PA & NJ Elder Law Across State Lines Jerold E. Rothkoff, Esquire Rothkoff Law Group

JEROLD E. ROTHKOFF, ESQ. Managing Attorney, Rothkoff Law Group

PA & NJ Distinctions Attitude of Medicaid offices Ease of qualifying for Medicaid Curing Medicaid eligibility penalties/being over-resourced Planning with Home Planning with Retirement Plans Medicaid income cap Medicaid eligibility for assisted living Caregiver child transfer of parent’s primary residence Advanced directives laws

Medicaid - Asset Limits New Jersey Pennsylvania $2,000 – single $3,000 – applicant couple $8,000/$2,400 single $16,000/$4,800 applicant couple

Medicaid – Transfer of Asset Rules New Jersey Pennsylvania Transfer penalty imposed for gifts within 60-month look back period $423.95/day in 2018 $500 monthly aggregate resource disregard $10,043.28 in 2018

Medicaid – Home Care New Jersey Pennsylvania MLTSS Provides assisted living/adult family care, care management, home health, personal care attendant (up to 40 hours per week) and medical transportation among other things. Utilizes the same eligibility requirements as the institutional Medicaid programs and transfer of assets rules apply. PDA Waiver Program, $8,000 asset limit. Provides assisted living/adult family care, care management, home health, personal care attendant (up to 40 hours per week) and medical transportation among other things. Utilizes the same eligibility requirements as the institutional Medicaid programs and transfer of assets rules apply. NO AL or PCH coverage Options Program – cost share

Medicaid – Primary Residence New Jersey Pennsylvania Exempt if a community spouse, a child under the age of 21 or disabled child resides in the primary residence. Countable and must be listed for sale for a single applicant unless occupied by a child under age 21 or disabled children. MLTSS (ALF): Countable and must be listed for sale if the applicant does not intend to return to the home within 6 months. MLTSS (Community Medicaid): Exempt, if the equity value is less than $750,000. The property will be subject to the estate recovery rules set forth below upon the applicant’s death unless a spouse, a child under age 21 or disabled child resides in the property. Exempt if used as principal reside applicant, applicant’s spouse, or dependent relative or blind or disabled child, if the institutionalized applicant states, in writing, his/her intent to return home, even if it is not practically possible. Home equity limited to $525,000, unless applicant’s spouse, child under 21, or disabled child is residing in home.

Medicaid – Retirement Accounts New Jersey Pennsylvania Accounts of applicant and spouse are countable towards the asset limits set forth above. Accounts of applicant are countable towards the asset limits. Accounts of community spouse are exempt as a resource. Required minimum distributions are factored into MMMNA calculations.

Medicaid – Qualified Income Trust New Jersey Pennsylvania Used in NJ $2,250 income cap Not valid in PA $2,250 income cap

Powers of Attorney New Jersey Pennsylvania Must be executed by a competent adult that is signed and dated by the principal in the presence of two witnesses or a notary, attorney or other person authorized to administer oaths. Must be executed by a competent adult or can direct someone else to sign at his behest that is signed and dated by the principal. If signed by someone else at the principal’s behest, the signature must also be witnessed by two people who are at least 18 years old. Additional notice requirement and acknowledgment by agent. Also, must be witnessed by two witnesses, among other changes.

Advance Directive for Healthcare New Jersey Pennsylvania An advance directive for healthcare can be executed as a one or two part document: a proxy directive and an instruction directive. Proxy directive appoints a surrogate decision maker, “health care representative.” Instruction directive states the declarant’s general treatment philosophy and objectives, or the declarant’s specific wishes regarding withholding or withdrawal of any form of health care, including life sustaining treatment. A valid advance directive for healthcare must be executed by a competent adult and signed and dated in the presence of two witnesses or in front of a notary public, attorney or another person authorized to administer oaths. Health Care Power of Attorney Living Will Physician’s Order for Life Sustaining Treatment (POLST) – effective October 24, 2010 PA Advance Health Care Directives and Health Care Decision Making for Incapacitated Patients (2006) – created statutory framework to govern advance health care directives and health care decisions by an health care agent. Law provides flexibility and a hierarchy of decision-makers if the principal fails to execute an advance directive prior to end-of- life. “Terminal” qualification is broadened to include “end-stage” conditions, and “certification” requirement is reduced to one doctor.

Case Study - #1 H needs NH care, W at home living in marital home H & W live in NJ, 2 children live in Bucks Co., PA Assets – $300K plus home, with W’s 401K worth $150K What state makes sense for H’s NH care?

Case Study - #2 Single Veteran lives in PA, 2 children live in NJ Vet needs an AL level of care Assets are $75k plus home to sell for $150K Income is $1,500/month What state should Vet receive AL care?

Wrap-Up Questions? Use Rothkoff Law Group as a resource. CE Credits