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NEW JERSEY

 

State Reporter: Shirley B. Whitenack

Schenck, Price, Smith & King, LLP
P.O. Box 991
220 Park Avenue
Florham Park, N.J. 07932

Phone:  (973)539-1000
Fax:  (973)540-7300
Email: sbw@spsk.com
Site:  www.spsk.com

Education:  Juris Doctor, Seton Hall Law Center, 1985

Current Position: Partner

Certifications:  None.

Memberships: National Academy of Elder Law Attorneys(NAELA); American Bar Association  (Probate Committee), New Jersey State Bar Association, Elder and Disability Law Section (Past Chair) and Legislative Section, Morris County Bar Association (Probate Committee).

Community Involvement:  Board of Trustees, Guardianship Association of New Jersey, Inc.

Articles:  "Negotiating Medicare and Medicaid Claims & Liens," Understanding Special Needs Trusts & Disability Planning Update 2005, February 3, 2005, Professional Education Systems Institute, LLC. and National Academy of Elder Law Attorneys;  "Principles Governing the Removal of Fiduciaries for Hostility and Conflict of Interest," The ElderLaw Report, Volume XVI, Number 4, November 2004, Aspen Publishers;  Author: "Surcharging the Guardian," NAELA News, Volume 16, Issue 5, October 2004, National Academy of Elder Law Attorneys.  "Cutting Edge Issues in Medicaid Planning," November 30, 2004, Sophisticated Elder Law Concepts X, New Jersey Institute for Continuing Legal Education;  "Fair Hearings on Medicaid Claims," New Jersey Elder & Disability Law Practice, 3rd Edition, 2004, New Jersey Institute for Continuing Legal Education.

Your State's Social Security Region: New York

Your State's Federal Circuit: Third

General:

Does your State Have a Specific Special Needs Trust Statute or Discretionary Trust Statute?  Yes, special needs trust statute, N.J.S.A. 3B:11-37

Are there State-Specific:

Resources:  No

Administrative rules:  Yes, regulations pertaining to special needs trusts.

Manuals/Standardized Forms:  New Jersey's Medicaid Manual contains regulations regarding special needs trusts.

Important Case Holdings:  Waldman v. Candia, 722 A.2d 581 (NJ 1999)(requires Medicaid liens to be paid prior to funding Special Needs Trust where funds result from proceeds of tort recovery or tort settlements).

Pronouncements:  Not that I am aware of.

Fiats:  Not that I am aware of.

Interpretations/Unusual interpretations of the law:  Not that I am aware of.

Does the State run a tab? I.e., does the State track the cost of services to the beneficiary and present a bill if the individual inherits funds or otherwise acquires funds?  New Jersey keeps track of the costs of services for purposes of Medicaid estate recovery and recovery in the event of a tort settlement.  Other agencies, i.e., the New Jersey Department of Human Services also keeps track of the costs of services for care and contribution in group homes and psychiatric hospitals.  New Jersey recently enacted a statute discharging liens for past stays in New Jersey psychiatric hospitals.

Does the State have specific statutes or regulations on County medical services and reimbursement of costs?  No.


Have You Seen Creative Uses of Charitable Remainder Trusts and SNT Receptacle Trusts? No.

Do you have a pooled trust in your state? Yes, PLAN NJ

Social Security Rules: 

When a third party (such as a parent or other individual) funds a trust for another person (the "beneficiary") with the third party’s funds, what special rules does your SSA region have on:

Distribution terms:  None that I am aware of.

Accounting/Reports/Notices:  None that I am aware of.

Housing:  None that I am aware of.

Remainder Beneficiaries:  None that I am aware of.

When an individual funds a trust with his or her own funds, using the authority provided under 42 U.S.C 1396p(d)(4)(A), what special rules does your SSA region have on:

Distribution terms: Follows New Jersey Medicaid requirements if beneficiary is in New Jersey.  Requires 45 days advance notice of payments to any one vendor in excess of $ 5,000.00.

Accounting/Reports/Notices:  Follows New Jersey Medicaid requirements if beneficiary is in New Jersey.  Requires annual accountings by trustee(s).

Housing: None that I am aware of.

Remainder Beneficiaries:  Follows New Jersey Medicaid requirements if beneficiary is in New Jersey.  Remainder beneficiaries after Medicaid and other agencies entitled to recovery must be designated as "heirs of law" if trust beneficiary is mentally incapacitated.

Are you aware of specific issues regarding housing (purchase, maintenance, utilities, gifts of housing, rentals) that have raised questions or caused problems with your state agencies or SSA office?  No.

Are you aware of certain types of distributions that are likely to raise questions or cause problems with one of your state agencies or SSA office?  No.

 

Medicaid Rules: 

When a third party (such as a parent or other individual) funds a trust for another person (the "beneficiary") with the third party’s funds, what Medicaid related considerations are involved?

Distribution terms:  None that I am aware of.

Accounting/Reports/Notices:  None that I am aware of.

Housing:

Remainder Beneficiaries: None that I am aware of.

When an individual funds a trust with his or her own funds, using the authority provided under 42 U.S.C 1396p(d)(4)(A), what Medicaid related considerations are involved?

Distribution terms:  Requires 45 days advance notice of payments to any one vendor in excess of $ 5,000.00

Accounting/Reports/Notices:  Requires annual accountings by trustee(s).

Housing:  None that I am aware of.

Remainder Beneficiaries:  Remainder beneficiaries after Medicaid and other agencies entitled to recovery must be designated as "heirs of law" if trust beneficiary is mentally incapacitated.

 

Department of Mental Health and Mental Retardation Rules:

When a third party (such as a parent or other individual) funds a trust for another person (the "beneficiary") with the third party’s funds, what requirements does the Department of Mental Health and Mental Retardation have for:

Distribution terms:  None that I am aware of.

Accounting/Reports/Notices:  None that I am aware of.

Remainder Beneficiaries:  None that I am aware of.

 

Are third-party trusts liable for services provided by State Schools or State Hospitals?  Yes, by statute, although the policy of Department of Human Services reviews third party trusts on a case-by-case basis.

How does the State Mental health, Mental retardation agency treat self-settled trusts?    Yes, by statute, although the policy of the Department of Human Services reviews special needs trusts on a case-by-case basis.

 


State Reporters are not sponsored nor endorsed by NAMI, but have volunteered to provide information. Many of the State Reporters are members of the National Academy of Elder Law Attorneys (NAELA) and the American Bar Association. Several are members of ACTEC (the American College of Trust and Estate Counsel). Many have children and other family members with disabilities. Most have been selected by other attorneys involved with this project, because of their recognized long-term involvement with special needs trusts.

NAMI does not, however, certify all information provided here is accurate. Further, the State Reporters do not certify that information provided by others is accurate. As for the State-specific information, each State Reporter has agreed to provide reasonable updates of information that they believe to be accurate.

Also, there is no coverage here of federal laws, veterans administrations rules, Section 8 housing rules, special education, or special county rules.

 


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