Elder Law, Estate Planning & Probate articles available from ABA Seminar
The ABA General Practice Division held its popular program Elder Law, Estate Planning & Probate- New ideas to expand & excel your practice at the American Bar Association Annual Meeting in Chicago on August 1, 2009.
Speakers: Jay Foonberg, Esq. - Author of Best Sellers "How to
Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA
Kenneth A. Vercammen, Esq. - co-author "Nuts & Bolts of Elder Law", Edison, NJ
Deborah Cole, Chicago, Il
Articles and forms were provided on CD. Below is a list of articles provided. If you want a few of the forms, send an email to kenvnjlaws@verizon.net and indicate which articles/ forms you want and the number of the article or form [max 5]
List of Kenneth Vercammen, Esq. Forms, Documents and Articles on CD
Elder Law, Estate Planning & Probate- New ideas to expand & excel your practice
Sat. August 1, 2009 2:00pm -3:30pm
Hyatt Regency Hotel, Chicago ABA Annual Meeting
1 New Client schedule appointment
2 Confidential Will Questionnaire
3 Will bill
4 WILL DRAFT CO
5. Doctor Cert sign POA, will Dr
6 Thank you for Referral
7 POA DRAFT lt
8 Will Signing Instruction
9 Referral Out Another Atty fax
10 No rep
11 Recommend Will to Client
12 Post WILL
13 Client questionnaire end case.
14 POA Grantor Now
15 Wills article
16 POA Power of Attorney- article
17 LIVING WILLS
18 Gay and Lesbians- Advance Directives
19 Letter of Instruction
20 Remove Executor
21 Alzheimer, POA Guardianship
22 ANSWERS to Questions Probate
23 Estate Planning 10 Ideas
24 Executor Duties
25 Prenuptial Ag
26 Undue Influence article
27 Attorney- Client Confidentiality
28 Pick up Docs
29 Executor to Pay and Notify Creditor
30 NJlaws website & articles
31 Trusts
32 Caveat to Will
33 Central Jersey Elder articles
34 ABA Estate Plan Winter 2008
35 Estate Plan ABA Nov 2007
36 ABA ELDER News Aug 2007 GP
37ABA ELDER LAW COMMITTEE Newsletter July 2007 ABA General Practice
38 Estate Probate ABA news May. 2007
39 Elder Law ABA news February, 2007
40 INTESTACY
41 If no Will
42 Probate Release Refund Bond
43 Lincoln 17- no charge
44 Guardianship bill
45 RETAINER Probate ESTATE
46 WILL - sign front notary
47Confidentiality Lt to Client
48 Elective Share of Spouse
49 Joint Bank Accounts Upon Death
50 ABA ELDER News Spring2008
51 ABA Elder Law Newsletter • April 2008
52 ABA GP Solo ELDER LAW COMMITTEE Newsletter July , 2008
53 ABA ELDER News Fall 2008
54 ABA ELDER News Winter 2009
55 ABA ELDER News Spring 2009
___ We need your email address for newsletter
Saturday, August 8, 2009
Sunday, June 14, 2009
ELDER LAW & ESTATE ADMINISTRATION BOOK AND AUDIO FOR SALE
ELDER LAW & ESTATE ADMINISTRATION BOOK AND AUDIO FOR SALE
Book elder law & estate administration including:
• Why Have a Will? Gathering information; standard provisions; designation of fiduciaries; protective clauses; sample forms; Ethics - who is the client?
• Powers of Attorney Types of POAs; what should be included; why clients need them; POAs and Living Wills; sample forms
• Living Trusts (Revocable/Irrevocable) as an Estate Planning Tool Why it should be used; disadvantages; revocable vs. irrevocable; Insurance Trusts; sample forms
• Basic Tax Considerations Jointly-held property; “I love you” Will; no Will at all; insurance owned by client; unlimited marital deduction; estate planning in the testamentary document; sample forms/letters
• Estate Administration - New Probate Law in New Jersey Probate process; duties of executor/fiduciary; gathering of assets; tax returns; tax waivers; access to property; sample forms/checklists
• Medicaid Planning in Light of Federal Medicaid Reform Countable assets of Medicaid applicant; income cap/Medical needy standard; look-back period; transfers of property; personal residence; Medicaid estate recovery rules …and more
This practical program is designed to provide the nuts and bolts of elder law practice & estate administration practice to general practitioners and young lawyers, as well as to more experienced estate planners and professionals who help senior citizens. You’ll also gain insight on how Federal Medicaid Reform will impact seniors.
Speakers:
THOMAS D. BEGLEY, JR., ESQ.,
KENNETH A. VERCAMMEN, ESQ.
Chair, ABA Estate Planning & Probate Law Committee
2006 NJSBA Municipal Court Practitioner of the Year
KATHLEEN A. SHERIDAN, ESQ.
MARTIN A. SPIGNER, ESQ.
Handbook 45.00 [$36 NJSBA Member Price] pages ] Item M57809
Handbook with Audio CD $189 [$149 NJSBA Member Price Item CDP57809
*NJSBA Member Price – To qualify for this reduced price, you must provide your NJSBA Member# at the time you place your order
Contact: New Jersey Institute for Continuing Legal Education (732)214-8500
Book elder law & estate administration including:
• Why Have a Will? Gathering information; standard provisions; designation of fiduciaries; protective clauses; sample forms; Ethics - who is the client?
• Powers of Attorney Types of POAs; what should be included; why clients need them; POAs and Living Wills; sample forms
• Living Trusts (Revocable/Irrevocable) as an Estate Planning Tool Why it should be used; disadvantages; revocable vs. irrevocable; Insurance Trusts; sample forms
• Basic Tax Considerations Jointly-held property; “I love you” Will; no Will at all; insurance owned by client; unlimited marital deduction; estate planning in the testamentary document; sample forms/letters
• Estate Administration - New Probate Law in New Jersey Probate process; duties of executor/fiduciary; gathering of assets; tax returns; tax waivers; access to property; sample forms/checklists
• Medicaid Planning in Light of Federal Medicaid Reform Countable assets of Medicaid applicant; income cap/Medical needy standard; look-back period; transfers of property; personal residence; Medicaid estate recovery rules …and more
This practical program is designed to provide the nuts and bolts of elder law practice & estate administration practice to general practitioners and young lawyers, as well as to more experienced estate planners and professionals who help senior citizens. You’ll also gain insight on how Federal Medicaid Reform will impact seniors.
Speakers:
THOMAS D. BEGLEY, JR., ESQ.,
KENNETH A. VERCAMMEN, ESQ.
Chair, ABA Estate Planning & Probate Law Committee
2006 NJSBA Municipal Court Practitioner of the Year
KATHLEEN A. SHERIDAN, ESQ.
MARTIN A. SPIGNER, ESQ.
Handbook 45.00 [$36 NJSBA Member Price] pages ] Item M57809
Handbook with Audio CD $189 [$149 NJSBA Member Price Item CDP57809
*NJSBA Member Price – To qualify for this reduced price, you must provide your NJSBA Member# at the time you place your order
Contact: New Jersey Institute for Continuing Legal Education (732)214-8500
Sunday, May 10, 2009
Kenneth Vercammen was included in the “Super Lawyers” list published by Thomson Reuter
Kenneth Vercammen was included in the “Super Lawyers” list published by Thomson Reuter
ABOUT SUPER LAWYERS
Kenneth
Vercammen was selected to the 2015 Super Lawyers list. The Super Lawyers list is
issued by Thomson Reuters. A description of the selection methodology can be
found at www.superlawvers.com/about/selection process detail.html. No aspect of
this advertisement has been approved by the Supreme Court of New Jersey.
Also, Kenneth Vercammen also passed the
test to become one of the few Municipal Court Law Attorneys.
SUPREME COURT OF NEW JERSEY
It is ORDERED that, pursuant to Rule
1:39-5(a), the following named attorneys, having applied to the Board on Attorney
Certification and having been found qualified by the Board, are hereby
authorized to designate themselves as Municipal Court Law Attorneys before the
public, the bar, and the courts of this State in accordance with the Rules of
this Court during their good behavior for a term of five years from the date of
this Order. ….. …… Kenneth Vercammen Middlesex
Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.Super Lawyers is published as a special supplement in leading newspapers and city and regional magazines across the country. Super Lawyers magazine, featuring articles about attorneys named to the Super Lawyers list, is distributed to all attorneys in the state or region, the lead corporate counsel of Russell 3000 companies and the ABA-approved law school libraries.
Polling, research and selection are performed by Law & Politics, a publication of Key Professional Media, Inc. Law & Politics has been publishing legal magazines since 1990 and Super Lawyers since 1991.
Super Lawyers magazine names attorneys in each state who received the highest point totals, as chosen by their peers and through the independent research of Law & Politics. Rising Stars names the state's top up-and-coming attorneys.
Super Lawyers magazine is published in all 50 states and reaches more than 13 million readers.
SUPER LAWYERS SELECTION PROCESS
OVERVIEW
In selecting attorneys for Super Lawyers, Law & Politics employs a rigorous, multiphase process. Peer nominations and evaluations are combined with third party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis.
