Author: Linda Ershow-Levenberg

In a recent decision involving a lawsuit against the Adult Protective Services (APS)  office of the Bergen County Board of Social Services, the Appellate Division held that without a court order or warrant for entry, or “exigent circumstances,” an APS employee could not enter the home of the elderly or disabled person who was allegedly subject to abuse or exploitation if consent to...

I cannot tell you how many times over the years a client has told me that despite what is written in the Last Will and Testament of their parent or grandparent or Aunt or Uncle, “s/he said that s/he was leaving the house to X,” or “she wanted Y to get more because he moved in and was taking care of her at the end” or “she gave a lot of money to Z and intended him...

Being appointed as a Guardian, Trustee or Agent under Power of Attorney can be an enormous task. Each of these appointments confers decision-making power and authority on the fiduciary, but at the same time, each of them involves tremendous responsibilities. In an ideal world, the document which appointed the fiduciary also appoints a string of successors and has a non-judicial way to...

In New Jersey, a surviving spouse has the right to claim his or her “elective share” of the deceased spouse’s estate if the deceased left him/her an inadequate inheritance. The calculations are made using the step-by-step process of a set of state statutes, N.J.S.A. 3B:8-1. If the individual receives Medicaid benefits and is widowed, failure to claim the “elective...

Funding a first party Special Needs Trust with alimony, an inheritance, or a personal injury settlement can preserve those assets for benefit of a person who is receiving or applying for means-tested government benefits such as SSI, DDD or Medicaid/MLTSS. There is quite a process to establish the trust and then fund it with these assets. But that’s just the beginning — not the end....

A handwritten Will is sometimes called a “holographic Will.” In New Jersey, it is referred to as a writing intended as a Will. The baseline statute for what is a “Will” requires that for something to “be a Will” it must be (1) in writing; (2) signed by the testator or by someone else at the testator’s direction while the testator is consciously...

“Powers of attorney are for old people.” “I don’t need a Will, I don’t own anything!” Truth be told, signing a basic set of ‘estate plan documents” at age 18 can prevent expensive legal problems later. It’s like fire insurance — you get it, but hope you don’t need to use it. I have been in court on so many occasions when an...

When one thinks about “guardianship,” one usually thinks about cases involving dementia or severe developmental/intellectual disabilities, or perhaps the residuals of traumatic brain injury. The definition of “incapacitated” is broader than that. In the New Jersey probate code, “incapacitated individual” is defined to include  someone “who is impaired...

We are seeing an uptick in the number of fragile elderly patients whose post-hospital subacute Medicare benefits are being prematurely terminated due to lack of improvement. Before 2013, the insurance companies that were processing the post-hospital skilled care benefits under Medicare Part A were often using a “rule of thumb” whereby they would terminate benefits if the patient...

A handwritten Will is called a “holographic Will.” In New Jersey, it is referred to as a writing intended as a Will. The baseline statute for what is a “Will” requires that for something to “be a Will” it must be (1) in writing; (2) signed by the testator or by someone else at the testator’s direction while the testator is consciously present, and (3)...