Middlesex County Estate Planning Council - Speaker Needed!

In several counties in New Jersey, estate planning professionals have set up Councils whereby those assisting seniors and taxpayers with their estate planning could meet on a quarterly basis to share ideas. We want professionals from the field of law, accounting, life insurance, long term care insurance, banking and financial planning a forum in which to share ideas and network. We will share ideas on providing advice, new laws, networking and marketing. Senior Citizen Coordinators and anyone who provides advice to seniors and the Elderly should also attend. We need a speaker for our Winter and Spring meetings. This will give the speaker the opportunity to network and gain new witness contacts. Would you like to learn techniques to improve and increase your estate planning business or better serve your clients? If interested, contact Kenneth Vercammen 732-572-0500 We will have an educational and interesting roundtable discussion which will focus on helping seniors and improving your business. We will also share ideas and discuss recent changes in the law. If interested, contact Kenneth Vercammen.

Speaker Duties-

1. Mail flyer to all professionals and companies using labels provided [Approx. 600 professionals]

2. Call at least 200 people to invite and request e-mail addresses. [Ken V will provide confidential phone list, to be returned after program]

3. Send to local media, in newspaper and cable TV. [Ken V to provide labels]

4. Assist with other publicity, such as sending flyers to their own contacts.

5. Prepare 15-20 minute presentation

6. Provide return address envelopes to Ken V so elder law database can be revised

7. Provide any email addresses obtained to Ken V 8. We recommend speaker do as much publicity as possible since this is their opportunity to market themselves

Ken Vercammen will provide:

1. Labels of approx. 600 financial planners, accountants, attorneys, senior citizen coordinators and other professionals

2. Prepare a draft of flyer for speaker to revise

3. Make Final draft of flyer for speaker to photocopy: Speaker permitted to print their own info or bio on back of meeting notice

4. If requested Ken V can provide 600 envelopes for mailing, otherwise you use your own envelopes

5. Ken V will organize meeting room at meetings- at Meilings in Metuchen.

6. Provide Certificate of Appreciation for speaker

__________________________ sign and date Yes, I agree to serve as speaker and perform the responsibilities of speaker.

For more information, go to http://njwillsprobatelaw.com/middlesex_estate_council_speaker_needed.html?id=618&a=

Medicaid Has Lien on Special Needs Trust

Waldman v. Condia NJ Super. ______(App. Div. 1999) (A-347-8712 and A-681-8712, decided January 28, 1999).

The State is entitled to recover Medicaid payments in full from the settlement of a beneficiary's tort claim. The right to reimbursement may not be defeated or postponed by dedicating proceeds of the settlement to establishing a special - needs trust. For purposes of Medicaid recovery, an award to a beneficiary's parents on account of injuries for the treatment of which Medicaid funds were paid is considered an award to the beneficiary. Under the New Jersey Medicaid statute, a court is not authorized to allocate the proceeds of a settlement to specific categories of damages or to compromise a Medicaid lien.

For more information, go to http://njwillsprobatelaw.com/medicaid_has_lien_on_special_needs_trust.html?id=602&a=

Medicaid and Nursing Homes

WHAT IS MEDICAID?..........

Medicaid is a Federal medical bills assistance program that pays medical bills for eligible, needy persons. It is administered by each state. All payments are made directly to the providers of medical and other health care services. The Medicaid-eligible person does not pay the health care provider for services. The only exception is a patient in a Medicaid-approved nursing facility who may be required to contribute part of his/her income toward the cost of care.

Medicaid Planning After Reform

By Thomas D. Begley, Jr.

Congress has passed the Deficit Reduction Act of 2005 which seriously curtails Medicaid Asset Transfers and makes it much more difficult for people to become eligible for Medicaid. The Bill was backed by the Insurance Industry and the Pharmaceutical Industry with AARP opposing the bill on the side of consumers. The vote was 216 to 214 in the House of Representatives and Dick Cheney had to break a tie in the Senate.

1. NEW LAW. The new law is known as the Deficit Reduction Act of 2005

1.1. 6011 - Lengthening Lookback Period; Change in Beginning Date for Period of Ineligibility.

1.1.1. Lookback. The lookback period is extended to 5 years.

1.1.2. Beginning Date. The beginning date of the period of ineligibility has changed from the date the transfer was made to the later of the date of the transfer was made or the date the individual:

would be eligible for medical assistance; and

would otherwise be receiving institutional level care based on an approved application for such care, but for the application of the penalty period, whichever is later; and

which does not occur during any other period of ineligibility.

1.1.3. Commentary. The effect of these provisions will be to make it much more difficult to transfer assets and to obtain Medicaid eligibility.

2. 6012 Disclosure & Treatment of Annuities.

2.1. Disclosure of Annuities.

2.1.1. Disclosure. At the time of a Medicaid application or re-certification of eligibility the applicant must disclose a description of any interest the individual or community spouse has in an annuity. The state may require the issuer to notify the state when there is a change in the amount of income or principal being withdrawn.

2.2. Treatment of Annuities.

2.2.1. State Named as Beneficiary. Transfer of an annuity shall be treated as a transfers of assets for less than fair market value unless:

Remainder Beneficiary. The state is named as remainder beneficiary in the first position for at least the total amount of medical assistance paid on behalf of the annuitant; or

Second Position. The state is named as a beneficiary in the second position after the community spouse or minor or disabled child and is named in first position if such spouse or a representative of such child disposes of any remainder for less than fair market value.