The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.
The Super Lawyers selection process involves three basic steps: creation of the candidate pool; evaluation of candidates by the research department; and peer evaluation by practice area.
PUBLICATION
The final published list represents no more than 5 percent of the lawyers in the state. The lists are published annually in state and regional editions of Super Lawyers magazines and in inserts and special advertising sections in leading city and regional magazines and newspapers. All attorneys selected for inclusion in Super Lawyers, regardless of year, can be found on superlawyers.com.
http://www.superlawyers.com/new-jersey/lawyer/Kenneth-A-Vercammen/73f0b3a6-71c1-4ae1-a5d0-803ddb2739a9.html
Sunday, March 22, 2009
N.M. v. Division of Medical Assistance and Health
N.M. v. Division of Medical Assistance and Health
Services and Monmouth County Board of Social Services 02-26-09
A-0828-07T1
Under an amendment to the statutes governing the federal
Medicaid program enacted as part of the Deficit Reduction Act of
2005, the value of an annuity purchased for the sole benefit of
the "community spouse" may be considered in determining whether
the resources of the "institutionalized spouse" exceed the
"resource limit" for Medicaid eligibility.
Services and Monmouth County Board of Social Services 02-26-09
A-0828-07T1
Under an amendment to the statutes governing the federal
Medicaid program enacted as part of the Deficit Reduction Act of
2005, the value of an annuity purchased for the sole benefit of
the "community spouse" may be considered in determining whether
the resources of the "institutionalized spouse" exceed the
"resource limit" for Medicaid eligibility.
Sunday, March 15, 2009
ABA GP Solo ELDER LAW COMMITTEE Newsletter Spring, 2009
ABA GP Solo ELDER LAW COMMITTEE Newsletter Spring, 2009
ABA General Practice, Solo and Small Firm Division
Chairs - Kenneth Vercammen, Edison, NJ and Jay Foonberg, Beverly Hills, CA
In this issue:
1. The Legal Authority for Requiring a Medicare Set-Aside Arrangement
2. NUTS & BOLTS OF ELDER LAW & ESTATE ADMINISTRATION SEMINAR
3. Elder Law, Estate Planning & Probate- New ideas to expand & excel your practice Sat. August 1, 2009
1 The Legal Authority for Requiring a Medicare Set-Aside Arrangement.
s Medicare Secondary Payer Act The authority for the Centers for Medicare and Medicaid Services (CMS) to require consideration of a plaintiff’s future medical expenses is found in the Medicare Secondary Payer Act (MSPA). Under the MSPA Medicare is generally precluded from paying the beneficiary’s medical expenses when payment “has been made or can reasonably be expected to be made under a worker’s compensation plan, an automobile or liability insurance policy or plan (including a self-insured plan) or under no-fault insurance. Medicare payments are conditional on reimbursement from the primary payer. The requirements for Medicare Set-Aside Arrangements (MSA) have developed over the years in a series of memoranda issued by CMS. The MSPA applies to both past and future medical expenses.
s Medicare, Medicaid and SCHIP Extension Act of 2007. Historically, CMS has enforced the provisions of the MSPA only in worker’s compensation cases. However, the passage of the Medicare, Medicaid and SCHIP Extension Act of 2007 requires all insurers, third party administrators for group health plans, self-insured plans, and self-administered plans to identify situations where the plan is or has been a primary plan to the Medicare program. There is a civil penalty of $1,000 per day for non-compliance. The plan shall determine whether a claimant is entitled to benefits under the Medicare program. If the claimant is determined to be so entitled, the plan must submit a report including the identity of the claimant and such other information as the secretary shall specify.
0. The reporting requirements for group health plans being January 1, 2009. The reporting for liability cases begins July 1, 2009. The report includes the contact information for the personal injury attorney.
s CMS Regional Coordinator Pronouncement. According to Sally Stalcup, Region VI, MSP Regional Coordinator, CMS, “At this time, the Centers for Medicare and Medicaid Services (CMS) is not soliciting cases solely because of the language provided in the general release. CMS does not review or sign-off on counsel’s determination of the amount to be held to protect the Trust Fund in most cases. If we do, however, urge counsel to consider this issue in settling the case and recommend that their determination as to whether or not the case provided recovery funds for future medicals (emphasis added) be documented in their records. Should they determine that future services are funded, these dollars must be used to pay for future otherwise Medicare covered case-related services. There is no formal CMS review process in the liability arena as there is for worker’s compensation. On rare occasions, when the liability is large enough or other unusual facts exist within the case, the CMS Regional Office will review the settlement and help make a determination on the amount to be available for future services.”
s Anticipated Impact of the Medicare, Medicaid and SCHIP Extension Act of 2007. The likely outcome of the reporting requirements of the Medicare, Medicaid and SCHIP Extension Act of 2007 is that insurance companies will begin to require MSAs in third party liability cases. There is no reason for insurance companies to run the risk of failing to establish an MSA.
The Theory Behind a Medicare Set Aside Arrangement.
s Contrived Shift. Under the Medicare Secondary Payer Act, Medicare makes conditional payment for medical expenses for beneficiaries with the understanding that Medicare will be paid when the beneficiary receives payment from a third party. Medicare is opposed to any settlement that results in a contrived shift to Medicare of responsibilities of a claimant’s future medical care. In settling claims, Medicare’s interest must be considered. The solution to the problem of burden shifting is to establish a Medicare Set-Aside Arrangement (MSA).
s Past and Future Medical Bills. Medicare has a right of recovery for past medical bills up to the date of the settlement. The Medicare Secondary Payer Act also applies to third party liability situations in which the settlement or award includes payment for future medical expenses. Medicare is not bound by the release with respect to an allocation for future medical expenses. If Medicare determines that the injured party will have future medical expenses then a Medicare Set-Aside Arrangement is expected.
When is an MSA Required?
While the MSPA clearly establishes a requirement that Medicare’s interest be considered in liability cases, there are no rules or regulations under the MSPA. While there are no rules in Worker’s Compensation (WC) cases either, CMS has issued memos advising the establishment of MSA’s in WC cases, but there are no requirements. Obtaining CMS’ approval of a proposed MSA does provide assurance to the parties that the set aside amount is acceptable to CMS. The prudent course of action might be to follow those in liability cases. While an MSA is always required, it is not necessary to submit an MSA proposal to CMS:
• the settlement exceeds $25,000 and the claimant is currently
eligible for Medicare; or
• the settlement is for more than $250,000 and the plaintiff can
reasonably be expected to become eligible for Medicaid
within 30 months.
If an individual is in the process of filing, appealing or re-filing for SSDI, that person is included in the 30-month window notwithstanding the fact that a previous application may have been denied and have not been appealed. An individual who is 62 years and 6 months of age could be eligible within 30 months, and an individual suffering from End-Stage Renal Disease (ESRD), but who does not yet qualify for Medicare based on ESRD, would also be considered a person having a “reasonable expectation” of Medicare enrollment within 30 months.
If it is absolutely clear that there will be no future medicals as a result of the injury subject to the litigation, then no MSA is required.
It is important to note that a beneficiary may not waive his right to future Medicare in order to avoid establishing an MSA.
In determining whether the $250,000 threshold is met, if there is a structured settlement the value of the structure rather than the cost is used. Also, in determining whether the $250,000 threshold is met, past medicals, future medicals, attorney’s fees and costs are included.
What is the Risk to the Personal Injury Attorney for Failing to Establish an MSA?
s Double Damages. Plaintiff’s attorneys who fail Medicare’s interest are potentially responsible for double damages. CMS is authorized to bring an action “against any entity” including a beneficiary, provider, supplier, physician, attorney, state agency or private insurer that has received any portion of a third party payment directly or indirectly, if those third party funds – rather than Medicare – should have been paid for the injury-related medical expenses.
0.
s Potential Malpractice. In addition, there is a malpractice risk. Plaintiffs who have not established an MSA and who file future claims for Medicare may have those claims denied. CMS has taken the position that where no MSA has been established, the entire settlement can be considered for future medicals and Medicare will not pay the plaintiff’s medical bills until an amount equal to the entire settlement has been spent for the plaintiff’s medical care. Each personal injury attorney must decide how much risk he or she is willing to accept in order to avoid establishing an MSA.
How is the Set-Aside Amount Determined?
There are companies who will calculate the set-aside amount. The amount is determined by evaluating past medical treatment, current medical condition, and the probability of future medical needs, as well as other factors. Future medicals are limited only to those expenses that Medicare would pay that are related to the injury. Medicare does not pay all medical expenses. There are some services that are not covered; there are deductibles, co-payments and maximums per spell of illness. The MSA need not contain monies for those services that would not be covered by Medicare. In calculating the set-aside amount the plaintiff’s life expectancy is considered. It is often useful to obtain a rated age as a part of this process. The rated age shows that a person’s actual life expectancy may be considerably shorter than their actuarially life expectancy, so that less money is required to be set aside.
Once a Medicare Set-Aside amount is calculated in a worker’s compensation case, it is submitted to Medicare for approval. While CMS maintains that a set-aside is necessary in liability cases, there is no mechanism for approval at this time.
