Articles
The New Jersey Move Over Law
We have been getting many inquiries about a new law requiring drivers to change lanes whenever approaching a police car, tow truck or highway maintenance vehicle parked on the shoulder of a highway. Failure to do so may result in a fine of between $100.00 and $500.00.   NJSA 39:4-92.2 states that a motorist shall change lanes into a lane not adjacent to the emergency vehicle, or, if changing lanes is not possible, reduce his or her speed to a "reasonable and proper speed for the existing road and traffic conditions," which shall, of course, be less than the posted speed limit, and be prepared to stop.
The Empty Office
The sign on the glass door reads “Elder Law Attorney.” You peer through that door but the office is empty–where is the elder law attorney?
He is probably in the community making a house call–yes, elder law attorneys still make house calls. A paralegal and the elder law attorney first witnessed a dying man sign legal documents and immediately afterward heard his daughter call the hospital asking for an ambulance to take him there. She explained that he wanted painkilling medication but no treatment to lengthen his life.
This is all part of a normal day in the life of an elder law attorney. Elder law attorneys are often found in the halls of nursing homes because their clients can’t come to them–it goes with the territory. At other times, the office may be empty because the elder law attorney is visiting a client in an intensive care unit. In this case an elderly individual is unconscious and no clear written advance directives have been given about their health care. The lawyer then becomes a combination social worker, spiritual advisor and counselor to work with the doctors, the hospital administration and family members who may disagree on the proper treatment for the patient in an attempt to work out a solution that sustains the dignity of the elderly individual.
You will also find the elder law attorney in his/her office. People may be creating a living trust to avoid probate and to implement a plan for the management of assets or families whose loved one is about to go into a nursing home may be seeking advice regarding the best way to give the elderly person the most comfortable and satisfying lifestyle possible taking into account physical, mental and economic factors.
The attorney may be in the office counseling with the family whose parent desperately needs institutional care but is unwilling to go there voluntarily and doesn’t understand how serious the situation is. The elder law attorney may advise the family to file a guardianship in court to lovingly seek court approval for their aging parent to get the kind of help that they so need.
The next time that we peer through that office door, the elder law attorney may not be there because he/she will be in Court actively pursuing the guardianship for the betterment of the elderly individual.
Elder law attorneys generally consider their practice to be a sacred trust for the betterment of clients–they genuinely try to treat each client as if he or she were a family member.
The month of May has been declared “National Elder Law Month” by the Tucson, Arizona-based National Academy of Elder Law Attorneys. Elder law attorneys all over the United States are sponsoring many free clinics and seminars.
For more information on elder law or National Elder Law Month, contact the National Academy of Elder Law Attorneys at 703-942-5711 or visit NAELA’s web site at http://www.NAELA.org.
Federal Estate Tax
Remarkably, Congress did not change the Federal Estate Tax law, as we had all predicted. This means that, for 2010, there is no Federal Estate Tax.  This is the first time since 1916 that there has been no estate tax.  Just remember that, next year, unless Congress acts, estates in excess of $1 million will be subject to the tax, upon the death of the surviving spouse.
The danger we face in 2010 is that Congress may act to change the law, not only for 2011, but may do so retroactively to January 1, 2010. So, if you are handling a large estate this year, think twice about distributing all of the assets to the beneficiaries, unless you are absolutely certain that they will comply with the refunding bond and return money, if needed. If you ever needed to watch what is happening in Washington, there is no time like the present.
The stepped up basis at death rule is repealed. There is now a "modified carryover basis". Each person has a $1,300,000 exemption from carryover basis, plus a $3 million exemption for transfers to a surviving spouse.
The Gift Tax will be retained, with a top rate of 35%, and an exclusion amount of $1 million.   Next year, again, if Congress does not act, the top rate will increase to 55%.
New Jersey's Estate Tax is unchanged, with its exemption of $675,000.
When Caring for Mom and Dad
Being an Elder Care attorney for over fifteen years, I have seen so many people in anguish over caring for their aging parents. Many times, I have heard men and women say, "The pressure is killing me." Most of the time, it is the women who are the caregivers in the family whether it is a spouse, father, mother, or the in-laws. Reflecting upon what these wonderful people are going through, and the overwhelming effects on their lives, I felt compelled to write this article.
One client, who recently moved her mother back to New Jersey from Florida after she fell in the bathtub, has been paying her mother's bills. Another is dealing with the quick deterioration of both his parents. One has Dementia; the other has Alzheimer's. His mother recently fell and broke her hip. No Power of Attorney or Will has been established.
On top of coming to terms with their parent's deteriorating health conditions and going from living independently to needing complete total nursing care, many caregivers show signs of personal health symptoms like depression, anxiety, fatigue and financial burdens. Unfortunately, by the time they come to see me, their efforts and decisions in caring for Mom and Dad have actually made their parents' situation worse, rather than better.
Some important facts need to be kept in mind prior to making any decisions. First, we have to understand that we are dealing with Mom and Dad's money, not our own. When caring for your parents, you need to make sure you have proper documentation for how their money is being spent, especially when the state is providing financial assistance to care for Mom and Dad. You need to always ask yourself, "If I spend money on this, is there a genuine reason to spend this money?" If the purchase is legitimate, you must have a receipt. If Mom and Dad's money is used for your own expenses, you can make your parents' Medicaid ineligible; you can be called into account, and in some cases even prosecuted.
If you start paying for Mom's expenses out of your own pocket, you are showing that you may be personally responsible for Mom's financial obligations. Once you set a precedent of covering Mom's expenses, you put yourself and your children's financial well being at risk. There are so many other options and programs available, only an expert and particularly an Elder Care attorney would be able to provide sound advice and direction to avoid financial disaster.
What about Medicaid? To qualify for Medicaid, a person can have no more than $2,000 in total assets. States are tightening the rules for Medicaid assistance. Medicaid looks at the last 5 years to see what assets were transferred, why and to whom. If, during this five-year 'look back' period, Mom and Dad's home is transferred into your name, you may end up disqualifying Mom and Dad for Medicaid. You cannot deliberately impoverish your parents to qualify for Medicaid.
Moreover, if you receive Mom and Dad's real estate as a gift, the capital gains taxes you will incur are based upon your sale price, minus your parents' purchase price. If your parents bought a house in 1960 for $20,000 and you take title to it and sell it five years from now for $400,000, you will pay capital gains tax on $380,000. There is a better way to handle this issue.
I know most people have a real aversion to hiring an attorney. I am here to tell you that there are good attorneys out there who will help you make the best decisions and provide good options in caring for your parents. An Elder Care attorney can make recommendations on housing placements based upon the needs, personality and wants of their clients and their parents. He or she can draw up the necessary legal documents and provide guidance to ensure that your parents are getting their needs met and you can continue to live your own life. There is no need to feel overwhelmed and alone. There is no need to make a wrong decision that ends up bankrupting your family and with your parents not getting the right care they need.