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Rice ElderM. Law Nancy Rice, Esq. YAsk Certified Elder Law Attorneys

Nancy M. Rice, Esquire, CELA

Pamela A. Quattrone Esquire, MBA, CELA

Certified Elder Law Attorney Rice Elder Law has been assisting clients with their Estate Planning and Elder Law needs since 1992.

Nancy Rice been and practicing and Elder Law in Attorneys New Jersey(CELA) and Pennsylvania Bothhas Nancy PamelaEstate have Planning been Certified as Elder Law by the National Elder Law since 1986. She was Certified an Elderoffices Law Attorney in County 1997, and has maintained officesCounty in Foundation. The firm as maintains in Atlantic (Linwood) and Camden (Cherry Hill). Rice Elder Law can answer your questions and concerns – just call 609-398-3447. Camden and Cape May counties, specifically in Cherry Hill and Ocean City. She can answer your questions and concerns- just call 609-398-3447.

8 Things To Know When Your Loved One “ WILL CONTESTS: How Do They Work? ” Is About To Be Discharged From Rehab We discussed A.) Fraud and B.) Due Execution in the Atlantic

Part 2 of 2

County Woman September/October 2015 Part 1 of 2. Your loved one (let’s say Mom) has fallen or issue, suffered a stroke and Today, we will continue in our discussion with C.) Testamentary is rushed to the emergency room. After being admitted to the hospital Influence. for Capacity at least 3 and daysD.) (notUndue just “under observation” – this distinction is important), Mom is discharged from the hospital to a skilled nursing C.) Testmentary Capacity facility center for rehabilitation. After participating in rehabilitation therapy 17 days, the socialcapacity workeristells youpermissive. that yourIndeed, Mom’s The testfor forabout determining testamentary rather improvement hasneeded “plateaued” anda they will discharging hertoinenter 3 the level of capacity to execute Will is lessbe than that required into a contract. Thebecause key questions arecertain whetherthat the person who made to thecare Will days. You panic you are Mom is unable (called the “Testator”) understood: for herself at home and she cannot afford to pay in-home caregivers, but you assume that the social worker has already explored all possible The nature and extent of the property subject of the Will; in other words, options forassets Momthe soTestator you have choice buttotoleave go along with what hadno and planned under his or the her Will. discharge plans. Remember, theobjects social of worker is not paid by an The “natural his or her bounty,” thatthe is, facility who areto thebeTestator’s advocate Mom. Beforeoraccepting what youtoare told about discharge nextfor of kin (whether not he or she wants leave them anything under options, you should know the truth about the following statements the Will, the Testator needs to know who they are). commonly made by skilled nursing facilities:

1 2 3 4

The effect of the Will; that the Will would dispose of property following 1. “Medicare will cover only 20 days of rehabilitation.” Medicare death.

will cover up to 20 days of rehabilitation in full, and up to another 80 days with aThe coinsurance. thefactors coinsurance is $176 per day, some or all relation of For each2020, of these to the other. of which may be covered by supplemental insurance (“Medigap”). It may be helpful to remind the facility that Mom has supplemental insurance that allfor Testators are of sound and competent soNotably, they arethe surelawtopresumes be paid in full any Medicare-covered rehabilitation. mind when a Will is executed (assuming he/she was at least 18 years of age and Remember, 100 days!! has not been declared by a court to be legally incapacitated). To overcome the 2. “Your Mom’s improvement has plateaued.” 2013, the U.S. presumption of capacity, the contestant must prove lack ofIntestamentary capacSupreme Court “plateaued” never been ity at the time the clarified Will was that executed, by clear improvement and convincinghas evidence. It is the standard for the end rehabilitation. Instead, skilled important to know thatofit Medicare-covered is not enough to show that the Testator was addicted covered whenthat necessary to maintain tonursing drugs orservices alcohol;are you must prove the person was underthe thepatient’s influence of acurrent substance at the time the execution of the deterioration. Will. Nor is it sufficient to show condition or of prevent/slow further This is helpful that the Testator was forgetful at the time, so long as he or she had some capacwhen arguing for additional rehabilitation days. ity to manage his or her business affairs.

