2053 Woodbridge Avenue - Edison, NJ 08817

Tuesday, October 07, 2008

NJ Laws Email Newsletter E284 - October 7, 2008

NJ Laws Email Newsletter E284
Kenneth Vercammen, Attorney at Law October 7, 2008

In This Issue
1. Failure to Monitor Fetus Leads to $1M Settlement.

2. Estate of Man Hit by Pizza Delivery Vehicle to Receive $1.6 Million.

3. Medicaid Planning with Care Agreement.

4. Wills, Probate and Elder Law- Adult and Community Education (WHEN: Tuesday October 21, 2008 7 - 9 P.M.)

5. Free Office Space for Attorney- Edison, NJ.


1. Failure to Monitor Fetus Leads to $1M Settlement.

An obstetrician who proceeded to let his patient deliver her baby vaginally after a partial failure of the fetal monitoring devices, only to see the baby born with evidence of severe oxygen deprivation and permanent neurological problems, will pay the child his full malpractice insurance limit of $1 million in settlement of Krikheli v. Skorenko. The electrodes monitoring Rachel Krikheli's fetus began to show disturbing signs of the fetus's condition soon after Dr. Kenneth Skorenko arrived to oversee her delivery at Monmouth Medical Center in May 2001 but then became completely uninterpretable. Skorenko did not follow the normal practice of applying a new electrode to the fetal scalp to learn more but went ahead immediately with delivery, justified, his attorneys argued, by the rapidity of labor and some partial but reassuring signs from the monitoring equipment. However, the newborn immediately showed signs of difficulty, which eventually solidified into spastic quadriplegia, delays in development and other problems that will prevent her from ever living independently and will probably shorten her life. The parties arrived at their settlement before trial began before Monmouth County Judge Mark A. Sullivan.

Source: NJL Daily Briefing - 09/26/2008

2. Estate of Man Hit by Pizza Delivery Vehicle to Receive $1.6 Million.

The estate of a man who died three months after being hit by a pizza delivery vehicle has been awarded $1.6 million by a Bergen County jury. Charles Kasak was crossing Kinderkamack Road in Oradell in October 2006 when a J & V Italo driver struck him. The apparent damage comprised three leg fractures, but after surgery at Hackensack University Medical Center, Kasak never regained the ability to walk and died the following January.

Source - NJL Daily Briefing 09/26/2008 10-3-08
3. Medicaid Planning with Care Agreement for Family Members to Provide Services. by Thomas D. Begley, Jr., Esquire.

Care agreements are discussed in HCFA Transmittal 64. The pertinent section reads in part: "While relatives and family members legitimately can be paid for care they provide to the individual, HCFA presumes that services provided for free at the time were intended to be provided without compensation." The presumption is rebuttable. States may require that a payment arrangement had been agreed to in writing at the time services were provided. The three requirements for a valid care agreement are: (1) that the agreement be in writing, (2) that the payment be made for care delivered after the date of the agreement, and (3) that the compensation be reasonable.

Home Modification

Often, children bring a parent into the home of the child until such time as the parent is ready to enter a nursing home. In many cases, the child must modify his home in order to make it adaptable to the needs of the frail parent. In drafting a care agreement, reimbursement for expenses made by the child to modify the home should be covered.

Home Maintenance

Expenses in maintaining the home may also be included. Presumably, Medicaid will accept any reasonable formula. One formula would be to total the cost of operating the home, including real estate taxes, water, sewer, utilities, homeowner's insurance premium, condominium fees, and any other shelter-related expenses, and divide that total by the number of persons living in the home, including the client. Food, medical, and other expenses could be paid directly by the client.


A child may provide care for a parent and charge for those services. For example, a potential Medicaid recipient is single and frail, but would be able to stay out of a nursing home with assistance. His son agrees to move him into the son's home and care for him. The level of care will be similar to that provided by an assisted living facility. Therefore, the potential Medicaid applicant may pay the son a reasonable amount for care (i.e., $3,000 per month). To avoid violating the "pig principle," pay the child 80% of what a third party would charge for the service being rendered. A portion of the payment is for care; a portion is for rent. Other services might be less intense, such as driving a parent to doctor's visits, doing laundry, maintaining a checkbook, etc. It may be more appropriate to charge hourly for this type of service.

