Law Office of Donald D. Vanarelli Blog

In a new published opinion, Burke et al. v. Sea Point Realtors et al., DOCKET NO. A-5652-06T1, App. Div. (May 30, 2008), the Appellate Division of the state’s Superior Court held that a guardian in New Jersey has an affirmative duty to disclose a conflict of interest involving the sale of the ward’s real property both to the judge who had been asked to approve the sale and to potential purchasers. This case was triggered by a guardian’s decision to retain defendant Sea Point Realty, a real estate broker, to market real property owned by the guardian’s ward. The guardian sought court approval to sell the property to defendants Thomas and Patricia Meyer without clearly disclosing to the probate judge that the Meyers were the principals of Sea Point Realty. The guardian also did not give notice of the court action to plaintiffs or any of the other disappointed offerors. The probate judge approved the sale. Plaintiffs, disappointed offerors, subsequently filed a lawsuit against the Meyers, Sea Point and the guardian alleging fraud and other similar claims and seeking damages. The trial court dismissed the complaint on summary judgment motions, holding that the probate proceedings conclusively established the legitimacy of the sale to the Meyers. The Superior Court, Appellate Division, reversed, concluding that the order approving the transaction was not entitled to preclusive effect because the guardian had not clearly indicated to the probate judge that the purchasers were the principals of the real estate brokerage firm, and because plaintiffs had not been given notice of the probate proceedings. The opinion also noted that even though the sale price paid by the buyers/realtors was, at first glance, the highest and best offer, the buyers/realtors got a commission on the sale of about $11,000, making the actual sales price paid that much less. The appellate court believed that the judge should have had that information when making her decision authorizing the sale.

Full case:5652-06.opn.html

NJBIZ is a weekly magazine covering business news in New Jersey. In the June 2, 2008 edition of NJBIZ , the top 24 Elder Law Attorneys in New Jersey were identified by the publication. The selections were based on the total number of elder law cases which the attorney handled throughout his or her career. I am proud to report that I was rated No. 16 of the top 24 Elder Law Attorneys in New Jersey. The selections are updated annually. I handle elder law cases in the areas of wills, estates and trusts, estate administration, government benefits planning including Medicaid applications and VA benefits, special needs planning for disabled persons and their families, guardianships and elder mediation. My firm also handles will contests, estate and trust litigation, probate lawsuits and other litigated matters. The NJBIZ article identifying the top New Jersey Elder Law Attorneys can be found here - njs-top-elder-law-attorneys-6-2-08

A related Industry Report from the June 2nd edition of NJBIZ on the general area of Elder Law and the typical work performed by Elder Law Attorneys in New Jersey can be found here - elder-law-attorneys-create-plans-for-conserving-assets

Social Security statements now are advising recipients that Medicare does not cover long-term care expenses. The Social Security Administration recently changed the wording of its annual earnings statements at the direction of Congress to make it clear that individuals need to plan for the possibility they might eventually need long-term care. The new wording follows:

Social Security pays retirement, disability, family and survivors benefits. Medicare, a separate program run by the Centers for Medicare and Medicaid Services, helps pay for inpatient hospital care, nursing care, doctors’ fees, drugs and other medical services and supplies to people age 65 and older, as well as to people who have been receiving Social Security disability benefits for two years or more. Medicare does not pay for long-term care, so you may want to consider options for private insurance.

Unfortunately, long-term care insurance is costly. Fidelity Investments recently issued a study estimating that a 65-year old couple in 2008 will need $85,000 to insure against long-term care expenses. Failure to adequately plan for long-term care needs often results in additional burdens on the couples’ adult children or other family members or loved ones, who can jeopardize their own finances by caring for an ailing parent or family member while finding they must cut their work hours.

For an article from the San Francisco Chronicle on Fidelity’s study, click here.

The Journal on Active Aging, a publication of the International Council on Active Aging, notes that, as people age, they lose muscle mass and strength, flexibility and bone. The resulting frailty often leads to a loss of mobility and independence. Compounding the physical deterioration resulting from the aging process, cultural and personal resistance to exercise often has an additional negative effect on strength and flexibility. With every increasing decade of age, people become less and less active.