CMS is not bound by an allocation for future medicals made by the parties in the settlement agreement. CMS may disregard any such allocation and make its own calculation as to the cost of future medicals.
The cost of future prescription drugs must be considered in calculating the set-aside amount.
Administering the MSA.
There are four possibilities for administering an MSA:
s Self-Administered Accounts. These accounts are usually small accounts and are administered by the claimant. No formal agreement is necessary. The claimant must follow the same accounting rules as a professional administrator, but it is likely that most claimants will not comply, but the liability of the personal injury lawyer should terminate when the MSA is established.
s Custodial Account. A larger account is usually administered by a custodian. These are professional organizations that have expertise in medical claims administration. They charge a fee and are recommended where financially justified.
s Medicare Set-Aside Trusts. A Medicare Set-Aside Trust is a formal trust with a trustee. These are usually used for large accounts. They are also used in connection with Special Needs Trusts if the plaintiff is receiving means-tested public benefits such as SSI, Medicaid, Food Stamps, Veterans Benefits or Section 8 Housing.
s Pooled Trusts. In smaller cases where the plaintiff is receiving any of these means-tested public benefits, a Pooled Trust may be considered. A Pooled Trust is operated by a non-profit. The plaintiff’s money is pooled with other persons’ money for investment purposes, but each member has an individual sub-account. Whenever a trust or a Pooled Trust is used, a sub-trust is established for the Medicare Set-Aside funds.
Chart
No Public Benefits Public Benefits
Small Settlement
Self Administered
Pooled Trust
Large Settlement
Custodial Agreement/ Professional Administrator
Stand Alone Special Needs Trust
Note: As used above the term “Public Benefits” applies to only means tested public benefits where there are financial eligibility rules pertaining to income and/or assets of the beneficiary and/or his or her family or household. These benefits typically include SSI, Medicaid, Veteran’s Benefits, Section 8 Housing and Food Stamps. For purposes of the chart, public benefits does not only include SSDI and Medicare, but a MSA will always be required if the plaintiff is receiving or will receive these benefits.
How does a Structured Settlement fit into an MSA?
s Seed Money. An MSA must include seed money with is a cash amount equal to the amount of monies calculated to cover the first surgery procedure and/or replacement and two years of annual payments.
0.
s Structured Settlement. If there is a sizable MSA, the balance is usually funded with a structured settlement. The structured settlement is usually payable in annual installments. The remainder of the Set-Aside is divided by the remainder of the claimant’s life expectancy and the structured pays annual deposits into the MSA based on a “anniversary date” which cannot be more than one year after the settlement date. If the funds paid into the MSA from the structured settlement are exhausted before the next “anniversary date” Medicare pays until such time as the next structured settlement payment is received
0.
Recommendations for Personal Injury Attorneys.
• Recommendations for Personal Injury Attorneys wanting to protect themselves against the risk of future claims by Medicare or malpractice claims by clients are as follows:
0.
• Since no rules currently exist for third party liability cases,
follow the WC rules with respect to MSA.
• Arrange for the calculation of a Medicare Set-Aside amount.
• Submit the proposal to CMS. It is unlikely that CMS will respond,
but the personal injury attorney should be off the hook so far as his
or her obligation to consider Medicare’s interests.
• Establish an MSA and fund it with the amount calculated.
• Advise the plaintiff in writing with respect to the rules.
• Advise the client in writing of the potential for the denial of future
medical care coverage for the injury subject to the litigation.
• Paper your file.
__________________________________________
42 U.S.C.§1395y(b)(2); 42 CFR §46(d)(d)
2 42 U.S.C. §1395y(b)(2)(A)(ii)
3 42 U.S.C.§1395y(b)(2)(B)
4 42 U.S. C. 1305, Medicare, Medicaid and SCHIP Extension Act of 2007
5 Sally Stalcup, Region 6 MSP Regional coordinator
6 42 U.S.C. §1395y(b)(2)(B)(ii); 42 CFR §411.24
7 Medicare Set Aside Arrangements Transmittal (Patel Memo), July 23, 2001; Medicare Secondary Payer – Worker’s Compensation (WC) frequently Asked Questions; (undated) Thomas L. Grissom; Medicare Secondary Payer-Worker’s Compensation (WC) information May 7, 2004; Medicare Secondary Payer (MSP)-Worker’s Compensation (WC) additional frequently asked questions, May 23, 2003; Medicare Secondary Payer (MSP) Worker’s Compensation (WC) additional frequently asked questions, October 15, 2004; Medicare Secondary Payer (MSP) Worker’s Compensation (WC) additional frequently asked questions July 11, 2005; Part D and Worker’s Compensation Medicare Set-Aside Arrangements questions and answers, December 30, 2005; Worker’s Compensation Medicare Set-Aside Arrangements (WCMSAs) and revision of the Low Dollar Threshold for Medicare beneficiaries, October 25, 2006; Questions and Answers for Part D and Worker’s Compensation Medicare-Set Aside Arrangements, July 24, 2006
8 Medicare Set Aside Arrangements Transmittal (Patel Memo), July 23, 2001
9 Medicare Secondary Payer-Worker’s Compensation (WC) frequently asked questions (2)
10 Medicare Secondary Payer (MSP)- Worker’s Compensation (WC) additional frequently asked questions, May 23, 2003
11 42 U.S.C. 1395y(b)(3); 42 CFR§411.24(c)(2)
12 Medicare Secondary Payer (MSP)-Worker’s Compensation (WC) additional frequently asked questions A-5, October 15, 2004
13 Id
0.
__________________________________________
Quick Screen
Medicare Set-Aside Arrangements
Is the client receiving SSI or SSD at the time of settlement? □ Yes □ No
Has the client applied for SSDI, or has client applied and been denied but anticipates appealing the decision? □ Yes □ No
Is client in the process of appealing and/or refilling for SSDI benefits? □ Yes □ No
Is client age 62 years 6 months of age or older at the time of settlement □ Yes □ No
Does client suffer from end stage renal disease but does not yet qualify for Medicare based on ESRD? □ Yes □ No
Is the settlement in excess of $250,000? □ Yes □ No
Note: If client is already receiving Medicare, the threshold is $25,000.
Copyright 2009 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.
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 800-533-722
2. NUTS & BOLTS OF ELDER LAW & ESTATE ADMINISTRATION SEMINAR
Tuesday, April 28, 2009 5:30 PM to 9:30 PM
Pines Manor, Edison
Featuring:
THOMAS D. BEGLEY, JR., ESQ.,
2004 Clapp Laureate
Certified as an Elder Law Attorney by the ABA Accredited National Elder Law Foundation
Past Chair, NJSBA Elder & Disability Law Section
Author: "How to Develop and Manage a Successful Trusts & Estates/Elder Law
Practice" (NJICLE)
Co-Author: "Profitable Law Firm Management" (NJICLE)
Begley & Bookbinder, PC (Moorestown)
KENNETH A. VERCAMMEN, ESQ.
Chair, ABA General Practice Division Elder Law Committee
2006 NJSBA Municipal Court Practitioner of the Year
K. Vercammen & Associates (Edison)
KATHLEEN A. SHERIDAN, ESQ.
Law Offices of Kathleen A. Sheridan, PC (Ship Bottom)
MARTIN A. SPIGNER, ESQ.
M. Spigner, PC (Cranbury)
Elder law continues to offer the legal profession a booming opportunity for growth. As your current clients continue to grow older, you need to position yourself to be able to offer them and their families the legal services required by the elderly in today’s society. Or, you may be looking for lucrative areas in which to expand your current practice, including administering their estates.
This practical program is designed to provide the nuts and bolts of elder law practice & estate administration practice to general practitioners and young lawyers, as well as to more experienced lawyers seeking to expand into this field. A highly authoritative and experienced panel of elder law attorneys & estate planners will share proven techniques and experience it would take you years to gather on your own. You’ll also gain insight on how Federal Medicaid Reform will impact your practice. Register today!
Everything you need to know about elder law & estate administration including: • Why Have a Will? Gathering information; standard provisions; designation of fiduciaries; protective clauses; sample forms; Ethics - who is the client? • Powers of Attorney Types of POAs; what should be included; why clients need them; POAs and Living Wills; sample forms • Living Trusts (Revocable/Irrevocable) as an Estate Planning Tool Why it should be used; disadvantages; revocable vs. irrevocable; Insurance Trusts; sample forms • Basic Tax Considerations Jointly-held property; “I love you” Will; no Will at all; insurance owned by client; unlimited marital deduction; estate planning in the testamentary document; sample forms/letters • Estate Administration - New Probate Law in New Jersey Probate process; duties of executor/fiduciary; gathering of assets; tax returns; tax waivers; access to property; sample forms/checklists • Medicaid Planning in Light of Federal Medicaid Reform Countable assets of Medicaid applicant; income cap/Medical needy standard; look-back period; transfers of property; personal residence; Medicaid estate recovery rules …and more
Tuition fees Reg. Fee Reg. Type
General Tuition (REG) $159.00 REG
NJICLE Season Tickets (STX) 1 Season Ticket(s) STX
MEMBERS, CO-SPONSORING SECTION (COS*) $119.00 COS*
MEMBERS, NJSBA (NJB*) $129.00 NJB*
MEMBERS, NJSBA YLD (YLD*) $119.00 YLD*
Recent admittees (past 2 years) (YL) $135.00 YL
Paralegals (PAR) $109.00 PAR
Law Students (with Student ID) (STU) $0.00 STU
Full Time Judges (JUD) $0.00 JU
NUTS & BOLTS OF ELDER LAW & ESTATE ADMINISTRATION
Audio packages are available 2 weeks after the last date of the seminar.