2.2.1.1. Design of Annuity. Annuities are not subject to the transfer of assets provisions if:

it is owned by IRA or purchased with the proceeds from an IRA, an SEP, or a Roth IRA; or

the annuity is:

_ irrevocable

_ non-assignable

_ actuarially sound as determined in accordance with the actuarial publications of the Office of Chief Actuary of the Social Security Administration; and

provides for payments in equal amounts during the term of the annuity with no deferral and no balloon payment.

Commentary. This means only that the purchase of an annuity is not subject to the transfer of asset penalties. The issue as to whether the annuity is a countable asset is not addressed.

3. 6013 Income First. States must follow the income first rule when calculating an expansion of the Community Spouse Resource Allowance.

Commentary. New Jersey has always followed the Income First Rule.

4. 6014 Home Equity.

4.1. Limits. A person is ineligible for Medicaid if he has equity in the home in excess of $500,000 or at state option $750,000. This number is indexed for inflation.

EXCEPTION: The maximum amount does not apply if the home is occupied by:

spouse
child under age 21

child who is blind or permanently and totally disabled

4.1.2. Loan. The applicant is encouraged by the Act to obtain a reverse mortgage or home equity loan to reduce equity.

Commentary: This restriction is not as severe as it may first appear and may actually present some planning opportunities

5. 6015 CCRC Contracts. This section clarifies the treatment of CCRC Contracts and entrance fees.

5.1. Transfer Provisions. Provisions in CCRC contracts restricting transfers of assets are enforceable.

Commentary: Many lawyers simply ignored provisions in CCRC contracts restricting transfers. These are now clearly enforceable under the new law.

6. 6016 Additional Reforms of Medicaid Asset Transfer Rules.

6.1. Partial Month Penalties. Partial month penalties are mandated.

6.2. Accumulation of Multiple Transfers.

Fractional transfers of assets in more than one month are accumulated.

Transfers during all months are treated as one transfer.

Commentary: This makes small gifts impossible in many situations.

6.3. Notes and Other Loan Assets. For transfer of assets purposes promissory notes, loans and mortgages are included unless:

they include an actuarially-sound repayment term as calculated by the Office of the Chief Actuary of the Social Security Administration; and

payments are made in equal amounts with no deferral or balloon payment; and

the document prohibits the cancellation of the balance upon the death of the lender. 6.4. Purchase of Life Estates. The purchase of a life estate is not considered to be a transfer of assets if the purchaser resides in the home for a period of at least one year.

Commentary: There may be situations where this portion of the statute presents additional planning opportunities. There are some serious risks involving the due on sale clause in mortgages and capital gains tax considerations for the parent and child that need to be considered, but in the right situation this will present a planning opportunity.

7. PLANNING OPPORTUNITIES ELIMINATED. Opportunities that have been eliminated include the following:

Transfer Assets/Wait Three Years

Half-a-Loaf Transfer

Monthly Transfers

Lookback Period

Transfers from Retirement Plans within a Lookback Period

SCIN - By definition a SCIN is a loan that cancels on the death of the lender.

8. CONCLUSION. There are a number of planning opportunities that remain under the new law, but many of them will not have been tested. Clients may be required to apply for Medicaid, be rejected, apply for a Fair Hearing and in some instances appeal to the New Jersey Appellate Division and possibly even the New Jersey Supreme Court before these strategies are validated. Medicaid Planning is no longer for the faint of heart. Elder Law will become much more of a litigation practice than a transactional practice. Clients should consult an experienced Elder Law attorney who is not easily intimidated.


About the Author: Begley & Bookbinder, P.C. is an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania.

Thomas D. Begley, Jr. lectures with Kenneth Vercammen for the NJ State Bar Association. Thomas D. Begley, Jr. provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Thomas D. Begley, Jr. at 800-533-7227. Mention you were referred by Kenneth Vercammen. Esqs email newsletter.

Resource and Income Limitations for
Spouses of Medicaid Applicants

by Dana E. Bookbinder, Esquire

Now that the President has signed the Deficit Reduction Act of 2005, it is even more crucial for families to be proactive in protecting their loved ones health care options and financial savings. Often individuals are lulled into thinking that the government will not aggressively pursue their assets if they dont engage in legal planning, but the opposite is in fact true. In cases of married couples, the healthier spouse often mistakenly believes that his or her assets are safe while only the ill spouses assets have to be paid to a nursing facility for that spouses care. Again, this is incorrect, and early legal planning can save the family much grief in addition to substantial assets. While both married and single individuals can substantially benefit from early legal planning, under Congress new budget saving scheme, married couples, in particular, would be passing up the opportunity to protect their savings if they failed to seek legal counsel since the asset and income limitations they would face for Medicaid eligibility are low.

The resource allowance permitted to be retained by the spouse of a benefits recipient is known as the Community Spouse Resource Allowance (CSRA). This allowance was established by the Medicaid Coverage Catastrophic Act (MCCA), enacted to apply to individuals institutionalized on or after September 30,1989 to protect spouses against impoverishment.

