contrast, Judge Vogelson found that Barry and his witnesses lacked credibility. With respect to Dr. Moliken's testimony and similar testimony from his associate Dr. Monzo that Harry was competent to execute the new will and accompanying documents prepared by attorney Kouvatas, Judge Vogelson faulted the testimony since neither doctor considered Harry's medical history and the reports of the numerous physicians who noted Harry's dementia. Moreover, after reviewing the videotaped interview between Dr. Moliken and Harry, the judge stated that Dr. Moliken's opinion totally lacked merit, at one point describing it as "just fantastic testimony."
The judge further rejected the testimony of attorney Kouvatas, noting that he represented both Barry and Harry and later acknowledged that "Barry is running the show," confirming that Harry did not have independent counsel when he signed the will and other documents. The judge described the circumstances surrounding the preparation and execution of the wills and documents prepared by Kouvatas as "unusual and suspicious." Finally, he found Barry's testimony lacked credibility as to all major issues.
Judge Vogelson found that a confidential relationship existed between Harry and Barry and that Barry exercised undue influence on his father, controlling and manipulating him at a time when he did not have the strength of mind to resist. He accepted the testimony of Don Sable and other witnesses that Barry kept his father away from the other brothers in order to exercise greater power over his father and rejected Barry's denials as not credible. The judge added:
There is no question in the Court's mind and I so find that Harry was — had enfeeble [sic] mind caused by the Alzheimer's to such an extent that it was easily subject to the undue influence of Barry Sable and those associated with him. . . . Harry, the Court finds, would not in any circumstances have disinherited his wife or his son, Michael absent undue influence. He wouldn't have partially disinherited his son, Don, and that he relied totally on Barry and trusted Barry, that Barry was at all times acting in a fiduciary capacity in relationship with his father under various durable financial powers of attorney, and I find further that at all relevant times, Barry was in a confidential relationship with Harry as his son and as the person primarily responsible for taking care and as agent under his power of attorney.
On December 19, 2006, Judge Vogelson set forth his factual findings and legal conclusions in a written summary as follows:
The Court finds as fact that Harry Sable lacked the mental capacity as of October 1, 2003, and continually thereafter to the present date, to execute a will or any other document, to act as a plaintiff in this lawsuit, to act as a guardian for any other person, and to govern himself and manage his own affairs; that all three of his sons were aware of his level of incapacity and acted in accordance therewith in excluding Harry Sable from all decision making as to health care and finances regarding not only himself, but his wife also. Further, the Court finds Harry Sable's long time estate planning attorney, John Lolio, Esquire, who was fully familiar with Jean and Harry Sable, recognized in 2002, in part from medical records supplied to him by the three sons, that both Harry Sable and Jean Sable were so incapacitated that their wills could not be altered and that the three sons obtained copies of their parents wills and powers of attorney only after convincing John Lolio, Esquire and Earl Morganstern, C.P.A. that Jean and Harry Sable were so mentally incapacitated as to be forever unable to modify their wills and other estate planning documents. The Court further finds that John Lolio, Esquire, met with Barry Sable and Harry Sable on October 3, 2003 and again determined that Harry Sable was so incapacitated that he could not validly execute a new will and therefore refused the demands of Barry Sable he prepare a new will for Harry Sable. The Court also determines that the opinions of Dr. Moliken, Dr. Monzo, Michael Kouvatas, Esquire, Philip Fuoco, Esquire and Joseph Osefchen, Esquire, were not credible, in light of their failure to obtain and consider abundant medical information to the contrary that was readily available and that the opinions of Dr. Kargman, Michael's expert and the numerous treating physicians upon whom Dr. Kargman had relied and who had seen and treated Harry Sable from 1999 through 2003, who commented on Harry Sable's level of incapacity, are credible, accurate and persuasive.
The Court therefore concludes that any and all documents executed by Harry Sable on or after October 1, 2003, are null and void and of no legal force or effect whatsoever as a result of Harry Sable's mental incapacity at that time. Further, the Court concludes that Michael Sable has proven by clear and convincing evidence that Harry Sable lacked the mental capacity to execute a will or any other legal documents on or after October 1, 2003, so that his request for relief seeking to void all such documents is granted, together with counsel fees and costs.
It is the further opinion of the Court that while I have determined Harry Sable lacked testamentary capacity, even if he had had such capacity, at all relevant times in this matter a confidential relationship existed between Barry and Harry and Barry was primarily responsible for taking care of his father and his finances. As a result, there has been established a rebuttable presumption of undue influence against Barry, causing the burden of proof to shift to Barry, requiring him to prove by clear and convincing evidence that undue influence did not exist. He has failed to provide such proofs. Accordingly, Barry unduly influenced his father, to the extent, if at all, that Harry had capacity to execute any documents on or after October 1, 2003 to the present substituting his will for his father's, thereby rendering null and void any and all documents executed by Harry Sable on or after October 1, 2003.
The application by Barry to be reinstated by this Court as his father's healthcare and financial agent is denied as not being in Harry's best interest and is dismissed. The Court takes notice of Michael Sable's arguments in his successful motion and proceedings for removal of Barry as healthcare and financial agent of his father and the Order entered on March 20, 2006, in addition to considering the evidence adduced at the trial in this matter.
As a result of the foregoing, the Court determines that Barry Sable is liable of counsel fees and costs in this litigation and the Jean Sable litigation and counsel may submit affidavits of services and costs in support of such request, serving copies on Harry Chandless, Esq.
On January 11, 2007, Judge Vogelson heard oral argument on the amount of damages incurred as a result of Barry's
breach of his fiduciary duty. He entered final judgment on January 31, 2007 removing defendant as Harry's guardian, invalidating all documents executed by Harry after October 1, 2003, and ordering defendant to pay Harry's estate $254,176 unnecessarily expended on litigation involving Jean, as well as surcharges for money unaccounted for by defendant in the amount of $162,222.93. Attorney fees and costs were also awarded in the amount of $298,641.
On appeal, Barry argues Judge Vogelson erred as follows: (1) by admitting and accepting the expert opinion of Dr. Kargman; (2) by improperly finding undue influence through application of an incorrect burden of proof to rebut the presumption; (3) by improperly invalidating Harry's 2003 will when he was still alive; (4) by improperly assessed counsel fees and costs; and (5) by incorrectly finding that Barry breached a fiduciary duty.
Barry asserts the opinion of Dr. Kargman that Harry was incompetent as of October 1, 2003 was inadmissible as a net opinion and was improperly relied on by Judge Vogelson in reaching his conclusion. We disagree. Under our rules of evidence an expert's opinion may be based upon facts or data of the type reasonably relied on by experts in that field. While an expert medical opinion must conform to general medical standards and not standards personal to the witness, Fernandez v. Baruch, 52 N.J. 127, 130-31 (1968), personal observation is a fact that can form the basis for an opinion. Buckelew v. Grossbard, 87 N.J. 512, 530 (1981); Savoia v. F. W. Woolworth Co., 88 N.J. Super. 153, 163 (App. Div. 1965). However, bare conclusions, unsupported by factual evidence, are inadmissible as a net opinion. State v. Townsend, 186 N.J. 473, 493 (2006). "In essence, the net opinion rule requires an expert witness to give the why and wherefore of his expert opinion, not just a mere conclusion." Vitrano by Vitrano v. Schiffman, 305 N.J. Super. 572, 575 (App. Div. 1997).
Barry argues that Dr. Kargman relied upon the mini-mental exam scores or medical reports that contradicted his own findings as well as reports from doctors not qualified to render an opinion as to Harry's capacity and that therefore his opinion was a net opinion "based on unfounded speculation or mere possibilities." Kaplan v. Skoloff & Wolfe, P.C., 339 N.J. Super. 97, 103 (App. Div. 2001); Constantou v. Ventriglia, 324 N.J. Super. 437, 451 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000). Specifically, Barry argues Dr. Kargman relied on mini-mental examination results that he ultimately agreed were inaccurate because the numerical scores of 14 in July, 2002, 9 in March 2003, 3 in September 2003, and 9 in January 2003 were inconsistent since Alzheimer's is a progressive disease. Barry's contention that when an expert bases his or her opinion on a particular fact being true and the fact later turns out to be untrue, the court cannot rely on that expert's opinion. See Todd v. Sheridan, 268 N.J. Super. 387 (App. Div. 1993). However, in Todd the factual assumption of the expert was a make-or-break factual issue on which the opinion was grounded. Such is not the case at bar. Barry argues to the contrary that Dr. Kargman relied almost entirely on the mini-mental exam scores but later admitted that the scores did not comport with the usual progression of Alzheimer's. Barry argues that the mini-mental exam scores contradict Dr. Kargman's findings and that, therefore, the whole foundation of Dr. Kargman's testimony was faulty and inadmissible.
We do not agree with Barry's characterization of Dr. Kargman's testimony. Dr. Kargman acknowledged that the scores were irregular and the September 2003 score might have been inaccurate, but he did not discount the validity of mini-mental exams. Rather, Dr. Kargman stated that the test itself is a screening test, and that many other factors are taken into account in determining mental incapacity including cognitive function, behavior, and the impression of others who have contact with the patient. In fact, in preparation for his report, Dr. Kargman reviewed Harry's medical files and the reports of many other physicians including the physicians who treated Harry at the Carrier Clinic and even Dr. Moliken. He stated that Harry's behavior as observed by others in September 2003 indicated that, while the score of three that Harry received at that time might not have been accurate, the assessment that Harry was incompetent at that time was supported by other facts. While Dr. Kargman did not invalidate the mini-mental exams, he did not rely on them to the exclusion of the other data.
Barry further argues that Dr. Kargman improperly relied on reports by doctors who were not experts in psychiatry and did not render opinion as to Harry's capacity, including a gastroenterologist, a urologist, and an oncologist. There is no merit to the arguments because although the physicians were not experts in psychiatry, their observations of Harry's behavior were relevant. Moreover, those impressions from other physicians were only part of the data that Dr. Kargman relied upon in forming his expert opinion. Dr. Kargman's opinion included his own examination of Harry, his interviews with other doctors including Dr. Moliken, his review of Harry's medical records, and his own experience in the field. Based on all of this data, Dr. Kargman formed an expert opinion that was not a net opinion and properly considered by Judge Vogelson.
Barry next poses the legal argument that the trial court improperly determined the validity of a will when the testator was still living. This legal argument was not made before Judge Vogelson, and an issue not properly raised below may not be raised on appeal unless it concerns jurisdiction or a matter of "great public interest." Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Similarly, an error which is not brought to the attention of the trial court is not ground for reversal by the appellate court unless there is a showing of plain error, i.e., error "clearly capable of producing an unjust result." R. 2:10-2. Nonetheless, we offer the following comments.
Ordinarily, a will is "ambulatory and speaks only as of the death of the testator." Matter of Will of Reilly, 201 N.J. Super. 306, 311 (App. Div. 1985). Barry argues that because Harry is still living, the court had no power to invalidate his October 2003 estate planning documents or his November 2003 will because they could not be challenged until after Harry's death.
In response, Michael cites In re Niles, 176 N.J. 282, 289-90 (2003), to support the claim that the court was within its power to nullify the will while Harry was still living.
In Niles, Laura Niles, an elderly woman with substantial assets, was influenced to change her testamentary plan to benefit her new sister-in-law's family. While Laura was still living, her former trustee filed a complaint to appoint a guardian on the ground that Laura had been unduly influenced to change her will and trust agreements. A trial was conducted and Laura was adjudicated to have been mentally incompetent to have executed a will or any other document. The new will was declared null and void because it was the result of undue influence. The trial court re-instated the original will and trust agreements and awarded attorney fees.
At no point in Niles was it indicated that it was impermissible to determine whether the will was the result of undue influence because the testator was still living. On the contrary, by implication Niles stands as authority for the proposition that when a live testator is adjudicated incompetent as of a particular date, any documents executed subsequent to that date may be invalidated.
Similarly, in In re Cohen, 335 N.J. Super. 13, 32-33 (App. Div. 2000), certif. denied, 167 N.J. 632 (2001), the issue was whether a testamentary plan could be changed for tax purposes if it was in conformity with the wishes of the mentally incompetent testator who was still living. The court ultimately determined that the proposed change to the testator's will was not in accordance with her testamentary plan while she was still competent. Again, by implication Cohen is authority for the proposition that a will may be invalidated during the lifetime of a testator. In fact, the court cited N.J.S.A. 3B:12-49, -50, and -62, which allow the court to transfer assets, make gifts, and change beneficiaries under life insurance policies on behalf of the incapacitated testator so long as such changes are in keeping with the original estate plan. In re Cohen, supra, 335 N.J. Super. at 29-32.
