Does Medicare Pay for Hearing Aids?

Sid watches the baseball game with the television turned really high. His wife has been noticing that it is getting louder and louder. In fact, she can hear it outside the house in her garden and the neighbor said he can even hear it. She also noticed that she has to repeat things she says to her husband over and over again, but wasn’t sure at first if that was a problem, or if he just wasn’t listening to her! She is afraid that her husband is losing his hearing, but is concerned about the cost of a hearing aid, since they live on a fixed income.

Sid is not alone. Most people gradually lose some hearing as they get older. In fact, more than 48 million Americans, including 1 in 6 baby boomers and two-thirds of those over 70, have some type of hearing loss that seriously disrupts their life. Experts expect that number to rise as boomers are aging.
Many men and women who need hearing aids, however, often feel they can’t afford them, and that’s not surprising. Prices for a single hearing aid can range from $1200 for a low-end device to $4,000 – $5,000 or more for a higher-end one, and 80% of wearers need two. Battery costs are $30 to $150 per year. This is simply undoable for many seniors, who desperately need hearing aids!  And sadly, up to now, Medicare has not paid at all for hearing aids.

Will Medicare Ever Start Covering Hearing Aids?

Democratic congressmen recently joined senior advocacy groups in calling for Medicare to pay for hearing aids and other audiology services. Their call was backed by research that says impaired hearing can socially isolate seniors and may contribute to their risk of developing dementia.

Max Richtman, president and CEO of the National Committee to Preserve Social Security and Medicare, noted hearing-impaired seniors may not hear an approaching car, a ringing phone, or an alarm alerting them to danger. They also may not clearly hear their doctor’s instructions for taking medications. According to Richtman, “Medicare covers a wheelchair for seniors who can’t walk, and it provides test strips for people with diabetes. Hearing loss is another debilitating condition that must be recognized and covered.”

Frank R. Lin, an ear, nose and throat research specialist at Johns Hopkins University in Baltimore, concurs with Richtman. He recently co-authored a study that concluded hearing loss “must be recognized as a public health concern.” Dr. Lin said because diminished hearing is part of the normal process of aging, it is often seen as “inevitable and even inconsequential.” But, in addition to cognitive decline, poor hearing increases the risks of falls and other health hazards.

The Status of Medicare Coverage for Hearing Aids

In response to this problem, three Democratic congressmen — Reps. Rosa DeLauro of Connecticut, Jim McDermott of Washington state, and Debbie Dingell of Michigan have separately proposed legislation to remove the specific exclusion of hearing aids from the 1965 Medicare amendment to the Social Security Act. Some bills include vision and dental coverage as well. No estimate of the potential cost was given.

While the future of these bills in a Republican-controlled Congress may be uncertain, supporters point to the research showing the health dangers and costs of untreated hearing loss. They also point to the fact that with Medicare beneficiaries receiving an average of $1,300 a month, the cost of good quality hearing aids can be out of reach for many seniors. We will continue to keep you up-to-date on the progress of this important issue through Social Media, so if you don’t already, be sure to follow us on Facebook or Twitter.

Making Hearing Aids Affordable for Those Who Need Them

If Medicare doesn’t cover hearing aids, how can those who need them afford them? A survey conducted by Consumer Reports found that 40% of those who bargained got a price break. Other than that, there is some limited help available, as follows:

-Flexible Spending Accounts (FSAs): For those with these accounts, the cost of a hearing aid and batteries is considered reimbursable.

-Veteran benefits: Vets get hearing aids if their hearing loss is connected to their military service or linked to a medical condition treated at a VA hospital. Veterans also can get devices through the VA if their hearing loss is severe enough to interfere with activities of daily life.

-Federal employee assistance: Federal employees and their families are entitled to coverage through some insurance plans. Health plans pay for a basic hearing aid, and employees pay for extras and upgrades themselves.

-Nonprofits: Sertoma helps people with hearing problems and runs a hearing aid recycling program, SHARP through its 420 clubs (1-816-333-8300). HEAR Now, sponsored by the Starkey Hearing Foundation provides hearing aids for people with limited income. Clients pay for evaluations and a fee of $125 per aid.