The amount of the community spouse resource allowance is generally based on one half (1/2) of the couples combined total countable resources as of the first period of continuous institutionalization. A resource assessment of the couples countable assets as of the first period of continuous institutionalization of one of the spouses will be undertaken when a Medicaid application is filed. By law, it must also be done upon the request of the Medicaid applicant, the applicants spouse, or the personal representative of the applicant or the spouse. A continuous period of institutionalization is broken by absences from the institution for thirty consecutive days. For 2006, the CSRA is subject to a maximum of $99,540 and a minimum of $19,908. These numbers are adjusted on an annual basis.

In addition to a resource allowance, the spouse of a Medicaid recipient is entitled to a monthly income allowance. Generally, the income of an individual who is institutionalized must be forwarded to his nursing home on a monthly basis. However, this spouse is allowed to retain her own income plus, depending on the amount of her income, a monthly allowance to be taken from the institutionalized spouses income. This allowance is called the Minimum Monthly Maintenance Needs Allowance (MMMNA). Currently, the amount is based upon the difference between $1,604 and the community spouses income plus an additional amount to cover shelter expenses for the community spouse. The shelter expenses are based upon the actual mortgage and real estate taxes that must be paid plus certain allowances for utilities. These figures upon which the MMMNA calculation are based are adjusted annually.

Failure to plan ahead for the long-term care costs of a spouse can severely impact the healthy spouses financial status. However, elder law attorneys can increase both the spouses resource and income allowances through agency hearings. Additionally without a hearing, elder law attorneys can help their clients maintain their standards of living, enabling them to continue living independently in their homes.

Begley & Bookbinder, P.C. is an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania.

The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-7227.


WHO QUALIFIES FOR MEDICAID?........

-Aged persons 65 and over, blind persons or disabled persons who apply through their Social Security District Office and who receive monthly Supplemental Security Income (SSI) checks.
-Aged persons 65 and over, blind persons or disabled persons who may not be eligible for SSI due to excess income but who meet the income and resource criteria for New Jersey Care.... Special Medicaid Programs.
-The Medically Needy segment of New Jersey Care....... Special Medicaid Programs provides limited services to certain needy individuals who are not eligible for Medicaid due to excess income but may not be able to afford health care services. Contact the Department of Human Services for other eligible requirements.

WARNING..........

The following acts are crimes under Federal and State Law and persons found guilty of the acts can be fined up to $10,000 or put in prison for up to 3 years or both.
-Lending your Medicaid card;
- Giving any information known to be false in order to gain Medicaid benefits;
- Hiding any information about the occurrence of an event that you know will bear on your right to Medicaid benefits or the right of another person for whom you applied and who is receiving Medicaid coverage;
- Applying for Medicaid for another person and using the benefits for yourself or someone else who is not eligible.
See Medicaid, what is it by NJ Department of Human Services, Division of Medical Assistance.

Your Responsibilities when applying for Medicaid

You must give complete and factual information on the application.
You must provide or apply for a Social Security Number.
You must promptly notify the county welfare agency whenever there is a change in your existing income, or an additional income or resource, such as:

* income from a new job or loss of an old one
* change in wages from full or part-time job
* Workers Compensation
* unemployment or temporary disability benefits
* Social Security or Veterans benefits
* pension or other retirement benefits
* Supplemental Security Income (SSI)
* interest on savings
* accident claims or settlements
* support payments
* an inheritance of money or property
* money from the sale of property
* funds received in settlement of s claim or legal suit
* lottery winnings or other awards
* any other change in income or resources
* court action related to any of the above
See Medicaid, what is it by NJ Department of Human Services, Division of Medical Assistance.


If you are residing in a nursing facility, you must also report:

* when you obtain or drop health insurance coverage
* changes in health insurance premiums
* changes in spousal income, if you are paying spousal maintenance

The Law requires that all health and accident insurance benefits, including Medicare, Workers Compensation and No Fault Auto Insurance must be used before Medicaid in the payment of health care.


You must agree to assign to the Commissioner any rights to payment from any third party.


When applying to the county welfare agency for special institutional services including nursing home care, you must make an accurate report of your actual income. Normally, that income ( except for a personal needs allowance and certain disregards, if applicable) must be applied to the cost of your care.

You must authorize the county welfare agency to contact any source that may have knowledge about your circumstances ( including IRS, Social Security wage and benefits files, and state wage and employment files), for the sole purpose of verifying the statements that you make on the application. See Your Rights and Responsibilities when applying for Medicaid by NJ. Department of Human Services, Division of Medical Assistance and Health Services.

If you or a spouse have to enter a nursing home to receive custodial type care, your assets (other than your residence and various personal items which may be exempt under certain circumstances) are worth less than $2,000, and the income of the person entering the home (including Social Security) is no more than $1,410 per month for 1996, then you may be eligible for this government program which can pay for substantially all of the cost of the nursing home. Moreover, it is possible for a married spouse who remains at home to preserve a significant portion of the assets of the couple if the other spouse is institutionalized. In 1996, the law permits a minimum of $15, 348 of such assets to be protected. And, depending upon the amount of such assets, a maximum of one-half (but not exceeding $76,740) may be preserved. In addition, in the case of married persons, it may be possible to have some of the income of the spouse in the nursing home paid to the at home spouse without affecting eligibility for Medicaid Only.

When considering an application for Medicaid, one should bear in mind that the rules are fairly complicated, and that transfers of assets to third parties (such as gifts to children) in order to become eligible for the program can result in a penalty period being imposed during which payments by the State will not be made for nursing home care.

