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In my post last week, I set out the facts of a recent Appellate Division case covering a situation I see frequently in my elder law practice – the payment of home health aides and how it affects Medicaid eligibility. The Medicaid applicant, D.Z. paid her aides almost exactly the way countless people I have spoken to over the years have paid their private aides.  She and her son as her POA paid the aides by check payable to cash with no written agreement as to the services to be provided.  The State assessed a penalty of 21 months on $210,000 of transfers for less than fair value, most of which went to pay the aides.  As I was reading the case, I was very interested to see how the court would view the State’s arguments.  How much deference would the State be given? The Administrative Law Judge issued a decision modifying the amount of the transfer penalty.  The judge found that D.Z. had provided sufficient evidence to establish that she paid the aides and received equal fair market value in services so that no penalty should be imposed. The administrative law judge’s decision, however, while binding on the applicant is not binding on the State which has 45 days to accept, modify or reject it.  The State rejected the judge’s conclusion

 Just last week the New Jersey Appellate Division issued a decision regarding Medicaid that provides a road map for anyone hiring aides at home who hopes to qualify for Medicaid benefits when private funds run out.  The case itself is unpublished which means it cannot be relied on as precedent in future cases.  Nevertheless, it gives us insight into how the State treats the hiring of private aides and it confirms what I have been telling clients and prospects for years about the dangers in hiring aides and paying them “off the books”. First let’s review an overview of the facts in the case.  D.Z., thru her son as power of attorney, filed an application for institutional Medicaid.  She was approved but with a 21 month penalty resulting from a transfer for less than fair value of $210,000.  She appealed and at a fair hearing- the first level of appeal – D.Z.’s son testified that he had hired several aides to assist D.Z. with her activities of daily living (ie. dressing, bathing, ambulating) as well cooking, cleaning and doing laundry.  The aides were paid between $13 and $15 per hour.  One aide lived with D.Z. for several months and was paid $700 to $750 per week.  It was the payments to these aides that comprised almost all of

In last week’s post, I started to tell you about what has been happening with increasing frequency to the Medicaid application process.  Denials have become almost routine and for reasons that range from flat out incorrect to the bizarre. For example, last week we received a Medicaid denial for failure to provide a deed or lease for a residence in a town that the caseworker believes my client lived.  This request was never raised before and we never provided these documents for the simple reason that my client never lived in that town.   Two of the client’s children happen to live in that town and I suspect that is where the caseworker somehow picked up this information. This type of request is actually not a first.  Last year, a Medicaid caseworker insisted my client owned a property she did not in fact own.  In that case, I was able to speak with the caseworker.  She had conducted a title search for property in the name of my client and her husband.  Their son had the same last name but was a “junior”.  She located a deed for property owned by the son and his wife, who had a different name than my client.  Nevertheless, she somehow considered that a potential asset of my client.  I was

Even before the current pandemic, getting a Medicaid application approved was increasingly challenging.  Now, with some government staff working remotely and many government offices short staffed because of social distancing requirements, it has not gotten better.  What we are finding in our office is that applications that should clearly be approved are being denied.  In some cases, Medicaid rules are misapplied and regulations are ignored.  In other instances, procedural requirements are not being followed.  It is difficult to get a caseworker on the phone to talk about a case.  One county does not have any one person assigned to a case.  Different employees work on different aspects of each case.  Letters from that county do not contain the name of any person that we can call.  Because filing a Medicaid application involves more than just the 16 page application, our filings typically include several hundred pages of documents or more.  That’s because the 5 year lookback requires that the applicant produce every statement for every account and investment owned within that time period.  Additionally, just about every Medicaid office is also requiring copies of every check written and deposited during that 60 month period.  This can easily result in 1000 pages of documents or more by the time the application process concludes.

In my post last week I began discussing the options to probate when an original will can’t be located.  Probate in New Jersey tends to be relatively inexpensive in comparison to many other states because appearances before a judge aren’t normally necessary and a bond isn’t usually required unless you can’t find the will.  Letters of administration can be applied for if no will is located by making an application to the Surrogate.  An administrator serves in the same role as does an executor.   New Jersey statute establishes who has the right to apply first, which is determined by closeness of relationship to the person who died (the decedent).  If, for example, the decedent had 6 children who all have equal right to serve but only one applies for the appointment, the others must sign a document declining to serve – known as a renunciation.  If any of them refuse to sign or cannot be located then the application must be made to a judge on notice to all parties who have an equal or greater right to serve.  Any party can oppose the application or request instead to be appointed and that’s where it can get quite messy and expensive.  The administrator must post a bond.  If the proposed administrator cannot qualify for

We all know the statistics.  110,000 deaths attributed to Covid-19 and climbing.  Our office has received more calls in the last 3 months regarding the need for estate administration than at any time that I can recall in the past 25 years.  In many instances the decedent (the person who died) had no will or at least none could be located.  In other cases, a copy has been found but not the original. As I have written in the past, New Jersey has an easy probate process when the original will exists.  An application for probate is presented by the proposed executor with the original will to the county Surrogate without the need to appear before a judge.  This is called common probate. Without the original will, however, estate administration involves an application by a proposed administrator and usually a bond is needed.  A surety company will issue the bond to protect the heirs and creditors should the administrator fail to carry out his/her duties. Depending on the size of the estate, this bond can be several thousand to tens of thousands of dollars. If a copy of the will has been found but not the original, and there is no belief or