Barry points to the last sentence of Cohen which states, "[w]e agree with the Chancery Division judge's ruling that it would be premature for any party to contest Henrietta's will and trust while she is alive." Id. at 33. Barry contends this language establishes that Harry's will can not be contested while he is still alive. However, in Cohen the action was brought to challenge the will while here the action was instituted to adjudicate Harry incompetent and to invalidate all the documents that he signed in October and November 2003. The same proofs were necessary to show incapacity to execute the POAs as would have been required to invalidate the will. There is no need for an additional trial to invalidate the will since the same result would be reached given the court's determination that Harry was mentally incapacitated as of October 1, 2003.
Barry cites N.J.S.A. 3B:12-27 for the proposition that a person who has previously been adjudicated incompetent may return to competency, at which point a court could adjudicate him or her competent to write a new will. After a court has adjudicated a person mentally incompetent according to N.J.S.A. 3B:12-25, the person may bring an action to determine that he or she has returned to competency. N.J.S.A. 3B:12-28. If so, the court may adjudicate the person fully or partially competent and restore his or her rights as of the time of the return to competency. N.J.S.A. 3B:12-28. Given that the court determined Harry to be incompetent as of October 1, 2003, if Harry did return to competency and the court so adjudicated him, he would be entitled to execute a new will. N.J.S.A. 3B:12-28. But there is no suggestion that Harry has returned to competency and more to the point, this would not affect the validity of the November 2003 will which the court determined was executed by Harry while mentally incapacitated. In this regard, Barry relies on the testimony of Dr. Moliken, who when asked whether Harry was oriented to time and place, said he was about "50/50" and added that a person with dementia could "have a good day" and "have a bad day." However, even accepting this testimony, there is no proof that the November 2003 will was executed during a "good day" or during a moment of lucidity, and Judge Vogelson found to the contrary.
We conclude therefore that after Harry was adjudicated incompetent as of October 1, 2003, all documents after that date, including the will, were properly invalidated.
Addressing Judge Vogelson's determination of undue influence, Barry contends it was error to require him to rebut the presumption of undue influence by clear and convincing proof as opposed to a preponderance of the evidence.
In Haynes v. First National Bank of New Jersey, 87 N.J. 163, 175-76 (1981), our Supreme Court set forth the standard for determining the correct burden of proof for rebutting a presumption of undue influence. There, the testatrix, Ms. Dutrow, had two children, Dorcas and Betty, and her will divided the estate evenly between them. After Betty's death, Ms. Dutrow moved into Dorcas' home and became dependent on Dorcas for care and companionship. Dorcas substituted her attorney for Ms. Dutrow's long-time attorney, and he drew up a new will signed by Ms. Dutrow that substantially disinherited Betty's children. The Court pointed out the two necessary factors for proof of undue influence: the first is a confidential relationship which can be proved by the testator's dependence and reliance on the proponent of the will for companionship, care and support. Id. at 175-76. The second element is "suspicious circumstances," which do not need to be substantial. When these two elements exist, a presumption of undue influence arises, and the proponent of the will must overcome the presumption by a preponderance of the evidence. Id. at 177-78. However, in some cases, such as when an attorney who drafts the will also benefits from it, a higher standard of proof is required to rebut the presumption. In Haynes the Court held that because the attorney who prepared the will represented both testator and proponent of the new will and because there was no proof the attorney disclosed the conflict of interest to the testator, "clear and convincing" proof was necessary to overcome the presumption of undue influence. Id. at 184-85.
Here, the facts are remarkably similar in that Kouvatas represented both Barry and Harry in the Jean lawsuit and Barry conceded that he told Kouvatas what changes needed to be made to Harry's estate plan. Moreover, Kouvatas' billing reflects numerous conversations with Barry and almost none with Harry in October and November 2003. And nothing in the record indicates that Kouvatas ever disclosed to Harry that there was a conflict of interest in his representing both Harry and Barry. Accordingly, Judge Vogelson held that there was a rebuttable presumption of undue influence and Barry had the burden to prove by clear and convincing evidence that undue influence did not exist.
Barry contends that if the correct standard of proof of "preponderance of the evidence" had been applied, there was sufficient evidence to rebut the presumption of undue influence because Dr. Moliken, Kouvatas, and the two attorney witnesses to the execution of the will testified that Harry wanted to change his will and understood what he was doing. However, Judge Vogelson specifically found that the opinions of Dr. Moliken, Kouvatas and the other witnesses that Harry had testamentary capacity were not credible, "especially in light of their failure to obtain and consider abundant medical information" available to them. There is abundant credible evidence in the record to sustain this finding by the judge.
We agree with Judge Vogelson that there was a conflict of interest resulting from Kouvatas representing both Harry and Barry so that the higher standard of clear and convincing evidence was required to rebut the presumption of undue influence. Moreover, in light of Judge Vogelson's credibility findings Barry did not satisfy the burden under the preponderance of evidence standard so that he failed to rebut the presumption of undue influence under either standard of proof.
Barry next asserts that Judge Vogelson erred in finding he breached his fiduciary duty because Harry suffered no provable damages. Judge Vogelson concluded that Barry breached his fiduciary duty under the POA given by Harry and caused damage to the estate. He directed Barry to repay $254,176 in unnecessary litigation costs, as well as a surcharge of $162,223 for losses incurred as a result of mismanagement of Harry's assets.
There is sufficient credible proof in the record to uphold Judge Vogelson's findings that Barry breached his fiduciary duty to properly manage Harry's finances. Barry lost a check so that he withdrew Harry's IRA assets prematurely. He took loans that were never documented and he never accounted for money he took from a safe deposit box. For this mismanagement, the court awarded the surcharge of $162,222 which included Abo's fee in the amount of $90,000. Furthermore, the judge found Barry expended estate funds to litigate both the Jean lawsuit and this matter, actions which the court determined were not in Harry's but in Barry's interest and resulted in unnecessary attorney fees of $254,176 on behalf of the estate. Barry was thus held liable to the estate for these litigation expenses, under N.J.S.A. 3B:14-35, which provides: "If the exercise of power concerning the estate is improper, the fiduciary is liable to interested persons for damage or loss resulting from breach of his fiduciary duty...."
Barry argues he cannot be required to pay sums that were already paid, but there is an inadequate specification of which he claims were already paid. Abo, the accountant, described the difficulty of getting Barry or his accountant to substantiate the expenses made on behalf of Harry. Therefore, we find that Judge Vogelson correctly held that Barry breached his fiduciary duty, that Harry's estate suffered a loss because of that breach, and that Barry is liable to the estate for damages.
Lastly Barry argues that the court improperly assessed costs and attorney fees against him. Judge Vogelson awarded costs and attorney fees in the amount of $298,641, stating that the amounts expended by Michael were fair, reasonable and necessary and that if not for the litigation pursued by Michael, the misuse of Harry's property and defalcations by Barry would never have been discovered.
In a proper case the award of counsel fees is discretionary with the court and will not be reversed "absent a demonstration of manifest abuse of discretion." In re Probate of Alleged Will of Landsman, 319 N.J. Super. 252, 271 (App. Div.), certif. denied, 161 N.J. 335 (1999). New Jersey abides by the American Rule that parties are responsible for their own attorney fees. But Rule 4:42-9 specifies actions in which an award of attorney fees is allowable. The rule provides for fees in certain types of probate and guardianship proceedings, R. 4:42-9 (a)(3); it does not provide for fees when a fiduciary duty is breached. However, the court rule does not preclude a counsel fee allowance "if the incurring thereof is a traditional element of damages in a particular cause of action." Pressler, Current N.J. Court Rules, comment 2.9 on Rule 4:42-9 at 1602-03 (2009); Gerhardt v. Continental Ins. Co., 48 N.J. 291 (1966); see also Restatement (second) of Torts, section 914 (1979).
In Niles, supra, 176 N.J. at 298, the Supreme Court allowed as an exception to the American rule all reasonable counsel fees against a fiduciary who profited from the "pernitious tort of undue influence" on a testator or trust settlor. The Court stated the exception applied to cases "in which an executor's or a trustee's undue influence results in the development or modification of estate documents that create or expand the fiduciary's beneficial interest in the estate." Id. at 299. The Court explained that there was a special status in cases where undue influence is proved for "undue influence represents such an egregious intentional tort that it establishes a basis for punitive damages in a common law cause of action." Id. at 300.
The Niles court balanced the adherence to the American Rule with the need to make the victims of perfidious behavior whole, stating that in situations "when important public policy concerns are involved," the Court may carve out additional exceptions to the rule. Id. at 299. The Court compared the case to one involving attorney malpractice where attorney fees are awarded because the responsibility of the court is to make the victim whole. Because the fiduciary relationship and the attorney-client relationship are both premised on "utmost trust," and because an attorney and a trustee both act as officers of the court when acting on behalf of clients and beneficiaries, the Court extended the existing exception to the American Rule in attorney malpractice cases to include actions to establish a fiduciary's liability, holding that when an executor or trustee commits the pernicious tort of undue influence it should result in an award of all reasonable counsel fees and costs. Id. at 298-99.
Barry argues that there is no authority for the award of counsel fees against him because this case does not fit the exceptions enumerated in Rule 4:42-9, and he was not an executor of the estate or a trustee as was the defendant in Niles. We disagree. Even though defendant was not an executor or a trustee as was the case in Niles, he controlled Harry's estate under the POA, and based on the findings of Judge Vogelson, he influenced Harry to change the estate plan to benefit himself. The rationale for the award of attorney fees in Niles was that the estate should be made whole when "undue influence results in the development or modification of estate documents that create or expand the fiduciary's beneficial interest in the estate." Id. at 299. This is exactly what occurred in the instant case. Under principles of law and public policy set forth in Niles, Judge Vogelman properly awarded counsel fees and other related costs.
Affirmed.
31
A-3743-06T2
February 11, 2009
Sunday, March 22, 2009
N.M. v. Division of Medical Assistance and Health
Services and Monmouth County Board of Social Services 02-26-09
A-0828-07T1
Under an amendment to the statutes governing the federal
Medicaid program enacted as part of the Deficit Reduction Act of
2005, the value of an annuity purchased for the sole benefit of
the "community spouse" may be considered in determining whether
the resources of the "institutionalized spouse" exceed the
"resource limit" for Medicaid eligibility.
Services and Monmouth County Board of Social Services 02-26-09
A-0828-07T1
Under an amendment to the statutes governing the federal
Medicaid program enacted as part of the Deficit Reduction Act of
2005, the value of an annuity purchased for the sole benefit of
the "community spouse" may be considered in determining whether
the resources of the "institutionalized spouse" exceed the
"resource limit" for Medicaid eligibility.
Sunday, March 15, 2009
ABA GP Solo ELDER LAW COMMITTEE Newsletter Spring, 2009
ABA General Practice, Solo and Small Firm Division
Chairs - Kenneth Vercammen, Edison, NJ and Jay Foonberg, Beverly Hills, CA
In this issue:
1. The Legal Authority for Requiring a Medicare Set-Aside Arrangement
2. NUTS & BOLTS OF ELDER LAW & ESTATE ADMINISTRATION SEMINAR
3. Elder Law, Estate Planning & Probate- New ideas to expand & excel your practice Sat. August 1, 2009
1 The Legal Authority for Requiring a Medicare Set-Aside Arrangement.
s Medicare Secondary Payer Act The authority for the Centers for Medicare and Medicaid Services (CMS) to require consideration of a plaintiff’s future medical expenses is found in the Medicare Secondary Payer Act (MSPA). Under the MSPA Medicare is generally precluded from paying the beneficiary’s medical expenses when payment “has been made or can reasonably be expected to be made under a worker’s compensation plan, an automobile or liability insurance policy or plan (including a self-insured plan) or under no-fault insurance. Medicare payments are conditional on reimbursement from the primary payer. The requirements for Medicare Set-Aside Arrangements (MSA) have developed over the years in a series of memoranda issued by CMS. The MSPA applies to both past and future medical expenses.
s Medicare, Medicaid and SCHIP Extension Act of 2007. Historically, CMS has enforced the provisions of the MSPA only in worker’s compensation cases. However, the passage of the Medicare, Medicaid and SCHIP Extension Act of 2007 requires all insurers, third party administrators for group health plans, self-insured plans, and self-administered plans to identify situations where the plan is or has been a primary plan to the Medicare program. There is a civil penalty of $1,000 per day for non-compliance. The plan shall determine whether a claimant is entitled to benefits under the Medicare program. If the claimant is determined to be so entitled, the plan must submit a report including the identity of the claimant and such other information as the secretary shall specify.