____ The penalty is a period of ineligibility for Medicaid, determined by dividing the value of the assets transferred by the average cost of a nursing home in New Jersey. States must apportion the period of ineligibility between spouses so that only one penalty applies. In the case of joint assets, a withdrawal by one party is considered a transfer. The new law subjects transfers of income to a period of ineligibility. Transfer penalties can be avoided by returning all of the assets which were transferred. The law made significant changes in the area of trusts. However, certain types of trusts are still permitted. The Secretary of Health and Human Services was directed to promulgate regulations concerning annuities. As of this writing, those regulations have not yet been promulgated. States are now mandated to recover payments from the estates of Medicaid recipients.

Hearings

If your application for Medicaid benefits is denied, if your Medicaid eligibility is terminated, or if Medicaid refuses to pay a claim, you have a right to a fair hearing before a New Jersey Administrative Law Judge. At that hearing you have a right to be represented by counsel and to present evidence including testimony to support your case. The judge makes a recommendation to Medicaid regarding your case. Then, if Medicaid still denies your claim, you have a right to appeal to the Appellate Division of the Superior Court of New Jersey. In a situation where Medicaid has advised you that it intends to discontinue the payment of benefits, you may have a right to have benefits continued until your appeal has been decided.
At the time of this printing, the Federal and State Governments are considering substantial changes in both Medicare and Medicaid. See New Jersey State Bar Foundation, Law Points for Senior Citizens.
We recommend the purchase of Long Term Health Insurance/ Nursing Home Insurance]

For more information, go to http://njwillsprobatelaw.com/medicaid2006nursinghomes.html?id=601&a=

Managing Estate Assets

It is the fiduciary's responsibility to take control of all assets comprising an estate or trust. Especially when a fiduciary assumes office at the grantors or testators death, it is crucial to secure and value all assets as soon as possible. Some assets, such as brokerage accounts, may be accessed immediately; others, such as insurance, may have to be applied for by filing a claim. The usual practice is to engage a professional appraiser to value the decedents tangible property, such as household furniture, automobiles, jewelry, artwork, and collectibles. Depending on the nature and value of the property, this may be a routine activity, but you may need the services of a specialist appraiser if, for example, the decedent had rare or unusual items or was a serious collector. Real estate, whether it is a home or commercial property, and any business interests must also be valued. Besides providing a valuation for assets that may be reported on a court-required inventory or on the state or federal estate tax return, the appraisal can help the fiduciary to gauge whether the decedents insurance coverage on the assets is sufficient. Appropriate insurance should be maintained throughout the fiduciary's tenure. The fiduciary also must value financial assets, including bank and securities accounts.

For more information, go to http://njwillsprobatelaw.com/managing_estate_assets.html?id=1230&a=

Long Term Health Insurance

Gains in life expectancy and rising health-care costs are prompting more Americans to consider long-term care insurance. Such insurance covers the cost of extended nursing care, either in an institution or in the home.

By the year 2000, 7.5 million Americans aged 65 or older will need some form of long-term care. Paying for this care will require considerable resources- perhaps $50,000 to $100,000 for those retiring in the year 2000. That's why planning ahead for long-term care makes sound financial sense.

Common Misconceptions

Most elderly people, when asked by the American Association of Retired Persons how they would pay for long-term care, responded that Medicare would cover the cost. Unfortunately, they were wrong.

Medicare does not cover long-term care. It pays for some nursing and home health-care expenses, but these must be medically related and short-term in nature.

Medicare supplemental insurance (Medigap) does not pay for long-term care and Medicaid, the welfare program that does cover long-term care, requires recipients to "spend down" to the poverty level before becoming eligible.

In addition, as of January 1,1997 it is a federal crime to transfer money to become eligible for Medicaid.

Nursing Home Insurance

At an average cost of $3,000 a month, nursing home care can be an enormous financial burden.

But private insurance can help. Most long-term care policies cover the cost of skilled, intermediate or custodial care. Almost all pay a fixed dollar amount per day. You select the benefit level you want, typically ranging from $40 to more than $100 per day, and the waiting period you desire. Premiums are based on your age when buying the policy and the benefits you choose.

At-Home Care

Newer, more comprehensive long-term care policies will also pay the cost of care at home for people who might otherwise have to enter a nursing home.

These policies cover at-home services ranging from dressing and bathing to housekeeping and shopping. And usually, no prior admission at a hospital or nursing home is required.

What to Ask

If you're interested in buying long-term care coverage, whether as an ordinary policy or as a rider on an existing life policy, talk to your life or health insurance agent. If it's offered in your state, here are some questions to ask:

* How much are the daily benefits? For how long? * When do benefits begin? (Is there a waiting period during which you will have to cover all cost?) * What is covered, and are any conditions excluded? Is there a prior hospitalization requirement? * Are benefits sensitive to inflation? Will they rise as long-term care cost increase, or do they remain level? Will premiums remain level as you grow older? * Are premiums waived while you are in a nursing home? * Is the policy guaranteed renewable?

Where To Get Information

A professional life or health insurance agent can provide you with valuable information on long-term care policies. You may also wish to check with your state insurance department. Or you can contact the National Association of Insurance Commissioners, 120 W. 12th Street, Suite 1100, Kansas City, MO 64105, and ask for the " Shopper's Guide to Long-Term Care Insurance."