New Jersey Institute for Continuing Legal Education The non-profit continuing education service of: The New Jersey State Bar Association Rutgers - The State University of New Jersey Seton Hall University One Constitution Square, New Brunswick, New Jersey 08901-1520 Phone: (732)214-8500 Fax: (732)249-0383 • CustomerService@njicle.com
3. Elder Law, Estate Planning & Probate- New ideas to expand & excel your practice Sat. August 1, 2009 2:00pm -3:30pm
ABA Annual meeting Chicago
Speakers: Jay Foonberg, Esq. - Author of Best Sellers "How to
Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA
Joan Burda, Esq.
Kenneth A. Vercammen, Esq. - co-author "Nuts & Bolts of Elder Law", Edison, NJ
Charles Sabatino, director of the ABA's Commission on Law & Aging
Parag Patel, Esq. Iselin, NJ
Elder Law program Primary Sponsors: General Practice Section
Co-sponsors: ABA Commission on Law & Aging, Health Law Section,
YLD, Senior Lawyers Division, Real Probate & Trust Section, Tax Law Section
Topics:
Forms you can use
Email newsletters
"Representing seniors- Doing well by doing good.-Do you know how?
Marketing with written fee agreements
-Ethics and marketing without violating the Rules of Professional Conduct
Elder Law may be the biggest practice area of your career. There are 50,000 baby boomers/ day turning 60 and soon to be on Social Security and will need legal advise. Elder Law is one of the biggest growth fields.
_______________________
WE PUBLISH YOUR FORMS AND ARTICLES
To help your practice, we feature in this newsletter edition a few forms and articles PLUS tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please mail articles, suggestions or ideas you wish to share with others in our Tort and Insurance Committee.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
Send Us Your Marketing Tips
We are increasing the frequency of our newsletter. Send us your short tips on your great or new successful marketing techniques.
You can become a published ABA author. Enjoy your many ABA benefits.
Send us your articles & ideas
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
Who We Are- ABA GP Solo ELDER LAW COMMITTEE
This committee focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
We also seek articles on Elder Law, Probate, Wills, Medicaid and Marketing. Please send your marketing ideas and articles to us. You can become a published ABA author.
________________________________________
The Elder Law Committee of the ABA General Practice Division is directed towards general practitioners and more experienced elder law attorneys. The committee consistently sponsors programs at the Annual Meeting, the focus of which is shifting to advanced topics for the more experienced elder lawyer.
This committee also focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
Kenneth Vercammen, Esq. co-Chair
Jay Foonberg, Beverly Hills Co-chair, Author of Best Sellers "How to Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA JayFoonberg@aol.com>
We will also provide tips on how to promote your law office, your practice and Personal Marketing Skills in general. It does not deal with government funded "legal services" for indigent, welfare cases.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Kenv@njlaws.com
Central Jersey Elder Law www.centraljerseyelderlaw.com
NJ Elder Blog http://elder-law.blogspot.com/
ABA General Practice, Solo and Small Firm Division
Chairs - Kenneth Vercammen, Edison, NJ and Jay Foonberg, Beverly Hills, CA
In this issue:
1. The Legal Authority for Requiring a Medicare Set-Aside Arrangement
2. NUTS & BOLTS OF ELDER LAW & ESTATE ADMINISTRATION SEMINAR
3. Elder Law, Estate Planning & Probate- New ideas to expand & excel your practice Sat. August 1, 2009
1 The Legal Authority for Requiring a Medicare Set-Aside Arrangement.
s Medicare Secondary Payer Act The authority for the Centers for Medicare and Medicaid Services (CMS) to require consideration of a plaintiff’s future medical expenses is found in the Medicare Secondary Payer Act (MSPA). Under the MSPA Medicare is generally precluded from paying the beneficiary’s medical expenses when payment “has been made or can reasonably be expected to be made under a worker’s compensation plan, an automobile or liability insurance policy or plan (including a self-insured plan) or under no-fault insurance. Medicare payments are conditional on reimbursement from the primary payer. The requirements for Medicare Set-Aside Arrangements (MSA) have developed over the years in a series of memoranda issued by CMS. The MSPA applies to both past and future medical expenses.
s Medicare, Medicaid and SCHIP Extension Act of 2007. Historically, CMS has enforced the provisions of the MSPA only in worker’s compensation cases. However, the passage of the Medicare, Medicaid and SCHIP Extension Act of 2007 requires all insurers, third party administrators for group health plans, self-insured plans, and self-administered plans to identify situations where the plan is or has been a primary plan to the Medicare program. There is a civil penalty of $1,000 per day for non-compliance. The plan shall determine whether a claimant is entitled to benefits under the Medicare program. If the claimant is determined to be so entitled, the plan must submit a report including the identity of the claimant and such other information as the secretary shall specify.
0. The reporting requirements for group health plans being January 1, 2009. The reporting for liability cases begins July 1, 2009. The report includes the contact information for the personal injury attorney.
s CMS Regional Coordinator Pronouncement. According to Sally Stalcup, Region VI, MSP Regional Coordinator, CMS, “At this time, the Centers for Medicare and Medicaid Services (CMS) is not soliciting cases solely because of the language provided in the general release. CMS does not review or sign-off on counsel’s determination of the amount to be held to protect the Trust Fund in most cases. If we do, however, urge counsel to consider this issue in settling the case and recommend that their determination as to whether or not the case provided recovery funds for future medicals (emphasis added) be documented in their records. Should they determine that future services are funded, these dollars must be used to pay for future otherwise Medicare covered case-related services. There is no formal CMS review process in the liability arena as there is for worker’s compensation. On rare occasions, when the liability is large enough or other unusual facts exist within the case, the CMS Regional Office will review the settlement and help make a determination on the amount to be available for future services.”
s Anticipated Impact of the Medicare, Medicaid and SCHIP Extension Act of 2007. The likely outcome of the reporting requirements of the Medicare, Medicaid and SCHIP Extension Act of 2007 is that insurance companies will begin to require MSAs in third party liability cases. There is no reason for insurance companies to run the risk of failing to establish an MSA.
The Theory Behind a Medicare Set Aside Arrangement.
s Contrived Shift. Under the Medicare Secondary Payer Act, Medicare makes conditional payment for medical expenses for beneficiaries with the understanding that Medicare will be paid when the beneficiary receives payment from a third party. Medicare is opposed to any settlement that results in a contrived shift to Medicare of responsibilities of a claimant’s future medical care. In settling claims, Medicare’s interest must be considered. The solution to the problem of burden shifting is to establish a Medicare Set-Aside Arrangement (MSA).
s Past and Future Medical Bills. Medicare has a right of recovery for past medical bills up to the date of the settlement. The Medicare Secondary Payer Act also applies to third party liability situations in which the settlement or award includes payment for future medical expenses. Medicare is not bound by the release with respect to an allocation for future medical expenses. If Medicare determines that the injured party will have future medical expenses then a Medicare Set-Aside Arrangement is expected.
When is an MSA Required?
While the MSPA clearly establishes a requirement that Medicare’s interest be considered in liability cases, there are no rules or regulations under the MSPA. While there are no rules in Worker’s Compensation (WC) cases either, CMS has issued memos advising the establishment of MSA’s in WC cases, but there are no requirements. Obtaining CMS’ approval of a proposed MSA does provide assurance to the parties that the set aside amount is acceptable to CMS. The prudent course of action might be to follow those in liability cases. While an MSA is always required, it is not necessary to submit an MSA proposal to CMS:
• the settlement exceeds $25,000 and the claimant is currently
eligible for Medicare; or
• the settlement is for more than $250,000 and the plaintiff can
reasonably be expected to become eligible for Medicaid
within 30 months.
If an individual is in the process of filing, appealing or re-filing for SSDI, that person is included in the 30-month window notwithstanding the fact that a previous application may have been denied and have not been appealed. An individual who is 62 years and 6 months of age could be eligible within 30 months, and an individual suffering from End-Stage Renal Disease (ESRD), but who does not yet qualify for Medicare based on ESRD, would also be considered a person having a “reasonable expectation” of Medicare enrollment within 30 months.
If it is absolutely clear that there will be no future medicals as a result of the injury subject to the litigation, then no MSA is required.
It is important to note that a beneficiary may not waive his right to future Medicare in order to avoid establishing an MSA.
In determining whether the $250,000 threshold is met, if there is a structured settlement the value of the structure rather than the cost is used. Also, in determining whether the $250,000 threshold is met, past medicals, future medicals, attorney’s fees and costs are included.