3. “You didn’t tell us when she was admitted that she would be staying.” The Federal Nursing Home Reform Act (FNHRA) prohibits

D.) Undue Influence involuntary transfer or discharge of a nursing home resident (including

Undue influence has been any type of exertion that can prevent rehabilitation) except for 6defined specificasreasons: the Testator from following his/her free will. • Necessary to meet resident’s welfare;This can include physical, mental, moral exertion. Mereneeds suggestions, or the exertion of some or • Resident no longer skilled persuasions care; influence is not enough to invalidate a Will. Ordinarily, the challenger has the • Resident endangers safety of others; burden of proving undue influence. If, however, the Will benefits one who

enjoyed a special or “confidential relationship” with the Testator, and there are execution of the Will, the burden of 4.“suspicious “We do circumstances” not have anysurrounding long-termthe care beds available.” This shift defenderreasons of the Will. isproof NOTwill one of to thethe allowable for discharge. Mom is in a bed

currently, and when a long-term bed opens, movespecial her. trust A “confidential relationship” cancare be found wherethey therecan is some

5.between “You have to filland outa beneficiary an application forWill admission long-term the Testator under the and wheretothe nature of that special relationship creates some type of reliance or dependency. At times, care.” This is not an allowable reason for discharge under the FNHRA a special relationship has been found to exist between a Testator and thereoris confidential no requirement under law that an application be completed and: an adult child; other relative; a healthcare provider; a neighbor; an attorney; or an agreement be signed. In fact, this is usually nothing more than an or an accountant. Notably, while a confidential relationship naturally exists attempt by the facility to get Mom to waive her rights (or worse, get onebetween a husband and wife, the presumption of undue influence will not generof her children on the hook for payment of her fees). ally arise even when the Testator’s children are disinherited.

6. “You have to sign a respite care agreement.” Same as #5, but

to theit “suspicious circumstances” component of an undue influence this As makes easier for the facility to discharge because in a respite careWill contest, theMom evidence on this issueno can be “slight.” Suspicious circumstances have agreement, agrees to stay longer than the stated short-term been found where a beneficiary of the Will engaged his attorney to prepare the period (maybe 90 days). Testator’s Will and where a nursing home patient was removed from the facility

7.by“We do not accept Medicaid-pending.” A nursing the beneficiary of a Will that was signed a few days later. home is not

required to accept any new resident from outside of the facility, but theyIfare permitted to discharge resident who has already entered younot believe that a Will should bea challenged because it was not executed properly (i.e., it was forged, didn’t have the correct number of witnesses, etc.) or the facility, whether on private-pay, Medicare rehabilitation, Medicaidbecause the deceased was not competent when he/she signed it or because the pending, or otherwise. In fact, Medicaid beneficiaries (including Will was the producthave of undue influence, you should hire a involuntary seasoned attorney, Medicaid-pending) heightened protections against who has significant experience in this area of law. Do not delay with your decidischarge under New Jersey law. sion to engage an experienced attorney because the law allows only a narrow window of time during which a caveat and/or a Will contest may be filed.

8. “Who will be paying while Medicaid is pending?” While a

nursing home resident is awaiting Medicaid approval (which could take months or even close to aanswer year), theyour resident is responsible for concerns! paying her Nancy Rice can questions and income to the facility, subject to some limitations. Family cannot be held responsible to pay the balance during the Medicaid approval process. Now that you know Mom’s basic rights when it comes to nursing home discharge, what do you do when the social worker insists on setting up a plan for discharge? Say NO and contact us or another Certified Elder Law Attorney right away! Once Mom returns home, it may be extremely difficult to get her admitted back into the facility (or any facility). You can also contact the New Jersey Office of the Long-Term Care Ombudsman.

Call 609-398-3447 today!

Nancy Rice and Pamela Quattrone can answer your questions and concerns, call 609-398-3447.

• Resident endangers health of others; • Nonpayment (or failure to procure Medicaid); and Administration • Guardianships • Will Contests • Special Needs Trust • Medicare, Medicaid, Long-Term Care & Disability Planning Estate/Trust • Facility closes.

200 Asbury Avenue • Ocean City, NJ 08226 • 609.398.3447 | 1236 Brace Rd., Suite F • Cherry Hill, NJ 08034 • 856.673.0048

Estate/Trust Administration • Guardianships • Will Contests • Special Needs Trusts • Medicare, Medicaid, Long-Term Care, and Disability Planning

www.RiceElderLaw.com

2021 New Road, Unit #9 • Linwood, NJ 08021 • 609.398.3447 I 1236 Brace Road, Suite F • Cherry Hill, NJ 08034 • 856.673.0048

www.RiceElderLaw.com

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November/December 2015 November/December 2020

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Atlantic County Woman - November/December 2020  

The County Woman’s Newspaper is published bi-monthly in Atlantic, Monmouth and Ocean Counties in New Jersey and is available free of charge...

Atlantic County Woman - November/December 2020  

The County Woman’s Newspaper is published bi-monthly in Atlantic, Monmouth and Ocean Counties in New Jersey and is available free of charge...