Comprehensive Planning. Lifelong Solutions.

Establishing Retroactive Survivor Benefit Plan Payments (SBP) for a Dependent Child

By Shannon Laymon-Pecoraro, CELA

In December 2014, Congress passed the Disabled Military Child Protection Act as part of the National Defense Authorization Act of 2015. This important piece of legislation amended 10 U.S.C. 1450 by permitting monthly Survivor Benefit Plan (SBP) annuity payments to be assigned to a special needs trust for the sole benefit of a dependent child. Since this time, one of the major concerns has been whether benefits could be established by a parent with a dependent child when an election was not made previously.

Absent another valid election, a retiree of the United States Armed Forces begins to receive retirement income and, is enrolled in the Survivor’s Benefit Plan (SBP). With a full election of the SBP, upon the death of the retiree, up to 55% of the retiree’s retirement pay will be paid to a spouse or dependent child. Under the SBP, a “dependent child” includes an adult child that is incapable of self-support as a result of a physical or mental disability, provided such disability occurred prior to the age of 22. By making an election to provide the SBP to a dependent child, the retiree ensures a continuation of income to support the dependent child when the retiree and any surviving spouse have passed. Absent such an election, upon the death of the retiree, military retirement pay will cease.

You can revoke an election at any time; however, there are very few scenarios for which you can retroactively establish benefits. After receiving my first approval of retroactive establishment of SBP coverage for a dependent child, I now know that under certain circumstances, establishment of retroactive coverage of the SBP is possible in light of the new change in legislation. While Hook Law Center has been successful on this one occasion, we cannot guarantee approval and I anticipate approval of retroactive coverage will be limited in duration. As a result, if you are interested in making changes to your election, you should act sooner, rather than later. Furthermore, you should be prepared to pay the government a rather  check to cover the monthly payment for the benefit since date of retirement.

Kit KatAsk Kit Kat – Faithful Friend

Hook Law Center:  Kit Kat, what can you tell us about the faithful dog in Spokane, Washington who stayed with a toddler in a house fire?

Kit Kat:  Well, this is one story that doesn’t have a happy ending. However, it does reveal the faithfulness of a wonderful canine, a terrier mix, who stayed with the toddler during the fire. Unfortunately, both perished. It happened like this—a fire broke out around 11:30 PM in the Hillyard neighborhood of Spokane on Friday, October 21, 2016. A neighbor noticed the fire and heard screaming. He called 911, and immediately ran outside to fight the fire with his garden hose. Three other children and two adults escaped, but one child, a young toddler, did not make it out. His dog and a teddy bear were found with him in a 2nd story bedroom. Firefighters believe the dog stayed behind to protect him. What more can one ask than that? The dog was more than heroic!

The fire is under investigation, as the battery in the house’s smoke detector had been removed. That is all the information that the newspaper article provided. Perhaps, however, we can learn some tips for preventive action—always know where the occupants of one’s house are. If you leave your children with others, make sure they are aware of escape routes and are familiar with the property’s layout. Also, keep all smoke detectors functional. Hopefully, we can learn from this tragedy, so that it never happens again. (Martha Bellisle, “Toddler dies in fire, his dog at his side,” The Virginian-Pilot, October 23, 2016, p. 14)

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Distribution of This Newsletter

Hook Law Center encourages you to share this newsletter with anyone who is interested in issues pertaining to the elderly, the disabled and their advocates. The information in this newsletter may be copied and distributed, without charge and without permission, but with appropriate citation to Hook Law Center, P.C. If you are interested in a free subscription to the Hook Law Center News, then please telephone us at 757-399-7506, e-mail us at mail@hooklawcenter.com or fax us at 757-397-1267.

Posted on Monday, October 31st, 2016. Filed under Newsletter.

Premiums for long-term care insurance can be a tax deduction

By Hook Law Center

Under IRS regulations, taxpayers can deduct a greater amount from their 2017 taxes due to the purchase of long-term care insurance. You can deduct premiums for long-term care insurance policies that are “qualified,” to the degree to which they, in conjunction with other medical expenses for which you are not reimbursed, including Medicare premiums, are greater than 10 percent of the adjusted gross income of the insured, or 7.5 percent for taxpayers age 65 or older.

