Comprehensive Planning. Lifelong Solutions.

Why You Need an Elder Law Attorney

By Jessica A. Hayes

As elder law attorneys, we help our clients navigate through a host of issues: planning for incapacity or death; determining which long-term care services are appropriate for them; handling concerns about family dynamics, divorcing, feuding, or dysfunctional children; providing for children and grandchildren with special needs; and qualifying and applying for long-term care Medicaid and Veterans Aid and Attendance, to name a few. Our practice rests at the intersection of several areas of the law. For example, planning for a couple who have both been previously married often requires knowledge of trusts and estates law, family law, and property law, for example.

To best assist our clients, we must have an intricate understanding of these areas of the law, which are often complex and sometimes counterintuitive. We sharpen our skills through membership in national organizations such as the National Academy of Elder Law Attorneys and the Special Needs Alliance, participation in specialized continuing education seminars and conferences which address these issues, and closely following recent developments in the law.

While not everyone needs all of our services, every adult should have in place the documents necessary to allow trusted loved ones to act on their behalf in the event of disability or death. These documents are important to have whether you’re thirty years old and the parent of a minor child, or ninety years old and in declining health.

Each of our practice areas are riddled with obstacles, often undetectable to the untrained eye. You may wish to transfer a large sum of money outright to a child at your death; after asking some questions about that child, however, we learn that he is divorcing or has credit concerns that warrant the use of a trust. Or you may wish to transfer your longtime home to a child during your lifetimes; we may see, however, that doing so could result in significant tax consequences in the event the child sells the home, or that perhaps your health is such that you may need to apply for Medicaid soon, and the transfer would be subject to a 5-year lookback period.

Elder law attorneys carry in our proverbial toolbox dozens of tools designed to best meet our clients’ needs while taking into account a host of issues they may not have considered. If we were general practice attorneys, attempting to stay on top of personal injury law, bankruptcy law, contracts law, and landlord-tenant law, for example, in addition to our practice areas, we simply would not be as well-versed in elder law and the issues that our clients face daily. We specialize in our passion in order to give our clients the best results possible.

Don’t risk your family’s future by relying on an online estate planning service or a “jack of all trades” to get the job done; work with an elder law attorney who will help you enjoy the benefits and avoid the pitfalls of a plan tailored to your individual needs.

Kit KatAsk Kit Kat – Tree Pruning

Hook Law Center:  Kit Kat, when is the ideal time to prune trees, so that animals and birds are not harmed?

Kit Kat:  Well, anytime that the trees are bare of their leaves is the ideal time to prune. That means that late fall through early spring is the best time to prune. Once there are leaves on the trees or bushes, squirrels and birds are likely to have established their nests with young offspring to consider. It makes a lot of sense, but something people may not have thought of previously.

Take the example of a nest of squirrels rescued by Lori Thiele, a wildlife rescuer and biologist. Her finely-tuned ears heard signs of distress when city tree trimmers were at work with their chainsaws. A family of squirrels was in the process of being displaced. The tree trimmers had attempted to move the baby squirrels to a cat carrier, but the mother squirrel was frantic. Lori moved the babies to a cardboard carrier with large holes on the side. Still, the mother could not find them. Next, Lori played pre-recorded baby squirrel vocalizations from her phone. With that mom realized where they were. Lori sat back and watched the mother rescue them. ‘I couldn’t even get out of the way fast enough before the mom started grabbing them—boom, boom, boom. She came down looking for them so quickly that I just started putting them out on the sidewalk, and she had them all three tucked back in the next tree over in like, 30, 45 seconds,’ she reports.

Many nest disruptions happen accidentally, because many animals camouflage themselves so perfectly. Hummingbirds have lichen-covered nests that blend easily to their surroundings. Likewise for hooded orioles who nest under palm fronds, and woodpeckers who live on dead limbs in otherwise live trees. Awareness will help tremendously in reducing the number of these potential tragedies. Pruning in summertime is very hazardous, not only because the young are maturing, but also because the area pruned will have increased sunlight which can be jarring to plants and grass, as well as birds and animals. Sometimes, the heat is so intensified, that the area can actually become scorched. So next time you want to prune trees or bushes in your yard, go gently so that no wildlife is harmed. (Nancy Lawson,“Untimely evictions,” All Animals, November-December 2016, p. 38-39)

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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, March 28th, 2017. Filed under Newsletter.

