Monitor the social/emotional care plan for your loved one in a nursing home

If you are the advocate for someone in a nursing home — your spouse, parent, friend, relative — you may sometimes notice unusual behavior which is different from what you are accustomed to seeing with your loved one. Speak up. Ask the social worker what has changed. Is there a new roommate? A different aide waking the resident up in the morning? Is there another resident who is bothering your family member? Is there a new low grade medical condition such as a urinary tract infection, dental problem or pain? Why is the resident more fidgety, anxious, or quiet? What is causing these “Mental and Psychosocial Adjustment Difficulties?” This issue pertains to the resident’s difficulty in adapting to change in routine or to  stressors  they cannot understand.

Federal nursing home law, 42 CFR secn. 425,  requires that  ” Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care.”  On the subject at hand, section (f) says:” Mental and Psychosocial functioning. Based on the comprehensive assessment of a resident, the facility must ensure that—

(1) A resident who displays mental or psychosocial adjustment difficulty, receives appropriate treatment and services to correct the assessed problem, and
(2) A resident whose assessment did not reveal a mental or psychosocial adjustment difficulty does not display a pattern of decreased social interaction and/or increased withdrawn, angry, or depressive behaviors, unless the resident’s clinical condition demonstrates that such a pattern was unavoidable.”
The mental and psychosocial needs of each resident must be continually addressed on an individual basis to take into account the ability of the individual resident and changes in behavior or mood that become apparent from time to time. Detailed guidelines called SOMS have been issued by the federal government to further explain the duties created by the regulations:  som107ap_pp_guidelines_ltcf

I came across a book that was written for nursing home administrators but could be a useful guide to the lay advocate who is watching out for a loved one in a nursing home. The book is Psychosocial Care Plans: Social Services Care Plans for Long Term Care,  By Debra Collins, RN, RAC-CT.

Remember – the squeaky wheel gets the oil, and nursing homes have a duty to provide a plan which addresses your loved one’s problems.

For legal representation and advice on nursing home admission and care plans, contact us at 732-382-6070.

BCMR/DRB Link and Representation Military Discharge Upgrade

It is common that the Veterans Law Section of Fink Rosner Ershow-Levenberg gets inquires regarding military/veterans legal representation that are not specifically related to the Department of Veterans Affairs and Title 38.  A common issue is veterans seeking representation to request a military discharge upgrade and/or correction of military records.  Many veterans are confused on how to proceed and an easy way to get familiarized with the process is to review recent decisions from the from the service Discharge Review Boards (DRB) and/or Board of Corrections of Military Records (BCMR).  A link to Department of Defense (DoD) Electronic Reading Room for service BCMRs and DRBs can be found at

Fink Rosner Ershow-Levenberg (FRE-L) provides free consultations to discuss issues pertaining to military discharge upgrades and/or corrections of military records.  Cost for formal representation before the operative BCMR or DRB are provided on a flat-fee basis.   Representation at the BCMR/DRB includes case development through the Freedom of Information Act (FOIA), assistance with obtaining relevant medical information and statements from family members or employers, analysis of case law and operative regulations, identification of legal errors, and preparation and filing of your application along with legal memorandum.

If you have questions concerning your characterization of discharge or are seeking representation for BCMR/DRB review, please don’t hesitate to contact me at (732) 382-6070 or via email at


“Avoiding Probate” can cause more problems than it prevents

You may have heard that you should set things up to “avoid probate.” Bank or brokerage personnel may have recommended that you ” add a pay on death beneficiary, or a joint owner, so you can avoid probate.” There are fallacies built into that advice which can lead to unintended complications after death.

Estate administration is a process that can include many elements that aren’t known until after the death. These may include: the necessity to file & pay estate and inheritance taxes; settling up debts; selling real estate; paying taxes & costs to maintain property while it’s on the market; preparing and filing the final income tax returns; collecting money that’s owed to the estate by a family member or someone else; selling a small business; finding missing heirs. It can easily take a year to get everything resolved.