The premiums, which represent the amount the policyholder pays the insurance company to maintain the effectiveness of the policy, can be deducted by the taxpayer, the taxpayer’s spouse and other dependents. The rules for tax-deductibility are somewhat different for a person who is self-employed. You can deduct the premium, provided you realized a net profit. It is not required that your medical expenses are greater than a specific percentage of your income.

However, there is a maximum premium amount that is deductible. This figure is dependent on the age of the plaintiff at the end of the year. Below are the caps on deductibility for 2017. Any premium amounts that exceed these restrictions are not deemed to be a deductible medical expense.

Age prior to the end of the taxable year / Maximum deduction for the year

  • 40 or under / $410
  • Over 40 but not over 50 / $770
  • Over 50 but not over 60 / $1,530
  • Over 60 but not over 70 / $4,090
  • Over 70 / $5,110
Posted on Thursday, October 27th, 2016. Filed under Long-Term Care.

Using Person-First Language to Communicate With and About People with Special Needs

By Jessica A. Hayes

About 54 million Americans, or 1 in every 5 people, report having a disability. Most Americans will experience a disability at some point, and for many, the disability will occur very suddenly and unexpectedly.  It could happen to anyone, at any time.  As special needs attorneys, we aim to give individuals with disabilities a voice, comprehensive planning, and access to benefits to which they are entitled.  We also strive to raise awareness and encourage understanding.

Individuals with disabilities have historically been marginalized and treated as if their disabilities defined them. Gone are the days that calling someone an “invalid,” “handicapped,” or “retarded” is acceptable.  In its place, we use person-first language to appropriately and respectfully describe and speak about individuals with disabilities.

Instead of referring to a person with disability, “person-first language” (also called “people-first language”) emphasizes the person first, not the disability.   It describes what a person has, but not who a person is.  When describing someone who has a disability, refer to him as “a person with ________,” or “a person who has __________________.”

For example:

Say This: Not This:
Person who is deaf Deaf person
Person who uses a wheelchair Wheelchair-bound/ handicapped
Person with an intellectual disability Retarded
Person with epilepsy Epileptic
Person with autism Autistic
Person with a learning disability Learning disabled
Student who receives special education services Special ed student

This is not political correctness; it is a demonstration of respect. Why does it matter?  Because the words we use affect how people see themselves and others, contribute to social norms, and ultimately influence changes in the law.  Using antiquated terminology that defines a person in terms of his disability sends the message that you have an underlying prejudice or see them as nothing more than their disability.  It’s demeaning and belittling.  Using person-first language, however, sends the message that the person is of value and worthy of respect, and gives the person an opportunity to define himself using his talents, characteristics, and other abilities.

It has been said that the population with disabilities is the only minority group that anyone can join at any time, whether at birth, as the result of an accident or illness, or simply as a part of growing older. If it were to suddenly happen to you, how would you want to be described?

Kit KatAsk Kit Kat – Nurse Kitty

Hook Law Center:  Kit Kat, what can you tell us about the cat who saved his owner from death?

Kit Kat:  Well, this is an unusual story. Glen Schallman adopted a cat whom he named Blake. Turned out it was a smart move! Blake has repeatedly saved Glen’s life by biting Glen’s toes or jumping on him when he senses danger. Glen has some rare medical conditions which mostly affect his brain. Two are polymicrogyria and unilateral schizencephaly. In addition, he has a brain tumor known as hypothalamic hamartoma. The latter causes seizures which are very frequent, almost daily. However, thanks to Blake, Glen is known as oldest living person with this combination of conditions. Without any training, Blake seems to sense when a seizure is about to happen, and he bites Glen’s toes or rouses him, so that Glen can move to a safe place before it happens. Once, Glen was having a seizure in the middle of the night. Blake bit his toes and woke him up before the seizure went on too long. In another, when Glen’s hands began to tremor, Blake jumped in Glen’s lap, stroked his arms and purred and purred until the tremors stopped. This helped to calm Glen, and help him recover more quickly than he otherwise might have done.