Medicare Actively Expanding MSP Compliance for Personal Injury Claimants

By Shannon Laymon-Pecoraro, Esq.

On February 3, 2017, the Centers for Medicare and Medicaid Services (CMS) announced that they would be establishing two new Medicare Set-Aside (MSA) processes – one for Liability Medicare Set-Asides (LMSA) and the other for Non-Fault Medicare Set-Asides (NFMSA). As a result, CMS will begin rejecting claims for payment of Medicare expenses associated with an injury for which a personal injury payment has been made. Specifically, CMS will direct the Medicare claimant to use LMSA or NFMSA funds to cover injury-related medical expenses.

When an injured person receives or has a “reasonable expectation” of receiving Medicare, the client has a duty to take Medicare’s future interest into account. Medicare is prohibited from paying claims when payment “has been made or can reasonably be expected to be made under a workers’ compensation plan, an automobile or liability insurance policy or plan (including a self-insured plan), or under no-fault insurance” pursuant to the Medicare Secondary Payer Act (MSPA). Essentially, the MSPA states that, when there is a primary payer, such as a motor insurance or worker’s compensation insurance policy, then Medicare will not be responsible for the medical expenses associated with an injury. Instead, the claimant is expected to utilize the funds received from the primary payer to pay the medical expenses. The setting aside of settlement or verdict funds to pay for future medical expenses associated with the injury is a MSA.

It is important to note that the rule only applies to those payments that have been, or can be expected to be, paid by the primary insurer. In the context of personal injury settlements, primary insurers are expected to make a person whole against – which would mean payment for future medical expenses. As a result Medicare will not pay the medical associated with a settlement, judgment, award, or other payment because payment “has been made” for such items or services through use of an MSA.

Although Worker’s Compensation MSA rules have been established for some time, CMS has not implemented rules for LMSAs or NFMSAs. In May 2012, CMS issued an Advanced Notice of Proposed Rulemaking, which was withdrawn in October 2014. Many practitioners and advocates have anticipated the formal implementation of MSP compliance via LMSAs and NFMSAs for some time, but this is the first formal transmittal we have received.

Hook Law Center has been working with personal injury attorneys and their clients for a number of years to protect Medicare benefits. We assist attorneys and their clients in assessing whether a Medicare Set Aside is necessary, calculating the amount to be set aside, and options for administering the Medicare Set Aside.

Kit KatAsk Kit Kat – Blue-Footed Booby

Hook Law Center:  Kit Kat, what is a blue-footed booby?

Kit Kat:  Well, I have to tell you, when I first read about it, I thought there was a typing error in the title. However, that wasn’t the case at all. A blue-footed booby is a bird that lives on the Galápagos Islands which belong to Ecuador. They also can be found on Isla Isabel, south of the Baja Peninsula, Mexico and on certain Pacific Islands. It is thought that the name evolved from the Spanish word “bobo,” which means clown. Their feet really are a vibrant shade of blue, but they also have a distinctive wiggle to their walking, which can appear clown-like to the observer. They are about the size of large seagulls, with wingspans which can approach five feet. Females are about 20-30% bigger and stronger than males.

The booby has several interesting characteristics. 1) They feed like pelicans—taking a nosedive straight to the fish they eye flying high above the water. The booby hits the water at a speed of 60 miles an hour, its head protected by air sacs in the skull. 2) They live their lives close to where they were born, rarely straying beyond a range of a few dozen feet. 3) Their mating can be for life, but it is not always the case. Some select new partners every season. Those that do mate for life, however, tend to produce 35% more offspring than those that switch partners continually. Those mates which are most fertile are those where the mates are mismatched in age. It does not matter whether it is the male or female who is the older one of the couple. 4) It appears that the secret to longevity of a relationship is equal sharing of parental duties. In these long-term relationships, both males and females spend equal time nest sitting and feeding the young.