However, research shows that, as we age, exercise becomes more important in terms of quality of life, independence and having a full life. Regular participation in aerobics, strength training and balance and flexibility exercises can delay and may even prevent a life-limiting loss of physical abilities into one’s 90s and beyond. As stated by a panel of scientists with expertise in public health, behavioral science, epidemiology, exercise science, medicine, and gerontology:

Regular physical activity, including aerobic activity and muscle-strengthening activity, is essential for healthy aging. [O]lder adults, by engaging in … physical activity, can reduce the risk of chronic disease, premature mortality, functional limitations, and disability.

An updated series of physical activity recommendations for older adults has been issued by the American Heart Association (AHA) and the American College of Sports Medicine (ACSM). The updated recommendations follow:

Do moderately intense aerobic exercise 30 minutes a day, five days a week
Or
Do vigorously intense aerobic exercise 20 minutes a day, 3 days a week
And
Do eight to 10 strength-training exercises, 10-15 repetitions of each exercise twice to three times per week
And
If you are at risk of falling, perform balance exercises
And
Have a physical activity plan.

Both aerobic and muscle-strengthening activity is critical for healthy aging. Older adults or adults with chronic conditions should develop an activity plan with a health professional to manage risks and take therapeutic needs into account.

Further guidelines for older adults and adults with chronic conditions:

• Start, and get help if you need it. The general recommendation is that older adults should meet or exceed 30 minutes of moderate physical activity on most days of the week; however, it is also recognized that goals below this threshold may be necessary for older adults who have physical impairments or functional limitations.

• Functional health is an important benefit of physical activity for older adults. Physical activity contributes to the ease of doing everyday activities, such as gardening, walking or cleaning the house.

• Strength training is extremely important. Strength training is important for all adults, but especially so for older adults, as it prevents loss of muscle mass and bone, and is beneficial for functional health.

• If you can exceed the minimum recommendations, do it! The minimum recommendations are just that: the minimum needed to maintain health and see fitness benefits. If you can exceed the minimum, you can improve your personal fitness, improve management of an existing disease or condition, and reduce your risk for health conditions and mortality.

• Flexibility is also important. Each day you perform aerobic or strength-training activities, take an extra 10 minutes to stretch the major muscle and tendon groups, with 10-30 seconds for each stretch. Repeat each stretch three to four times. Flexibility training will promote the ease of performing everyday activities.

The AHA and ACSM have published a white paper on the updated physical activity recommendations which is available here - Physical Activity and Public Health: Updated Recommendation for Adults From the American College of Sports Medicine and the American Heart Association

An article from the NY Times on the updated physical activity recommendations can be found here - Personal Health - Exercise Guidelines for the Elderly - Personal Health

Nursing homes will get a “star rating” from the federal government to help consumers pick the best facilities. It is expected that this sweeping governmental initiative may create “peer pressure” among owners to improve care. The ratings, from a low of one star to a high of five, will be posted starting in December 2008 on the Nursing Home Compare Web site of the Centers for Medicare and Medicaid Services (Medicare.gov - Nursing Home Compare). The Centers for Medicare and Medicaid Services (CMS) plans to decide how many stars each nursing home gets by using data from the past three years of inspections, several measures of quality that include the percentage of residents who have bedsores, and staffing information. The star rating system is the latest of a series of steps taken by the CMS in recent years which are designed to protect the more than three million people who receive nursing home services each year by increasing pressure on nursing home owners. For example, last year the CMS initiated and began to publish a national watch list of nursing homes that data showed provided poor care and had failed to improve despite agency warnings. CMS data showed that about half of the nursing homes on the nationwide watch list significantly improved their quality of care within 24 to 30 months of being listed and that about 16 percent were terminated from Medicare and Medicaid because they showed no or insufficient improvement. Federal officials are asking for comments about the star rating system. Comments may be sent to BetterCare@cms.hhs.gov. The full story can be found in the June 19^th edition of the Baltimore Sun: U.S. star rating system set for nursing homes

I am happy to announce the formation of a new collaborative law alliance in New Jersey for professionals and clients in Central Jersey, including Union, Middlesex, Somerset, Essex, Morris, and Hunterdon counties. The newly formed Central New Jersey Collaborative Law Group (CJCLG) is dedicated to resolving the issues involved in divorce, child custody and support, spousal support and equitable distribution of marital assets through the principles of collaborative law. The CJCLG joins the North Jersey Collaborative Law Group and the Jersey Shore Collaborative Law Group in the effort to promote the use of collaborative divorce in New Jersey as an alternative to a litigated divorce. Joseph C. Noto, Esq.was elected the first president of the new CJCLG. To the best of my knowledge, I was the first official member of the newly-formed group since I was the first person to pay the required dues.