What is the Risk to the Personal Injury Attorney for Failing to Establish an MSA?
s Double Damages. Plaintiff’s attorneys who fail Medicare’s interest are potentially responsible for double damages. CMS is authorized to bring an action “against any entity” including a beneficiary, provider, supplier, physician, attorney, state agency or private insurer that has received any portion of a third party payment directly or indirectly, if those third party funds – rather than Medicare – should have been paid for the injury-related medical expenses.
0.
s Potential Malpractice. In addition, there is a malpractice risk. Plaintiffs who have not established an MSA and who file future claims for Medicare may have those claims denied. CMS has taken the position that where no MSA has been established, the entire settlement can be considered for future medicals and Medicare will not pay the plaintiff’s medical bills until an amount equal to the entire settlement has been spent for the plaintiff’s medical care. Each personal injury attorney must decide how much risk he or she is willing to accept in order to avoid establishing an MSA.
How is the Set-Aside Amount Determined?
There are companies who will calculate the set-aside amount. The amount is determined by evaluating past medical treatment, current medical condition, and the probability of future medical needs, as well as other factors. Future medicals are limited only to those expenses that Medicare would pay that are related to the injury. Medicare does not pay all medical expenses. There are some services that are not covered; there are deductibles, co-payments and maximums per spell of illness. The MSA need not contain monies for those services that would not be covered by Medicare. In calculating the set-aside amount the plaintiff’s life expectancy is considered. It is often useful to obtain a rated age as a part of this process. The rated age shows that a person’s actual life expectancy may be considerably shorter than their actuarially life expectancy, so that less money is required to be set aside.
Once a Medicare Set-Aside amount is calculated in a worker’s compensation case, it is submitted to Medicare for approval. While CMS maintains that a set-aside is necessary in liability cases, there is no mechanism for approval at this time.
CMS is not bound by an allocation for future medicals made by the parties in the settlement agreement. CMS may disregard any such allocation and make its own calculation as to the cost of future medicals.
The cost of future prescription drugs must be considered in calculating the set-aside amount.
Administering the MSA.
There are four possibilities for administering an MSA:
s Self-Administered Accounts. These accounts are usually small accounts and are administered by the claimant. No formal agreement is necessary. The claimant must follow the same accounting rules as a professional administrator, but it is likely that most claimants will not comply, but the liability of the personal injury lawyer should terminate when the MSA is established.
s Custodial Account. A larger account is usually administered by a custodian. These are professional organizations that have expertise in medical claims administration. They charge a fee and are recommended where financially justified.
s Medicare Set-Aside Trusts. A Medicare Set-Aside Trust is a formal trust with a trustee. These are usually used for large accounts. They are also used in connection with Special Needs Trusts if the plaintiff is receiving means-tested public benefits such as SSI, Medicaid, Food Stamps, Veterans Benefits or Section 8 Housing.
s Pooled Trusts. In smaller cases where the plaintiff is receiving any of these means-tested public benefits, a Pooled Trust may be considered. A Pooled Trust is operated by a non-profit. The plaintiff’s money is pooled with other persons’ money for investment purposes, but each member has an individual sub-account. Whenever a trust or a Pooled Trust is used, a sub-trust is established for the Medicare Set-Aside funds.
Chart
No Public Benefits Public Benefits
Small Settlement
Self Administered
Pooled Trust
Large Settlement
Custodial Agreement/ Professional Administrator
Stand Alone Special Needs Trust
Note: As used above the term “Public Benefits” applies to only means tested public benefits where there are financial eligibility rules pertaining to income and/or assets of the beneficiary and/or his or her family or household. These benefits typically include SSI, Medicaid, Veteran’s Benefits, Section 8 Housing and Food Stamps. For purposes of the chart, public benefits does not only include SSDI and Medicare, but a MSA will always be required if the plaintiff is receiving or will receive these benefits.
How does a Structured Settlement fit into an MSA?
s Seed Money. An MSA must include seed money with is a cash amount equal to the amount of monies calculated to cover the first surgery procedure and/or replacement and two years of annual payments.
0.
s Structured Settlement. If there is a sizable MSA, the balance is usually funded with a structured settlement. The structured settlement is usually payable in annual installments. The remainder of the Set-Aside is divided by the remainder of the claimant’s life expectancy and the structured pays annual deposits into the MSA based on a “anniversary date” which cannot be more than one year after the settlement date. If the funds paid into the MSA from the structured settlement are exhausted before the next “anniversary date” Medicare pays until such time as the next structured settlement payment is received
0.
Recommendations for Personal Injury Attorneys.
• Recommendations for Personal Injury Attorneys wanting to protect themselves against the risk of future claims by Medicare or malpractice claims by clients are as follows:
0.
• Since no rules currently exist for third party liability cases,
follow the WC rules with respect to MSA.
• Arrange for the calculation of a Medicare Set-Aside amount.
• Submit the proposal to CMS. It is unlikely that CMS will respond,
but the personal injury attorney should be off the hook so far as his
or her obligation to consider Medicare’s interests.
• Establish an MSA and fund it with the amount calculated.
• Advise the plaintiff in writing with respect to the rules.
• Advise the client in writing of the potential for the denial of future
medical care coverage for the injury subject to the litigation.
• Paper your file.
__________________________________________
42 U.S.C.§1395y(b)(2); 42 CFR §46(d)(d)
2 42 U.S.C. §1395y(b)(2)(A)(ii)
3 42 U.S.C.§1395y(b)(2)(B)
4 42 U.S. C. 1305, Medicare, Medicaid and SCHIP Extension Act of 2007
5 Sally Stalcup, Region 6 MSP Regional coordinator
6 42 U.S.C. §1395y(b)(2)(B)(ii); 42 CFR §411.24
7 Medicare Set Aside Arrangements Transmittal (Patel Memo), July 23, 2001; Medicare Secondary Payer – Worker’s Compensation (WC) frequently Asked Questions; (undated) Thomas L. Grissom; Medicare Secondary Payer-Worker’s Compensation (WC) information May 7, 2004; Medicare Secondary Payer (MSP)-Worker’s Compensation (WC) additional frequently asked questions, May 23, 2003; Medicare Secondary Payer (MSP) Worker’s Compensation (WC) additional frequently asked questions, October 15, 2004; Medicare Secondary Payer (MSP) Worker’s Compensation (WC) additional frequently asked questions July 11, 2005; Part D and Worker’s Compensation Medicare Set-Aside Arrangements questions and answers, December 30, 2005; Worker’s Compensation Medicare Set-Aside Arrangements (WCMSAs) and revision of the Low Dollar Threshold for Medicare beneficiaries, October 25, 2006; Questions and Answers for Part D and Worker’s Compensation Medicare-Set Aside Arrangements, July 24, 2006
8 Medicare Set Aside Arrangements Transmittal (Patel Memo), July 23, 2001
9 Medicare Secondary Payer-Worker’s Compensation (WC) frequently asked questions (2)
10 Medicare Secondary Payer (MSP)- Worker’s Compensation (WC) additional frequently asked questions, May 23, 2003
11 42 U.S.C. 1395y(b)(3); 42 CFR§411.24(c)(2)
12 Medicare Secondary Payer (MSP)-Worker’s Compensation (WC) additional frequently asked questions A-5, October 15, 2004
13 Id
0.
__________________________________________
Quick Screen
Medicare Set-Aside Arrangements
Is the client receiving SSI or SSD at the time of settlement? □ Yes □ No
Has the client applied for SSDI, or has client applied and been denied but anticipates appealing the decision? □ Yes □ No
Is client in the process of appealing and/or refilling for SSDI benefits? □ Yes □ No
Is client age 62 years 6 months of age or older at the time of settlement □ Yes □ No
Does client suffer from end stage renal disease but does not yet qualify for Medicare based on ESRD? □ Yes □ No
Is the settlement in excess of $250,000? □ Yes □ No
Note: If client is already receiving Medicare, the threshold is $25,000.
Copyright 2009 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.
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 800-533-722
2. NUTS & BOLTS OF ELDER LAW & ESTATE ADMINISTRATION SEMINAR
Tuesday, April 28, 2009 5:30 PM to 9:30 PM
Pines Manor, Edison
Featuring:
THOMAS D. BEGLEY, JR., ESQ.,
2004 Clapp Laureate
Certified as an Elder Law Attorney by the ABA Accredited National Elder Law Foundation
Past Chair, NJSBA Elder & Disability Law Section
Author: "How to Develop and Manage a Successful Trusts & Estates/Elder Law
Practice" (NJICLE)
Co-Author: "Profitable Law Firm Management" (NJICLE)
Begley & Bookbinder, PC (Moorestown)
KENNETH A. VERCAMMEN, ESQ.
Chair, ABA General Practice Division Elder Law Committee
2006 NJSBA Municipal Court Practitioner of the Year
K. Vercammen & Associates (Edison)
KATHLEEN A. SHERIDAN, ESQ.
Law Offices of Kathleen A. Sheridan, PC (Ship Bottom)
MARTIN A. SPIGNER, ESQ.