The contract should clearly spell out the types of services to be rendered by the caregiver child. These services typically include the following:
· Transportation
· Shopping
· Laundry
· Checkbook
· Insurance
· Medications
· Health Assessment
· Secure Health Care
· Monitoring Health Care
· Personal Needs
· Entertainment
· Personal Shopping
· Taxes

Living Arrangements

There are five circumstances under which a care agreement might be appropriate. One is where the child cares for the parent in the child's home. Another is where the child cares for the parent in the parent's home. And a third is where the child provides care to the parent although each live in separate homes. The fourth situation is where the child coordinates care provided by third parties. A fifth situation would be where a child provides services for a parent already residing in a facility to supplement the services provided by the facility. These might include management of a checking account, transportation to doctors, laundry and other services. The care agreement must be carefully drafted to reflect the actual situation.

The Missouri Court of Appeals upheld a care agreement for care provided after the Medicaid recipient had entered the nursing home. On July 25, 2003, Eileen Reed entered a nursing home. In September, she signed a care agreement with her daughter, Sandra Teson, providing that Teson would prepare nutritious, appropriate meals; laundry; assistance with grooming, bathing, dressing, and personal shopping, including the purchase of clothing, toiletries, and other personal items; assistance with purchasing goods for Reed's use and enjoyment; monitoring Reed's physical and mental condition and nutritional needs in cooperation with health care providers; arranging for transportation to health care providers and to physicians of Reed's choice, as well as arranging for assessment, services, and treatment by appropriate health care providers for Reed; assisting Reed in following the instructions and directives of Reed's health care providers; arranging for social services by Social Service personnel; visiting at least weekly and encouraging social interaction; arranging for outings and walks, if reasonable and feasible for Reed; and interacting with and/or assisting any agent of Reed in interacting with health professionals, long-term care facility administrators, Social Service personnel, insurance companies, and government workers in order to safeguard Reed's rights, beneficiaries, and resources as needed. The court held that an $11,000 payment to Reed was in exchange for a binding and enforceable personal services contract and was fair and valuable consideration. Essentially, the contract provided that Teson would provide a communication link between Reed and her doctors and nurses regarding the status of her health, as well as interact with facility personnel to safeguard Reed's rights and benefits. These services supported Reed's independence, autonomy, well-being, and care and enhanced her life in ways that the facility did not and was above and beyond the care provided by the facility.

A Louisiana court also upheld a care agreement. In that case, Louise Carpenter moved in with her daughter in 1989. She moved to a nursing home on February 5, 2004. Mrs. Carpenter transferred $29,339.68, the balance of her Legg Mason brokerage account to her daughter at a point in time close to her entering the nursing home instead of when she moved in with her daughter. They claimed that the $29,339.68 was in consideration for the care she provided for 15 years. The Administrative Law Judge doubted the credibility as to the reasons why Mrs. Bergeron did not accept payment until after her mother entered the nursing home. The court held that agreement to be valid and compensation to be reasonable.

Life Care Contract

It may be possible for a parent to transfer his assets to a child in exchange for lifetime care by the child for the parent. One alternative would be to take the position that, at the time the contract was entered into, the parties had no idea as to the length of time for which the child would care for the parent and, therefore, the entire value of the assets transferred from the parent to the child would be "for value." A more conservative approach would be to argue that the child is entitled to monthly compensation at a rate similar to that charged by an assisted living facility in the area. The assets would be transferred from the parent to the child, and the child would earn those assets in accordance with the monthly rate established in the care agreement. The rate must be reasonable. If the parent entered a nursing home prematurely, the child would retransfer any excess assets to the parent.