Usually it is dogs who are used as therapy companions, but in this case, a cat has fulfilled that role extremely capably. It appears that both our canine cousins and we felines have potential in feeling and perceiving that you humans are only beginning to understand. (Sheeka Sanahori, “Nurse Kitty! Cat bites owner’s toes, saves him from deadly seizure,” USA Today, (Humankind section), Oct.6, 2016)

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Distribution of This Newsletter

Hook Law Center encourages you to share this newsletter with anyone who is interested in issues pertaining to the elderly, the disabled and their advocates. The information in this newsletter may be copied and distributed, without charge and without permission, but with appropriate citation to Hook Law Center, P.C. If you are interested in a free subscription to the Hook Law Center News, then please telephone us at 757-399-7506, e-mail us at mail@hooklawcenter.com or fax us at 757-397-1267.

Posted on Monday, October 24th, 2016. Filed under Senior Law News.

Be aware of the details on required minimum distributions

By Hook Law Center

It is important for taxpayers to be informed about required minimum distributions (RMDs) from IRAs so that they can plan accordingly for their retirement. In the current year, those persons age 70 ½ or older are required to take a RMD from their traditional IRAs (Individual Retirement Arrangements), SEP (Simplified Employee Pension) IRAs, SIMPLE (Savings Incentive Match Plan for Employees) IRAs, or retirement plan accounts. You must also report RMDs for any IRAs that you inherit.

If you do not take distributions in a timely manner, you may have to pay a 50 percent excise tax on excess IRA additions. You should be aware that defined contribution owners may not have to file a report until retirement.

Those who attain the age of 70 ½ in 2016 are required to report a RMD for the year, but they may wait until April 1, 2017 to do so. Individuals who report RMDs for the first time and are waiting until April to do so, must report twice, because they are required to report a RMD for the current year prior to December 31. This could result in an increase in their tax liability.

Following the first year, IRA owners must report RMDs on an annual basis by the end of the year. The life expectancy of the taxpayer and the taxpayer’s spouse will play a role. The IRS provides resources for making calculations of RMDs. However, the main calculation is to divide the taxpayer’s account balance as of the end of the previous year by an IRS life expectancy factor.

Taxpayers who have neglected to take RMDs are advised to take all of them as quickly as possible so as to avoid the aforementioned excise tax. But taxpayers, such as retirees, who do not need their RMDs, may wish to reinvest those funds into a Roth IRA, which will not require the taxpayer to make withdrawals until after the death of the account holder. Or they may consider reinvesting the funds into a 529 savings plan for their grandchildren.

Posted on Tuesday, October 18th, 2016. Filed under Estate Planning.

Musings on Financial Aid

By Elizabeth Galantich, CPA

My oldest child is a senior in high school, and we are filling out the financial aid forms for the first time. There has been a big change in the world of collegiate financial aid. In prior years, the Free Application for Federal Student Aid (FAFSA) form was released on January 1 and required families to report the income for the prior calendar year. The sooner the FAFSA was filed, the more likely your child was to receive aid. However, beginning this year, the FAFSA was released on October 1 and allows families to use the income tax return for the prior year. Thus, for most families, the income tax returns have been filed and the required financial information is more or less readily at hand. For many students, there is also another and more complicated financial aid form, the CSS/Financial Aid PROFILE which is required at many private and/or prestigious schools, including the University of Virginia, William and Mary and all the Ivy League schools.

However, as we have discovered, filling the forms out can be more difficult than it seemed at first glance. First, we applied in the last week of September for a FSA ID which linked to our account at the IRS to allow us to link the FAFSA form (but not as we were later to discover the CSS PROFILE) to our 2015 income tax date as filed. Second, there was the frantic gathering of current information: bank statements, mortgage and car loan information, retirement account values, investment account values, including the 529 accounts and UGMA accounts set up for both the child applying for college and his/her siblings. Third, we set up the FAFSA form and imported the information from the IRS – so far so good.

The trouble arose when, after reading the instructions for the forms multiple times, we discovered we had “special” circumstances that we needed to address. When my mother passed away, she created a testamentary trust primarily for the benefit of my father. However, my brother and I were included as permissible principal beneficiaries. Knowing my mother, it was meant to be “just in case” of a catastrophic emergency. Nonetheless, because I am a permissible beneficiary currently, we have to report one-third of the value of the trust on these forms even though I have no ability to compel a distribution from the trust. Thankfully, my children only have interests in the trust contingent on my prior death, so the trust is considered my asset and not the asset of my child for financial aid. Interestingly, we do not need to report the trust created by my grandfather because my interests in that trust are contingent upon my surviving various family members.