Another source is the National Insurance Consumer Helpline, (800) 942-4242, which provides information on all lines of insurance. In addition, some communities have Senior Citizen Health Insurance Counseling (SCHIC) programs to help the elderly assess their insurance needs. Your local life underwriters association or area agency on aging should be able to provide you with information about SCHIC.

A Few Buying Tips

If an agent recommends a policy to you, make sure to ask for the policy's "outline of coverage," which will summarize its benefits and limitations.

It is also a good idea to make sure the policy provides a 30-day free-look period during which it can be returned for any reason and you will receive a premium refund.

Ask a member of a life underwriters association or the Association of Health Insurance Agents for specific information about long-term care insurance.

This information is provided by The National Association of Life Underwriters.

For more information, go to http://njwillsprobatelaw.com/long_term_health_insurance.html?id=587&a=

Long Term Care

Location: Meilings Restaurant, Main St.., Metuchen

Topic: 10 Benefits of Long Term Care Insurance

Speakers:

In several counties in New Jersey, estate planning professionals have set up Councils whereby those assisting seniors and taxpayers with their estate planning could meet on a quarterly basis to share ideas. We offer professionals from the field of law, accounting, life insurance,

long term care insurance, banking and financial planning a forum in which to share ideas and network. We have begun to establish a referral network. We will share ideas on providing advice, new laws and marketing. Senior Citizen Coordinators and anyone who provides advice

to seniors and the Elderly should also attend. 

For information, call Kenneth Vercammen, Esq. at 732-572-0500. To RSVP, fax to 732-572-0030 or email at kenv@njwillsprobatelaw.com

We also offer the New Jersey free e-mail Elder Law newsletter which provides up to date information on changing laws which impact Estate Planning, Probate, Central Jersey Community Events and Elder Law. The Elder Law Newsletter will no longer be sent by postal mail. Please
provide us with your email address. Simply visit our website www.njwillsprobatelaw.com and click the free subscription form or fax us your e-mail address.

Kenneth Vercammen, Attorney at Law - President
Len Kuker- Financial Advisor
Sr. VP- Morgan Stanley Dean Witter Vice President/ Announcements

Bill Madden, Brown & Brown

Yes, We will be attending the meeting - fax back to Law Office Fax:
(732) 572-0500
Name: _____________________________

To receive the new Free email newsletter on Estate Planning and Probate,
Fax or email Name: _____________________________
E-mail: _______________________________

For more information, go to http://njwillsprobatelaw.com/long_term_care.html?id=1229&a=

Living Wills, Health Care Proxies, and Advance Health Care Directives

With the increasing ability of medical science to sustain our lives, people are living much longer than ever before. Unfortunately, as we grow older and experience poor health, we may find ourselves in a position where decisions need to be made as to how we wish to be treated in a variety of medical situations at the end of our lives. Further, sometimes we find ourselves in a condition where we can no longer express our preferences. Advance health care directives allow us to deal with these situations. Without such directives, your family may find it necessary to obtain court orders to deal with your medical situation.

State laws vary concerning the appropriate documents to cover these situations. All fifty states permit you to express your wishes as to medical treatment in terminal illness or injury situations, and to appoint someone to speak for you in the event you cannot speak for yourself. Depending on the state, these documents are known as "living wills," "health care proxies," or "advance health care directives." Some states have a standardized document for this process, while other states leave the language up to individual lawyers and their clients.

For more information, go to http://njwillsprobatelaw.com/living_wills_health_care_proxies_advance_health_care_directives.html?id=1228&a=

Living Wills

LIVING WILLS

By KENNETH A. VERCAMMEN

A living will is your written expression of how you want to be treated in certain medical conditions. Depending on state law, this document may permit you to express whether or not you wish to be given life-sustaining treatments in the event you are terminally ill or injured, to decide in advance whether you wish to be provided food and water via intravenous devices ("tube feeding"), and to give other medical directions that impact the end of life. "Life-sustaining treatment" means the use of available medical machinery and techniques, such as heart-lung machines, ventilators, and other medical equipment and techniques that will sustain and possibly extend your life, but which will not by themselves cure your condition. In addition to terminal illness or injury situations, most states permit you to express your preferences as to treatment using life-sustaining equipment and/or tube feeding for medical conditions that leave you permanently unconscious and without detectable brain activity.

A living will applies in situations where the decision to use such treatments may prolong your life for a limited period of time and not obtaining such treatment would result in your death. It does not mean that medical professionals would deny you pain medications and other treatments that would relieve pain or otherwise make you more comfortable. Living wills do not determine your medical treatment in situations that do not affect your continued life, such as routine medical treatment and non life-threatening medical conditions. In all states the determination as to whether or not you are in such a medical condition is determined by medical professionals, usually your attending physician and at least one other medical doctor who has examined you and/or reviewed your medical situation. Most states permit you to include other medical directions that you wish your physicians to be aware of regarding the types of treatment you do or do not wish to receive.

All States have declared that competent adults have the fundamental right in collaboration with their health care providers, to control decisions about their own health care. States recognize in their law and public policy, the personal right of the individual patient to make voluntary, informed choices to accept, to reject or to choose among alternative courses of medical and surgical treatment.