0. The reporting requirements for group health plans being January 1, 2009. The reporting for liability cases begins July 1, 2009. The report includes the contact information for the personal injury attorney.
s CMS Regional Coordinator Pronouncement. According to Sally Stalcup, Region VI, MSP Regional Coordinator, CMS, “At this time, the Centers for Medicare and Medicaid Services (CMS) is not soliciting cases solely because of the language provided in the general release. CMS does not review or sign-off on counsel’s determination of the amount to be held to protect the Trust Fund in most cases. If we do, however, urge counsel to consider this issue in settling the case and recommend that their determination as to whether or not the case provided recovery funds for future medicals (emphasis added) be documented in their records. Should they determine that future services are funded, these dollars must be used to pay for future otherwise Medicare covered case-related services. There is no formal CMS review process in the liability arena as there is for worker’s compensation. On rare occasions, when the liability is large enough or other unusual facts exist within the case, the CMS Regional Office will review the settlement and help make a determination on the amount to be available for future services.”
s Anticipated Impact of the Medicare, Medicaid and SCHIP Extension Act of 2007. The likely outcome of the reporting requirements of the Medicare, Medicaid and SCHIP Extension Act of 2007 is that insurance companies will begin to require MSAs in third party liability cases. There is no reason for insurance companies to run the risk of failing to establish an MSA.
The Theory Behind a Medicare Set Aside Arrangement.
s Contrived Shift. Under the Medicare Secondary Payer Act, Medicare makes conditional payment for medical expenses for beneficiaries with the understanding that Medicare will be paid when the beneficiary receives payment from a third party. Medicare is opposed to any settlement that results in a contrived shift to Medicare of responsibilities of a claimant’s future medical care. In settling claims, Medicare’s interest must be considered. The solution to the problem of burden shifting is to establish a Medicare Set-Aside Arrangement (MSA).
s Past and Future Medical Bills. Medicare has a right of recovery for past medical bills up to the date of the settlement. The Medicare Secondary Payer Act also applies to third party liability situations in which the settlement or award includes payment for future medical expenses. Medicare is not bound by the release with respect to an allocation for future medical expenses. If Medicare determines that the injured party will have future medical expenses then a Medicare Set-Aside Arrangement is expected.
When is an MSA Required?
While the MSPA clearly establishes a requirement that Medicare’s interest be considered in liability cases, there are no rules or regulations under the MSPA. While there are no rules in Worker’s Compensation (WC) cases either, CMS has issued memos advising the establishment of MSA’s in WC cases, but there are no requirements. Obtaining CMS’ approval of a proposed MSA does provide assurance to the parties that the set aside amount is acceptable to CMS. The prudent course of action might be to follow those in liability cases. While an MSA is always required, it is not necessary to submit an MSA proposal to CMS:
• the settlement exceeds $25,000 and the claimant is currently
eligible for Medicare; or
• the settlement is for more than $250,000 and the plaintiff can
reasonably be expected to become eligible for Medicaid
within 30 months.
If an individual is in the process of filing, appealing or re-filing for SSDI, that person is included in the 30-month window notwithstanding the fact that a previous application may have been denied and have not been appealed. An individual who is 62 years and 6 months of age could be eligible within 30 months, and an individual suffering from End-Stage Renal Disease (ESRD), but who does not yet qualify for Medicare based on ESRD, would also be considered a person having a “reasonable expectation” of Medicare enrollment within 30 months.
If it is absolutely clear that there will be no future medicals as a result of the injury subject to the litigation, then no MSA is required.
It is important to note that a beneficiary may not waive his right to future Medicare in order to avoid establishing an MSA.
In determining whether the $250,000 threshold is met, if there is a structured settlement the value of the structure rather than the cost is used. Also, in determining whether the $250,000 threshold is met, past medicals, future medicals, attorney’s fees and costs are included.
What is the Risk to the Personal Injury Attorney for Failing to Establish an MSA?
s Double Damages. Plaintiff’s attorneys who fail Medicare’s interest are potentially responsible for double damages. CMS is authorized to bring an action “against any entity” including a beneficiary, provider, supplier, physician, attorney, state agency or private insurer that has received any portion of a third party payment directly or indirectly, if those third party funds – rather than Medicare – should have been paid for the injury-related medical expenses.
0.
s Potential Malpractice. In addition, there is a malpractice risk. Plaintiffs who have not established an MSA and who file future claims for Medicare may have those claims denied. CMS has taken the position that where no MSA has been established, the entire settlement can be considered for future medicals and Medicare will not pay the plaintiff’s medical bills until an amount equal to the entire settlement has been spent for the plaintiff’s medical care. Each personal injury attorney must decide how much risk he or she is willing to accept in order to avoid establishing an MSA.
How is the Set-Aside Amount Determined?
There are companies who will calculate the set-aside amount. The amount is determined by evaluating past medical treatment, current medical condition, and the probability of future medical needs, as well as other factors. Future medicals are limited only to those expenses that Medicare would pay that are related to the injury. Medicare does not pay all medical expenses. There are some services that are not covered; there are deductibles, co-payments and maximums per spell of illness. The MSA need not contain monies for those services that would not be covered by Medicare. In calculating the set-aside amount the plaintiff’s life expectancy is considered. It is often useful to obtain a rated age as a part of this process. The rated age shows that a person’s actual life expectancy may be considerably shorter than their actuarially life expectancy, so that less money is required to be set aside.
Once a Medicare Set-Aside amount is calculated in a worker’s compensation case, it is submitted to Medicare for approval. While CMS maintains that a set-aside is necessary in liability cases, there is no mechanism for approval at this time.
CMS is not bound by an allocation for future medicals made by the parties in the settlement agreement. CMS may disregard any such allocation and make its own calculation as to the cost of future medicals.
The cost of future prescription drugs must be considered in calculating the set-aside amount.
Administering the MSA.
There are four possibilities for administering an MSA:
s Self-Administered Accounts. These accounts are usually small accounts and are administered by the claimant. No formal agreement is necessary. The claimant must follow the same accounting rules as a professional administrator, but it is likely that most claimants will not comply, but the liability of the personal injury lawyer should terminate when the MSA is established.
s Custodial Account. A larger account is usually administered by a custodian. These are professional organizations that have expertise in medical claims administration. They charge a fee and are recommended where financially justified.
s Medicare Set-Aside Trusts. A Medicare Set-Aside Trust is a formal trust with a trustee. These are usually used for large accounts. They are also used in connection with Special Needs Trusts if the plaintiff is receiving means-tested public benefits such as SSI, Medicaid, Food Stamps, Veterans Benefits or Section 8 Housing.
s Pooled Trusts. In smaller cases where the plaintiff is receiving any of these means-tested public benefits, a Pooled Trust may be considered. A Pooled Trust is operated by a non-profit. The plaintiff’s money is pooled with other persons’ money for investment purposes, but each member has an individual sub-account. Whenever a trust or a Pooled Trust is used, a sub-trust is established for the Medicare Set-Aside funds.
Chart
No Public Benefits Public Benefits
Small Settlement
Self Administered
Pooled Trust
Large Settlement
Custodial Agreement/ Professional Administrator
Stand Alone Special Needs Trust
Note: As used above the term “Public Benefits” applies to only means tested public benefits where there are financial eligibility rules pertaining to income and/or assets of the beneficiary and/or his or her family or household. These benefits typically include SSI, Medicaid, Veteran’s Benefits, Section 8 Housing and Food Stamps. For purposes of the chart, public benefits does not only include SSDI and Medicare, but a MSA will always be required if the plaintiff is receiving or will receive these benefits.
How does a Structured Settlement fit into an MSA?
s Seed Money. An MSA must include seed money with is a cash amount equal to the amount of monies calculated to cover the first surgery procedure and/or replacement and two years of annual payments.
0.
s Structured Settlement. If there is a sizable MSA, the balance is usually funded with a structured settlement. The structured settlement is usually payable in annual installments. The remainder of the Set-Aside is divided by the remainder of the claimant’s life expectancy and the structured pays annual deposits into the MSA based on a “anniversary date” which cannot be more than one year after the settlement date. If the funds paid into the MSA from the structured settlement are exhausted before the next “anniversary date” Medicare pays until such time as the next structured settlement payment is received
0.
Recommendations for Personal Injury Attorneys.
• Recommendations for Personal Injury Attorneys wanting to protect themselves against the risk of future claims by Medicare or malpractice claims by clients are as follows:
0.
• Since no rules currently exist for third party liability cases,
follow the WC rules with respect to MSA.
• Arrange for the calculation of a Medicare Set-Aside amount.
• Submit the proposal to CMS. It is unlikely that CMS will respond,
but the personal injury attorney should be off the hook so far as his
or her obligation to consider Medicare’s interests.
• Establish an MSA and fund it with the amount calculated.
• Advise the plaintiff in writing with respect to the rules.
• Advise the client in writing of the potential for the denial of future
medical care coverage for the injury subject to the litigation.
• Paper your file.
__________________________________________
42 U.S.C.§1395y(b)(2); 42 CFR §46(d)(d)
2 42 U.S.C. §1395y(b)(2)(A)(ii)
3 42 U.S.C.§1395y(b)(2)(B)
4 42 U.S. C. 1305, Medicare, Medicaid and SCHIP Extension Act of 2007
5 Sally Stalcup, Region 6 MSP Regional coordinator
6 42 U.S.C. §1395y(b)(2)(B)(ii); 42 CFR §411.24
7 Medicare Set Aside Arrangements Transmittal (Patel Memo), July 23, 2001; Medicare Secondary Payer – Worker’s Compensation (WC) frequently Asked Questions; (undated) Thomas L. Grissom; Medicare Secondary Payer-Worker’s Compensation (WC) information May 7, 2004; Medicare Secondary Payer (MSP)-Worker’s Compensation (WC) additional frequently asked questions, May 23, 2003; Medicare Secondary Payer (MSP) Worker’s Compensation (WC) additional frequently asked questions, October 15, 2004; Medicare Secondary Payer (MSP) Worker’s Compensation (WC) additional frequently asked questions July 11, 2005; Part D and Worker’s Compensation Medicare Set-Aside Arrangements questions and answers, December 30, 2005; Worker’s Compensation Medicare Set-Aside Arrangements (WCMSAs) and revision of the Low Dollar Threshold for Medicare beneficiaries, October 25, 2006; Questions and Answers for Part D and Worker’s Compensation Medicare-Set Aside Arrangements, July 24, 2006
8 Medicare Set Aside Arrangements Transmittal (Patel Memo), July 23, 2001
9 Medicare Secondary Payer-Worker’s Compensation (WC) frequently asked questions (2)
10 Medicare Secondary Payer (MSP)- Worker’s Compensation (WC) additional frequently asked questions, May 23, 2003
11 42 U.S.C. 1395y(b)(3); 42 CFR§411.24(c)(2)
12 Medicare Secondary Payer (MSP)-Worker’s Compensation (WC) additional frequently asked questions A-5, October 15, 2004
13 Id
0.
__________________________________________
Quick Screen
Medicare Set-Aside Arrangements
Is the client receiving SSI or SSD at the time of settlement? □ Yes □ No
Has the client applied for SSDI, or has client applied and been denied but anticipates appealing the decision? □ Yes □ No
Is client in the process of appealing and/or refilling for SSDI benefits? □ Yes □ No
Is client age 62 years 6 months of age or older at the time of settlement □ Yes □ No
Does client suffer from end stage renal disease but does not yet qualify for Medicare based on ESRD? □ Yes □ No
Is the settlement in excess of $250,000? □ Yes □ No
Note: If client is already receiving Medicare, the threshold is $25,000.
Copyright 2009 by Begley & Bookbinder, P.C., an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.
The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-722
2. NUTS & BOLTS OF ELDER LAW & ESTATE ADMINISTRATION SEMINAR
Tuesday, April 28, 2009 5:30 PM to 9:30 PM
Pines Manor, Edison
Featuring:
THOMAS D. BEGLEY, JR., ESQ.,
2004 Clapp Laureate
Certified as an Elder Law Attorney by the ABA Accredited National Elder Law Foundation
Past Chair, NJSBA Elder & Disability Law Section
Author: "How to Develop and Manage a Successful Trusts & Estates/Elder Law
Practice" (NJICLE)
Co-Author: "Profitable Law Firm Management" (NJICLE)
Begley & Bookbinder, PC (Moorestown)
KENNETH A. VERCAMMEN, ESQ.
Chair, ABA General Practice Division Elder Law Committee
2006 NJSBA Municipal Court Practitioner of the Year
K. Vercammen & Associates (Edison)
KATHLEEN A. SHERIDAN, ESQ.
Law Offices of Kathleen A. Sheridan, PC (Ship Bottom)
MARTIN A. SPIGNER, ESQ.
M. Spigner, PC (Cranbury)
Elder law continues to offer the legal profession a booming opportunity for growth. As your current clients continue to grow older, you need to position yourself to be able to offer them and their families the legal services required by the elderly in today’s society. Or, you may be looking for lucrative areas in which to expand your current practice, including administering their estates.
This practical program is designed to provide the nuts and bolts of elder law practice & estate administration practice to general practitioners and young lawyers, as well as to more experienced lawyers seeking to expand into this field. A highly authoritative and experienced panel of elder law attorneys & estate planners will share proven techniques and experience it would take you years to gather on your own. You’ll also gain insight on how Federal Medicaid Reform will impact your practice. Register today!