The CJCLG is the latest alliance of legal, mental health and financial professionals dedicated to the principles of collaborative divorce law to be established in New Jersey. The collaborative law movement was initiated in New Jersey by Linda L. Piff, Esq. Linda obtained  Professional Ethics Opinion 699 which is the first legal ethics opinion to approve the use of collaborative law principles in New Jersey. Thank you for your foresight and tremendous effort on behalf of divorcing couples and their children, Linda. You are truly the “grandmother of collaborative law” in New Jersey!

The CJCLG is seeking members from the legal, mental health and financial professions. Interested professionals are invited to contact Donald D. Vanarelli at 908-232-7400 for additional information. A link to the international collaborative law website can be found here - International Academy of Collaborative Professionals.

In a ruling that overturned close to 30 years of legal precedent in the area of family law as well as an appeals court decision that said there is no basis for a palimony suit unless a couple lived together, the New Jersey Supreme Court recently ruled that judges should consider the “entirety” of a couple’s relationship in determining claims for palimony, and that cohabitation is only one factor to be considered in deciding whether they had a “marital-type relationship” which could support an award of palimony. The New Jersey courts had ruled since 1979 that cohabitation was necessary to bring a palimony suit. Prior to that year, the courts would not enforce support claims involving unmarried couples or married couples not living with their spouses.

In ruling that cohabitation was not required in palimony lawsuits in NJ, Justice John Wallace wrote for the NJ Supreme Court as follows:

It is the promise of support, expressed or implied, coupled with a marital-type relationship, that are the indispensable elements to support a valid claim of palimony,

The justices left it up to family court judges to determine when there is grounds for a palimony suit. Palimony is a court-ordered allowance paid by one member of an unmarried couple following a breakup. Alimony payments involve married couples.

Justice Wallace wrote that:

The Family Court is well equipped to consider highly personal facts and to determine whether a plaintiff’s claim for support based on a marital-type relationship has merit.

The NJ Supreme Court decision can be found here - Devaney vs. L’Esperance, a-20-07.doc.html

An article on the case in the Star-Ledger newspaper can be found here - Palimony ruling sets precedent in Jersey- NJ.com

An article about the case from the New Jersey Lawyer Online newspaper can be found here - New Jersey Lawyer Online - News

A recent article in the NJ Lawyer newspaper examined the safeguards in federal and state law designed to protect elderly, infirm and disabled nursing home residents from involuntary transfers or discharges from their care facilities. According to federal law, a nursing home can discharge a resident only for the following reasons:

• The resident’s health has improved
• The resident’s needs cannot be met by the facility
• The health and safety of other residents is endangered
• The resident has not paid after receiving notice
• The facility stops operating

With regard to discharges for non-payment, Medicaid beneficiares, and those who have applied for, and are awaiting resolution of, Medicaid eligibility, are required only to pay toward the cost of care by reimbursing the nursing facility from his or her available monthly income as reported to Medicaid. They cannot be discharged even if their income is insufficient to pay for the entire monthly cost of care.

In addition, before a resident may be involuntarily transferred or discharged, the long-term care facility must consider a number of factors before effectuating the discharge, including the effect of relocation trauma on the beneficiary, the proximity of the proposed placement to family and friends, and the availability of necessary medical and social services. The facility is also expected to set forth a discharge plan, designate a location to which it intends to discharge the beneficiary and state how the beneficiary’s health and social needs are to be met at the new location. Prior notice of the discharge must be submitted to the Department of Health and Senior Services (DHSS) with documentation of reasons for discharge. Only after the DHSS determines a transfer is appropriate can the facility then give 30 days’ written notice to the beneficiary. That notice must advise the nursing home resident of his or her right to a hearing.