-Private insurers: Few private insurance companies cover hearing aids, but only three states — New Hampshire, Rhode Island and Arkansas — require that insurers provide coverage for adults.

-Affordable Care Act: A few states include some coverage for hearing aids and related services under their health insurance exchanges. Information about this coverage is available from the Hearing Loss Association of America and through the Department of Health and Human Services.  This government site gives additional information on proposed essential health benefits benchmark plans by state.

-Health Reimbursement Accounts (HRA): It’s up to your employer, who funds this type of account, to decide if hearing aids and batteries are reimbursable. Check with your company’s benefits department.

Not Wearing a Hearing Aid When You Need One

Unfortunately, only 1 out of 5 people who could benefit from a hearing aid wear one. Although not wearing a hearing aid won’t cause hearing loss, there is some evidence that wearing an aid when you need one may help protect the hearing you have left.

Some people may not realize they have a problem. Others believe waiting won’t cause any harm; still others are simply embarrassed to admit they can’t hear well. But if you don’t wear a hearing aid when you need one, or only wear it some of the time, you can completely lose the ability to process sounds.

In addition, as mentioned previously, not wearing a hearing aid is a safety concern, since hearing loss has been linked to falls, social isolation, depression, even dementia. So remind yourself that needing help with hearing is no different than needing glasses to read. Ask your doctor to check your hearing regularly and, if necessary, refer you to an ENT or audiologist who can diagnose the extent of hearing loss and suggest aids or assisted devices that can help. Hopefully Medicare will begin approving them, or you can use some of the suggestions described above for paying for them.

Medicaid Planning for Dementia

What if your apparent hearing loss is actually a symptom of dementia? A diagnosis of dementia is life-changing for both diagnosed individuals and those close to them. Generally, the earlier someone with dementia plans for long-term care needs, the better.  But it is never too late to begin the process of Long-term Care Planning, also called Lifecare Planning and Medicaid Asset Protection Planning.

At the Farr Law Firm, we are dedicated to easing the financial and emotional burden on those suffering from dementia and their loved ones. We help protect the family’s hard-earned assets while maintaining your loved one’s comfort, dignity, and quality of life by ensuring eligibility for critical government benefits such as Medicaid and Veterans Aid and Attendance. Please call us any time to make an appointment for a no-cost consultation.

Fairfax Elder Law: 703-691-1888
Fredericksburg Elder Law: 540-479-1435
Rockville Elder Law: 301-519-8041
DC Elder Law: 202-587-2797

Caution: The Hidden Dangers of Heartburn Medicine

Jim Palmer, former player for the Baltimore Orioles and TV commentator, has something in common with millions of other individuals, including myself. He has GERD (Gastroesophageal Reflux Disease), which occurs when stomach acid backs up into the esophagus. Similar to my personal situation, Palmer had suffered from frequent and persistent heartburn for many years that he thought was normal. His diagnosis and subsequent treatment was delayed several years until his symptoms worsened and he finally consulted his doctor about it.

Palmer has talked to the media and various organizations about his own personal struggle with heartburn associated with GERD. The following are excerpts from a speech given by Palmer about his experience with GERD, that closely mirror my own experiences:

“I have been sharing with the media my personal experience with frequent and persistent heartburn and gastroesophageal reflux disease (GERD). Since I began this campaign, I have found that more and more people are identifying their own experiences with frequent and persistent heartburn as reflux disease.

“…I tried changing my eating habits in an effort to allow three hours between eating and going to bed. None of these efforts solved the problem.”

“I normally ate late at night after broadcasting a game and invariably ended up with heartburn. I tried taking over-the-counter products to no avail. I also tried elevating my bed, avoiding the common heartburn food triggers like chocolate, caffeine, and tomatoes, and changing my eating habits in an effort to allow three hours between eating and going to bed. None of these efforts solved the problem.”

“I now recognize that I suffered needlessly before getting the appropriate treatment.”

