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Friday, July 20, 2007

NJ Laws Newsletter E207 February 26, 2006

In this issue:
1. Resource and Income Limitations for Spouses of Medicaid Applicants
2. STATE v. KRONFELD Guilty on No insurance if expired
3. Stuck accelerator defense rejected in careless driving STATE v. HAWLEY
4. Medical report rejected in DWI STATE v. KOLIBABA
5 Upcoming events: NJSBA Municipal Court Practice Section Monday, February 27

1. 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 one’s health care options and financial savings. Often individuals are lulled into thinking that the government will not aggressively pursue their assets if they don’t 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 spouse’s assets have to be paid to a nursing facility for that spouse’s 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 couple’s combined total countable resources as of the first period of continuous institutionalization. A resource assessment of the couple’s 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 applicant’s 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 spouse’s 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 spouse’s 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 spouse’s financial status. However, elder law attorneys can increase both the spouse’s 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.

For Medicaid Planning, schedule an appointment with Tom Begley Jr.
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.

2 Recent cases:
MOTOR VEHICLES- STATE v. KRONFELD Guilty on No insurance if expired
Appellate Division, A-1535-04T5, November 9, 2005, not approved for publication. Source: Facts-on-Call Order No. 18790.

Convictions after a trial de novo in the Law Division of operating a motor vehicle as an uninsured motorist and driving an unregistered vehicle affirmed; after issuing the defendant a warning for parking her vehicle illegally, the police officer learned from his computer that the vehicle's registration was expired, and the defendant produced an expired registration and an expired insurance card; the Municipal Court found that the officer had testified credibly that the defendant had admitted knowing that she did not have insurance or a valid registration, and the Law Division found that the officer's testimony was truthful and was corroborated by a notice of cancellation from the defendant's insurer; the conviction of operating a motor vehicle as an uninsured motorist was supported by the defendant's admissions and the documentary evidence, and the defendant's argument that the State had not proved that she had failed to maintain her vehicle registration lacked merit.

3. Stuck accelerator defense rejected in careless driving STATE v. HAWLEY
Appellate Division, A-2299-04T3, November 10, 2005, not approved for publication. (5 pages).
Conviction of careless driving after a trial de novo in the Law Division affirmed; the defendant was backing up his pickup truck at the municipal waste disposal facility when his truck struck and killed a woman who was emptying her trash into a garbage truck; the defendant claimed that his accelerator stuck, but the Municipal Court did not find the defendant or his experts credible, and it credited the testimony of the State's experts; the Law Division agreed with the Municipal Court's findings as to credibility and concluded that the accident was caused by the defendant's use of the accelerator instead of the brake; the record, including eyewitness and expert testimony, supported the Law Division's conclusions. Source: Facts-on-Call Order No. 18801.

4. Medical report rejected in DWI STATE v. KOLIBABA
Appellate Division, A-511-04T1, November 14, 2005, not approved for publication.

Denial of the defendant's application for post-conviction relief after she pleaded guilty to driving while intoxicated affirmed; the PCR application asserted claims of newly discovered evidence and ineffective assistance of counsel based on the defendant's claim that she suffered from a medical condition that causes reduced blood-sugar levels, mimics the signs of alcohol ingestion, and artificially elevates Breathalyzer results; the Law Division properly concluded (1) that the defendant knew of her medical condition before her plea, (2) that no evidence supported the conclusion that defense counsel's failure to raise the defendant's medical condition as a defense was a deviation from the relevant standard of performance, and (3) that the report that the defendant submitted to support her PCR application lacked the capacity to change the outcome. Source: Facts-on-Call Order No. 18809.

5 Upcoming events:
NJSBA Municipal Court Practice Section
Date: Monday, February 27 - Drug Cases in Municipal Court
Speaker: Robert Ramsey, Esq., Author
Time: 4:00-6:00 p.m.
Location: NJ Law Center One Constitution Square New Brunswick, NJ

Sunday March 5 Belmar St Patricks parade Ken Vercammen is seeking a ride from South Brunswick/ North Brunswick/ Edison Belmar for the St Patricks Belmar parade. Also hoping to get a ride back.

March 12 St Patrick Parade - Woodbridge

March 15 Middlesex Bar Awards Dinner - Law Center

March 20 Edison Will seminar Edison HS

March 27 Edison Chamber - Taste of Middlesex- Pines

April 1 - Edison Elks Officer Installation

April 10- NJ Bar Municipal Court meeting

Thank you for reading our newsletter! God Bless America USA #1
Kenneth Vercammen, Esq.
2053 Woodbridge Ave.
Edison, NJ 08817
PHONE 732-572-0500 (Fax) 732-572-0030
website: www.njlaws.com

Speakers Bureau: The NJ State Bar Association established a community Speakers Bureau to provide educational programs to senior clubs, Unions and Middlesex County companies. During the past year, volunteer attorneys have provided Legal Rights Seminars to hundreds of seniors, business owners and their employees, unions, clubs and non-profit groups. If you are interested in having an attorney speak on Wills, Probate or Elder Law at an event, please call my office. These quality daytime educational programs will educate and even entertain. Clubs and companies are invited to schedule a free seminar during business hours.

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