A DNR (Do Not Resuscitate) Order is Legal in New Jersey Without a Terminal Illness

do not resuscitate order | DNRWe’ve all heard about a “Do Not Resuscitate Order” (DNR) but probably don’t know (precisely) what it means, or how it applies to you in real life.

A DNR order alerts emergency personnel that you do not wish to receive Cardiopulmonary resuscitation (CPR) in the event of a medical emergency. It is a medical order that must be signed by a doctor.

DNR orders are used primarily by people who are already critically ill and feel strongly that they do not want life-prolonging treatment when close to death. If you do not have a DNR order, emergency medical personnel must use all available measures, no matter how invasive, to save your life.

Awhile back a client wanted to create a DNR. He was a healthy active man of 85. However, he had a heart attack. He didn’t want to be revived but to end up housed in an institution or hospital for a long time. His family was opposed because he was gambling with his life, and they also claimed that he couldn’t get a DNR because he wasn’t terminally ill.  Who was right?

No, the family is incorrect; you can establish a valid DNRO without a terminal illness. The document says that in case of respiratory or cardiac failure, CPR should be withheld. A persons desire to avoid being left to linger or suffer is understandable, but it is very important that everyone understand that a DNRO can also prevent you from receiving treatment that might restore you to full capacity.

To be a legal document both you and your doctor must sign the DNRO. Your doctor should have a copy. You should keep a copy on your person. Without seeing it, EMTs are duty-bound to administer CPR.

I can understand the family’s opposition to their desires. After all, they want their father around as long as possible. Obviously, it is very personal; choice and his to make. But I would advise all concerned to talk about it a great deal more, so that everyone can come away with peace of mind.

To discuss your NJ Estate Planning matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Estate Planning Attorney

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New Jersey Adopts a New Law Which Will Allow You to Die With Dignity and on Your Terms

The State Legislature recently adopted a law entitled  “Aid and Dying for the Terminally Ill Act” which will allow a qualified terminally ill patient to self-administer medication to end his/her life in a humane and dignified manner.

The new law provides that New Jersey’s long standing commitment to individual dignity, informed consent and the fundamental right of a competent adult to make healthcare decisions about whether to have life prolonged through medical or surgical procedures withdrawn and withheld is to be honored and affirmed.  As a result, a qualified terminally ill patient under appropriate safeguards and limitations can obtain medication that the patient may choose to self-administer in order to bring about the patient’s humane and dignified death.

As I indicated in the opening paragraph, there are a number of conditions that are attached to this new law which appear to be very reasonable in reading though I do disagree with some of the provisions as being a bit onerous and bureaucratic.   Still the law serves a very valuable purpose.  Having been with thousands of families over many years, I believe this law is appropriate and a responsible recognition of America’s aging population and the substantial burdens that many terminally ill persons face in the dying process.

While there are a number of individuals and organizations that believe that assistance in ending life is contrary to religious convictions, it is a suitable subject for discussion by all concerned.

I have copies of this Legislation available for anyone that may be interested.   Please contact me by email at fniemann@hnlawfirm.com and it will be our pleasure to send you a copy.

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Elder Law Attorney

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Felt comfortable during my visit

After finding Fred Niemann on the internet and watching many of his videos, I knew his firm was knowledgeable in more than just Wills and estate planning.  Once I had the chance to meet with Fred Niemann, he was friendly and interested in my needs.  After talking with many local firms, I was very glad I had chosen the firm of Hanlon Niemann & Wright.
– Walter Sobieski

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Don’t Blow It! You Can Still Make a Late and Inexpensive Portability Election to Eliminate and/or Reduce Future Estate Death Taxes

estate death tax“Portability” (I’ll explain its definition later in the blog) allows the personal representative of an estate to preserve a deceased spouse’s unused federal estate and/or gift tax exemption amount for later use by the surviving spouse which may be applied against future gifts by the spouse and/or his or her federal taxable estate upon death.