The probate of a Will at the County Surrogate in NJ — and the mailing out of the Notice of Probate to the heirs at law and the people named as beneficiaries in the Will — is the minimal initial step in the process. Everything after that is called “administration.”  The Executor of the Estate (who’s named in the Will) or the Administrator appointed by the Court (if there was no Will or the Executor is unable to serve) needs to have access to cash to fund an estate account so that all of these tasks can be handled smoothly.The Executor handles the assets that are in the decedent’s name along, and can liquidate them and transfer the funds to the estate account to use for expenses.

With very limited exceptions, every asset owned by the decedent would be included in the value of the estate when calculating death taxes, even if it has a pay-on-death beneficiary, and having the assets in this non-probate asset form doesn’t eliminate the need for the Executor to deal with the issues just listed.

On many occasions I have had to advise Executors in cases where all of the assets except the house were jointly owned or were set up as pay-on-death to various members of the family. At the time of death, those assets are presumed to be the property of the person whose name was placed on the account. They are not presumed to be “estate property” to be used for expenses. This means that unless those people choose to either give the money back to the estate (by disregarding their ownership) or lend the cash to the estate, the Executor won’t have cash for operations. If one child agrees to give money back and the others don’t … you can see the problem. When the estate is subject to inheritance tax or estate tax, there can be yet further problems because the Executor is obligated to remit the tax, but doesn’t have access to funds for that purpose. If the pay-on-death owner isn’t really known to the Executor, the Executor may need to chase them down to contribute their pro rata share of funds for the tax. An unpleasant task at best.

There are circumstances where it is appropriate and reasonable — from a legal standpoint — to place beneficiaries or co-owners on certain assets. The best estate plan for a married person may be a terrible plan for an unmarried or widowed person. There is no “one size fits all.” We call it “estate planning” because the client and the lawyer together evaluate the estate  — big or small — and plan for ease of administration. The takeaway is that making everything a joint or POD asset to simply “avoid probate” won’t necessarily “make things easier,”  can often prove to be counterproductive, and can cause greater expense, delays and problems for the estate in the long run.

For legal advice on individualized Estate Planning, and for assistance with Estate Administration, call 732-382-6070

“Curious Incident” is a marvelous Broadway show

Last week I saw “The Curious Incident of the Dog in the Nighttime,” a drama at the Ethel Barrymore Theatre on 47th Street in NYC. What an excellent production.

Based on a novel written in the first person by the protagonist, 15-year old Christopher Boone, it’s a story about a weird discovery he makes one evening, his efforts to investigate what happened and who did it, and the series of events that unfolds. Christopher has a very quick mathematical mind and special needs that appear to be on the autism spectrum, though the play never mentions any particular medical diagnosis or condition. He’s just …. Christopher. Everyone who interacts with him — teacher, parents, neighbors — enters his universe and as you experience this show, you feel you really are getting to know who Christopher is and what the world looks like from his unique perspective. The staging shifts from frenzied to quiet depending on just what Christopher is thinking about or is trying to do.  If you are caring for someone with special needs of this kind, I think you’ll find the show to be a sensitive and dramatic  story with a great measure of hope and optimism.

Cautionary tale about administrative procedural hurdles

In a new but unpublished decision by the Superior Court, Appellate Division, a person applying for benefits under the State’s Traumatic Brain Injury Fund (TBIF)  was denied reimbursement for certain equipment due to apparent failure to properly follow all of the procedural requirements for obtaining same. B.B. V. Division of Disability Services ( A-3151-12T3, decided Nov. 17, 2014). The situation started in 2009 when he first inquired about payment for a certain assistive device. Numerous procedural steps were involved including, at some point, pre-approval of the purchase. The decision discusses those procedural requirements and the various administrative hurdles that are built into the regulations. You can read the text of the decision here a3151-12 . The case is not approved for publication, so it serves as guidance, but is not binding on lower courts should a similar case arise later on.