Taxable Income/FICA/FUTA

Payments from the parent to the caregiver child are taxable income to the child and, depending on whether the child is an employee or an independent contractor, would be subject to withholding for FICA and FUTA or subject to payment of self-employment tax. If the parent is being cared for in the child's home, the agreement may provide that the parent pay a pro rata share of expenses attended to operating the home, such as real estate taxes, insurance, utilities, etc. It could be argued that these are simply reimbursement of expenses and not taxable income.

Copyright 2008 by Begley & Bookbinder, P.C., an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.
4. Wills, Probate and Elder Law- Adult and Community Education.

WHEN: Tuesday October 21, 2008 7 - 9 P.M.

East Brunswick Adult & Community Education Program

East Brunswick High Schoool, Cranbury Rd

Course #FBB

Fee: $29

Instructor: Kenneth Vercammen, Esq. of Edison
(Co-Author- NJ Elder Law & Probate)

COMPLIMENTARY MATERIAL: Brochures on Wills, "Probate and Administration of an Estate", Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.

You don't have to be wealthy or near death to do some thinking about a will. Here is your opportunity to listen to an experienced attorney who will discuss how to distribute your property as you wish and avoid many rigid provisions of the state law. Topics covered by author of "Answer to questions about Probate" will include: Wills, revocable trusts, irrevocable trusts, power of attorney, living will, long term care insurance, reverse mortgage, plus the opportunity to ask questions.

For more information on Elder law, visit the Website www.centraljerseyelderlaw.com. You can also subscribe to the free email Elder Law newsletter by visiting the website, or sending an email to Kenv@njlaws.com.

Tues. 7:00-8:30 pm - 1 session: October 21, 2008

Call the Adult Education Office for registration information 732-613-6989

Please make checks payable to Adult and Community Education and mail to: Director, East Brunswick Adult and Community Education, EBHS, 380 Cranbury Road, East Brunswick, NJ 08816-3095.

About the Speaker: Kenneth Vercammen is an Elder Law and Litigation Attorney in Edison, NJ. He often lectures for the American Bar Association and New Jersey State Bar Association on Elder Law, personal injury, and criminal / municipal court matters. He has published 125 articles in national and New Jersey publications on legal topics. He speaks as a volunteer on Wills and Elder law to Adult Community Schools and nonprofit groups including Edison, Metuchen, Woodbridge, East Brunswick, North Brunswick, South Brunswick, Piscataway, Sayreville, Old Bridge, Spotswood and Perth Amboy Seniors. He has established New Jersey's most popular Elder law website on the Internet to provide information on Probate, Elder Law and Traffic matters located at www.centraljerseyelderlaw.com.

5. Free Office Space for Attorney- Edison, NJ.

Law Office also has space sharing opportunity for new lawyer to get experience and go to court.

Attorney will be provided with their own office to start their practice, rent free. In return they will handle municipal court appearances, Will signings and other legal work and criminal law website updates in lieu of rent for maximum 5 hours per week.

Go to court and get trial experience. Its an Excellent opportunity to jump start your career. You will get to represent people in Municipal Courts in Middlesex, Union and Monmouth County and meet the top Prosecutors and Judges. Must be admitted in NJ and have a car.

Learn to interview potential Municipal Court/Criminal clients. Also learn to draft Wills and work on Litigation files. Attorney may also help provide legal assistance to members of prepaid legal plans and public defender clients. Follow up contact calls with clients, courts, prosecutors and bar associations.

Excellent mentoring position for the right attorney. Are you hardworking and aggressive? Visit our website: www.njlaws.com to learn about our office.

The following is included with office use:

1. Desk space on our 2nd floor
2. Use of 2nd floor conference table for meetings or
depositions by appointment
3. Use of our audio tape and video library.
4. Use of the front room reception area
5. Ability to put a file cabinet in basement to store your
old file
6. Lighting/ Utilities
7. Bathroom Supplies
8. Landscaping / Snow Removal
9. Cleaning of Common Area
10. Hot water, municipal water/sewer charge paid

2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
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2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

(Fax) 732-572-0030

website: www.njlaws.com

Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court