To keep his GERD under control, Palmer’s gastroenterologist prescribed medication – a proton pump inhibitor (PPI) – for treatment. Through the years, Palmer has spoken publicly in a positive way about his experience with PPIs. He stated that his heartburn and other symptoms of GERD have been under control since taking one pill a day, and that he suffered needlessly before getting the “appropriate treatment.” Similar to Palmer, to alleviate my own symptoms, I have been taking a PPI (omeprazole) for the entire time I have had GERD, until I learned the dangerous truth about it. Now, I am in the process of working with a local chiropractor, Dennis Sievers, who is one of the few doctors in the country who has a program for helping people who are dependent on PPI’s get off of them completely.

PPI Use Increases Risk for Dementia and Heart Disease

Currently, an estimated one in 14 Americans are dependent on an over-the-counter PPI to treat GERD. Considered the most effective treatment for GERD, PPIs are approved by the Food and Drug Administration (FDA) for use.

Sounds good, right? Not quite. The problem is that studies have linked long-term use of PPIs to an increased risk of dementia, cardiovascular disease, and renal failure, but until this year, scientists haven’t known exactly why. Results published in the journal Circulation Research earlier this year found that vascular cells chronically exposed to PPIs accelerate blood vessel aging— an effect that can have an adverse impact on cardiovascular health. This type of damage is synonymous with age-related chronic conditions and neurodegenerative disorders such as Alzheimer’s disease, cardiovascular disease, and cancer.

In another study in JAMA Neurology, German researchers, using a database of drug prescriptions, studied PPI use in 73,679 men and women older than 75 who were free of dementia at the start of the study. Over an average follow-up period of more than five years, about 29,000 developed Alzheimer’s disease or other dementias.

After controlling for age, sex, depression, diabetes, stroke, heart disease and the use of other medicines, they found that regular use of PPIs increased the risk for dementia in men by 52% and in women by 42%, compared with non-users.

“Our study does not prove that PPIs cause dementia,” said the senior author, Britta Haenisch of the German Center for Neurodegenerative Diseases. “It can only provide a statistical association. This is just a small part of the puzzle.

“Clinicians, pharmacists and patients have to weigh the benefits against the potential side effects,” she continued, “and future studies will help to better inform these decisions.”

In an editorial accompanying the study, Lewis Kuller of the University of Pittsburgh wrote that the findings “provided an important and interesting challenge to evaluate the possible association,” which is a “very important issue given” how commonly the drugs are used by the elderly, who are already at increased risk for dementia.

Holistic Treatment for GERD

Many people, such as me,  start take PPIs when they can’t  get rid of their heartburn by making lifestyle changes, such as losing weight and cutting out alcohol, caffeine and spicy and fatty foods. And many people stay on them a lot longer than they need them. PPIs are technically supposed to be taken for only two to eight weeks, although most people who start taking them wind up staying on them forever, because if you try to go off these medications, your symptoms actually get worse because of something called the “rebound effect.”

The companies that make PPIs say they’re safe for most people if they use them the way they’re supposed to. And doctors say many people really need to take a PPI for severe heartburn.

Kenneth DeVault, a gastroenterologist at the Mayo Clinic who is president of the American College of Gastroenterology says if someone really needs a PPI, they should take one. But they should try everything else first, keep an eye out for any side effects, and talk to their doctor about how long they should stay on it.

As I mentioned earlier, I am in the process of working with a local chiropractor, Dennis Sievers, a gifted doctor that is helping me alleviate my GERD symptoms and wean me off of dangerous PPIs that I have been taking for at least 20 years. Before starting my course of treatment with Dr. Sievers, I read numerous articles and a couple of self-help books on how to wean yourself off of PPI’s. I tried these methods, but none of them were in any way successful for me. I am about three quarters of the way through my treatment with Dr. Sievers, and so far his treatment has been successful. I will keep my readers updated on the ultimate result of this treatment, but so far I have great hopes. If you live in Northern Virginia, and you are also a long-term taker of PPI’s, I highly suggest you make a visit to Dr. Sievers (his website is or any other holistic practitioner who helps people with this condition.