In order to preserve portability, a personal representative is required to make an election on a timely filed IRS Form 706, following the death of the first spouse. If Form 706 is not filed within nine months of a decedent’s death or within 15 months if a request for an extension of time to file the return was timely obtained, a personal representative may be permanently prevented from preserving portability.

Recently, the IRS enacted Rev. Proc. 2017-34, which provides a permanent simplified method for the estates of decedents to obtain an extension of time to elect portability. This new revenue procedure states that if a portability election has not been timely made, a personal representative may do so on the latter of January 2, 2018 or the second anniversary of the decedent’s date of death, assuming certain administration requirements are met.

To make a late portability election under Re. Proc. 2017-34, the following conditions must be met; (a) the decedent must be survived by a spouse; (b) the decedent must have died after December 31, 2010; (c) the decedent must have been a citizen or resident of the United States on the date of death; (d) the executor must not have been required to file an estate tax return undersection 6018(a) of the Code (as determined based on the value of the gross estate and adjusted taxable gifts and without regard to the need to file for portability purposes); € the executor must not have filed an estate tax return; (f) the person permitted to make the election must file a complete and properly prepared Form 706 on the latter of January 2, 2018, or the second annual anniversary of the decedent’s date of death; and (g) the Form 706 must state at the top that the return is “FILED PURSUANT TO REV. PROC. 2017-34 TO ELECT PORTABILITY UNDER  § 2010(c)(5)(A).”

How It Works

Making a late portability election is recommended for most estates that meet the above criteria, even if a surviving spouse’s assets do not exceed the present federal estate and gift tax exemption amount, in large part because we cannot predict what Congress might do in the future, nor is it possible to foresee what could become of a client’s assets whether through good fortune or growth. It is feasible that congress will, in the future, adjust the exemption amount or another aspect of the existing estate tax laws to the detriment of future beneficiaries, or that the client could come into a large cash reward.

For many taxpayers, preserving portability may ultimately prove to be unnecessary. However, for certain taxpayers, it could result in substantial tax savings upon death. Rather than “wait and see” what happens in the future, counsel representing estates of decedents who are survived by a spouse should immediately consider a portability election while it is guaranteed and does not require the expense and uncertainty of attempting to obtain a late portability election in the future.

To discuss your NJ Estate Probate Administration matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Estate Probate Administration Attorney

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No Contest Clause in Will Can Be (Un)enforceable in New Jersey

Many clients want to avoid challenges to their Last Will and Trust.  They are generally concerned about some family member who is “all about the money”.  They’re thinking their Will should include a no-contest clause to protect their good kids from greedy or unstable siblings, other children, etc.  Perhaps over the years there’s been hints that assets in the family really came from other donors, etc.  Parents envision others going after what he/she thinks is theirs and making the lives of beneficiaries miserable after the person is gone.

Unfortunately (or fortunately, depending upon your position) a no-contest clause is not enforceable in New Jersey. Also known as an in terrorem clause, it specifies that any interested party who contests an estate plan automatically gets nothing. The clause can be unenforceable whether included in a will or a trust. Even when a no-contest clause is valid, it does not apply to someone who is excluded from an inheritance; it applies only to beneficiaries whose inheritances will be forfeited if they challenge the estate.

One suggestion to reduce the threat of a challenge is to create a trust rather than rely on a will. A private document, a trust does not need to be filed with the probate court. Because it is not public and is not open to ready inspection, a trust tends to be more difficult to challenge than a will. The best way to protect kids and loved ones from a will contest case is to get advice from a competent and experienced estate probate and litigation attorney who actively does estate planning.  He/she deals with these kinds of problems all the time and can suggest strategies to minimize the chances of bad people creating problems, or of prevailing if they do.

