The Importance of Updating Your Will – Part 1
A will is something everyone should have, but just as important is to update a will when it is clear that changes are necessary. No will can be designed to last forever, no matter what happens. By way of example, we have had two recent cases in our office in which the decedent (person who died) did have a will but it was 20+ years old. In each case, because the will was so old ,the chosen executors had died. In the first case the decedent left two children. He didn’t choose either of them as executor at the time he executed his will because they were minors. Presumably, had he prepared a new will before he died he would have chosen either or both children as executor. He left his estate equally to both of them so that would have been logical. But he never did. In the second case, the decedent chose his two daughters as executor and alternate but both predeceased him. He had not chosen an alternate and never updated his will to choose a replacement even though his only son in law said his father in law had talked about naming him. Both wills were validly executed wills that needed to be probated in order
2022 VA Aid and Attendance Numbers
In this week’s post I will review the updated numbers for 2022 for the VA program that provides a benefit to wartime veterans and their spouses. Known as the VA Aid and Attendance program, this benefit provides a special pension to eligible applicants who need long term care. The maximum pension amount is tied to the same cost of living adjustment as Social Security. For a single veteran with no dependents the maximum pension one can receive goes up to $2050 per month. For a married veteran the maximum for 2022 will be $2431. For a widowed spouse who needs care the 2022 max will be $1318 per month. The Aid and Attendance program is a needs based benefit. This means that to be eligible one must meet a financial test. Different than Medicaid, the VA uses a net worth test. It calculates the applicant’s (in the case of a married couple both spouse’s) annual income and adds that to the countable assets. This is known as the net worth. For 2022 the net worth must be no more than $138,489 to qualify for this benefit. Existing VA A&A recipients should have received a letter from the VA informing them of the new amount they will receive which is actually effective 12/1/21.
2022 Medicaid Numbers
Last month in this blog I updated you on some of the new Social Security and Medicare numbers for 2022. With a cost of living adjustment (COLA) of 5.9% as a result of higher inflation, next year’s increase is the largest in some time. Many other federal programs are tied to the Social Security COLA. These include Medicaid and the VA Aid and Attendance programs. This week we will review the 2022 Medicaid numbers. Medicaid’s programs that cover long term care have a strict income cap or limit. For 2022 that number is $2523 per month. Anyone with more than $2523 per month of gross income (before taxes and Medicare and health insurance premiums are deducted) must use a Qualified Income Trust in order to qualify for Medicaid. Medicaid recipients must also have less than $2000 of countable assets. A home is an exempt asset up to a certain limit as long as the applicant is living in it. In 2022 the limit is $955,000 of equity. Anything above that amount is countable. For a married couple where at least one of the spouse’s is living in the home there remains no limit. In other words, the home is exempt in that case no matter the value. In the case of a married couple
Binding Arbitration and Admissions Agreements – Part 3
In this week’s final post of three I will finish telling you about a recent court case concerning a dispute over the terms of a long term care facility admissions agreement. Last week I delved into the specifics facts of that case - the relevant terms of the various documents and who signed and didn’t sign them. I won’t recite them here because they are contained in last week’s post. What I want to do this week is discuss the balance of the court’s decision which focused on the questions raised by those facts in an effort to determine whether the resident should be held to the terms of the binding arbitration agreement that was at the heart of the case. An interesting fact in the case was that at the time she signed the agreement, the resident’s daughter was not acting under a power of attorney. Resident did not sign one until 3 months later. The facility director, on the other hand, claimed that the daughter said she was appointed as POA. The Court questioned whether it would be reasonable for the director to rely on such a representation despite the fact that the daughter did not check the box identifying herself as POA on the
Binding Arbitration and Admissions Agreements – Part 2
In last week’s post I wrote about a New Jersey Appellate Division case that was handed down a couple of weeks ago concerning an arbitration clause in an assisted living facility contract. I explained that there is a federal law that favors and encourages arbitration but there is also a New Jersey state law that finds arbitration clauses in nursing home and assisted living facility admissions agreements to be void and unenforceable. The federal arbitration law preempts - or overrides - state law in cases where the federal law is applicable. It would seem, in cases involving a prospective resident and a long term care facility, that the federal law would not apply and the state law would take precedence. That is not, however, what the court decided. Instead, it delved into the circumstances of the signing of the admission agreement. This part of the decision is instructive. The decision to place a loved one in a long term care facility is typically followed by much paperwork. These contracts are necessary so as to give certainty to the rights and obligations of each party. In every day situations, however, where decisions often must be made quickly, the procedures and formalities of these agreements are sometimes overlooked or not
Binding Arbitration and Admissions Agreements
We frequently review long term care facility agreements for our clients. We want to be sure they understand what is contained in these agreements which can be 30 pages or more with multiple attachments and exhibits. It is a legally binding contract that contains rights and responsibilities for each party but the language can sometimes be a bit confusing. A decision handed down last week by a New Jersey Appellate Division court is an interesting case focused on the admission agreement and more specifically the circumstances of it’s signing by the resident, the resident’s daughter and the assisted living facility. The issues were raised after the resident filed a lawsuit in state court alleging negligent care by the facility caused him certain personal injuries. The facility in turn said that there was an enforceable arbitration agreement contained as part of the admissions agreement which was signed by the resident and his daughter preventing the lawsuit. Instead this agreement directed that all claims of negligence be submitted to binding arbitration. Binding arbitration means that the matter is not handled through the states court legal system. There is no judge. Instead, an arbitrator is chosen or provided, sometimes from an arbitration association which is in the business of providing arbitration services