At the Farr Law Firm, we care about our client’s health, quality of life, and well-being, which is why we share this sort of information.  Remember, part of taking care of yourself is planning for your future and for your loved ones. If you have not done your own Incapacity Planning or Estate Planning, or if you are caring for a loved one who is beginning to need more care than you can handle, please contact us as soon as possible to make an appointment for a no-cost initial consultation:

Fairfax Elder Law: 703-691-1888
Fredericksburg Elder Law: 540-479-1435
Rockville Elder Law: 301-519-8041
DC Elder Law: 202-587-2797

Critter Corner: Is HIPAA Keeping Pace with Technology?

Dear Angel,

There is so much technology available these days where you share health information. Things such as wearable fitness trackers, social media sites, and health apps did not exist when Congress enacted the Health Insurance Portability and Accountability Act (HIPAA) in the 90’s. When it comes to HIPAA and privacy of personal health information, is there anything being done to keep pace with these new technological developments?


Kip N. Pace


Dear Kip,

From what I’ve read, the U.S. government is aware of the situation you described and is taking action to keep pace with technology. In fact, the U.S. Office of the National Coordinator for Health Information Technology (ONC) issued a report to Congress this week laying out the gaps that exist in health data protection.

HHS had three goals in its report to Congress:

  1. analyze the scope of privacy and security protections of an individual’s health information for these new and emerging technology products not regulated by HIPAA;
  2. identify key gaps that exist between HIPAA-regulated entities and those not regulated; and
  3. recommend addressing those gaps in a way that protects consumers while leveling the playing field for innovators inside and outside of HIPAA.

While the report doesn’t lay out a plan for solving health data privacy concerns that fall outside of HIPAA, it offers a starting point for creating such a solution. According to the report, “Wearable fitness trackers, health social media and mobile health apps are premised on the idea of consumer engagement,” HHS said. “However, our laws and regulations have not kept pace with these new technologies. The report identifies the lack of clear guidance around consumer access to, and privacy and security of, health information collected, shared and used by [entities not covered by HIPAA].”

The HIPAA Privacy Rule

The HIPAA Privacy Rule establishes national standards to protect individuals’ medical records and other personal health information and applies to health plans, health care clearinghouses, and those health care providers that conduct certain health care transactions electronically.  The Rule requires appropriate safeguards to protect the privacy of personal health information, and sets limits and conditions on the uses and disclosures that may be made of such information without patient authorization. The Rule also gives patients’ rights over their health information, including rights to examine and obtain a copy of their health records, and to request corrections.

The Privacy Rule is located at 45 CFR Part 160 and Subparts A and E of Part 164.

HIPAA was passed with the best of intentions: to protect individual patient’s medical records from being disclosed to just anyone who asks to see their contents. The law requires doctors and other healthcare providers to get written authorization from a patient before they can share most health information about him or her with a “third party” — and that includes most caregivers, even those who are close relatives. At the Farr Law Firm, a HIPAA authorization form is part of our incapacity planning.

I will let you know if I hear of any updates when it comes to HIPAA and privacy in health technology.



Do New Electronic Medical Record Systems Make It Difficult to Access Advance Directives?

Q. I have heard several horror stories about Advance Directives being unavailable when needed, as more hospitals are implementing new systems to store and access electronic medical records. Or, in other cases, patients’ documents are being rendered unreadable by incompatible software.

What if a patient’s doctor uses one record system and the emergency room another? If the software doesn’t match up, the ER doctors may be unable to tell if the patient has a preference, such as a “do-not-resuscitate” order.

If this is truly the case, then why even bother with Advance Directives? And, if I do plan ahead, will I have to carry a copy with me so the provider knows it exists or is there another way to guarantee that my Advance Directives will be accessible, if and when they are needed?

A. Incapacity planning, including Advance Medical Directives, a General Financial Power of Attorney, and an authorization to disclose protected health information (HIPAA Authorization), is extremely important for everyone, as it communicates patient choices when they can no longer speak for themselves.

Ideally, patients with advance directives in place would be confident that their doctors and nurses – no matter where they receive care – could know in a split second their end-of-life wishes. However, according to a news report in USA Today/Kaiser Health News, doctors cannot always easily get hold of their patients’ advance directives at the hospital, even in an emergency, and Electronic Health Records (EHRs) sadly aren’t yet helping to solve this availability problem.