Discerning exactly what had to be reported on the various forms in connection with trust funds was not easy. Ultimately, I gave up and called a financial aid officer at the University of Virginia, because I am an alumna and because my child intends to apply there. I did get the answer I needed. Finally. However, here are a few pointers in regards to eligibility for financial aid:

  1. Keep in mind that parents’ resources are assessed at a much lower level than assets owned by a student when determining how much the family should contribute towards college. 529 accounts owned by a parent are assessed as an asset of the parent, not as an asset of the student, even if the student is the named beneficiary of the account. Account balances of 529 accounts owned by a grandparent do not get reported on the financial aid form; however, distributions from the account used for the grandchild’s educational expenses are counted as the grandchild’s income for the year of distribution.
  2. Eligibility for financial aid is heavily based on your income. Although you do get credit for certain obligations, such as a mortgage or a home equity loan secured by your home and on which you are paying, you do not get credit for consumer loans or unsecured debt (such as credit cards). In addition, the contribution that you make towards your retirement account is added back into your adjusted gross income for these purposes.
  3. The balance of your retirement account is not assessed for these purposes.
  4. Interests held in trust are assessed as an asset of the beneficiary, even if the restrictions on the trust fund are such that the beneficiary cannot access the funds. However, contingent beneficiaries are ignored.

If you are interested in creating a trust that is meant to be used for your children’s or grandchildren’s college education, the nuances of how the trust is worded may be unimportant. After all, if you are providing a fund from which college expenses are to be paid, then the funds should be so used. On the other hand, if you are creating a trust that is not necessarily meant to fund a college education, as in the case of a trust primarily for the benefit of a surviving spouse, it may be important to assess and think through the ramifications of giving the descendants of your primary beneficiary current access to trust assets. Your decision will be influenced by the specifics of your family situation. Please feel free to make an appointment to discuss these important issues with the attorneys at the Hook Law Center so we can help guide your estate planning decisions.

Kit KatAsk Kit Kat – Fish Smarts

Hook Law Center:  Kit Kat, what can you tell us about how fish think and feel?

Kit Kat:  Well, there is a lot to tell, actually. Even very tiny fish have some amazing capabilities. Jonathan Balcombe, director of animal sentience with the Humane Society Institute for Science and Policy has written a new book, entitled What a Fish Knows: The Inner Lives of our Underwater Cousins. It turns out that fish have many things in common with other animals, including us humans. That is why they are such a fascinating subject for research. For example, let’s examine the frillfin goby, which is a fish that lives in intertidal areas. They have the capability of jumping from one tidal pool to another when they sense danger. How do they do that so successfully without being stranded on rocks or caught up in vegetation? Scientists tell us that they can memorize the geography of a particular tidal pool and remember it 40 days later. That knowledge serves them well when they sense they can no longer stay in a specific location.

Another example is the case of groupers and moray eels. These two look nothing alike, but they use their differing physical attributes to work together to hunt for food. The grouper elicits the attention of the eel through the use of a head shake or body shimmy. Then they work as a team. The eel chases their prey into a nook or crevice of a rock. Sometimes, the eel gets to the prey first, and has a delicious meal. However, if unsuccessful, the prey swims out, and is captured by the large-bodied grouper. Another capability which grouper have is a pointing ability. They can actually point with their body position to the eel that prey is nearby. Thus the hunt starts, and they begin their cooperative arrangement to capture food.

For more examples, you might want to read the book. It really is fascinating. As more and more people become aware that fish can think and feel, they will treat them with more respect. That is not to say we shouldn’t continue to enjoy them as a source of our own nourishment, but perhaps we can become a little more careful about how they are harvested. Commercial fishing tends to use large nets over many miles which scoop up whatever is in a particular area, including dolphins, when what they are really after that day might be tuna. Hopefully, we can develop more strategic ways to fish without the collateral damage to others, which are not the intended objects of the fishing operation. The author says another thing anyone can do is, if you see a stranded fish washed up on a beach, pick it up and get it back into the water. We all need a little help once in a while. (“Kinder School of Thought,” All Animals, September/October 2016, p.34-35)

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Distribution of This Newsletter

Hook Law Center encourages you to share this newsletter with anyone who is interested in issues pertaining to the elderly, the disabled and their advocates. The information in this newsletter may be copied and distributed, without charge and without permission, but with appropriate citation to Hook Law Center, P.C. If you are interested in a free subscription to the Hook Law Center News, then please telephone us at 757-399-7506, e-mail us at mail@hooklawcenter.com or fax us at 757-397-1267.