Everything you need to know about elder law & estate administration including: • Why Have a Will? Gathering information; standard provisions; designation of fiduciaries; protective clauses; sample forms; Ethics - who is the client? • Powers of Attorney Types of POAs; what should be included; why clients need them; POAs and Living Wills; sample forms • Living Trusts (Revocable/Irrevocable) as an Estate Planning Tool Why it should be used; disadvantages; revocable vs. irrevocable; Insurance Trusts; sample forms • Basic Tax Considerations Jointly-held property; “I love you” Will; no Will at all; insurance owned by client; unlimited marital deduction; estate planning in the testamentary document; sample forms/letters • Estate Administration - New Probate Law in New Jersey Probate process; duties of executor/fiduciary; gathering of assets; tax returns; tax waivers; access to property; sample forms/checklists • Medicaid Planning in Light of Federal Medicaid Reform Countable assets of Medicaid applicant; income cap/Medical needy standard; look-back period; transfers of property; personal residence; Medicaid estate recovery rules …and more
Tuition fees Reg. Fee Reg. Type
General Tuition (REG) $159.00 REG
NJICLE Season Tickets (STX) 1 Season Ticket(s) STX
MEMBERS, CO-SPONSORING SECTION (COS*) $119.00 COS*
MEMBERS, NJSBA (NJB*) $129.00 NJB*
MEMBERS, NJSBA YLD (YLD*) $119.00 YLD*
Recent admittees (past 2 years) (YL) $135.00 YL
Paralegals (PAR) $109.00 PAR
Law Students (with Student ID) (STU) $0.00 STU
Full Time Judges (JUD) $0.00 JU
NUTS & BOLTS OF ELDER LAW & ESTATE ADMINISTRATION
Audio packages are available 2 weeks after the last date of the seminar.
New Jersey Institute for Continuing Legal Education The non-profit continuing education service of: The New Jersey State Bar Association Rutgers - The State University of New Jersey Seton Hall University One Constitution Square, New Brunswick, New Jersey 08901-1520 Phone: (732)214-8500 Fax: (732)249-0383 • CustomerService@njicle.com
3. Elder Law, Estate Planning & Probate- New ideas to expand & excel your practice Sat. August 1, 2009 2:00pm -3:30pm
ABA Annual meeting Chicago
Speakers: Jay Foonberg, Esq. - Author of Best Sellers "How to
Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA
Joan Burda, Esq.
Kenneth A. Vercammen, Esq. - co-author "Nuts & Bolts of Elder Law", Edison, NJ
Charles Sabatino, director of the ABA's Commission on Law & Aging
Parag Patel, Esq. Iselin, NJ
Elder Law program Primary Sponsors: General Practice Section
Co-sponsors: ABA Commission on Law & Aging, Health Law Section,
YLD, Senior Lawyers Division, Real Probate & Trust Section, Tax Law Section
Topics:
Forms you can use
Email newsletters
"Representing seniors- Doing well by doing good.-Do you know how?
Marketing with written fee agreements
-Ethics and marketing without violating the Rules of Professional Conduct
Elder Law may be the biggest practice area of your career. There are 50,000 baby boomers/ day turning 60 and soon to be on Social Security and will need legal advise. Elder Law is one of the biggest growth fields.
_______________________
WE PUBLISH YOUR FORMS AND ARTICLES
To help your practice, we feature in this newsletter edition a few forms and articles PLUS tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please mail articles, suggestions or ideas you wish to share with others in our Tort and Insurance Committee.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
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To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
Who We Are- ABA GP Solo ELDER LAW COMMITTEE
This committee focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
We also seek articles on Elder Law, Probate, Wills, Medicaid and Marketing. Please send your marketing ideas and articles to us. You can become a published ABA author.
________________________________________
The Elder Law Committee of the ABA General Practice Division is directed towards general practitioners and more experienced elder law attorneys. The committee consistently sponsors programs at the Annual Meeting, the focus of which is shifting to advanced topics for the more experienced elder lawyer.
This committee also focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
Kenneth Vercammen, Esq. co-Chair
Jay Foonberg, Beverly Hills Co-chair, Author of Best Sellers "How to Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA JayFoonberg@aol.com>
We will also provide tips on how to promote your law office, your practice and Personal Marketing Skills in general. It does not deal with government funded "legal services" for indigent, welfare cases.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Kenv@njlaws.com
Central Jersey Elder Law www.centraljerseyelderlaw.com
NJ Elder Blog http://elder-law.blogspot.com/
ABA General Practice, Solo and Small Firm Division
Chairs - Kenneth Vercammen, Edison, NJ and Jay Foonberg, Beverly Hills, CA
In this issue:
1. The Legal Authority for Requiring a Medicare Set-Aside Arrangement
2. NUTS & BOLTS OF ELDER LAW & ESTATE ADMINISTRATION SEMINAR
3. Elder Law, Estate Planning & Probate- New ideas to expand & excel your practice Sat. August 1, 2009
1 The Legal Authority for Requiring a Medicare Set-Aside Arrangement.
s Medicare Secondary Payer Act The authority for the Centers for Medicare and Medicaid Services (CMS) to require consideration of a plaintiff’s future medical expenses is found in the Medicare Secondary Payer Act (MSPA). Under the MSPA Medicare is generally precluded from paying the beneficiary’s medical expenses when payment “has been made or can reasonably be expected to be made under a worker’s compensation plan, an automobile or liability insurance policy or plan (including a self-insured plan) or under no-fault insurance. Medicare payments are conditional on reimbursement from the primary payer. The requirements for Medicare Set-Aside Arrangements (MSA) have developed over the years in a series of memoranda issued by CMS. The MSPA applies to both past and future medical expenses.
s Medicare, Medicaid and SCHIP Extension Act of 2007. Historically, CMS has enforced the provisions of the MSPA only in worker’s compensation cases. However, the passage of the Medicare, Medicaid and SCHIP Extension Act of 2007 requires all insurers, third party administrators for group health plans, self-insured plans, and self-administered plans to identify situations where the plan is or has been a primary plan to the Medicare program. There is a civil penalty of $1,000 per day for non-compliance. The plan shall determine whether a claimant is entitled to benefits under the Medicare program. If the claimant is determined to be so entitled, the plan must submit a report including the identity of the claimant and such other information as the secretary shall specify.
0. The reporting requirements for group health plans being January 1, 2009. The reporting for liability cases begins July 1, 2009. The report includes the contact information for the personal injury attorney.
s CMS Regional Coordinator Pronouncement. According to Sally Stalcup, Region VI, MSP Regional Coordinator, CMS, “At this time, the Centers for Medicare and Medicaid Services (CMS) is not soliciting cases solely because of the language provided in the general release. CMS does not review or sign-off on counsel’s determination of the amount to be held to protect the Trust Fund in most cases. If we do, however, urge counsel to consider this issue in settling the case and recommend that their determination as to whether or not the case provided recovery funds for future medicals (emphasis added) be documented in their records. Should they determine that future services are funded, these dollars must be used to pay for future otherwise Medicare covered case-related services. There is no formal CMS review process in the liability arena as there is for worker’s compensation. On rare occasions, when the liability is large enough or other unusual facts exist within the case, the CMS Regional Office will review the settlement and help make a determination on the amount to be available for future services.”
s Anticipated Impact of the Medicare, Medicaid and SCHIP Extension Act of 2007. The likely outcome of the reporting requirements of the Medicare, Medicaid and SCHIP Extension Act of 2007 is that insurance companies will begin to require MSAs in third party liability cases. There is no reason for insurance companies to run the risk of failing to establish an MSA.
The Theory Behind a Medicare Set Aside Arrangement.
s Contrived Shift. Under the Medicare Secondary Payer Act, Medicare makes conditional payment for medical expenses for beneficiaries with the understanding that Medicare will be paid when the beneficiary receives payment from a third party. Medicare is opposed to any settlement that results in a contrived shift to Medicare of responsibilities of a claimant’s future medical care. In settling claims, Medicare’s interest must be considered. The solution to the problem of burden shifting is to establish a Medicare Set-Aside Arrangement (MSA).
s Past and Future Medical Bills. Medicare has a right of recovery for past medical bills up to the date of the settlement. The Medicare Secondary Payer Act also applies to third party liability situations in which the settlement or award includes payment for future medical expenses. Medicare is not bound by the release with respect to an allocation for future medical expenses. If Medicare determines that the injured party will have future medical expenses then a Medicare Set-Aside Arrangement is expected.
When is an MSA Required?
While the MSPA clearly establishes a requirement that Medicare’s interest be considered in liability cases, there are no rules or regulations under the MSPA. While there are no rules in Worker’s Compensation (WC) cases either, CMS has issued memos advising the establishment of MSA’s in WC cases, but there are no requirements. Obtaining CMS’ approval of a proposed MSA does provide assurance to the parties that the set aside amount is acceptable to CMS. The prudent course of action might be to follow those in liability cases. While an MSA is always required, it is not necessary to submit an MSA proposal to CMS:
• the settlement exceeds $25,000 and the claimant is currently
eligible for Medicare; or
• the settlement is for more than $250,000 and the plaintiff can
reasonably be expected to become eligible for Medicaid
within 30 months.
If an individual is in the process of filing, appealing or re-filing for SSDI, that person is included in the 30-month window notwithstanding the fact that a previous application may have been denied and have not been appealed. An individual who is 62 years and 6 months of age could be eligible within 30 months, and an individual suffering from End-Stage Renal Disease (ESRD), but who does not yet qualify for Medicare based on ESRD, would also be considered a person having a “reasonable expectation” of Medicare enrollment within 30 months.
If it is absolutely clear that there will be no future medicals as a result of the injury subject to the litigation, then no MSA is required.
It is important to note that a beneficiary may not waive his right to future Medicare in order to avoid establishing an MSA.
In determining whether the $250,000 threshold is met, if there is a structured settlement the value of the structure rather than the cost is used. Also, in determining whether the $250,000 threshold is met, past medicals, future medicals, attorney’s fees and costs are included.
What is the Risk to the Personal Injury Attorney for Failing to Establish an MSA?
s Double Damages. Plaintiff’s attorneys who fail Medicare’s interest are potentially responsible for double damages. CMS is authorized to bring an action “against any entity” including a beneficiary, provider, supplier, physician, attorney, state agency or private insurer that has received any portion of a third party payment directly or indirectly, if those third party funds – rather than Medicare – should have been paid for the injury-related medical expenses.
0.
s Potential Malpractice. In addition, there is a malpractice risk. Plaintiffs who have not established an MSA and who file future claims for Medicare may have those claims denied. CMS has taken the position that where no MSA has been established, the entire settlement can be considered for future medicals and Medicare will not pay the plaintiff’s medical bills until an amount equal to the entire settlement has been spent for the plaintiff’s medical care. Each personal injury attorney must decide how much risk he or she is willing to accept in order to avoid establishing an MSA.
How is the Set-Aside Amount Determined?
There are companies who will calculate the set-aside amount. The amount is determined by evaluating past medical treatment, current medical condition, and the probability of future medical needs, as well as other factors. Future medicals are limited only to those expenses that Medicare would pay that are related to the injury. Medicare does not pay all medical expenses. There are some services that are not covered; there are deductibles, co-payments and maximums per spell of illness. The MSA need not contain monies for those services that would not be covered by Medicare. In calculating the set-aside amount the plaintiff’s life expectancy is considered. It is often useful to obtain a rated age as a part of this process. The rated age shows that a person’s actual life expectancy may be considerably shorter than their actuarially life expectancy, so that less money is required to be set aside.
Once a Medicare Set-Aside amount is calculated in a worker’s compensation case, it is submitted to Medicare for approval. While CMS maintains that a set-aside is necessary in liability cases, there is no mechanism for approval at this time.
CMS is not bound by an allocation for future medicals made by the parties in the settlement agreement. CMS may disregard any such allocation and make its own calculation as to the cost of future medicals.
The cost of future prescription drugs must be considered in calculating the set-aside amount.
Administering the MSA.
There are four possibilities for administering an MSA:
s Self-Administered Accounts. These accounts are usually small accounts and are administered by the claimant. No formal agreement is necessary. The claimant must follow the same accounting rules as a professional administrator, but it is likely that most claimants will not comply, but the liability of the personal injury lawyer should terminate when the MSA is established.
s Custodial Account. A larger account is usually administered by a custodian. These are professional organizations that have expertise in medical claims administration. They charge a fee and are recommended where financially justified.
s Medicare Set-Aside Trusts. A Medicare Set-Aside Trust is a formal trust with a trustee. These are usually used for large accounts. They are also used in connection with Special Needs Trusts if the plaintiff is receiving means-tested public benefits such as SSI, Medicaid, Food Stamps, Veterans Benefits or Section 8 Housing.
s Pooled Trusts. In smaller cases where the plaintiff is receiving any of these means-tested public benefits, a Pooled Trust may be considered. A Pooled Trust is operated by a non-profit. The plaintiff’s money is pooled with other persons’ money for investment purposes, but each member has an individual sub-account. Whenever a trust or a Pooled Trust is used, a sub-trust is established for the Medicare Set-Aside funds.
