Remote Notary Law

Governor Murphy has signed a bill into law that now allows for remote notarial acts during the coronavirus pandemic emergency.  This new law is effective immediately and will continue to be valid until the rescission of Governor Murphy’s Executive Order 103.  On March 9, 2020, Governor Murphy signed Executive Order 103 declaring a State of Emergency for New Jersey due to the coronavirus crisis.

According to this new law, a notary public can remotely notarize a document if the following conditions are satisfied.  First, the notary public must use “communication technology”, which means that it is an electronic device that allows the notary public to communicate with another person “simultaneously by sight and sound”.  The notary public must either have personal knowledge of the identity of the individual who is signing the document or have satisfactory evidence of the identity of the person.  The term “satisfactory evidence” means a passport, driver’s license or other government issued identification.  The identification must be current or if it is expired then it must not have been issued more than three years prior to the execution of the document.

In order for the remote notary to be valid in the State of New Jersey, the notary public must create an audio-visual recording of the signing of the document.  Therefore, unless the signing of the document is not recorded it will not be valid.  Also, the recording must be preserved for a period of 10 years.

This new law does not apply to the signing of a Will or a Codicil to a Will.  Also, this new law will expire as soon as Governor Murphy rescinds Executive Order 103 that declared a State of Emergency.

Change in Medicaid Laws: Minimum Amount Increases for Healthier Spouse

When a healthier spouse requires long-term care in a nursing home facility, then that care can quickly deplete the family’s life savings.  Fortunately, there are federal and state laws that prevent the healthier spouse from being impoverished.

When a spouse requires long-term care in a nursing home facility, then the healthier spouse can keep the house, car, personal effects and a portion of the remaining assets.  The portion of the remaining assets that the healthier spouse can keep is known as the Community Spousal Resource Allowance, or CSRA.

In many cases, the healthier spouse can keep one-half of the cash assets as his or her CSRA.  These are assets that the healthier spouse can keep and not use for the other spouse’s long-term care needs in a nursing home.  Federal law sets forth a minimum amount that the healthier spouse can keep.  Last year the minimum amount that the healthier spouse can keep was $25,284.00. 

Effective January 2020, the minimum amount that a healthier spouse can keep as his or her CSRA is $25,728.00.  By way of illustration, assume that the husband and wife own a house, automobile and cash assets of $40,000.00.  The healthier spouse can keep the house, automobile and $25,728.00 of the cash assets.  The balance of the cash assets of $14,272.00 will have to be spent down in order to qualify the institutionalized spouse for Medicaid assistance.

Additional Rules Concerning a Qualified Income Trust

New Jersey permits a person to reduce his or her monthly income below the Medicaid income cap through the use of a Qualified Income Trust, also known as a QIT.  There are legal requirements, however, for the establishment of a QIT.

 The trust must provide that New Jersey is the primary beneficiary of the trust when the person passes away.  In addition, the trust must contain only income from the individual.  Federal and state law prohibits the deposit of assets into the trust.

The rules governing a QIT differ in each state.  Some states allow a portion of a person’s income to be deposited into the QIT each month.  According to New Jersey law, an entire income from a source must be deposited into the QIT.  By way of illustration, if a person receives $1,200.00 gross per month from Social Security and a gross monthly income of $1,200.00 from a pension, then that person’s income is only $51.00 greater than the Medicaid income cap.  That person, however, will not be allowed to deposit $52.00 from Social Security or the pension into the QIT per month.  Rather, New Jersey law requires that $1,200.00 from either the pension or Social Security be deposited into the QIT each month.

The Trustee must adhere to the laws that govern Medicaid eligibility.  New Jersey law requires that the Trustee provide an annual accounting of the distributions made from the trust.  New Jersey requires that the bank statements and documents relating to the QIT be provided each year to the County Board of Social Services.

If all of the laws relating to the QIT are satisfied, then the income that is deposited into the QIT will not be considered “income” for purposes of determining Medicaid eligibility.  The income that is deposited into the QIT each month will reduce that person’s income for purposes of establishing Medicaid eligibility.

If a person’s gross monthly income is more than the Medicaid income cap of $2,349.00, then he or she can still qualify for Medicaid as long as a QIT has been prepared and has been established and maintained in accordance with applicable federal and state Medicaid laws.

Qualified Income Trust Can Reduce Income to Qualify for Medicaid

In order to qualify for Medicaid to pay for long-term care, a person must have little assets and must also have a monthly income that is less than the “income cap”.  Beginning January 2020, the Medicaid income cap in the State of New Jersey is $2,349.00.

If a person has a gross monthly income of more than $2,349.00, then he or she will not qualify for Medicaid assistance even if that person has virtually no assets.  New Jersey, however, allows a person to reduce their gross monthly income below the income cap through the use of a special trust known as a Qualified Income Trust.  The Qualified Income Trust is commonly referred to as a “QIT”.

 In order to establish a QIT, a trust agreement is prepared and signed by the person who needs long-term care and another individual who is the Trustee.  In many cases the individual who has power of attorney can sign the trust agreement on behalf of the individual who needs long-term care.

 The trust agreement must set forth that the person’s monthly income will be deposited into the trust and will be utilized for that individual’s long-term care needs.  The trust must be “irrevocable”.  This means that the trust cannot be revoked or canceled. 

Both federal and state law requires that the trust agreement provide for reimbursement of Medicaid benefits to the State of New Jersey.  New Jersey must be the primary beneficiary of the trust agreement.  When that individual passes away, then New Jersey will be reimbursed for all of the Medicaid funding that the person received from Medicaid.  Any remaining balance of the trust assets will then be paid to the person’s beneficiaries and heirs.

Income Cap Changes for 2020

Medicaid is the only government long-term care insurance program.  Each of the 50 states, as well as Washington, D.C., has Medicaid to help individuals pay for their long-term care needs at home, in an assisted living facility and a nursing home.  In order to qualify for Medicaid, there are strict rules with respect to assets and income.

 In New Jersey, an individual is not allowed to own more than $2,000.00 of resources.  A resource is an asset that can be converted to cash, including most life insurance policies that have a cash surrender value.

New Jersey is one of a number of states in our country that has an income cap.  If an individual’s income is greater than the income cap then that person will not qualify for Medicaid assistance.  The income cap is based upon a person’s gross monthly income.

According to applicable law, the Medicaid income cap is based upon the maximum benefits that an individual can receive from Supplemental Security Income, also known as SSI.  The Medicaid income cap is calculated by taking the maximum SSI benefit per month and multiplying it by 300%.  In 2019 the maximum SSI rate was $771.00 per month.  This resulted in a Medicaid income cap of $2,313.00.

Beginning January 2020, the maximum SSI monthly benefit is $783.00.  Therefore, the New Jersey Medicaid income cap is calculated as follows:  $783.00 x 300% = $2,349.00.

In summary, an individual must now have a gross monthly income of no more than $2,349.00 to qualify for Medicaid in the State of New Jersey.