Posted on Friday, October 14th, 2016. Filed under Senior Law News.

Cruising through Caregiving – Book Review

By Andrew H. Hook, CELA, CFP

Cruising through Caregiving is a terrific book helping all those who have cared for or will care for someone in their family through the aging process deal with the stress of serving in such a capacity. The thrust of her book is that there are many roles to play, but all should be played WITHOUT guilt. Whether one serves as the primary, secondary, or even tertiary caregiver, all have something to contribute. Caregivers need to be honest with themselves about their motives for serving and also honest about how much time they can devote to the effort. That in itself is a tremendous stress reducer. Just knowing that you are not the only one to be placed in such a situation is a gigantic relief.

The author, Jennifer L. FitzPatrick, MSW, writes from both professional and personal experience. Ms. FitzPatrick chose the field of gerontology after having had a high school job in a nursing home and assisting with her paternal grandparents. Her grandparents’ outlook in their senior years inspired her to devote herself to aging seniors. Ms. FitzPatrick even has formed her own company to deal with aging issues called Jenerations. The book is full of wonderful tips like, think you don’t have a talent for caregiving? She responds, “Caregiving is like a muscle that can be developed and strengthened. This book helps you strengthen that caregiving muscle.”

Perhaps the most helpful chapters are five and six—5) Think Really Hard Before Moving In and 6) Think Really Hard Before You Quit Your Job. From my vantage point as a certified elder law attorney and a certified financial planner who sees many families struggling with all the concerns described in this book, I found the recommendations extremely helpful.

In summary, this is a wonderful reference for those involved with or contemplating a caregiving role for a senior. As anyone involved in such an endeavor knows, the caregiver’s attitude will be crucial in how the senior adapts to the aging process.

Kit KatAsk Kit Kat – Corn Cob Danger

Hook Law Center:  Kit Kat, what can you tell is about the dog who ate 7 corn cobs?

Kit Kat:  Well, this is a true story. Fortunately, the story has a good ending, but not without some drama along the way. What happened is this—a boxer from the Sandbridge section of Virginia Beach, VA named Roxie got a little greedy, and she ate 7 corn cob halves which she foraged from the family trash. Shortly thereafter, she started throwing up the cobs over a 2-day period. She threw up all but one. The last would just not seem to come up. So the next day, her owner, Dakota Hudson, took her to the vet. X-rays revealed the last corn cob stuck deep in her stomach which would require surgery costing $5000 to remove it. Ms. Hudson was in a quandary—she didn’t want her to suffer, but there was no way she could afford the surgery. She was just about to give her permission for Roxie to be euthanized, when the vet, Dr. Beth Tynan of Blue Pearl Veterinary Partners on Independence Blvd. said that she had contacted Frankie’s Friends, a national pet charity. Frankie’s Friends would cover the surgery costs.

Roxie is one lucky girl! She was able to return home to her human family and her canine sibling, Quigley. Her previous escapades have included ingesting a pack of cigarettes and a tussle with a water snake in which she received several bites. Lesson to owners—keep close watch on your pets, if they have a tendency to eat things. Vets report finding hair ties, plastic figurines, and even bathing suits in the stomachs of dogs. While dogs have fairly strong constitutions, there is a limit to what they can safely eat. Don’t let your dog end up like Roxie!

(Jane Harper, “ A corn cob nearly took this dog’s life—until a charity stepped in,” The Virginian-Pilot, September 22, 2016, p.1&7)

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Distribution of This Newsletter

Hook Law Center encourages you to share this newsletter with anyone who is interested in issues pertaining to the elderly, the disabled and their advocates. The information in this newsletter may be copied and distributed, without charge and without permission, but with appropriate citation to Hook Law Center, P.C. If you are interested in a free subscription to the Hook Law Center News, then please telephone us at 757-399-7506, e-mail us at mail@hooklawcenter.com or fax us at 757-397-1267.

