Looking Back On 2014-Letter from Mr. Bratton

It’s hard to believe another year has almost come and gone and we at Bratton Scott hope 2014 was a good year for you and your family. As you prepare for the holidays and look ahead to 2015, here is a look back at some important events and law changes that have had an impact on estate planning and elder law:

Medicaid and Miller Trusts – The Division of Medical Assistance and Health Services (DMAHS), the division of the New Jersey government responsible for administering New Jersey’s Medicaid program, published informal rules implementing a sweeping change to New Jersey’s Medicaid program. New Jersey is, at least for now, doing away with the Medically Needy program of Medicaid. This will place another hurdle in front of the applicant. If a Medicaid applicant’s income exceeds the lawful amount for Medicaid eligibility ($2,163.00 per month), a Qualified Income Trust (“Miller Trust”) must be created with the applicant’s income in order to create eligibility for long-term care benefits. This is an irrevocable trust. A Miller Trust only helps with the income eligibility requirement of Medicaid. Income that is routed into a Miller Trust each month, as received, is no longer counted for Medicaid eligibility. The trust provides a specific manner in which funds in the trust will be spent each month. A Miller Trust does not provide any assistance with the “countable resources” requirement for Medicaid, and assets (other than monthly income) are not contributed to a Miller Trust. If you are interested in learning more about elder law, Medicaid, or trusts, please feel free to contact me.

PA Powers of Attorney — Pennsylvania is enacting broad changes to the law governing powers of attorney. House Bill 1429 (HB 1429) was passed by the state House and Senate in June 2014 and was signed into law by Governor Corbett. Language for execution and acknowledgment is added to warn that the document may grant the agent the power to give away the principal’s property or change how the property is distributed at death and that the agent must act in accordance with the principal’s reasonable expectations to the extent known and, otherwise, in the principal’s best interest.

Medicaid and VA benefits — Veterans pension benefits may not be counted as income for the purposes of Medicaid eligibility if the benefit is the result of unusual medical expenses, a U.S. district court has ruled. Galletta v. Velez (D. N.J., No. 13-532 (RBK/AMD), June 3, 2014). The Court held that “in a case where claimant would not receive any Veterans Administration Improved Pension (VAIP) benefit whatsoever if not for unreimbursed medical expenses (UMEs), then the entire VAIP benefit should be excluded from income for Medicaid-eligibility purposes.”

Same-sex marriage — Same-sex marriage in New Jersey has been legally recognized since October 21, 2013, the effective date of a trial court ruling invalidating the state’s restriction of marriage to persons of different sexes. In September 2013, a judge of the Superior Court ruled that as a result of the U.S. Supreme Court’s June 2013 decision in United States v. Windsor, New Jersey’s constitution requires the state to recognize same-sex marriages. The Windsor decision held that the federal government was required to provide the same benefits to same-sex couples who were married under state law as to other married couples.

Do it properly — People sometimes try to save money by not consulting with a qualified attorney when executing their will, instead using a pre-printed form or online program. A recent court case offers yet another example of the hazards of doing this. Deciding the long-running case, a Florida Supreme Court has ruled that money acquired by a woman after she used a form to execute a will should be distributed as if she had never made a will at all. A justice hearing the case called it “a cautionary tale of the potential dangers of . . . drafting a will without legal assistance.” Aldrich v. Basile (Fla., No. SC11-2147, March 27, 2014).

Any questions or concerns regarding the above please do not hesitate to call our Estate Planning and Elder Law department for a review and advice. Together, we can ensure 2015 is a prosperous year for you, your family or clients.

Sincerely,
Charles “Chris” Bratton