Chart
No Public Benefits Public Benefits
Small Settlement
Self Administered
Pooled Trust
Large Settlement
Custodial Agreement/ Professional Administrator
Stand Alone Special Needs Trust
Note: As used above the term “Public Benefits” applies to only means tested public benefits where there are financial eligibility rules pertaining to income and/or assets of the beneficiary and/or his or her family or household. These benefits typically include SSI, Medicaid, Veteran’s Benefits, Section 8 Housing and Food Stamps. For purposes of the chart, public benefits does not only include SSDI and Medicare, but a MSA will always be required if the plaintiff is receiving or will receive these benefits.
How does a Structured Settlement fit into an MSA?
s Seed Money. An MSA must include seed money with is a cash amount equal to the amount of monies calculated to cover the first surgery procedure and/or replacement and two years of annual payments.
0.
s Structured Settlement. If there is a sizable MSA, the balance is usually funded with a structured settlement. The structured settlement is usually payable in annual installments. The remainder of the Set-Aside is divided by the remainder of the claimant’s life expectancy and the structured pays annual deposits into the MSA based on a “anniversary date” which cannot be more than one year after the settlement date. If the funds paid into the MSA from the structured settlement are exhausted before the next “anniversary date” Medicare pays until such time as the next structured settlement payment is received
0.
Recommendations for Personal Injury Attorneys.
• Recommendations for Personal Injury Attorneys wanting to protect themselves against the risk of future claims by Medicare or malpractice claims by clients are as follows:
0.
• Since no rules currently exist for third party liability cases,
follow the WC rules with respect to MSA.
• Arrange for the calculation of a Medicare Set-Aside amount.
• Submit the proposal to CMS. It is unlikely that CMS will respond,
but the personal injury attorney should be off the hook so far as his
or her obligation to consider Medicare’s interests.
• Establish an MSA and fund it with the amount calculated.
• Advise the plaintiff in writing with respect to the rules.
• Advise the client in writing of the potential for the denial of future
medical care coverage for the injury subject to the litigation.
• Paper your file.
__________________________________________
42 U.S.C.§1395y(b)(2); 42 CFR §46(d)(d)
2 42 U.S.C. §1395y(b)(2)(A)(ii)
3 42 U.S.C.§1395y(b)(2)(B)
4 42 U.S. C. 1305, Medicare, Medicaid and SCHIP Extension Act of 2007
5 Sally Stalcup, Region 6 MSP Regional coordinator
6 42 U.S.C. §1395y(b)(2)(B)(ii); 42 CFR §411.24
7 Medicare Set Aside Arrangements Transmittal (Patel Memo), July 23, 2001; Medicare Secondary Payer – Worker’s Compensation (WC) frequently Asked Questions; (undated) Thomas L. Grissom; Medicare Secondary Payer-Worker’s Compensation (WC) information May 7, 2004; Medicare Secondary Payer (MSP)-Worker’s Compensation (WC) additional frequently asked questions, May 23, 2003; Medicare Secondary Payer (MSP) Worker’s Compensation (WC) additional frequently asked questions, October 15, 2004; Medicare Secondary Payer (MSP) Worker’s Compensation (WC) additional frequently asked questions July 11, 2005; Part D and Worker’s Compensation Medicare Set-Aside Arrangements questions and answers, December 30, 2005; Worker’s Compensation Medicare Set-Aside Arrangements (WCMSAs) and revision of the Low Dollar Threshold for Medicare beneficiaries, October 25, 2006; Questions and Answers for Part D and Worker’s Compensation Medicare-Set Aside Arrangements, July 24, 2006
8 Medicare Set Aside Arrangements Transmittal (Patel Memo), July 23, 2001
9 Medicare Secondary Payer-Worker’s Compensation (WC) frequently asked questions (2)
10 Medicare Secondary Payer (MSP)- Worker’s Compensation (WC) additional frequently asked questions, May 23, 2003
11 42 U.S.C. 1395y(b)(3); 42 CFR§411.24(c)(2)
12 Medicare Secondary Payer (MSP)-Worker’s Compensation (WC) additional frequently asked questions A-5, October 15, 2004
13 Id
0.
__________________________________________
Quick Screen
Medicare Set-Aside Arrangements
Is the client receiving SSI or SSD at the time of settlement? □ Yes □ No
Has the client applied for SSDI, or has client applied and been denied but anticipates appealing the decision? □ Yes □ No
Is client in the process of appealing and/or refilling for SSDI benefits? □ Yes □ No
Is client age 62 years 6 months of age or older at the time of settlement □ Yes □ No
Does client suffer from end stage renal disease but does not yet qualify for Medicare based on ESRD? □ Yes □ No
Is the settlement in excess of $250,000? □ Yes □ No
Note: If client is already receiving Medicare, the threshold is $25,000.
Copyright 2009 by Begley & Bookbinder, P.C., an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.
The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-722
2. NUTS & BOLTS OF ELDER LAW & ESTATE ADMINISTRATION SEMINAR
Tuesday, April 28, 2009 5:30 PM to 9:30 PM
Pines Manor, Edison
Featuring:
THOMAS D. BEGLEY, JR., ESQ.,
2004 Clapp Laureate
Certified as an Elder Law Attorney by the ABA Accredited National Elder Law Foundation
Past Chair, NJSBA Elder & Disability Law Section
Author: "How to Develop and Manage a Successful Trusts & Estates/Elder Law
Practice" (NJICLE)
Co-Author: "Profitable Law Firm Management" (NJICLE)
Begley & Bookbinder, PC (Moorestown)
KENNETH A. VERCAMMEN, ESQ.
Chair, ABA General Practice Division Elder Law Committee
2006 NJSBA Municipal Court Practitioner of the Year
K. Vercammen & Associates (Edison)
KATHLEEN A. SHERIDAN, ESQ.
Law Offices of Kathleen A. Sheridan, PC (Ship Bottom)
MARTIN A. SPIGNER, ESQ.
M. Spigner, PC (Cranbury)
Elder law continues to offer the legal profession a booming opportunity for growth. As your current clients continue to grow older, you need to position yourself to be able to offer them and their families the legal services required by the elderly in today’s society. Or, you may be looking for lucrative areas in which to expand your current practice, including administering their estates.
This practical program is designed to provide the nuts and bolts of elder law practice & estate administration practice to general practitioners and young lawyers, as well as to more experienced lawyers seeking to expand into this field. A highly authoritative and experienced panel of elder law attorneys & estate planners will share proven techniques and experience it would take you years to gather on your own. You’ll also gain insight on how Federal Medicaid Reform will impact your practice. Register today!
Everything you need to know about elder law & estate administration including: • Why Have a Will? Gathering information; standard provisions; designation of fiduciaries; protective clauses; sample forms; Ethics - who is the client? • Powers of Attorney Types of POAs; what should be included; why clients need them; POAs and Living Wills; sample forms • Living Trusts (Revocable/Irrevocable) as an Estate Planning Tool Why it should be used; disadvantages; revocable vs. irrevocable; Insurance Trusts; sample forms • Basic Tax Considerations Jointly-held property; “I love you” Will; no Will at all; insurance owned by client; unlimited marital deduction; estate planning in the testamentary document; sample forms/letters • Estate Administration - New Probate Law in New Jersey Probate process; duties of executor/fiduciary; gathering of assets; tax returns; tax waivers; access to property; sample forms/checklists • Medicaid Planning in Light of Federal Medicaid Reform Countable assets of Medicaid applicant; income cap/Medical needy standard; look-back period; transfers of property; personal residence; Medicaid estate recovery rules …and more
Tuition fees Reg. Fee Reg. Type
General Tuition (REG) $159.00 REG
NJICLE Season Tickets (STX) 1 Season Ticket(s) STX
MEMBERS, CO-SPONSORING SECTION (COS*) $119.00 COS*
MEMBERS, NJSBA (NJB*) $129.00 NJB*
MEMBERS, NJSBA YLD (YLD*) $119.00 YLD*
Recent admittees (past 2 years) (YL) $135.00 YL
Paralegals (PAR) $109.00 PAR
Law Students (with Student ID) (STU) $0.00 STU
Full Time Judges (JUD) $0.00 JU
NUTS & BOLTS OF ELDER LAW & ESTATE ADMINISTRATION
Audio packages are available 2 weeks after the last date of the seminar.
New Jersey Institute for Continuing Legal Education The non-profit continuing education service of: The New Jersey State Bar Association Rutgers - The State University of New Jersey Seton Hall University One Constitution Square, New Brunswick, New Jersey 08901-1520 Phone: (732)214-8500 Fax: (732)249-0383 • CustomerService@njicle.com
3. Elder Law, Estate Planning & Probate- New ideas to expand & excel your practice Sat. August 1, 2009 2:00pm -3:30pm
ABA Annual meeting Chicago
Speakers: Jay Foonberg, Esq. - Author of Best Sellers "How to
Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA
Joan Burda, Esq.
Kenneth A. Vercammen, Esq. - co-author "Nuts & Bolts of Elder Law", Edison, NJ
Charles Sabatino, director of the ABA's Commission on Law & Aging
Parag Patel, Esq. Iselin, NJ
Elder Law program Primary Sponsors: General Practice Section
Co-sponsors: ABA Commission on Law & Aging, Health Law Section,
YLD, Senior Lawyers Division, Real Probate & Trust Section, Tax Law Section
Topics:
Forms you can use
Email newsletters
"Representing seniors- Doing well by doing good.-Do you know how?
Marketing with written fee agreements
-Ethics and marketing without violating the Rules of Professional Conduct
Elder Law may be the biggest practice area of your career. There are 50,000 baby boomers/ day turning 60 and soon to be on Social Security and will need legal advise. Elder Law is one of the biggest growth fields.
_______________________
WE PUBLISH YOUR FORMS AND ARTICLES
To help your practice, we feature in this newsletter edition a few forms and articles PLUS tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please mail articles, suggestions or ideas you wish to share with others in our Tort and Insurance Committee.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
Send Us Your Marketing Tips
We are increasing the frequency of our newsletter. Send us your short tips on your great or new successful marketing techniques.
You can become a published ABA author. Enjoy your many ABA benefits.
Send us your articles & ideas
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
Who We Are- ABA GP Solo ELDER LAW COMMITTEE
This committee focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
We also seek articles on Elder Law, Probate, Wills, Medicaid and Marketing. Please send your marketing ideas and articles to us. You can become a published ABA author.
________________________________________
The Elder Law Committee of the ABA General Practice Division is directed towards general practitioners and more experienced elder law attorneys. The committee consistently sponsors programs at the Annual Meeting, the focus of which is shifting to advanced topics for the more experienced elder lawyer.
This committee also focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
Kenneth Vercammen, Esq. co-Chair
Jay Foonberg, Beverly Hills Co-chair, Author of Best Sellers "How to Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA JayFoonberg@aol.com>
We will also provide tips on how to promote your law office, your practice and Personal Marketing Skills in general. It does not deal with government funded "legal services" for indigent, welfare cases.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Kenv@njlaws.com
Central Jersey Elder Law www.centraljerseyelderlaw.com
NJ Elder Blog http://elder-law.blogspot.com/
Monday, February 16, 2009
WILLS, PROBATE AND ELDER LAW- Adult and Community Education
WHEN: Monday, March 30, 2009 7 – 8:30P.M.
East Brunswick Adult & Community Education Program
East Brunswick HIGH SCHOOL, Cranbury Rd
WILLS, PROBATE AND ELDER LAW
Course # SBC ..............................................................Fee: $29
Mon. 7:00–8:30 pm ..........................................1 session: 3/30
You don’t have to be wealthy or near death to do some thinking about a will. Here is your opportunity to listen to an experienced attorney who will discuss how to distribute your property as you wish and avoid many rigid
provisions of the state law. Topics covered by author of “Answer to Questions about Probate” will include: wills, revocable trusts, irrevocable trusts, power of attorney, living will, state administration, inheritance taxes, plus the opportunity to ask questions.
Instructor: Kenneth Vercammen, Esq. of Edison
(Co-Author- NJ Elder Law & Probate)
COMPLIMENTARY MATERIAL: Brochures on Wills, “Probate and Administration of an Estate”, Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.
You don’t have to be wealthy or near death to do some thinking about a will. Here is your opportunity to listen to an experienced attorney who will discuss how to distribute your property as you wish and avoid many rigid provisions of the state law. Topics covered by author of “Answer to questions about Probate” will include: Wills, revocable trusts, irrevocable trusts, power of attorney, living will, long term care insurance, reverse mortgage, plus the opportunity to ask questions.