Posted on Tuesday, October 11th, 2016. Filed under Senior Law News.

Planning for Small Business Owners Is Critically Important

By Stephan A. Lipskis

At times we all fall victim to focusing on the present at the expense of planning for the future. Many business owners continually focus on the daily, monthly, quarterly, and annual goals of the business and often do not consider what would happen if they, or one of their key team members, would suffer and incapacity or worse. Failing to have a succession plan creates an incredible amount of stress on a business and can be insurmountable in the event of death or incapacity of key members of the business. Proper estate planning coordinates the needs of the individual, the needs of the individual’s family, and the needs of any business interests held by the individual to provide for a smoother transition.

I often describe proper estate planning for business owners as providing “schock absorbers” during a difficult time. Lets face it, the incapacity or death of a business owner impacts many things: the business, the employees, the family of the owner, other businesses that have contracts with the business, among others. Further complicating matters, is that transitions in ownership of the business (even due to death or incapacity) often trigger legal obligations under documents like leases, franchise agreements, loans, shareholder agreements, and more.  Failing to address these obligations in the context of an estate plan can have disastrous results.

So what happens if you fail to plan? Well, it is a similar outcome to driving a care without shock absorbers over a rocky road, you may get through but your car will likely be damaged and the wheels may fall off. To be clear damage from an unplanned transition can impact the owner and the owner’s family, the business, or both. Effective planning means that there are “shock absorbers” on all areas that would be impacted by the death or disability of an owner.

Business succession planning at the business level provides for continuity in the business but may not prevent adverse impact against the business owner’s family. For instance, a business that provides a buyout of an owner’s shares may preserve the business, but an undercompensated buyout may leave the owner’s spouse and family in bad shape financially. In reviewing their estate plan a business owner should closely look at what would happen to their ownership interest in the event of incapacity or death.

Even if an attorney represents a business in which you have an ownership interest, properly integrating any business succession plan with your estate plan requires a comprehensive look at your personal needs and estate planning goals. The estate planning and elder law attorneys at Hook Law Center regularly assist business owners in establishing and implementing their personal estate plans so that they are coordinated with the business’ succession plan. If the opportunity to plan has passed then our attorneys also can help coordinate the aftermath so that the shocks to the individual and business are minimized.

Kit KatAsk Kit Kat – Furless Fashion

Hook Law Center:  Kit Kat, what can you tell us about fashion designers and their use of animal fur in their clothing lines?

Kit Kat:  Well, there has been a lot of progress in this area. In 2015 the brand Hugo Boss discontinued its use of fur fashions. Now, there is word that Giorgio Armani will follow suit. In 2008 Armani stopped using fur in all its products, except for rabbit. Now that, too, will be eliminated. There had been and is tremendous pressure on fashion designers to use fur in their collections, especially the high end ones. Fur has traditionally meant elegance and wealth. However, thanks to lobbying efforts by the Humane Society of the United States (HSUS) among others, Armani decided the time had come to eliminate fur and stand up for what he believes is right. PJ Smith corporate engagement manager of HSUS says, ‘Having the leadership of somebody like Armani is very important: One of the cruelest form of fashion is unnecessary now, and you have the biggest name in fashion design saying that.’ Impacting their decision, in part, is the realization that fake fur has become so attractive, and is a great alternative to using the hide of helpless animals. It’s a win-win for all those involved.

So kudos to Mr. Armani! He is a cat lover and has two in his family. We continue to hope that other designers will follow his lead. HSUS and the Fur-Free Alliance, a coalition of 40 organizations from 28 countries, will continue to press their case for fur-free fashion the world over. (“Fashion without fur,” All Animals, September/October 2016, p. 32-33)

Upcoming Seminars

Distribution of This Newsletter

Hook Law Center encourages you to share this newsletter with anyone who is interested in issues pertaining to the elderly, the disabled and their advocates. The information in this newsletter may be copied and distributed, without charge and without permission, but with appropriate citation to Hook Law Center, P.C. If you are interested in a free subscription to the Hook Law Center News, then please telephone us at 757-399-7506, e-mail us at mail@hooklawcenter.com or fax us at 757-397-1267.

Posted on Tuesday, October 4th, 2016. Filed under Long-Term Care, Senior Law News.
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