So perhaps we have much to learn from the blue-footed booby. Some of their traits are quite admirable. But one thing is certain—they are a good subject for research. Most birds would not tolerate the presence of humans in their midst—but not the booby! According to David J. Anderson of Wake Forest University, Winston-Salem, NC, ‘They let you move among them without minding too much. You try to do that with a continental bird or mammal—forget about it. But with these guys you see it all.’ (Natalie Angier, “On Galápagos, Revealing the Blue-Footed Booby’s True Colors, The New York Times, Science section, March 6, 2017)

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 Monday, March 20th, 2017. Filed under Newsletter.

Predators and Creditors: How to Protect Your Family

By Elizabeth Boehmcke

Estate planning has come a long way from when I first began practice in 1993. At the time, estate planning was highly driven by a need to avoid or minimize estate taxes and the tax rules took precedence over many other considerations for many families. Now, with possibility of estate tax repeal again looming on the horizon and with the current estate and gift tax exemption amount equal to $5.49 million per person, estate planners can again turn our attention to addressing problems that families face in their everyday lives that have nothing to do with taxes. For instance, how do you address the fact that your beloved child has married a person who is unsuitable in some way? How do you protect a descendant from his or her own bad choices? Do you have the ability to stop the train wreck before it happens?

The answer to all of these issues can be addressed within a trust. A trust is tool that we can use to allow someone, the trustee, to control and manage property for the benefit of another, the beneficiary. Trusts can come in many different varieties, depending on the goals that you want to accomplish. However, all trusts that are meant to protect a beneficiary from his or her creditors or from his or her poor choices should have a few things in common. First, the trust should have a spendthrift clause. A spendthrift clause is a clause in the trust that prevents a beneficiary from assigning or selling his or her interest to anyone, including a creditor. In Virginia, such clauses are enforceable with a minor exception relating to child support (but not spousal support) owed by the beneficiary. Second, the trust should give the Trustee discretion to make distributions to the beneficiary rather than allowing the beneficiary to withdraw assets or to direct distributions to himself or herself. The more discretion that the Trustee has, the harder it becomes for a beneficiary’s creditors, including a divorcing spouse, to compel the Trustee to make a distribution that is attachable by the creditors. Of course, such absolute discretion also puts the beneficiary at the mercy of the Trustee. Thus it is important to balance the risk based on the known extent of the problem.

For instance, if the intended beneficiary is an addict, it might make sense to give the Trustee plenty of discretion to stop all distributions from the trust except for distributions for rehabilitation in the event that the beneficiary is, in the opinion of the Trustee, using addictive substances until such time as the beneficiary is again sober. If the intended beneficiary is in an unstable marriage or is a spendthrift, the Trustee may have the discretion to make distributions for the beneficiary’s health, education, maintenance and support. By giving the Trustee some standard by which to make distributions, it gives the beneficiary slightly more leverage against a Trustee who is not appropriately exercising his or her discretion without significantly increasing the danger that a creditor of the beneficiary can compel a distribution to the beneficiary. However, properly drafted, the Trust property itself would be considered the separate property of the beneficiary and not subject to division between the divorcing spouses as marital property. Furthermore, the Trustee could be given the direct discretion to purchase items for the benefit of the beneficiary directly rather than making a distribution directly to the beneficiary.

As knowledgeable estate planners, the attorneys at the Hook Law Center have also become creative trust drafters in an effort to meet our clients’ changing needs and concerns. Make an appointment with one of us to review your current estate plan to make sure your individual goals and concerns are being met.

Kit KatAsk Kit Kat – Robot Bees

Hook Law Center:  Kit Kat, are there such things as robot bees?

Kit Kat:  I know it sounds strange, but yes there are. They’re still in the experimental stage, but what we’re really talking about are small drones that do the work of bees in pollination of fruits, flowers, and other plants. As you may know, bees appear to be in decline due to a number of factors—pesticides, invasive species, and climate change. The rusty patched bumblebee, for example, was just listed as an endangered species in the month of January 2017, though the Trump administration has put a halt on that process for now.