WHY LIVING WILLS
Modern advances in science and medicine have made possible the prolongation of the lives of many seriously ill individuals, without always offering realistic prospects for improvement or cure. For some individuals the possibility of extended life is experienced as meaningful and of benefit. For others, artificial prolongation of life may seem to provide nothing medically necessary or beneficial, serving only to extend suffering and prolong the dying process. States recognize the inherent dignity and value of human life and within this context recognize the fundamental right of individuals to make health care decisions to have life-prolonging medical or surgical means or procedures provided, withheld, or withdrawn.
States recognize the right of competent adults to plan ahead for health care decisions through the execution of advance directives, such as living wills and durable powers of attorney, and to have their wishes respected, subject to certain limitations.

PURPOSE OF LIVING WILLS
In order to assure respect for patients previously expressed wishes when the capacity to participate actively in decision making has been lost or impaired; to facilitate and encourage a sound decision making process in which patients, health care representatives, families, physicians, and other health care professionals are active participants; to properly consider patients interests both in self-determination and in well-being; and to provide necessary and appropriate safeguards concerning the termination of life-sustaining treatment for incompetent patients as the law and public policy of this State, the Legislatures have enacted Living Will/ Advance Directives for Health Care Acts.

REQUIREMENTS OF STATUTE
The advance directive for health care (Living Will) requires a writing executed in accordance with the requirements of the state law. It must be either signed and dated in front of an attorney at law or other person authorized to administer oaths, or in the presence of two subscribing adult witnesses. If the two adult witnesses are used, they both must attest that the declarant is of sound mind and not under undue influence. A designated health care representative shall not act as a witness to the execution of the advance directive. Since this is a legal document, it must be executed properly to be valid under the statute.

HEALTH CARE REPRESENTATIVE
The declarant must designate one or more alternative health care representatives. "Health care representative" means the person designated by you under the Living Will for the purpose of making health care decisions on your behalf.

WHEN DOES THE ADVANCE DIRECTIVE BECOME 
OPERATIVE
An advance directive becomes operative when (1) it is transmitted to the attending physician or to the health care institution, and (2) it is determined pursuant to the Act that the patient lacks capacity to make a particular health care decision.
Treatment decisions pursuant to an advance directive shall not be made and implemented until there has been a reasonable opportunity to establish and where appropriate confirm, a reliable diagnosis for the patient which shall include the attending physicians opinion concerning the nature, cause, extent, and probable duration of the patients incapacity, and shall be made a part of the patients medical records. For additional information or to have a "Living Will" prepared, see your attorney. In addition, be certain your Last Will and testament is up to date.
add to njwillsprobatelaw.com/living_wills.htm


THE LIVING WILL:
Planning Ahead For Your Health Care:

KENNETH A. VERCAMMEN
Attorney at Law
2053 Woodbridge Ave. 
Edison, NJ 08817


Abstracted from NJ Commission on Legal & Ethical Problems in the Delivery of Health Care
732-572-0500 Legislative Study Commission Brochure


1. Introduction
2. Questions and Answers
3. Terms You Should
4. Understand

1. Introduction:

As Americans, we take it for granted that we are entitled to make decisions about our own health care. Most of the time we make these decisions after talking with our own physician about the advantages and disadvantages of various treatment options. The right of a competent individual to accept or refuse medical treatment is a fundamental right now fully protected by law.

But what happens if serious illness, injury or permanent loss of mental capacity makes us incapable of talking to a doctor and deciding what medical treatments we do or do not want? These situations pose difficult questions to all of us as patients, family members, friends and health care professionals. Who makes these decisions if we cant make them for ourselves? If we cant make our preferences known how can we make sure that our wishes will be respected? If disagreements arise among those caring for us about different treatment alternatives how will they be resolved? Is there a way to alleviate the burdens shouldered by family members and loved ones when critical medical decisions must be made?

Living Will:

By using documents known as advance directives for health care, you can answer some of these questions and give yourself the security of knowing that you can continue to have a say in your own treatment. A properly prepared Living Will permits you to plan ahead so you can both make your wishes known, and select someone who will see to it that your wishes are followed.

After all, if you are seriously ill or injured and cant make decisions for yourself someone will have to decide about your medical care. Doesnt it make sense to

•Have a person you trust make decisions for you,

•Provide instructions about the treatment you do and do not want, or

•Both appoint a person to make decisions and provide them with instructions.

A Few Definitions

Throughout this booklet there are four phrases. Each of these phrases has a special meaning when it comes to allowing you to make decisions about your future health care.

• Advance directive-If you want your wishes to guide those responsible for your care you have to plan for what you want in advance. Generally such planning is more likely to be effective if its done in writing. So, by an "advance directive" we mean any written directions you prepare in advance to say what kind of medical care you want in the event you become unable to make decisions for yourself.


1. Proxy directives - One way to have a say in your future medical care is to designate a person (a proxy) you trust and give that person the legal authority to decide for you if you are unable to make decisions for yourself. Your chosen proxy (known as a health care representative) serves as your substitute, "standing in" for you in discussions with your physician and others responsible for your care. So, by a proxy directive we mean written directions that name a "proxy" to act for you. Another term some people use for a proxy directive is a "durable power of attorney for health care.”

2. Instruction directives - Another way to have a say in your future medical care is to provide those responsible for your care with a statement of your medical treatment preferences. By "instruction directive" we mean written directions that spell out in advance what medical treatments you wish to accept or refuse and the circumstances in which you want your wishes implemented. These instructions then serve as a guide to those responsible for your care. Another term some people use for an instruction directive is a "living will.”