Contact me personally today to discuss your New Jersey estate planning, Last Will, trust and contest matter.  I am easy to talk to, very approachable and can offer you practical, legal ways to handle your concerns.  You can reach me toll free at (855) 376-5291 or e-mail me at fniemann@hnlawfirm.com

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County New Jersey Will Contest Attorney

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Understanding the Differences in the Many New Jersey Medicaid Programs

By Fredrick Niemann, Esq.NJ Medicaid Eligibility Attorney

NJ MedicaidAs an elder law attorney, I regularly work in the State Medicaid programs that provide long term care benefits.  I categorize these programs primarily as institutional Medicaid and community waiver Medicaid under the MLTSS Program (Managed Long Term Support Services).

Institutional Medicaid covers long term care in a nursing home.  New Jersey is a no “maximum income limit state with a medically needy program”.  What this means is that we have two (2) institutional Medicaid programs within the main institutional Medicaid program.  Confusing isn’t it? The first program is the “Medicaid Only” program which is for residents who have income below the maximum income limit (currently $2,205.00 gross income per month in 2017-2018).  For those with income greater than $2,205.00 (even by $1), there is the Medically Needy Waiver program provided the applicant does not have additional income which exceeds the Medicaid reimbursement rate (the rate that which Medicaid pays the nursing home which is generally between $5000.00 and $6000.00 per month.

The community waiver program(s) that New Jersey elder law attorneys frequently work in are for the long term care of elderly persons. These programs have been rolled into a program called MLTSS.  These programs include Assisted Living Medicaid and Home Based Medicaid.  There are many other smaller Medicaid programs that are very infrequently used.  It is important to understand that no 2 Medicaid programs are exactly alike as far as the rules and regulations are concerned.  There are many similarities.  But, there are also many differences.

One thing that is common to all New Jersey Medicaid programs is that Medicaid is a needs based program, meaning that one has to meet certain financial requirements in order to be eligible.  There is an income limit test plus a maximum resource test.

One more point to consider is that Medicaid is a combination federal/state program.  Congress passed some basic laws and has allotted money to New Jersey if it offers Medicaid to certain eligible residents.  The state must follow these basic rules but New Jersey is responsible to administer its own Medicaid program.  It is also free to offer additional Medicaid programs beyond what the federal government requires.

Federal Law has led to many variations from state to state when comparing Medicaid programs and how the rules are applied.  For example, New York’s Medicaid programs differ in very significant ways from New Jersey’s Medicaid programs.  Because the federal government provides no oversight to be sure that its rules are being followed, in some cases the states blatantly ignore those rules.  It is left to the elder law attorneys to challenge the State when it flagrantly disregards the clear law.

Contact me personally today to discuss your New Jersey Medicaid eligibility matter.  I am easy to talk to, very approachable and can offer you practical, legal ways to handle your concerns.  You can reach me toll free at (855) 376-5291 or e-mail me at fniemann@hnlawfirm.com.

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How Can An Annuity Protect Your Assets From New Jersey Medicaid Laws?

By Fredrick P. Niemann, Esq. a New Jersey Medicaid Attorney

Medicaid AnnuityAnnuities are really confusing.  But in today’s medical world, you may hear that annuities can be “Medicaid friendly.” What exactly is a “Medicaid friendly annuity”?  Simply stated, they are funds converted into an annuity that Medicaid treats as an exempt resource and only as income which allows for (sometimes) immediate Medicaid approval for nursing home, assisted living and home based care.  Under New Jersey law, a traditional commercial annuity does nothing to protect assets from the cost of long term care.  In fact, without careful planning, simply investing in an annuity will result in the unnecessary loss of assets and a denial of Medicaid benefits. Understanding why this is requires some understanding of estate planning, elder law, and annuities. By taking the time to understand annuities you can easily save tens if not hundreds of thousands of dollars. Planning for disability will greatly increase the likelihood of having something to pass on to heirs, while at the same time reducing stress and maximizing one’ own independence.

What is a Commercial Annuity?

Annuities can be either assets or income streams. Alone that doesn’t mean much.  Stay with me.  When initially purchased, most annuities are like certificates of deposit with a longer term and a greater penalty for early withdrawal. Such annuities are assets and are said to be “deferred “or immediate.  An immediate annuity means money can be taken out right away.  Deferred annuities do not pay out interest right away.