If the nursing home transfers a resident to a hospital, state law requires that the nursing home hold the resident’s bed for 10 days. If the resident is a Medicaid recipient, the nursing home has to readmit the resident to the first available bed if the bed-hold period has passed. If the nursing home refuses to readmit a patient or insists on discharging a resident, residents can appeal or file a complaint with the state. The resident should appeal as soon as possible after receiving a discharge notice or after being refused readmittance to the nursing home.

The article concluded by discussing the “significant rights” which nursing home resident have against involuntary transfer or discharge:

Medicaid beneficiaries, including those who have applied for benefits and are awaiting resolution of their Medicaid eligibility, have significant rights. Nursing facilities do not have a right to evict such individuals. Rather. they must carefully follow procedures detailed in [the Department of Health and Senior Services] regulations to seek approval for discharge in appropriate cases.

The NJ Lawyer article may be found here - From Medicaid beneficiary to nursing home evictee?

I examined the same state and federal nursing home regulations several years ago when I wrote this article for my ElderLaw News newsletter about the safeguards in federal and state law which can be used to defend against an attempt to discharge a nursing home resident based upon a claim that the resident is a danger to himself or others:elder-law-newsletter-0302.pdf (application/pdf Object)

For an article on a recent case of “dumping” a nursing home resident, click here.

Processing times for Social Security determinations have reached intolerable levels. For instance, the average processing time for cases at the hearing level has increased dramatically since 2000, when the average time was 274 days. In the current fiscal year, SSA estimates that the average processing time for disability claims at the hearing level will be 535 days, nearly twice as long as in 2000. There is wide fluctuation, with some offices over 700 days and others even over 800 days.

Why the backlog? There are two main reasons:

1. Inadequate Funding of SSA’s Administrative Expenses. The primary reason for the continued and growing disability claims backlogs is that SSA has not received adequate funds for its management costs. Between FY 2000 and 2007, Congress appropriated less than both the Commissioner of Social Security and the President requested, resulting in a total administrative budget shortfall of more than $4 billion. The dramatic increase in the disability claims backlog coincides with this period of under-funding the agency, leaving people with severe disabilities to wait years to receive the benefits to which they are entitled.

This chronic underfunding has resulted in fewer staff to carry out the work that is critical to the public and people with disabilities. SSA estimates that in FY 2009 it will have a staffing deficit of essentially 8,100 full-time staff just to return to FY 2007 staffing levels for workloads. Staffing levels throughout the agency are at the lowest level since 1972.

2. Increasing Demands From SSA’s Other Work.. SSA has many mandated responsibilities. Workload increases for the following services are due to the aging of the population and the expanding scope of SSA’s work:

1. Paying benefits;

2. Issuing Social Security cards;

3. Processing earnings for credits to worker’s records;

4. Responding to questions from the public on the 800-number and in the field offices;

5. Issuing Social Security statements;

6. Processing continuing disability reviews (CDRs) and SSI eligibility redeterminations;

7. Administering components of the Medicare program, including: subsidy applications, calculating and withholding premiums, making eligibility determinations, and taking applications for replacement Medicare cards.

A recent article in the Lawyers USA newspaper discussed the growing use of elder mediation to resolve family disputes. The article quoted several practitioners of elder mediation, including the owner of this weblog, on their practice specialties and the use of elder mediation as part of an elder law practice when family disagreements arise.

One practitioner, Penny Hommel, Co-Director of the Center for Soclal Gerontology in Mlchigan, said that it is critical for the elder to actively participate in the mediation process:

Some people have come into the field who don’t have an understanding of the importance of elderly people having a voice. Some adult children say it will be too upsetting for Mom or Dad, so we’ll have this dlscussion ourselves. But Mom or Dad needs to be part of the dlscussion. I feel very strongly about thls.

Janet Mitchell, a solo elder lawyer and medlator from Indiana, polnted out some advantages of mediation over litigation:

Parents are better able to maintain their dlgnlty in mediations than in court proceedings. And mediatlons can Improve family relatlonshlps. Good solutions come from healthy conversatlons, not from arguing.

The article also noted that the requislte skills to successfully conduct an elder mediatlon are not the same as the skills needed for other kinds of mediatlon, pointing out that elder mediation is often more emotionally ladened than other types of mediation, requiring more patience, compassion and facilitative skill.

The Lawyers USA article can be found here -lawyersusa-fighting-for-control-over-mom-and-dad