Here is your opportunity to listen to an experienced attorney who will answer questions how to distribute your property and avoid many rigid provisions of state law. For more information on Elder law, visit the Website www.CentralJerseyElderLaw.com. You can also subscribe to the free email Elder Law newsletter by visiting the website, or sending an email to Kenv@njlaws.com.
Call the East Brunswick Adult Education Office for registration information 732- 613-6989
WHEN: Monday, March 30, 2009 7 – 8:30P.M.
East Brunswick Adult & Community Education Program
East Brunswick HIGH SCHOOL, Cranbury Rd
WILLS, PROBATE AND ELDER LAW
Course # SBC ..............................................................Fee: $29
Mon. 7:00–8:30 pm ..........................................1 session: 3/30
You don’t have to be wealthy or near death to do some thinking about a will. Here is your opportunity to listen to an experienced attorney who will discuss how to distribute your property as you wish and avoid many rigid
provisions of the state law. Topics covered by author of “Answer to Questions about Probate” will include: wills, revocable trusts, irrevocable trusts, power of attorney, living will, state administration, inheritance taxes, plus the opportunity to ask questions.
Instructor: Kenneth Vercammen, Esq. of Edison
(Co-Author- NJ Elder Law & Probate)
COMPLIMENTARY MATERIAL: Brochures on Wills, “Probate and Administration of an Estate”, Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.
You don’t have to be wealthy or near death to do some thinking about a will. Here is your opportunity to listen to an experienced attorney who will discuss how to distribute your property as you wish and avoid many rigid provisions of the state law. Topics covered by author of “Answer to questions about Probate” will include: Wills, revocable trusts, irrevocable trusts, power of attorney, living will, long term care insurance, reverse mortgage, plus the opportunity to ask questions.
Here is your opportunity to listen to an experienced attorney who will answer questions how to distribute your property and avoid many rigid provisions of state law. For more information on Elder law, visit the Website www.CentralJerseyElderLaw.com. You can also subscribe to the free email Elder Law newsletter by visiting the website, or sending an email to Kenv@njlaws.com.
Call the East Brunswick Adult Education Office for registration information 732- 613-6989
Sunday, February 08, 2009
26:2H-79. Definitions relative to hospices
1. As used in this act, "hospice care program" means a coordinated program of home, outpatient, and inpatient care and services that is operated by a public agency or private organization, or subdivision of either of these entities, and that provides care and services to hospice patients and to hospice patients' families, through a medically directed interdisciplinary team, under interdisciplinary plans of care in order to meet the physical, psychological, social, spiritual, and other special needs that are experienced during the final stages of illness, dying, and bereavement. A hospice care program shall provide the following care and services:
a. Nursing care by or under the supervision of a registered professional nurse;
b. Physical, occupational, or speech or language therapy;
c. Medical social services by a certified or licensed social worker under the direction of a physician;
d. Services of a certified home health aide;
e. Medical supplies, including drugs and biologicals, and the use of medical appliances related to terminal diagnosis;
f. Physician's services;
g. Short-term inpatient care, including both palliative and respite care and procedures;
h. Spiritual and other counseling for hospice patients and hospice patients' families;
i. Services of volunteers under the direction of the provider of the hospice care program; and
j. Bereavement services for hospice patients' families.
L.1997,c.78,s.1.
26:2H-80. Licensing of hospice care program
2. a. A hospice care program shall not operate in this State unless it possesses a valid license issued by the Department of Health and Senior Services pursuant to this act.
No public agency or private organization shall assume, represent itself as or use the word "hospice" or any modification or derivative thereof, unless the agency or organization is licensed pursuant to this act.
b. Application for a license for a hospice care program shall be made upon forms prescribed by the department. The department shall charge such nonrefundable fees for the filing of an application for a license and any renewal thereof, as it shall from time to time fix in regulations, except the amount of this fee shall not exceed $2,000. The application shall contain the name of the hospice care program and such other information as the department may require.
c. The department shall only issue a license to a hospice care program that provides written documentation that it is certified for participation in the federal Medicare program established pursuant to the federal Social Security Act, Pub. L. 89-97 (42 U.S.C. s.1395 et seq.).
d. A nursing home licensed pursuant to the "Health Care Facilities Planning Act," P.L.1971, c.136 (C.26:2H-1 et al.) that does not hold itself out to be a hospice, does not hold itself out as providing a hospice care program, does not use the term hospice to describe or refer to its activities or facilities, and does not provide all of the services enumerated in section 1 of this act is not subject to the licensing provisions of this act.
e. A hospice care program licensed pursuant to this act shall not be subject to the certificate of need requirements of P.L.1971, c.136 (C.26:2H-1 et al.).
1. As used in this act, "hospice care program" means a coordinated program of home, outpatient, and inpatient care and services that is operated by a public agency or private organization, or subdivision of either of these entities, and that provides care and services to hospice patients and to hospice patients' families, through a medically directed interdisciplinary team, under interdisciplinary plans of care in order to meet the physical, psychological, social, spiritual, and other special needs that are experienced during the final stages of illness, dying, and bereavement. A hospice care program shall provide the following care and services:
a. Nursing care by or under the supervision of a registered professional nurse;
b. Physical, occupational, or speech or language therapy;
c. Medical social services by a certified or licensed social worker under the direction of a physician;
d. Services of a certified home health aide;
e. Medical supplies, including drugs and biologicals, and the use of medical appliances related to terminal diagnosis;
f. Physician's services;
g. Short-term inpatient care, including both palliative and respite care and procedures;
h. Spiritual and other counseling for hospice patients and hospice patients' families;
i. Services of volunteers under the direction of the provider of the hospice care program; and
j. Bereavement services for hospice patients' families.
L.1997,c.78,s.1.
26:2H-80. Licensing of hospice care program
2. a. A hospice care program shall not operate in this State unless it possesses a valid license issued by the Department of Health and Senior Services pursuant to this act.
No public agency or private organization shall assume, represent itself as or use the word "hospice" or any modification or derivative thereof, unless the agency or organization is licensed pursuant to this act.
b. Application for a license for a hospice care program shall be made upon forms prescribed by the department. The department shall charge such nonrefundable fees for the filing of an application for a license and any renewal thereof, as it shall from time to time fix in regulations, except the amount of this fee shall not exceed $2,000. The application shall contain the name of the hospice care program and such other information as the department may require.
c. The department shall only issue a license to a hospice care program that provides written documentation that it is certified for participation in the federal Medicare program established pursuant to the federal Social Security Act, Pub. L. 89-97 (42 U.S.C. s.1395 et seq.).
d. A nursing home licensed pursuant to the "Health Care Facilities Planning Act," P.L.1971, c.136 (C.26:2H-1 et al.) that does not hold itself out to be a hospice, does not hold itself out as providing a hospice care program, does not use the term hospice to describe or refer to its activities or facilities, and does not provide all of the services enumerated in section 1 of this act is not subject to the licensing provisions of this act.
e. A hospice care program licensed pursuant to this act shall not be subject to the certificate of need requirements of P.L.1971, c.136 (C.26:2H-1 et al.).
26:2H-78. Violations, penalties
28. a. A health care professional who intentionally fails to act in accordance with the requirements of this act is subject to discipline for professional misconduct pursuant to section 8 of P.L.1978, c.73 (C.45:1-21).
b. A health care institution that intentionally fails to act in accordance with the requirements of this act shall be subject to a fine of not more than $1,000 for each offense. For the purposes of this subsection, each violation shall constitute a separate offense. Penalties for violations of this act shall be recovered in a summary civil proceeding, brought in the name of the State in a court of competent jurisdiction pursuant to "the penalty enforcement law" (N.J.S.2A:58-1 et seq.).
c. The following acts constitute crimes:
(1) To willfully conceal, cancel, deface, obliterate or withhold personal knowledge of an advance directive or a modification or revocation thereof, without the declarant's consent, is a crime of the fourth degree.
(2) To falsify or forge an advance directive or a modification or revocation thereof of another individual is a crime of the fourth degree.
(3) To coerce or fraudulently induce the execution of an advance directive or a modification or revocation thereof is a crime of the fourth degree.
(4) To require or prohibit the execution of an advance directive or a modification or revocation thereof as a condition of coverage under any policy of health insurance, life insurance or annuity, or governmental benefits program, or as a condition of the provision of health care is a crime of the fourth degree.
d. Commission of any of the acts identified in paragraphs (1), (2), or (3) of subsection c., resulting in the involuntary earlier death of a patient, shall constitute a crime of the fourth degree.
e. The sanctions provided in this section shall not be construed to repeal any sanctions applicable under other law.
28. a. A health care professional who intentionally fails to act in accordance with the requirements of this act is subject to discipline for professional misconduct pursuant to section 8 of P.L.1978, c.73 (C.45:1-21).
b. A health care institution that intentionally fails to act in accordance with the requirements of this act shall be subject to a fine of not more than $1,000 for each offense. For the purposes of this subsection, each violation shall constitute a separate offense. Penalties for violations of this act shall be recovered in a summary civil proceeding, brought in the name of the State in a court of competent jurisdiction pursuant to "the penalty enforcement law" (N.J.S.2A:58-1 et seq.).
c. The following acts constitute crimes:
(1) To willfully conceal, cancel, deface, obliterate or withhold personal knowledge of an advance directive or a modification or revocation thereof, without the declarant's consent, is a crime of the fourth degree.
(2) To falsify or forge an advance directive or a modification or revocation thereof of another individual is a crime of the fourth degree.
(3) To coerce or fraudulently induce the execution of an advance directive or a modification or revocation thereof is a crime of the fourth degree.
(4) To require or prohibit the execution of an advance directive or a modification or revocation thereof as a condition of coverage under any policy of health insurance, life insurance or annuity, or governmental benefits program, or as a condition of the provision of health care is a crime of the fourth degree.
d. Commission of any of the acts identified in paragraphs (1), (2), or (3) of subsection c., resulting in the involuntary earlier death of a patient, shall constitute a crime of the fourth degree.
e. The sanctions provided in this section shall not be construed to repeal any sanctions applicable under other law.
26:2H-75. Advance directive shall not affect insurance, benefits coverage
23. The execution of an advance directive pursuant to this act shall not in any manner affect, impair or modify the terms of, or rights or obligations created under, any existing policy of health insurance, life insurance or annuity, or governmental benefits program. No health care practitioner or other health care provider, and no health service plan, insurer, or governmental authority, shall deny coverage or exclude from the benefits of service any individual because that individual has executed or has not executed an advance directive. The execution, or non-execution, of an advance directive shall not be made a condition of coverage under any policy of health insurance, life insurance or annuity, or governmental benefits program.
L.1991,c.201,s.23.
26:2H-76. Advance directive executed in other jurisdictions, validity
24. An advance directive executed under the laws of another state in compliance with the laws of that state or the State of New Jersey is validly executed for purposes of this act. An advance directive executed in a foreign country in compliance with the laws of that country or the State of New Jersey, and not contrary to the public policy of this State, is validly executed for purposes of this act.
L.1991,c.201,s.24.
26:2H-77. Applicability of other law
25. a. The withholding or withdrawing of life-sustaining treatment pursuant to section 15 of this act, when performed in good faith, and in accordance with the terms of an advance directive and the provisions of this act, shall not constitute homicide, suicide, assisted suicide, or active euthanasia.
b. To the extent any of the provisions of this act are inconsistent with P.L.1971, c.373 (C.46:2B-8 et seq.) concerning the designation of a health care representative, the provisions of this act shall have priority over those of P.L.1971, c.373 (C.46:2B-8 et seq.).
Durable powers of attorney for health care executed pursuant to P.L.1971, c.373 (C.46:2B-8 et seq.) prior to the effective date of this act shall have the same legal force and effect as if they had been executed in accordance with the provisions of this act.
c. Nothing in this act shall be construed to impair the rights of emancipated minors under existing law.
23. The execution of an advance directive pursuant to this act shall not in any manner affect, impair or modify the terms of, or rights or obligations created under, any existing policy of health insurance, life insurance or annuity, or governmental benefits program. No health care practitioner or other health care provider, and no health service plan, insurer, or governmental authority, shall deny coverage or exclude from the benefits of service any individual because that individual has executed or has not executed an advance directive. The execution, or non-execution, of an advance directive shall not be made a condition of coverage under any policy of health insurance, life insurance or annuity, or governmental benefits program.
L.1991,c.201,s.23.
26:2H-76. Advance directive executed in other jurisdictions, validity
24. An advance directive executed under the laws of another state in compliance with the laws of that state or the State of New Jersey is validly executed for purposes of this act. An advance directive executed in a foreign country in compliance with the laws of that country or the State of New Jersey, and not contrary to the public policy of this State, is validly executed for purposes of this act.
L.1991,c.201,s.24.