M. Spigner, PC (Cranbury)
Elder law continues to offer the legal profession a booming opportunity for growth. As your current clients continue to grow older, you need to position yourself to be able to offer them and their families the legal services required by the elderly in today’s society. Or, you may be looking for lucrative areas in which to expand your current practice, including administering their estates.
This practical program is designed to provide the nuts and bolts of elder law practice & estate administration practice to general practitioners and young lawyers, as well as to more experienced lawyers seeking to expand into this field. A highly authoritative and experienced panel of elder law attorneys & estate planners will share proven techniques and experience it would take you years to gather on your own. You’ll also gain insight on how Federal Medicaid Reform will impact your practice. Register today!
Everything you need to know about elder law & estate administration including: • Why Have a Will? Gathering information; standard provisions; designation of fiduciaries; protective clauses; sample forms; Ethics - who is the client? • Powers of Attorney Types of POAs; what should be included; why clients need them; POAs and Living Wills; sample forms • Living Trusts (Revocable/Irrevocable) as an Estate Planning Tool Why it should be used; disadvantages; revocable vs. irrevocable; Insurance Trusts; sample forms • Basic Tax Considerations Jointly-held property; “I love you” Will; no Will at all; insurance owned by client; unlimited marital deduction; estate planning in the testamentary document; sample forms/letters • Estate Administration - New Probate Law in New Jersey Probate process; duties of executor/fiduciary; gathering of assets; tax returns; tax waivers; access to property; sample forms/checklists • Medicaid Planning in Light of Federal Medicaid Reform Countable assets of Medicaid applicant; income cap/Medical needy standard; look-back period; transfers of property; personal residence; Medicaid estate recovery rules …and more
Tuition fees Reg. Fee Reg. Type
General Tuition (REG) $159.00 REG
NJICLE Season Tickets (STX) 1 Season Ticket(s) STX
MEMBERS, CO-SPONSORING SECTION (COS*) $119.00 COS*
MEMBERS, NJSBA (NJB*) $129.00 NJB*
MEMBERS, NJSBA YLD (YLD*) $119.00 YLD*
Recent admittees (past 2 years) (YL) $135.00 YL
Paralegals (PAR) $109.00 PAR
Law Students (with Student ID) (STU) $0.00 STU
Full Time Judges (JUD) $0.00 JU
NUTS & BOLTS OF ELDER LAW & ESTATE ADMINISTRATION
Audio packages are available 2 weeks after the last date of the seminar.
New Jersey Institute for Continuing Legal Education The non-profit continuing education service of: The New Jersey State Bar Association Rutgers - The State University of New Jersey Seton Hall University One Constitution Square, New Brunswick, New Jersey 08901-1520 Phone: (732)214-8500 Fax: (732)249-0383 • CustomerService@njicle.com
3. Elder Law, Estate Planning & Probate- New ideas to expand & excel your practice Sat. August 1, 2009 2:00pm -3:30pm
ABA Annual meeting Chicago
Speakers: Jay Foonberg, Esq. - Author of Best Sellers "How to
Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA
Joan Burda, Esq.
Kenneth A. Vercammen, Esq. - co-author "Nuts & Bolts of Elder Law", Edison, NJ
Charles Sabatino, director of the ABA's Commission on Law & Aging
Parag Patel, Esq. Iselin, NJ
Elder Law program Primary Sponsors: General Practice Section
Co-sponsors: ABA Commission on Law & Aging, Health Law Section,
YLD, Senior Lawyers Division, Real Probate & Trust Section, Tax Law Section
Topics:
Forms you can use
Email newsletters
"Representing seniors- Doing well by doing good.-Do you know how?
Marketing with written fee agreements
-Ethics and marketing without violating the Rules of Professional Conduct
Elder Law may be the biggest practice area of your career. There are 50,000 baby boomers/ day turning 60 and soon to be on Social Security and will need legal advise. Elder Law is one of the biggest growth fields.
_______________________
WE PUBLISH YOUR FORMS AND ARTICLES
To help your practice, we feature in this newsletter edition a few forms and articles PLUS tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please mail articles, suggestions or ideas you wish to share with others in our Tort and Insurance Committee.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
Send Us Your Marketing Tips
We are increasing the frequency of our newsletter. Send us your short tips on your great or new successful marketing techniques.
You can become a published ABA author. Enjoy your many ABA benefits.
Send us your articles & ideas
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
Who We Are- ABA GP Solo ELDER LAW COMMITTEE
This committee focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
We also seek articles on Elder Law, Probate, Wills, Medicaid and Marketing. Please send your marketing ideas and articles to us. You can become a published ABA author.
________________________________________
The Elder Law Committee of the ABA General Practice Division is directed towards general practitioners and more experienced elder law attorneys. The committee consistently sponsors programs at the Annual Meeting, the focus of which is shifting to advanced topics for the more experienced elder lawyer.
This committee also focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
Kenneth Vercammen, Esq. co-Chair
Jay Foonberg, Beverly Hills Co-chair, Author of Best Sellers "How to Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA JayFoonberg@aol.com>
We will also provide tips on how to promote your law office, your practice and Personal Marketing Skills in general. It does not deal with government funded "legal services" for indigent, welfare cases.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Kenv@njlaws.com
Central Jersey Elder Law www.centraljerseyelderlaw.com
NJ Elder Blog http://elder-law.blogspot.com/
Wednesday, February 4, 2009
estate can still make claims if spouse dies while divorce pending
01-28-09 Kay v. Kay
Bernard Kanefsky, Executor of the Estate of George Kay
A-1594-07T3
George Kay died during the pendency of an action for
divorce, and the trial court denied his estate leave to
substitute for defendant and file amended pleadings. On appeal
the estate contends that the trial court erred by relying on
Krudzlo v. Krudzlo, 251 N.J. Super. 70, 73 (Ch. Div. 1990), in
which the court held that, unlike a surviving spouse, the estate
of a decedent spouse "is not entitled to assert equitable claims
against the marital estate sounding in constructive trust,
resulting trust, quasi-contract or unjust enrichment" in
accordance with Carr v. Carr, 120 N.J. 336 (1990).
We conclude that the trial court should have accepted the
pleadings and considered whether the equities stemming from the
facts alleged call for relief from the strict legal effects of
defendant's death during the pendency of the divorce action. To
the extent that Krudzlo provides a contrary rule, we disapprove
01-28-09 Kay v. Kay
Bernard Kanefsky, Executor of the Estate of George Kay
A-1594-07T3
George Kay died during the pendency of an action for
divorce, and the trial court denied his estate leave to
substitute for defendant and file amended pleadings. On appeal
the estate contends that the trial court erred by relying on
Krudzlo v. Krudzlo, 251 N.J. Super. 70, 73 (Ch. Div. 1990), in
which the court held that, unlike a surviving spouse, the estate
of a decedent spouse "is not entitled to assert equitable claims
against the marital estate sounding in constructive trust,
resulting trust, quasi-contract or unjust enrichment" in
accordance with Carr v. Carr, 120 N.J. 336 (1990).
We conclude that the trial court should have accepted the
pleadings and considered whether the equities stemming from the
facts alleged call for relief from the strict legal effects of
defendant's death during the pendency of the divorce action. To
the extent that Krudzlo provides a contrary rule, we disapprove
Sunday, February 1, 2009
Executor should not be removed without proof of fraud, gross carelessness, or indifference to duty
Recent case-
IN THE MATTER OF THE ESTATE
OF JOHN H. HNAT, DECEASED.
NOT FOR PUBLICATION WITHOUT THE APPROVAL
OF THE COMMITTEE ON OPINIONS
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO A-4672-07T2
________________________________________________
Argued: January 12, 2009 - Decided:
Before Judges Carchman and Simonelli
On appeal from the Superior Court of New Jersey,
Chancery Division, Probate Part, Ocean County,
Docket No. 174370.
Anne Baglivo Fitzpatrick argued the cause for
appellant Patricia Ann Sweeney (McDonald Law
Group, attorneys; Ms. Fitzpatrick, on the brief).
Joel A. Davies argued the cause for respondent
John J. Hnat (Taff & Davies, attorneys; Mr.
Davies, of counsel and on the brief).
PER CURIAM
Appellant Patricia A. Sweeney (Sweeney) appeals from the
April 21, 2008 order of a Chancery Part judge removing her as
executrix of the Estate of John H. Hnat (the decedent). We
reverse.
The decedent and Sweeney, a quadriplegic, lived together
for almost fifteen years. They would have married if not for
the potentially adverse impact marriage would have on Sweeney's
January 29, 2009
A-4672-07T2
2
medical benefits. During the last ten years of the decedent's
life, his son, plaintiff John J. Hnat (Hnat), and his daughters,
Bonnie Myszka (Myszka) and Wendy Wildman (Wildman), had little
contact with him.
The decedent appointed Sweeney as executrix of his Last
Will and Testament (the Will). Among other things, the decedent
bequeathed to Sweeney a life estate in the home where they
lived. After her death or her permanent inability to live in
the home, the property would be liquidated and the net proceeds
divided equally between the children. The decedent also
bequeathed to Sweeney $50,000 to be used to pay the expenses
associated with the disposition of the estate. Once all of the
estate's obligations were fulfilled, the children would equally
divide the remainder of the $50,000. Also, the decedent
bequeathed to Hnat a 1929 Ford, Haulmark trailer, and his
antique guns and tools; to Wildman his 1931 Ford; and to Myszka
his funeral plots located in the St. Josephs Cemetery. Decedent
bequeathed the remainder of his estate, including personal
property, to Sweeney and the children in equal shares.