3. Combined directives - A third way combines features of both the proxy and the instruction directive. You may prefer to give both written instructions, and to designate a health care representative or proxy to see that your instructions are carried out.

2. Questions and Answers

1. Why should I consider writing an advance directive/ living will?

Serious injury, illness or mental incapacity may make it impossible for you to make health care decisions for yourself. In these situations, those responsible for your care will have to make decisions for you. Advance directives are legal documents which provide information about your treatment preferences to those caring for you, helping to insure that your wishes are respected even when you cant make decisions yourself A clearly written and legally prepared directive helps prevent disagreements among those close to you and alleviates some of the burdens of decision making which are often experienced by family members, friends and health care providers.

2. When does my advance directive take effect?

Your directive takes effect when you no longer have the ability to make decisions about your health care. This judgment is normally made by your attending physician, and any additional physicians who may be required by law to examine you. If there is any doubt about your ability to make such decisions, your doctor will consult with another doctor with training and experience in this area Together they will decide if you are unable to make your own health care decisions.

3. What happens if I regain the ability to make my own decisions?

If you regain your ability to make decisions, then you resume making your own decisions directly. Your directive is in effect only as long as you are unable to make your own decisions.

4. Are there particular treatments I should specifically mention in my directive?

It is a good idea to indicate your specific preferences concerning two specific kinds of life sustaining measures:

1. Artificially provided fluids and nutrition; and

2. Cardiopulmonary resuscitation.

Stating your preferences clearly concerning these two treatments will be of considerable help in avoiding uncertainty, disagreements or confusion about your wishes. The enclosed forms provide a space for you to state specific directions concerning your wishes with respect to these two forms of treatment.

Fluids and Nutrition. I request that artificially provided fluids and nutrition, such as by feeding tube or intravenous infusion (initial one)

1. ______ shall be withheld or withdrawn as "Life Sustaining Treatment."

2. ______ shall be provided to the extent medically appropriate even if other "Life Sustaining Treatment" is withheld or withdrawn.

Directive as to Medical Treatment. I request that "Life Sustaining Treatment" be withheld or withdrawn from me in each of the following circumstances: (Initial all that apply)

1. ______ If the "life sustaining treatment" is experimental and not a proven therapy, or is likely to be ineffective or futile in prolonging my life, or is likely to merely prolong an imminent dying process;
2. ______ If I am permanently unconscious (total and irreversible loss of consciousness and capacity for interaction with the environment);
3. ______ If I am in a terminal condition (terminal stage of an irreversibly fatal illness, disease, or condition); or
4. ______ If I have a serious irreversible illness or condition, and the likely risks and burdens associated with the medical intervention to be withheld or withdrawn outweigh the likely benefits to me from such intervention.
5. ______ None of the above. I direct that all medically appropriate measures be provided to sustain my life, regardless of my physical or mental condition.

5. What is the advantage of having a health care representative, isnt it enough to have an instruction directive?

Your doctor and other health care professionals are legally obligated to consider your expressed wishes as stated in your instruction directive or "living will.” However, instances may occur in which medical circumstances arise or treatments are proposed that you may not have thought about when you wrote your directive. If this happens your health care representative has the authority to participate in discussions with your health care providers and to make treatment decisions for you in accordance with what he or she knows of your wishes. Your health care representative will also be able to make decisions as your medical condition changes, in accordance with your wishes and best interests.

6. If I decide to appoint a health care representative, who should I trust with this task?

The person you choose to be your health care representative has the legal right to accept or refuse medical treatment (including life-sustaining measures) on your behalf and to assure that your wishes concerning your medical treatment are carried out. You should choose a person who knows you well, and who is familiar with your feelings about different types of medical treatment and the conditions under which you would choose to accept or refuse either a specific treatment or all treatment.

A health care representative must understand that his or her responsibility is to implement your wishes even if your representative or others might disagree with them. So it is important to select someone in whose judgment you have confidence. People that you might consider asking to be your health care representative include:

• a member of your family or a very close friend, your priest, rabbi, or minister, or 
• a trusted health care provider, but your attending physician cannot serve as both your physician and your health care representative.

7. Should I discuss my wishes with my health care representative and others?

Absolutely! Your health care representative is the person who speaks for you when you cant speak for yourself. It is very important that he or she has a clear sense of your feelings, attitudes and health care preferences. You should also discuss your wishes with your physician, family members and others who will be involved in caring for you.

8. Does my health care representative have the authority to make all health care decisions for me?

It is up to you to say what your health care representative can and cannot decide. You may wish to give him or her broad authority to make all treatment decisions including decisions to forego life-sustaining measures. On the other hand, you may wish to restrict the authority to specific treatments or circumstances. Your representative has to respect these limitations.

9. Is my doctor obligated to talk to my health care representative?

Yes. Your health care representative has the legal authority to make medical decisions on your behalf, in consultation with your doctor. Your doctor is legally obligated to consult with your chosen representative and to respect his or her decision as if it were your decision.


10. Is my health care representative the only person who can speak for me, or can other friends or family members participate in making treatment decisions?

It is generally a good idea for your health care representative to consult with family members or others in making decisions, and if you wish you can direct that he or she do so. It should be understood by everyone, however, that your health care representative is the only person with the legal authority to make decisions about your health care even if others disagree.