26:2H-77. Applicability of other law
25. a. The withholding or withdrawing of life-sustaining treatment pursuant to section 15 of this act, when performed in good faith, and in accordance with the terms of an advance directive and the provisions of this act, shall not constitute homicide, suicide, assisted suicide, or active euthanasia.
b. To the extent any of the provisions of this act are inconsistent with P.L.1971, c.373 (C.46:2B-8 et seq.) concerning the designation of a health care representative, the provisions of this act shall have priority over those of P.L.1971, c.373 (C.46:2B-8 et seq.).
Durable powers of attorney for health care executed pursuant to P.L.1971, c.373 (C.46:2B-8 et seq.) prior to the effective date of this act shall have the same legal force and effect as if they had been executed in accordance with the provisions of this act.
c. Nothing in this act shall be construed to impair the rights of emancipated minors under existing law.
26:2H-74. Absence of advance directive, act not applicable
22. The absence of an advance directive shall create no presumption with respect to a patient's wishes regarding the provision, withholding or withdrawing of any form of health care. The provisions of this act do not apply to persons who have not executed an advance directive.
22. The absence of an advance directive shall create no presumption with respect to a patient's wishes regarding the provision, withholding or withdrawing of any form of health care. The provisions of this act do not apply to persons who have not executed an advance directive.
26:2H-73. Immunities
21. a. A health care representative shall not be subject to criminal or civil liability for any actions performed in good faith and in accordance with the provisions of this act to carry out the terms of an advance directive.
b. A health care professional shall not be subject to criminal or civil liability or to discipline by the health care institution or the respective State licensing board for professional misconduct for any actions performed in good faith and in accordance with the provisions of this act, any rules and regulations established by the Department of Health pursuant to this act, and accepted professional standards to carry out the terms of an advance directive.
c. A health care institution shall not be subject to criminal or civil liability for any actions performed in good faith and in accordance with the provisions of this act to carry out the terms of an advance directive.
21. a. A health care representative shall not be subject to criminal or civil liability for any actions performed in good faith and in accordance with the provisions of this act to carry out the terms of an advance directive.
b. A health care professional shall not be subject to criminal or civil liability or to discipline by the health care institution or the respective State licensing board for professional misconduct for any actions performed in good faith and in accordance with the provisions of this act, any rules and regulations established by the Department of Health pursuant to this act, and accepted professional standards to carry out the terms of an advance directive.
c. A health care institution shall not be subject to criminal or civil liability for any actions performed in good faith and in accordance with the provisions of this act to carry out the terms of an advance directive.
26:2H-71. Rules, regulations
19. In accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) the Department of Health shall establish rules and regulations:
a. For the annual reporting by health care institutions, and the gathering of such additional data as is reasonably necessary to oversee and evaluate the implementation of this act. The department shall seek to minimize the burdens of record-keeping imposed by the rules and regulations and shall seek to assure the appropriate confidentiality of patient records.
b. Requiring health care institutions to adopt policies and practices designed to:
(1) Make routine inquiry, at the time of admission and at such other times as are appropriate under the circumstances, concerning the existence and location of an advance directive;
(2) Provide appropriate informational materials concerning advance directives to all interested patients and their families and health care representatives, and to assist patients interested in discussing and executing an advance directive;
(3) Educate patients and their families and health care representatives about the availability, benefits and burdens of rehabilitative treatment, therapy and services, as appropriate;
(4) Inform physicians, nurses, and other health care professionals of their rights and responsibilities under this act, to assure that the rights and responsibilities are understood, and to provide a forum for discussion and consultation regarding the requirements of this act; and
(5) Otherwise comply with the provisions of this act.
19. In accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) the Department of Health shall establish rules and regulations:
a. For the annual reporting by health care institutions, and the gathering of such additional data as is reasonably necessary to oversee and evaluate the implementation of this act. The department shall seek to minimize the burdens of record-keeping imposed by the rules and regulations and shall seek to assure the appropriate confidentiality of patient records.
b. Requiring health care institutions to adopt policies and practices designed to:
(1) Make routine inquiry, at the time of admission and at such other times as are appropriate under the circumstances, concerning the existence and location of an advance directive;
(2) Provide appropriate informational materials concerning advance directives to all interested patients and their families and health care representatives, and to assist patients interested in discussing and executing an advance directive;
(3) Educate patients and their families and health care representatives about the availability, benefits and burdens of rehabilitative treatment, therapy and services, as appropriate;
(4) Inform physicians, nurses, and other health care professionals of their rights and responsibilities under this act, to assure that the rights and responsibilities are understood, and to provide a forum for discussion and consultation regarding the requirements of this act; and
(5) Otherwise comply with the provisions of this act.
26:2H-70. Existing law preserved; emergency care
18. a. Nothing in this act shall be construed to alter, amend or revoke the rights and responsibilities under existing law of health care institutions not governed by the provisions of this act.
b. The provisions of this act shall not be construed to require emergency personnel, including paid or volunteer fire fighters; paramedics; members of an ambulance team, rescue squad, or mobile intensive care unit; or emergency room personnel of a licensed health care institution, to withhold or withdraw emergency care in circumstances which do not afford reasonable opportunity for careful review and evaluation of an advance directive without endangering the life of the patient.
18. a. Nothing in this act shall be construed to alter, amend or revoke the rights and responsibilities under existing law of health care institutions not governed by the provisions of this act.
b. The provisions of this act shall not be construed to require emergency personnel, including paid or volunteer fire fighters; paramedics; members of an ambulance team, rescue squad, or mobile intensive care unit; or emergency room personnel of a licensed health care institution, to withhold or withdraw emergency care in circumstances which do not afford reasonable opportunity for careful review and evaluation of an advance directive without endangering the life of the patient.
26:2H-69. Consultation with institutional or regional reviewing body
17. a. An institutional or regional reviewing body which engages in prospective case consultation pursuant to paragraph (4) of subsection a. of section 15 of this act may be consulted by the attending physician, patient or health care representative as to whether it believes that the withholding or withdrawal of the medical intervention under consideration would be in conformity with the requirements of this act, including without limitation: whether such action would be within the scope of the patient's advance directive; whether it may reasonably be judged that the likely risks and burdens associated with the medical intervention to be withheld or withdrawn outweigh its likely benefits; and whether it may reasonably be judged that imposition of the medical intervention on an unwilling patient would be inhumane. The attending physician, patient and health care representative shall also be advised of any other course of diagnosis or treatment recommended for consideration.
Consultation with the institutional or regional reviewing body shall be documented in the patient's medical records.
b. Consultation with an institutional or regional reviewing body acting in accordance with subsection a. of this section is not required. Furthermore, nothing in this act shall be construed to impair the right of a patient, health care representative, physician, nurse, or other health care professional who consults with an institutional or regional reviewing body to:
(1) Seek review by a public agency recognized by law for this purpose; or
(2) Seek review by a court of competent jurisdiction.
c. Nothing in this section shall preclude the transfer of the patient to another appropriate health care professional or health care institution. In this case the health care institution responsible for the patient's care shall assure that the health care professional or health care institution to which the patient is transferred is properly informed of the advice given by the institutional or regional reviewing body.
17. a. An institutional or regional reviewing body which engages in prospective case consultation pursuant to paragraph (4) of subsection a. of section 15 of this act may be consulted by the attending physician, patient or health care representative as to whether it believes that the withholding or withdrawal of the medical intervention under consideration would be in conformity with the requirements of this act, including without limitation: whether such action would be within the scope of the patient's advance directive; whether it may reasonably be judged that the likely risks and burdens associated with the medical intervention to be withheld or withdrawn outweigh its likely benefits; and whether it may reasonably be judged that imposition of the medical intervention on an unwilling patient would be inhumane. The attending physician, patient and health care representative shall also be advised of any other course of diagnosis or treatment recommended for consideration.
Consultation with the institutional or regional reviewing body shall be documented in the patient's medical records.
b. Consultation with an institutional or regional reviewing body acting in accordance with subsection a. of this section is not required. Furthermore, nothing in this act shall be construed to impair the right of a patient, health care representative, physician, nurse, or other health care professional who consults with an institutional or regional reviewing body to:
(1) Seek review by a public agency recognized by law for this purpose; or
(2) Seek review by a court of competent jurisdiction.
c. Nothing in this section shall preclude the transfer of the patient to another appropriate health care professional or health care institution. In this case the health care institution responsible for the patient's care shall assure that the health care professional or health care institution to which the patient is transferred is properly informed of the advice given by the institutional or regional reviewing body.
26:2H-68. Issuance of do not resuscitate order
16. a. Consistent with the terms of an advance directive and the provisions of this act, the attending physician may issue a do not resuscitate order.
b. A do not resuscitate order shall be entered in writing in the patient's medical records prior to implementation of the order.
c. Nothing in this act shall be construed to impair any existing legal authority to issue a do not resuscitate order when the patient has not executed an advance directive.
16. a. Consistent with the terms of an advance directive and the provisions of this act, the attending physician may issue a do not resuscitate order.
b. A do not resuscitate order shall be entered in writing in the patient's medical records prior to implementation of the order.
c. Nothing in this act shall be construed to impair any existing legal authority to issue a do not resuscitate order when the patient has not executed an advance directive.
26:2H-67. Circumstances under which life-sustaining treatment may be withheld or withdrawn
15. a. Consistent with the terms of an advance directive and the provisions of this act, life-sustaining treatment may be withheld or withdrawn from a patient in the following circumstances:
(1) When the life-sustaining treatment is experimental and not a proven therapy, or is likely to be ineffective or futile in prolonging life, or is likely to merely prolong an imminent dying process;
(2) When the patient is permanently unconscious, as determined by the attending physician and confirmed by a second qualified physician;
(3) When the patient is in a terminal condition, as determined by the attending physician and confirmed by a second qualified physician; or
(4) In the event none of the above circumstances applies, when the patient has a serious irreversible illness or condition, and the likely risks and burdens associated with the medical intervention to be withheld or withdrawn may reasonably be judged to outweigh the likely benefits to the patient from such intervention, or imposition of the medical intervention on an unwilling patient would be inhumane. In such cases prior to implementing a decision to withhold or withdraw life-sustaining treatment, the attending physician may promptly seek consultation with an institutional or regional reviewing body in accordance with section 17 of this act, or may promptly seek approval of a public agency recognized by law for this purpose.
b. Nothing in this section shall be construed to impair the obligations of physicians, nurses and other health care professionals to provide for the care and comfort of the patient and to alleviate pain, in accordance with accepted medical and nursing standards.
c. Nothing in this section shall be construed to abridge any constitutionally-protected right to refuse treatment under either the United States Constitution or the Constitution of the State of New Jersey.
15. a. Consistent with the terms of an advance directive and the provisions of this act, life-sustaining treatment may be withheld or withdrawn from a patient in the following circumstances:
(1) When the life-sustaining treatment is experimental and not a proven therapy, or is likely to be ineffective or futile in prolonging life, or is likely to merely prolong an imminent dying process;
(2) When the patient is permanently unconscious, as determined by the attending physician and confirmed by a second qualified physician;
(3) When the patient is in a terminal condition, as determined by the attending physician and confirmed by a second qualified physician; or
(4) In the event none of the above circumstances applies, when the patient has a serious irreversible illness or condition, and the likely risks and burdens associated with the medical intervention to be withheld or withdrawn may reasonably be judged to outweigh the likely benefits to the patient from such intervention, or imposition of the medical intervention on an unwilling patient would be inhumane. In such cases prior to implementing a decision to withhold or withdraw life-sustaining treatment, the attending physician may promptly seek consultation with an institutional or regional reviewing body in accordance with section 17 of this act, or may promptly seek approval of a public agency recognized by law for this purpose.
b. Nothing in this section shall be construed to impair the obligations of physicians, nurses and other health care professionals to provide for the care and comfort of the patient and to alleviate pain, in accordance with accepted medical and nursing standards.
c. Nothing in this section shall be construed to abridge any constitutionally-protected right to refuse treatment under either the United States Constitution or the Constitution of the State of New Jersey.
26:2H-66. Resolution of disagreements
14. a. In the event of disagreement among the patient, health care representative and attending physician concerning the patient's decision making capacity or the appropriate interpretation and application of the terms of an advance directive to the patient's course of treatment, the parties may seek to resolve the disagreement by means of procedures and practices established by the health care institution, including but not limited to, consultation with an institutional ethics committee, or with a person designated by the health care institution for this purpose or may seek resolution by a court of competent jurisdiction.
b. A health care professional involved in the patient's care, other than the attending physician, or an administrator of a health care institution may also invoke the dispute resolution process established by the health care institution to seek to resolve a disagreement concerning the patient's decision making capacity or the appropriate interpretation and application of the terms of an advance directive.
14. a. In the event of disagreement among the patient, health care representative and attending physician concerning the patient's decision making capacity or the appropriate interpretation and application of the terms of an advance directive to the patient's course of treatment, the parties may seek to resolve the disagreement by means of procedures and practices established by the health care institution, including but not limited to, consultation with an institutional ethics committee, or with a person designated by the health care institution for this purpose or may seek resolution by a court of competent jurisdiction.
b. A health care professional involved in the patient's care, other than the attending physician, or an administrator of a health care institution may also invoke the dispute resolution process established by the health care institution to seek to resolve a disagreement concerning the patient's decision making capacity or the appropriate interpretation and application of the terms of an advance directive.