The decedent died on September 26, 2007, at age seventy-
three. On or about October 26, 2007, Sweeney was appointed
executrix of the estate. She immediately retained counsel to
A-4672-07T2
3
assist her in administering the estate.1 Thereafter, among other
things, Sweeney opened an estate account, closed the decedent's
checking, savings and credit card accounts, submitted insurance
claims for all policies the decedent held, and contacted Smith
Barney regarding the decedent's IRA accounts. She also
instructed her then attorney to prepare a draft of the
inheritance tax return, which was not due until May 2008.
On January 10, 2008, Sweeney was hospitalized for
respiratory failure following pneumonia. Following her
hospitalization, she spent time in a rehabilitation facility.
Sweeney has returned home and lives alone. There is no evidence
of any further illnesses or hospitalization. In late January
2008, Sweeney directed her then attorney to obtain an appraisal
of the home for inclusion in the inheritance tax return.
Hnat does not deny that during Sweeney's hospitalization,
he entered the home without her knowledge or authorization,
videotaped its contents, removed a dog that she and the decedent
jointly owned, and removed many of the decedent's personal
items, including the keys to the cars bequeathed to him and
Wildman. Hnat also changed the locks, depriving Sweeney of
access to her medical equipment.
1
Sweeney subsequently terminated the services of that attorney
after discovering that he was also providing legal advice
relating to the estate to Hnat and his sisters.
A-4672-07T2
4
On February 27, 2008, Hnat filed a verified complaint and
order to show cause seeking Sweeney's removal as executrix
solely on the grounds that she was unfit and unable to serve due
to her medical condition and hospitalizations. He also sought
his appointment as executor of the estate, despite the fact that
the Will designated Wildman as alternate executrix.
The parties appeared before a Chancery judge on April 7,
2008, the return date of the order to show cause. Sweeney
attended, but no plenary hearing occurred. Hnat argued that
Sweeney was unable to fulfill her duties in a timely manner due
to her physical limitations and recent illness. Hnat raised no
friction or hostility claim. Nevertheless, based upon oral
argument alone, the judge summarily removed Sweeney as executrix
and appointed an independent third party as administrator of the
estate, concluding that "it would be inappropriate for the
parties who cannot cooperate with one another to proceed
further. It would inevitably entail further avoidable counsel
fees, time, energy and expense."
We review a trial judge's removal of a trustee,
executor/executrix or fiduciary under the abuse of discretion
standard. We will not disturb the judge's exercise of
discretion in removing a trustee absent "manifest abuse."
Wolosoff v. CSI Liquidating Trust, 205 N.J. Super. 349, 360
A-4672-07T2
5
(App. Div. 1985) (citing 2 Scott on Trusts, 3d Ed. 1967).
Whether the trial judge properly exercised his or her discretion
"implies conscientious judgment and not arbitrary action." Id.
at 363 (citing In re Koretzky, 8 N.J. 506, 535 (1951)).
Further, such discretionary action requires
the trial judge to take account of the law
applicable to the particular circumstances
of the case under consideration. Should
that judge misconceive the applicable law or
misapply it to the factual complex, the
result is an impermissible arbitrary act
however conscientious the trial judge may
have been.
[Ibid.]
Under N.J.S.A. 3B:14-21, a fiduciary may be removed for the
following reasons:
a. After due notice of an order or
judgment of the court so directing, he
neglects or refuses, within the time fixed
by the court, to file an inventory, render
an account or give security or additional
security;
b. After due notice of any other order or
judgment of the court made under its proper
authority, he neglects or refuses to perform
or obey the order or judgment within the
time fixed by the court; or
c. He has embezzled, wasted or misapplied
any part of the estate committed to his
custody, or has abused the trust and
confidence reposed in him; or
d. He has removed from the state or does
not reside therein and neglects or refuses
to proceed with the administration of the
A-4672-07T2
6
estate and perform the duties and trust
devolving upon him; or
e. He is of unsound mind or mentally
incapacitated for the transaction of
business; or
f. One of two or more fiduciaries has
neglected or refused to perform his duties
or to join with the other fiduciary or
fiduciaries in the administration of the
estate committed to their care whereby the
proper administration and settlement of the
estate is or may be hindered or prevented.
To dismiss a trustee appointed by a will, "much more should
be shown by those who wish to see them dismissed than would be
the case where the trustees are appointed by the court". Braman
v. Central Hanover Banl & Trust Co., 138 N.J. Eq. 165, 197 (Ch.
1946). Removal of a trustee appointed by will should be granted
sparingly and with great caution. Ibid. Courts are reluctant
to remove a fiduciary appointed by a will unless there is "clear
and definite proof of fraud, gross carelessness or
indifference." Id. at 196-97; see also In re Will of Landsman,
319 N.J. Super. 252, 270 (App. Div.) certif. denied, 161 N.J.
335 (1999); In re Beales' Estate, 13 N.J. Super. 222, 228-29
(App. Div.), certif. denied, 7 N.J. 581 (1951). Not only should
the court be reluctant to remove fiduciaries, but "so long as an
executor or trustee acts in good faith, with ordinary discretion
and within the scope of his powers, his acts cannot be
successfully assailed." Connelly v. Weisfeld, 142 N.J. Eq. 406,
A-4672-07T2
7
411 (E. & A. 1948). Therefore, to remove an executrix, the
court "must have some fact legally before it in order to justify
a removal." Matter of Konigsberg, 125 N.J. Eq. 216, 219
(Prerog. Ct. 1939). Where, such as here, the facts for and
against removal are disputed, a plenary hearing must be held.
See Wolosoff, supra, 205 N.J. Super. at 366.
Here, no plenary hearing occurred. There is no proof that
any of the reasons for removal set forth in N.J.S.A. 3B:14-21
exist. There also is no proof of fraud, gross carelessness,
indifference to duty, or that Sweeney did not act in good faith
or continues to suffer from an illness that prevents her from
properly administering the estate. Thus, had Hnat asserted any
of these reasons for Sweeney's removal and had the judge relied
upon them to remove Sweeney, the result would constitute a
manifest abuse of discretion.
The judge removed Sweeney for a reason not asserted by
Hnat. That is, the judge summarily removed Sweeney due to
assumed friction and hostility between the parties. "The
general rule is that mere friction or hostility between a
beneficiary and a trustee is not necessarily a sufficient ground
for removal. If not, a beneficiary who otherwise lacks
sufficient grounds for removal of a trustee could nevertheless
compel that removal simply by instigating a fight." Wolosoff,
A-4672-07T2
8
supra, 205 N.J. Super. at 360 (citations omitted); see also
Braman, supra, 138 N.J. Eq. at 196). "[T]he mere fact that a
beneficiary disagrees with a fiduciary's proper exercise of
discretionary powers, or is resentful of the fiduciary's
authority, or is antagonized by his personality, is not
sufficient [cause for] his removal." In re Koretzky, 8 N.J.
506, 531 (1951). "Generally, in order for friction or hostility
between the beneficiary and trustee to form the basis for
removal, there must be a demonstration that the relationship
will interfere materially with the administration of the trust
or is likely to do so." Wolosoff, supra, 205 N.J. Super. at
360-61. There also must be proof that the friction or hostility
arose out of the trustee's behavior. Ibid.; Starr v. Wiley, 89
N.J. Eq. 79, 90 (Ch. 1918).
Here, there is no evidence whatsoever that Sweeney caused
any friction or hostility between the parties, either before or
after her hospitalization. To be sure, Hnat did not even assert
this as a reason for Sweeney's removal. Rather, the record
indicates that Hnat "instigated a fight" with the appointed
executrix and caused whatever friction and hostility may exist
here, a fact the judge, in a manifest abuse of discretion,
ignored.
A-4672-07T2
9
We reverse and remand with direction to reinstate Sweeney
as the executrix of the estate.
IN THE MATTER OF THE ESTATE
OF JOHN H. HNAT, DECEASED.
NOT FOR PUBLICATION WITHOUT THE APPROVAL
OF THE COMMITTEE ON OPINIONS
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO A-4672-07T2
________________________________________________
Argued: January 12, 2009 - Decided:
Before Judges Carchman and Simonelli
On appeal from the Superior Court of New Jersey,
Chancery Division, Probate Part, Ocean County,
Docket No. 174370.
Anne Baglivo Fitzpatrick argued the cause for
appellant Patricia Ann Sweeney (McDonald Law
Group, attorneys; Ms. Fitzpatrick, on the brief).
Joel A. Davies argued the cause for respondent
John J. Hnat (Taff & Davies, attorneys; Mr.
Davies, of counsel and on the brief).
PER CURIAM
Appellant Patricia A. Sweeney (Sweeney) appeals from the
April 21, 2008 order of a Chancery Part judge removing her as
executrix of the Estate of John H. Hnat (the decedent). We
reverse.