I continue our discussion on annuities in a future post(s).

Contact me personally today to discuss your New Jersey Medicaid matter.  I am easy to talk to, very approachable and can offer you practical, legal ways to handle your concerns.  You can reach me toll free at (855) 376-5291 or e-mail me at fniemann@hnlawfirm.com.

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Federal Medicaid Law Prevents a Nursing Home from Billing You Directly

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, Monmouth County, NJ Elder Law & Medicaid Attorney

NJ Medicaid, Elder Law

NJ Medicaid, Elder Law

I read an interesting case, which frankly brought up an issue I had not contemplated which is; must a medical service provider (i.e., a doctor, hospital x-Ray technician) bill a Medicare/Medicaid patient directly for services etc. rendered rather than Medicare or Medicaid directly?  I pretty much assumed that if you are eligible for Medicare or Medicaid and receiving services, there would be no reason for a nursing home or other medical provider to bill anyone but Medicare/Medicaid, otherwise, the provider would go unpaid.  Apparently, in this case, the patient was a plaintiff in a fairly substantial personal injury lawsuit and the hospital billed the patient directly rather than Medicaid to which he had become eligible after the lawsuit was filed which brings us to the origin of the conflict.  The article is interesting because it lays out the circumstances under which medical providers can and cannot privately bill individuals for medically related services rather than Medicare/Medicaid.  I have given you excerpts of the opinion for your review.

Here’s The Law

Federal Medicaid law precludes direct patient billing in specific instances.  Section 1396a(a)(25)(c) of the law prohibits medical providers from “substitute billing” and “balance billing”.  A medical provider engages in substitute billing when it already has accepted payment from Medicaid but tries to refund the payment in order to bill the patient directly, usually because Medicaid reimbursements are often much lower than the provider’s  “customary fee[s],”. “Balance billing occurs when a provider accepts payment from Medicaid and then seeks to recover from the patient the balance between that payment and the customary fee.”  Thus, § 1396 a(a)(25)(C) becomes relevant once the provider has billed Medicaid and accepted payment for services proved to be beneficiary.  The law does not bar a provider from taking a chance that a Medicaid-eligible patient has a non-Medicaid source of payment for the medical services rendered.  The provider may opt to attempt collection directly from the patient or a liable third party instead of seeking a certain but likely reduced payment from Medicaid.

To discuss your NJ Elder Law Medicare and/or Medicaid matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

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The New Jersey Medicaid Application Process: It’s Tough!

By Fredrick P. Niemann, Esq. a Freehold, Monmouth County New Jersey Medicaid Application Attorney

The Medicaid application process differs state to state. In New Jersey, the county Medicaid office is generally available to answer questions about, qualifying for Medicaid, as well as the ins and outs of the application process.  But good luck getting a live person or a call back, especially in Essex, Camden and Mercer counties.

You have one option when completing a Medicaid application:

  • You can mail in your application. Mail ins have recently been approved in virtually all counties.
  • Complete an application in person at the county Medicaid office in Freehold, Toms River, Trenton, New Brunswick, Elizabeth, etc.. Check the address of your county Medicaid office.
  • A phone application is never permitted!

Information to Have on Hand for Your Medicaid Application

When completing your Medicaid application, you will need the following:

  • Birth certificate or driver’s license
  • Social security card or proof of alien status.
  • Paystubs, Social Security statements, Supplemental Security Income, Veteran’s Benefits, or other retirement income or tax return to prove your income.
  • Proof of any financial assets available to you.
  • Proof of disability – If you are completing a Medicaid application because you’re disabled, your doctor may need to submit documentation as specified on your Medicaid application.
  • Proof of residence.
  • Your red, white and blue Medicare card or other proof of insurance.

Contact me personally today to discuss your New Jersey Medicaid application.  I am easy to talk to, very approachable and can offer you practical, legal ways to handle your concerns.  You can reach me toll free at (855) 376-5291 or e-mail me at fniemann@hnlawfirm.com.

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