26:2H-65. Additional rights, responsibilities of health care institution
13. a. In addition to any rights and responsibilities recognized or imposed by, or pursuant to, this act, or any other law, a health care institution shall have the following rights and responsibilities:
(1) A health care institution shall adopt such policies and practices as are necessary to provide for routine inquiry, at the time of admission and at such other times as are appropriate under the circumstances, concerning the existence and location of an advance directive.
(2) A health care institution shall adopt such policies and practices as are necessary to provide appropriate informational materials concerning advance directives to all interested patients and their families and health care representatives, and to assist patients interested in discussing and executing an advance directive.
(3) A health care institution shall adopt such policies and practices as are necessary to educate patients and their families and health care representatives about the availability, benefits and burdens of rehabilitative treatment, therapy and services, including but not limited to family and social services, self-help and advocacy services, employment and community living, and use of assistive devices. A health care institution shall, in consultation with the attending physician, assure that such information is discussed with a patient and his health care representative and made a part of the decision making process set forth in section 11 of this act, as appropriate under the circumstances.
(4) In situations in which a transfer of care is necessary, including a transfer for the purpose of effectuating a patient's wishes pursuant to an advance directive, a health care institution shall, in consultation with the attending physician, take all reasonable steps to effect the appropriate, respectful and timely transfer of the patient to the care of an alternative health care professional or institution, as necessary, and shall assure that the patient is not abandoned or treated disrespectfully. In such circumstances, a health care institution shall assure the timely transfer of the patient's medical records, including a copy of the patient's advance directive.
(5) A health care institution shall establish procedures and practices for dispute resolution, in accordance with section 14 of this act.
(6) A health care institution shall adopt such policies and practices as are necessary to inform physicians, nurses and other health care professionals of their rights and responsibilities under this act, to assure that such rights and responsibilities are understood, and to provide a forum for discussion and consultation regarding the requirements of this act.
b. A private, religiously-affiliated health care institution may develop institutional policies and practices defining circumstances in which it will decline to participate in the withholding or withdrawing of specified measures utilized to sustain life. Such policies and practices shall be written, and shall be properly communicated to patients and their families and health care representatives prior to or upon the patient's admission, or as soon after admission as is practicable.
If the institutional policies and practices appear to conflict with the legal rights of a patient wishing to forego health care, the health care institution shall attempt to resolve the conflict, and if a mutually satisfactory accommodation cannot be reached, shall take all reasonable steps to effect the appropriate, timely and respectful transfer of the patient to the care of another health care institution appropriate to the patient's needs, and shall assure that the patient is not abandoned or treated disrespectfully.
c. Nothing in this act shall be construed to require a health care institution to participate in the beginning, continuing, withholding or withdrawing of health care in a manner contrary to law or accepted medical standards.
13. a. In addition to any rights and responsibilities recognized or imposed by, or pursuant to, this act, or any other law, a health care institution shall have the following rights and responsibilities:
(1) A health care institution shall adopt such policies and practices as are necessary to provide for routine inquiry, at the time of admission and at such other times as are appropriate under the circumstances, concerning the existence and location of an advance directive.
(2) A health care institution shall adopt such policies and practices as are necessary to provide appropriate informational materials concerning advance directives to all interested patients and their families and health care representatives, and to assist patients interested in discussing and executing an advance directive.
(3) A health care institution shall adopt such policies and practices as are necessary to educate patients and their families and health care representatives about the availability, benefits and burdens of rehabilitative treatment, therapy and services, including but not limited to family and social services, self-help and advocacy services, employment and community living, and use of assistive devices. A health care institution shall, in consultation with the attending physician, assure that such information is discussed with a patient and his health care representative and made a part of the decision making process set forth in section 11 of this act, as appropriate under the circumstances.
(4) In situations in which a transfer of care is necessary, including a transfer for the purpose of effectuating a patient's wishes pursuant to an advance directive, a health care institution shall, in consultation with the attending physician, take all reasonable steps to effect the appropriate, respectful and timely transfer of the patient to the care of an alternative health care professional or institution, as necessary, and shall assure that the patient is not abandoned or treated disrespectfully. In such circumstances, a health care institution shall assure the timely transfer of the patient's medical records, including a copy of the patient's advance directive.
(5) A health care institution shall establish procedures and practices for dispute resolution, in accordance with section 14 of this act.
(6) A health care institution shall adopt such policies and practices as are necessary to inform physicians, nurses and other health care professionals of their rights and responsibilities under this act, to assure that such rights and responsibilities are understood, and to provide a forum for discussion and consultation regarding the requirements of this act.
b. A private, religiously-affiliated health care institution may develop institutional policies and practices defining circumstances in which it will decline to participate in the withholding or withdrawing of specified measures utilized to sustain life. Such policies and practices shall be written, and shall be properly communicated to patients and their families and health care representatives prior to or upon the patient's admission, or as soon after admission as is practicable.
If the institutional policies and practices appear to conflict with the legal rights of a patient wishing to forego health care, the health care institution shall attempt to resolve the conflict, and if a mutually satisfactory accommodation cannot be reached, shall take all reasonable steps to effect the appropriate, timely and respectful transfer of the patient to the care of another health care institution appropriate to the patient's needs, and shall assure that the patient is not abandoned or treated disrespectfully.
c. Nothing in this act shall be construed to require a health care institution to participate in the beginning, continuing, withholding or withdrawing of health care in a manner contrary to law or accepted medical standards.
26:2H-64. Effect of instruction directive
12. a. If the patient has executed an instruction directive but has not designated a health care representative, or if neither the designated health care representative or any alternate designee is able or available to serve, the instruction directive shall be legally operative. If the instruction directive provides clear and unambiguous guidance under the circumstances, it shall be honored in accordance with its specific terms by a legally appointed guardian, if any, family members, the physicians, nurses, other health care professionals, health care institutions, and others acting on the patient's behalf.
b. If the instruction directive is, in the exercise of reasonable judgment, not specific to the patient's medical condition and the treatment alternatives, the attending physician, in consultation with a legally appointed guardian, if any, family members, or others acting on the patient's behalf, shall exercise reasonable judgment to effectuate the wishes of the patient, giving full weight to the terms, intent, and spirit of the instruction directive. Departure from the specific terms and provisions of the instruction directive shall be based upon clearly articulable factors not foreseen or contemplated by the instruction directive, including, but not limited to, the circumstances of the patient's medical condition.
c. Nothing in this act shall be construed to impair the legal force and effect of an instruction directive executed prior to the effective date of this act.
12. a. If the patient has executed an instruction directive but has not designated a health care representative, or if neither the designated health care representative or any alternate designee is able or available to serve, the instruction directive shall be legally operative. If the instruction directive provides clear and unambiguous guidance under the circumstances, it shall be honored in accordance with its specific terms by a legally appointed guardian, if any, family members, the physicians, nurses, other health care professionals, health care institutions, and others acting on the patient's behalf.
b. If the instruction directive is, in the exercise of reasonable judgment, not specific to the patient's medical condition and the treatment alternatives, the attending physician, in consultation with a legally appointed guardian, if any, family members, or others acting on the patient's behalf, shall exercise reasonable judgment to effectuate the wishes of the patient, giving full weight to the terms, intent, and spirit of the instruction directive. Departure from the specific terms and provisions of the instruction directive shall be based upon clearly articulable factors not foreseen or contemplated by the instruction directive, including, but not limited to, the circumstances of the patient's medical condition.
c. Nothing in this act shall be construed to impair the legal force and effect of an instruction directive executed prior to the effective date of this act.
26:2H-63. Decision making under an advance directive
11. a. The attending physician, the health care representative and, when appropriate, any additional physician responsible for the patient's care, shall discuss the nature and consequences of the patient's medical condition, and the risks, benefits and burdens of the proposed health care and its alternatives. Except as provided by subsection b. of this section, the attending physician shall obtain informed consent for, or refusal of, health care from the health care representative.
(1) Discussion of the proposed treatment and its alternatives shall include, as appropriate under the circumstances, the availability, benefits and burdens of rehabilitative treatment, therapy, and services.
(2) The decision making process shall allow, as appropriate under the circumstances, adequate time for the health care representative to understand and deliberate about all relevant information before a treatment decision is implemented.
b. Following a determination that a patient lacks decision making capacity, the health care representative and the attending physician shall, to a reasonable extent, discuss the treatment options with the patient, and seek to involve the patient as a participant in the decision making process. The health care representative and the attending physician shall seek to promote the patient's capacity for effective participation and shall take the patient's expressed wishes into account in the decision making process.
Once decision making authority has been conferred upon a health care representative pursuant to an advance directive, if the patient is subsequently found to possess adequate decision making capacity with respect to a particular health care decision, the patient shall retain legal authority to make that decision. In such circumstances, the health care representative may continue to participate in the decision making process in an advisory capacity, unless the patient objects.
Notwithstanding any other provision of this act to the contrary, if a patient who lacks decision making capacity clearly expresses or manifests the contemporaneous wish that medically appropriate measures utilized to sustain life be provided, that wish shall take precedence over any contrary decision of the health care representative and any contrary statement in the patient's instruction directive.
c. In acting to implement a patient's wishes pursuant to an advance directive, the health care representative shall give priority to the patient's instruction directive, and may also consider, as appropriate and necessary, the following forms of evidence of the patient's wishes:
(1) The patient's contemporaneous expressions, including nonverbal expressions;
(2) Other reliable sources of information, including the health care representative's personal knowledge of the patient's values, preferences and goals; and
(3) Reliable oral or written statements previously made by the patient, including, but not limited to, statements made to family members, friends, health care professionals or religious leaders.
d. If the instruction directive, in conjunction with other evidence of the patient's wishes, does not provide, in the exercise of reasonable judgment, clear direction as applied to the patient's medical condition and the treatment alternatives, the health care representative shall exercise reasonable discretion, in good faith, to effectuate the terms, intent, and spirit of the instruction directive and other evidence of the patient's wishes.
e. Subject to the provisions of this act, and unless otherwise stated in the advance directive, if the patient's wishes cannot be adequately determined, then the health care representative shall make a health care decision in the patient's best interests.
11. a. The attending physician, the health care representative and, when appropriate, any additional physician responsible for the patient's care, shall discuss the nature and consequences of the patient's medical condition, and the risks, benefits and burdens of the proposed health care and its alternatives. Except as provided by subsection b. of this section, the attending physician shall obtain informed consent for, or refusal of, health care from the health care representative.
(1) Discussion of the proposed treatment and its alternatives shall include, as appropriate under the circumstances, the availability, benefits and burdens of rehabilitative treatment, therapy, and services.
(2) The decision making process shall allow, as appropriate under the circumstances, adequate time for the health care representative to understand and deliberate about all relevant information before a treatment decision is implemented.
b. Following a determination that a patient lacks decision making capacity, the health care representative and the attending physician shall, to a reasonable extent, discuss the treatment options with the patient, and seek to involve the patient as a participant in the decision making process. The health care representative and the attending physician shall seek to promote the patient's capacity for effective participation and shall take the patient's expressed wishes into account in the decision making process.
Once decision making authority has been conferred upon a health care representative pursuant to an advance directive, if the patient is subsequently found to possess adequate decision making capacity with respect to a particular health care decision, the patient shall retain legal authority to make that decision. In such circumstances, the health care representative may continue to participate in the decision making process in an advisory capacity, unless the patient objects.
Notwithstanding any other provision of this act to the contrary, if a patient who lacks decision making capacity clearly expresses or manifests the contemporaneous wish that medically appropriate measures utilized to sustain life be provided, that wish shall take precedence over any contrary decision of the health care representative and any contrary statement in the patient's instruction directive.
c. In acting to implement a patient's wishes pursuant to an advance directive, the health care representative shall give priority to the patient's instruction directive, and may also consider, as appropriate and necessary, the following forms of evidence of the patient's wishes:
(1) The patient's contemporaneous expressions, including nonverbal expressions;
(2) Other reliable sources of information, including the health care representative's personal knowledge of the patient's values, preferences and goals; and
(3) Reliable oral or written statements previously made by the patient, including, but not limited to, statements made to family members, friends, health care professionals or religious leaders.
d. If the instruction directive, in conjunction with other evidence of the patient's wishes, does not provide, in the exercise of reasonable judgment, clear direction as applied to the patient's medical condition and the treatment alternatives, the health care representative shall exercise reasonable discretion, in good faith, to effectuate the terms, intent, and spirit of the instruction directive and other evidence of the patient's wishes.
e. Subject to the provisions of this act, and unless otherwise stated in the advance directive, if the patient's wishes cannot be adequately determined, then the health care representative shall make a health care decision in the patient's best interests.
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