11. Can I request all measures be taken to sustain my life?

Yes. You should make this choice clear in your advance directive. Remember, a directive can be used to request medical treatments as well as to refuse unwanted ones.

12. Does my doctor have to carry out my wishes as stated in my instruction directive?

If your treatment preferences are clear your doctor is legally obligated to implement your wishes. unless doing this would violate his or her conscience or accepted medical practice. If your doctor is unwilling to honor your wishes he or she must assist in transferring you to the care of another doctor.

13. Can I make changes in my directive?

Yes. An advance directive can be updated or modified in whole or in part, at any time, by a legally competent individual. You should update your directive whenever you feel it no longer accurately reflects your wishes. It is a good idea to review your directive on a regular basis, perhaps every 5 years. Each time you review the directive, indicate the date on the form itself and have someone witness the changes you make. If you make a lot of changes, you may want to write a new directive. Remember to notify all those important to you of any changes you make.

14. Can I revoke my directive at any time?

Yes. You can revoke your directive at any time, regardless of your physical or mental condition. This can be done in writing, orally, or by any action which indicates that you no longer want the directive to be in effect.

15. Who should have copies of my advance directive?

A copy should be given to the person that you have named as your health care representative, as well as to your family, your doctor, and others who are important to you. If you enter a hospital, nursing home, or hospice, a copy of your advance directive should be provided so that it can be made part of your medical records. The back cover of this brochure contains a wallet size card you can complete and carry with you to tell others that you have an advance directive.

16. Can I use my advance directive to make an organ donation upon my death?

Yes. You may state your wishes regarding organ donation. Also you may want to place an organ donor card in your wallet to alert medical personnel. Any card will do. If you decide to make a gift of your organs upon your death please complete the card and carry it with you at all times. For further information regarding organ donation you should contact either an organ procurement agency or your local hospital.


3. Terms You Should Understand

1. Artificially provided fluids and nutrition: 
The provision of food and water to seriously ill patients who are unable or unwilling to eat. Depending on the method used, such as insertion of a feeding tube or an intravenous line, and the condition of the patient, techniques may involve minor surgery, continuous supervision by medical (and sometimes surgical) personnel, risk of injury or infection, and side effects.

2. C a r d i o p u l m o n a r y Resuscitation (CPR): 
A treatment administered by health care professionals when a persons heartbeat and breathing stops. CPR may restore functioning if administered properly and in a timely fashion and may include the use of mechanical devices and/or drugs.

3. Life-sustaining measures: 
Any medical procedure, device, artificially provided fluids and nutrition, drugs, surgery, or therapy that uses mechanical or other artificial means to sustain, restore or supplant a vital bodily function. thereby prolonging the life of a patient.

4. Decision making capacity: 
A patients ability to understand the benefits and risks of a proposed medical treatment and its alternatives and to reach an informed decision.

5. Health care representative or health care proxy: 
In the event an individual loses decision making capacity, a health care representative or proxy is a person who has been legally designated to make decisions on his or her behalf. A health care representative is appointed through the execution of a proxy directive (a durable power of attorney for health care).

6. Terminal condition : 
The terminal stage of an irreversibly fatal illness, disease, or condition. While determination of a specific "life expectancy" is not required for a diagnosis of a "terminal condition a prognosis of a life expectancy of one year or less, with or without the provision of life-sustaining treatment, is generally considered terminal.

7. P e r m a n e n t unconsciousness: 
A medical condition defined as total and irreversible loss of consciousness. The term "permanently unconscious" includes the conditions persistent vegetative state and irreversible coma Patients in this condition cannot interact with their surroundings or others in any way and do not experience pleasure or pain.

8. Persistent vegetative state: 
A condition of permanent unconsciousness in which the patient loses all capacity for interaction with their environment or other people. It is usually caused by an injury to the brain. It is normally not regarded as a terminal condition and with the aid of medical care and artificial fluids and nutrition patients can survive for many years.

9. Incurable and irreversible chronic diseases: 
Disabling diseases such as Alzheimers disease, organic brain syndrome or other diseases which get progressively worse over time, eventually resulting in death. Depending on the disease, the patient may also experience partial or complete loss of physical and mental abilities. Because the rate at which these diseases advance may be slow, such diseases are not considered terminal in their early stages.

10. Whole brain death: 
Death due to total and irreversible loss of all functions of the entire brain, including the brain stem. The criteria of whole brain death must be used to accurately determine death in individuals who have suffered massive or total brain damage but whose heart and lungs are kept functioning by machines. Brain dead individuals are not vegetative or in a coma. but are, in fact, dead.

11. Attending physician : 
The doctor directly responsible for your medical treatment. He or she may or may not be your regular family physician. Depending on your health care needs the attending physician may consult with others in order to diagnose and treat your medical condition, but he or she remains directly responsible for your care.

Kenneth A. Vercammen is an Edison, Middlesex County, NJ trial attorney who has published 125 articles in national and New Jersey publications on Probate and litigation topics. He often lectures to trial lawyers of the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association. He is Chair of the American Bar Association Estate Planning & Probate Committee. He is also Editor of the ABA Elder Law Committee Newsletter
He is a highly regarded lecturer on litigation issues for the American Bar Association, ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published by New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award.

In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, and contested Probate hearings.

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