The decedent and Sweeney, a quadriplegic, lived together
for almost fifteen years. They would have married if not for
the potentially adverse impact marriage would have on Sweeney's
January 29, 2009
A-4672-07T2
2
medical benefits. During the last ten years of the decedent's
life, his son, plaintiff John J. Hnat (Hnat), and his daughters,
Bonnie Myszka (Myszka) and Wendy Wildman (Wildman), had little
contact with him.
The decedent appointed Sweeney as executrix of his Last
Will and Testament (the Will). Among other things, the decedent
bequeathed to Sweeney a life estate in the home where they
lived. After her death or her permanent inability to live in
the home, the property would be liquidated and the net proceeds
divided equally between the children. The decedent also
bequeathed to Sweeney $50,000 to be used to pay the expenses
associated with the disposition of the estate. Once all of the
estate's obligations were fulfilled, the children would equally
divide the remainder of the $50,000. Also, the decedent
bequeathed to Hnat a 1929 Ford, Haulmark trailer, and his
antique guns and tools; to Wildman his 1931 Ford; and to Myszka
his funeral plots located in the St. Josephs Cemetery. Decedent
bequeathed the remainder of his estate, including personal
property, to Sweeney and the children in equal shares.
The decedent died on September 26, 2007, at age seventy-
three. On or about October 26, 2007, Sweeney was appointed
executrix of the estate. She immediately retained counsel to
A-4672-07T2
3
assist her in administering the estate.1 Thereafter, among other
things, Sweeney opened an estate account, closed the decedent's
checking, savings and credit card accounts, submitted insurance
claims for all policies the decedent held, and contacted Smith
Barney regarding the decedent's IRA accounts. She also
instructed her then attorney to prepare a draft of the
inheritance tax return, which was not due until May 2008.
On January 10, 2008, Sweeney was hospitalized for
respiratory failure following pneumonia. Following her
hospitalization, she spent time in a rehabilitation facility.
Sweeney has returned home and lives alone. There is no evidence
of any further illnesses or hospitalization. In late January
2008, Sweeney directed her then attorney to obtain an appraisal
of the home for inclusion in the inheritance tax return.
Hnat does not deny that during Sweeney's hospitalization,
he entered the home without her knowledge or authorization,
videotaped its contents, removed a dog that she and the decedent
jointly owned, and removed many of the decedent's personal
items, including the keys to the cars bequeathed to him and
Wildman. Hnat also changed the locks, depriving Sweeney of
access to her medical equipment.
1
Sweeney subsequently terminated the services of that attorney
after discovering that he was also providing legal advice
relating to the estate to Hnat and his sisters.
A-4672-07T2
4
On February 27, 2008, Hnat filed a verified complaint and
order to show cause seeking Sweeney's removal as executrix
solely on the grounds that she was unfit and unable to serve due
to her medical condition and hospitalizations. He also sought
his appointment as executor of the estate, despite the fact that
the Will designated Wildman as alternate executrix.
The parties appeared before a Chancery judge on April 7,
2008, the return date of the order to show cause. Sweeney
attended, but no plenary hearing occurred. Hnat argued that
Sweeney was unable to fulfill her duties in a timely manner due
to her physical limitations and recent illness. Hnat raised no
friction or hostility claim. Nevertheless, based upon oral
argument alone, the judge summarily removed Sweeney as executrix
and appointed an independent third party as administrator of the
estate, concluding that "it would be inappropriate for the
parties who cannot cooperate with one another to proceed
further. It would inevitably entail further avoidable counsel
fees, time, energy and expense."
We review a trial judge's removal of a trustee,
executor/executrix or fiduciary under the abuse of discretion
standard. We will not disturb the judge's exercise of
discretion in removing a trustee absent "manifest abuse."
Wolosoff v. CSI Liquidating Trust, 205 N.J. Super. 349, 360
A-4672-07T2
5
(App. Div. 1985) (citing 2 Scott on Trusts, 3d Ed. 1967).
Whether the trial judge properly exercised his or her discretion
"implies conscientious judgment and not arbitrary action." Id.
at 363 (citing In re Koretzky, 8 N.J. 506, 535 (1951)).
Further, such discretionary action requires
the trial judge to take account of the law
applicable to the particular circumstances
of the case under consideration. Should
that judge misconceive the applicable law or
misapply it to the factual complex, the
result is an impermissible arbitrary act
however conscientious the trial judge may
have been.
[Ibid.]
Under N.J.S.A. 3B:14-21, a fiduciary may be removed for the
following reasons:
a. After due notice of an order or
judgment of the court so directing, he
neglects or refuses, within the time fixed
by the court, to file an inventory, render
an account or give security or additional
security;
b. After due notice of any other order or
judgment of the court made under its proper
authority, he neglects or refuses to perform
or obey the order or judgment within the
time fixed by the court; or
c. He has embezzled, wasted or misapplied
any part of the estate committed to his
custody, or has abused the trust and
confidence reposed in him; or
d. He has removed from the state or does
not reside therein and neglects or refuses
to proceed with the administration of the
A-4672-07T2
6
estate and perform the duties and trust
devolving upon him; or
e. He is of unsound mind or mentally
incapacitated for the transaction of
business; or
f. One of two or more fiduciaries has
neglected or refused to perform his duties
or to join with the other fiduciary or
fiduciaries in the administration of the
estate committed to their care whereby the
proper administration and settlement of the
estate is or may be hindered or prevented.
To dismiss a trustee appointed by a will, "much more should
be shown by those who wish to see them dismissed than would be
the case where the trustees are appointed by the court". Braman
v. Central Hanover Banl & Trust Co., 138 N.J. Eq. 165, 197 (Ch.
1946). Removal of a trustee appointed by will should be granted
sparingly and with great caution. Ibid. Courts are reluctant
to remove a fiduciary appointed by a will unless there is "clear
and definite proof of fraud, gross carelessness or
indifference." Id. at 196-97; see also In re Will of Landsman,
319 N.J. Super. 252, 270 (App. Div.) certif. denied, 161 N.J.
335 (1999); In re Beales' Estate, 13 N.J. Super. 222, 228-29
(App. Div.), certif. denied, 7 N.J. 581 (1951). Not only should
the court be reluctant to remove fiduciaries, but "so long as an
executor or trustee acts in good faith, with ordinary discretion
and within the scope of his powers, his acts cannot be
successfully assailed." Connelly v. Weisfeld, 142 N.J. Eq. 406,
A-4672-07T2
7
411 (E. & A. 1948). Therefore, to remove an executrix, the
court "must have some fact legally before it in order to justify
a removal." Matter of Konigsberg, 125 N.J. Eq. 216, 219
(Prerog. Ct. 1939). Where, such as here, the facts for and
against removal are disputed, a plenary hearing must be held.
See Wolosoff, supra, 205 N.J. Super. at 366.
Here, no plenary hearing occurred. There is no proof that
any of the reasons for removal set forth in N.J.S.A. 3B:14-21
exist. There also is no proof of fraud, gross carelessness,
indifference to duty, or that Sweeney did not act in good faith
or continues to suffer from an illness that prevents her from
properly administering the estate. Thus, had Hnat asserted any
of these reasons for Sweeney's removal and had the judge relied
upon them to remove Sweeney, the result would constitute a
manifest abuse of discretion.
The judge removed Sweeney for a reason not asserted by
Hnat. That is, the judge summarily removed Sweeney due to
assumed friction and hostility between the parties. "The
general rule is that mere friction or hostility between a
beneficiary and a trustee is not necessarily a sufficient ground
for removal. If not, a beneficiary who otherwise lacks
sufficient grounds for removal of a trustee could nevertheless
compel that removal simply by instigating a fight." Wolosoff,
A-4672-07T2
8
supra, 205 N.J. Super. at 360 (citations omitted); see also
Braman, supra, 138 N.J. Eq. at 196). "[T]he mere fact that a
beneficiary disagrees with a fiduciary's proper exercise of
discretionary powers, or is resentful of the fiduciary's
authority, or is antagonized by his personality, is not
sufficient [cause for] his removal." In re Koretzky, 8 N.J.
506, 531 (1951). "Generally, in order for friction or hostility
between the beneficiary and trustee to form the basis for
removal, there must be a demonstration that the relationship
will interfere materially with the administration of the trust
or is likely to do so." Wolosoff, supra, 205 N.J. Super. at
360-61. There also must be proof that the friction or hostility
arose out of the trustee's behavior. Ibid.; Starr v. Wiley, 89
N.J. Eq. 79, 90 (Ch. 1918).
Here, there is no evidence whatsoever that Sweeney caused
any friction or hostility between the parties, either before or
after her hospitalization. To be sure, Hnat did not even assert
this as a reason for Sweeney's removal. Rather, the record
indicates that Hnat "instigated a fight" with the appointed
executrix and caused whatever friction and hostility may exist
here, a fact the judge, in a manifest abuse of discretion,
ignored.
A-4672-07T2
9
We reverse and remand with direction to reinstate Sweeney
as the executrix of the estate.
Subscribe to:
Posts (Atom)