Ironically, electronic medical records, which are supposed to help find patient information, create their own problems:

● One problem is that different medical records systems are incompatible, meaning that hospitals often can’t share your Advance Directive among them or even, more surprisingly, between different departments of the same hospital. As a result, you could be admitted to an Emergency Department, which may have one EHR system, and it might not be able to get hold of your Advance Directive in the hospital’s main EHR system.

● Another problem is that it can take too long to find your Advance Directive because most EHR systems aren’t set up to store Advance Directives. “If [medical staff are] not able to access the advance directive quickly and easily, they’re honestly likely not to use it,” says Torrie Fields, senior program manager for palliative care at Blue Shield of California.

● Older patients, who are increasingly likely to have a directive, often get treatment from varied sources — surgeons, hospitals, nursing homes, primary physicians. That increases the odds of unaligned systems, said Dr. Irene Hamrick, who directs geriatric services in family medicine at the University of Wisconsin-Madison.

● An additional complication stems from system design. Many electronic medical records systems don’t have a dedicated tab to mark where such information — if it exists — is stored. After doctors and nurses click through various pages, they still don’t know whether they looked in the right place. Time doesn’t always allow this kind of search.

A survey of ER doctors last year found that 93% are “less frustrated” when Advance Directives are “easily accessible,” and the vast majority of them said the documents let them provide better care and that family members are more satisfied.

Changes May Lie Ahead

Developers of medical records systems are introducing functions that could make it easier to find and read an Advance Directive. For instance, Epic Systems, a company that is among the top sellers of EHR systems, has added a tab intended to indicate clearly whether a patient has an advance directive on file.

The issue has also gotten attention in Congress. Lawmakers have expressed interest in making directives “portable” — that is, easily accessible. Legislation introduced in the Senate by Sen. Mark Warner (D-Va.) includes provisions that could push health facilities to ensure compatibility across different health records for Advance Directives. Rep. Earl Blumenauer (D-Ore.) is also working on legislation, he said in an interview.

Hospitals and health systems are making adjustments, too. The hospital at Oregon Health Science University, California-based Sharp Hospice and Gunderson Health in Wisconsin are among those that have made in-house software revisions to make advance directives easy to find in electronic health records — for instance, having IT teams add tabs on the record’s main page to indicate if a patient has end-of-life planning documents. Representatives of those hospitals said such efforts aren’t the norm, though.

Meanwhile, a number of states, including Virginia, Vermont, North Carolina and Arizona, have created online databases for residents to upload and store their Advance Directives, but these are only helpful if you wind up in the hospital and your home state. If you’re traveling visiting another state, you’re basically out of luck Recent figures are hard to come by, but in 2007, nine states were counted to have these in place. In these instances, doctors in those states can go online to find a patient’s Advance Directive on those sites. Although they’re secured websites, and directives are password protected, requiring special logins from patients and doctors, specifics vary from state to state.

Rest Assured that Farr Law Firm Clients NEED NOT WORRY- Your Documents ARE ALWAYS Accessible with Docubank
Incapacity Planning documents only do what you want them to do if your loved ones know they exist and can locate them when needed. At The Law Firm of Evan H. Farr, P.C., we provide a service called DocuBank to ensure that that the Advanced Medical Directive and other healthcare documents you’ve completed through our firm will be very easily accessible when you need them most, such as when you are hospitalized.

DocuBank is an electronic storage and access service for healthcare directives and other vital health information, such as allergies, medications, and a list of your physicians. DocuBank stores all of your health information so it is available whenever needed.

How does DocuBank work?

● Once we have registered your documents with DocuBank, DocuBank transmits your Advance Medical Directive and other healthcare information to hospitals within moments, 24 hours a day, 7 days a week, around the world.

● Your documents are stored safely in DocuBank’s system and available immediately by using a Member Number and PIN Code located on your DocuBank Emergency Card.

● Hospitals can access your documents by placing a toll free call to 1-800-DOCUBANK to have them faxed, or by clicking the Hospital Button, or using the pop up box on the DocuBank home page to print them immediately.

● When a hospital calls into DocuBank, they also receive a cover page listing your three Emergency Contacts with phone numbers as well as your primary doctor so that they can be reached in an emergency.

Read more about Docubank here.

Why Bother with Advance Medical Directives?

People can have dreadful accidents or face incurable illness at any age. Could hospitals take important decisions like whether to provide, withhold, or withdraw a specific medical treatment into their own hands in the U.S.? Maybe or maybe not. To protect yourself, however, and guarantee that this won’t happen to you or a loved one, Advance Directives are imperative.

An Advance Medical Directive is the document that gives you control over your medical care if you’re unable to speak for yourself. In your Advance Directive, you designate someone to make health care decisions for you if you can’t, and you also give guidance on the types of treatments you would or would not want.

The Time to Plan is NOW

To ensure your wishes are met, it is important to start your planning while your mind is still sharp and your judgment is sound, so you are prepared in advance if a crisis occurs. If you have not done Incapacity Planning, Estate Planning, or Long-Term Care Planning, or if you have a loved one who is nearing the need for long-term care or already receiving long-term care, please contact us for a no-cost initial consultation:

Fairfax Estate Planning and Incapacity Planning: 703-691-1888
Fredericksburg Estate Planning and Incapacity Planning: 540-479-1435
Rockville Estate Planning and Incapacity Planning: 301-519-8041
DC Estate Planning and Incapacity Planning: 202-587-2797

2016 Annual Statewide Legal Aid Conference Sponsors

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Reverse Mortgages and the Rights of a Surviving Spouse Who Is Not the Named Owner

By Fredrick P. Niemann, Esq. of Hanlon Niemann Wright, a Freehold, NJ Elder Law Attorney

A recent significant regulatory change addresses a long-standing concern regarding the issue of removing a spouse from a title as part of a reverse mortgage transaction (or lending to only the spouse whose name is listed on the title as owner). The “non-titled” or “divested” spouse is called the “non-borrowing spouse” (NBS). Though this practice is not the norm in a reverse mortgage transaction, it is not entirely uncommon either.

Because all titleholders on any home encumbered by a reverse mortgage must be at least 62 years old, removing a spouse from title is usually done when that spouse is younger than 62. If the couple has other significant assets, life insurance on the borrower spouse, or a second home, the NBS can continue to live comfortably in the home if the reverse borrower spouse predeceases him or her.

For new reverse mortgages commencing after August 4, 2014, there are no safeguards in place that allow the NBS to remain in the home without having to repay the HECM debt if the borrower spouse predeceases him or her. The NBS must continue to fulfill the on-going mortgage requirements, which include paying real estate taxes, homeowners insurance, property upkeep, and maintaining the home as his or her primary residence. Under the new rule, the HECM does not have to be repaid until the NBS no longer resides in the subject property.

For reverse mortgages involving a NBS, the principal limit (initial borrowing capacity) is based on the younger NBS’s age, thus decreasing the borrower’s principal limit. The new NBS protection applies only to couples recognized as legally joined in marriage or civil union, and is not extended to other relationships, familial or otherwise. Additionally, the couple must have been married at the time that the loan was consummated, they must remain married, and the NBS must reside in the subject property at his or her primary residence and attend the same HUD counseling session that HECM borrowers are required to attend.

To discuss your NJ Elder Law matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.

Why You Should Sign a No-Revocation Agreement to Protect Your Children From Being Disinherited

By Fredrick P. Niemann, Esq. of Hanlon Niemann Wright, a Freehold, NJ Probate Estate Litigation Attorney

In estate planning, it is not often discussed by and between counsel and a married couple to sign what is known as a no-revocation agreement or a mutual will with a non-revocation clause.  It is an important agreement that many married couples should seriously consider signing to prevent estate distribution problems once one spouse passes, especially in a second or more frequent marriages with children.  In re Estate Cosman, illustrates the dangers of not signing one of these agreements.

In short, the court ruled that an oral no-revocation agreement could not prevent a wife, who survived her husband, from changing the terms of their concurrent wills. In re Estate of Cosman, 193 N.J. Super. 664 (1983). Here are the facts:  Husband had children with Wife #1.  They divorced.  Husband remarried.  He married Wife #2.  He had children with Wife #2.

Happily married and in their eighties, Husband and Wife #2 decided to draw up concurrent wills so that all of their children would receive their fair share of their joint assets.  In this agreement, part of the estate was to go to the children from Wife #2 and another part to the children of Wife #1.  They agreed orally not to change the terms of the will when either one of them passed.

Wife #2 survived her Husband and after his death revised her will.  She excluded Wife #1’s children from the marital estate. When wife #2 passed and her will was admitted into probate, Wife #1’s children were upset and believed that they had a legitimate claim to the estate.  What did the court say?  The court ultimately ruled that the agreement not to revoke any part of the wills was not written and “the wills were silent as to [the no-revocation agreement’s] existence.”  To be admitted into probate, the agreement must have been written, signed, or even arguably, at the very least, acknowledged by the concurrent wills.

What’s the short moral of this story?  One spouse always outlives the other.  To protect your agreement and understanding with your spouse or significant other – which concerns the division of all of your worldly assets, possessions, and interests – simply sign a no-revocation agreement and place it in your last will or write a standalone no revocation agreement to survive your death. Otherwise your children are at risk to be disinherited.

To discuss your NJ Estate Planning matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.

Becoming a Representative Payee on a Social Security Check

By Fredrick P. Niemann, Esq. of Hanlon Niemann Wright, a Freehold, NJ Estate Planning and Elder Care Attorney

I have dedicated our blog articles educating you, about the nuances and subtleties in elder care law including estate planning, Medicaid planning, trusts, and so many more areas of expertise accumulated over the many years of practice.  But, today’s blog will be a little different, because today I am going to help you understand how to become the representative payee for a Social Security recipient.  What is a representative payee?  Like a guardian of an incapacitated person, a representative payee receives the check of a Social Security recipient and uses the money to benefit the well-being of the recipient who is incapacitated (or is a minor) and therefore cannot take care of themselves.  While the guardian may become the representative payee, the representative payee doesn’t necessarily have to be the guardian of the person, nor does the guardian automatically become the representative payee by virtue of being the guardian.  The Social Security Administration alone makes that determination, so you must keep that in the back of your mind if you represent someone who is incapacitated.

To become the representative payee, you must go to your local SSA office.  You can find a list at where you can search by zip code.  Before you go, you must have ready a few things.  You will need your government ID, your Social Security number, the contact information and Social Security number of the person you wish to represent, and the contact information of the incapacitated person’s primary physician.  The SSA will then contact the physician to ask about the incapacitated person and whether or not they need someone to be a representative payee for him or her.  If they feel, after speaking to the physician, the person needs a representative payee, you will be approved and sent instructions on how to be a representative payee, including various reports you must complete in regards to how you use the recipient’s Social Security money.

To discuss your NJ Elder Care matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.

Creating a Charitable Foundation: Is it Worth the Hassle

By Fredrick P. Niemann, Esq. of Hanlon Niemann Wright, a Freehold, NJ Estate Planning Attorney

Recently a client asked about creating a charitable foundation using a substantial part of his estate (may be as high as $1,000,000) to establish grants/scholarships to high school graduates going to college and who demonstrate a financial need. This foundation would be designated for a particular college and he wants it in the name of his late spouse. At this point the “foundation” does not exist and so the issue we discussed was: Do we need to establish the foundation now and (at least) have the legal structure in place at the time of his death or can we wait to establish the foundation until he passes? Waiting until he passes seems to make sense but the concern is that unless the foundation is already in existence at the time of death, the distribution may not qualify as charitable bequest, subjecting the estate to an inheritance tax which obviously we want to avoid.

Another alternative we discussed and one that he was interested in was to locate an existing foundation/charity willing to accept these funds with the restrictions and agree to distribute the funds according to the client’s wishes.

Maybe the most practical solution is to draft a Will leaving a specific dollar amount (e.g. $1 million) or a percentage of the residuary estate to a particular college/university to establish a Memorial Scholarship Fund in the clients individual name, and then work out the details with the client and the educational institution separately via a written agreement, memorandum of understanding, or letter of intent – depending upon what type of written document the institution prefers – as to the Fund’s implementation (e.g., criteria for student selection: high schools in a specific geographic area, students from public and/or private high schools, student’s proposed course of study or major if any, minimum grade point average, minimum/maximum amounts granted per year, financial need, etc.) – making sure that whatever documentation is used is revocable and subject to change by the client while he or she is alive (in case the client changes his or her mind).

But consider this: given the high and increasing costs of a college education, the costs of creating such a Charitable Foundation, funding and operating it, may outweigh the benefits (even with $1million). Sometimes it’s simpler to consider and use an alternative arrangement that accomplishes the same objective without the headaches involved.

Understand that a Charitable Foundation is not the easiest thing to manage as the family/trustees need to incur the cost of applying for the foundation and filing annual reports. There can be no private benefit and there is a required minimum mandatory distribution.

Using the New Jersey Community Foundation, which was, and may still be located in Morristown, is a better alternative. Financial institutions such as US Trust (part of Bank of America) and Merrill Lynch also have non-profit foundations, but they may require a large principal amount.

In similar situations where the charitable beneficiaries were not restricted to a particular charity, I have also provided in the Will for the Executor to establish a foundation, upon the death of the testator, setting forth the types of charities and charitable purpose. I don’t think the fact that the foundation comes into existence after death, prevents the charitable deduction as long as the funds are earmarked for the foundation or another 501 c 3 organization and are paid to such foundation or 501 c 3 organization.

To discuss your New Jersey Estate Planning matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.

Protect Mom or Dad From Financial Predators Without Filing for Guardianship

By Fredrick P. Niemann, Esq. of Hanlon Niemann Wright, a Freehold, NJ Elder Care and Elder Law Attorney

In a recent client session I was advised that mom executed a general durable power of attorney (POA) appointing her son and daughter as her agents. Mom is now in a nursing home and is not competent to execute a new POA. Daughter was determined disabled by the Social Security Administration (SSA) when she was 49 and has been receiving Supplemental Security Disability Income (SSDI) since the age of 49 until she reached retirement age (daughter is now age 69). Daughter has been living in mom’s house and taking care of mom for 11 years prior to mom needing a nursing home. We are looking to make transfers of mom’s house and some liquid assets to the daughter (since the SSA papers confirm daughter is disabled a transfer to her is not an issue for Medicaid). However, the mom’s Power of Attorney does not include specific language authorizing a principal’s agents to make gifts on her behalf but does have the language that “grants her agents to generally do and perform all matters and things which may be requisite or proper to effectuate any matter or thing appertaining or belonging to me and generally to act for me in all matters affecting my business and property with the same force and effect to all intents and purposes as though I was personally present and acting for myself.” This is fairly routine language found in virtually all POA’s (or at least it should be).

One attorney told the family that (1) the daughter should resign as POA and the son, as remaining POA effectuate the transfer to the daughter even though there is no specific gifting provision in the POA or (2) Apply for guardianship and obtain court approval to effectuate the transfers to the daughter. I have a different approach.

First off, New Jersey law (N.J.S.A. 46:2B-8.13a) was enacted precisely to prevent gifting under a POA. In the early 2000s there were several instances of predator relatives using POAs to gift away the principals assets where it seemed highly unlikely that the principal would have favored the gifts. The law was written to prevent an agent under a POA from making gifts via the POA unless the POA clearly authorizes gifts. This law explicitly says that general authority isn’t enough. “An authorization in a power of attorney to generally perform all acts which the principal could perform if personally present and capable of acting, or words of like effect or meaning, is not an express or specific authorization to make gifts.”

If mom still has capacity to gift, she can authorize gifts. Otherwise, court authorization will be required either by statute N.J.S.A. 3B:12-1 et seq or full blown guardianship.

But don’t discount the use of a protective arrangement. A protective arrangement can be an effective tool used for “good”, like in this case and can be structured in a way where a full guardianship is not necessary. A superior court judge can direct or ratify any one or more transactions necessary or beneficial to address meeting the foreseeable needs of an incapacitated or alleged incapacitated person or those dependent upon him or her.

In our case the protective arrangement will allow the family to do the right thing without the expense and time a guardianship proceeding benefiting the disabled daughter and the mom who loves her.

To discuss your NJ Estate Planning, Medicaid Asset Protection and Elder Care matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.

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