The drone bees were developed by a Japanese scientist, Eijiro Miyako, a chemist at the National Institute of Advanced Industrial Science and Technology in Japan. He stumbled on his discovery somewhat accidentally 10 years ago when he was trying to create a fluid that could be used to conduct electricity. The resulting gel was extremely viscous. It wasn’t suitable for his purpose, so he stuck it in a cabinet uncapped in a bottle. Discovered 10 years later, the gel hadn’t changed at all. He also observed that when the gel was dropped on the floor, it was good at picking up dust. If it could do that, it might be good at picking up pollen. Then, he stuck the gel to the legs of ants, and with a control group as a comparison, he found that those with the gel were good at picking up pollen. The next step was to try it using drones. He and his colleagues outfitted the drones with horsehairs to approximate a bee’s body. They then slathered the horsehairs with the gel. It was very effective at picking up pollen from flowers—to the rate of 10x more effective.

More research needs to be done to make the drones more maneuverable and energy efficient, but it does offer a promising alternative to our dwindling bee population. (Amina Khan of the Los Angeles Times as it appeared in The Virginian-Pilot, February 11, 2017, pg.5)

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 Monday, March 13th, 2017. Filed under Newsletter.

Events That Inspire Estate Planning

By Stephan A. Lipskis

Frequently clients call our office due to a perceived risk, such as an upcoming surgery or a long-distance vacation. The refrain is usually, “I need to update (or create) my will in case something happens!” Fear of one’s own mortality naturally arises prior to these events because there is always an inherent risk in certain activities. We do move quickly (often within the same day) to get documents in place for our clients when urgent changes are needed, but “Emergency Planning” like this has certain limitations.

Getting core documents in place is the bare minimum needed for estate planning. Doing so provides legal authority and clear direction for your incapacity or death. “Core documents” include a medical directive and general durable power of attorney, which allow for someone to make decisions on your behalf in the event of incapacity. Waiting until the last minute does not provide the time needed to address common issues beyond the core documents, such as correcting beneficiary designations or getting documents approved by financial institutions prior to the perceived emergency. For instance, if a general durable power of attorney is created for a client a day before surgery, there may be a lag in time for the bank to recognize the document in the event the client suffers an incapacity from the procedure. This could prevent the agent named from performing necessary functions. The inability to adequately consider and discuss proposed documents sometimes occurs when estate planning is rushed. Rather than being able to consider a significant amount of information over a period of several days or weeks, the time for contemplation is compressed into a period of hours or a couple of days.

The recent death at 61 of Bill Paxton, the actor famous for his roles in Apollo 13, Twister, Alien, Tombstone, among others, illustrates the very real risk of undergoing surgery. However, accidents consistently ranks in the top 5 causes of death in the United States and, given the way medical errors are reported, it is unlikely that those deaths are adequately represented in the number reported as accidents. Furthermore, the likelihood of a plane crashing is between 1 in 5,000,000 and 1 in 11,000,000 depending on who you ask. That is the likelihood of a “crash” and not the likelihood of incapacity or death due to a crash, which is slightly lower. The point of these figures is not to scare or prevent planning due to trip or surgery, but rather to promote planning before a perceived risk. Frankly, the “scary” things we hear about on the news are highly unlikely to be the things that result in our incapacity or death and each of us needs to have a plan for the risks we do not associate with an impending event.

Our goal in estate planning is legally coordinating your assets to go where you want them, but another goal is also to minimize risk from creditors, incapacity, probate, and other perils. Obviously, failing to plan avoids thinking about the risks bust does not actually avoid any risk. Knowledge of your personal risks empowers you to create a plan that can mitigate that risk. While planning is often seen as costly, the more significant cost is NOT planning. If a risk arises without a plan in place, then significant funds will be expended in a dispute, guardianship action, estate litigation, or other dispute that could have been avoided if planning had been undertaken. Please contact our attorneys to get your plan in place (or updated) so that we won’t be needed later to correct a major problem. If you are experiencing a problem due to a failure to plan, we can help address those concerns as well.

Kit KatAsk Kit Kat – Baby Gators

Hook Law Center:  Kit Kat, what can you tell us about baby alligators at the North Carolina Aquarium?

Kit Kat:  Well, this is a very interesting story! 4 baby alligators have been residing at the North Carolina Aquarium in Manteo for the last two years, but the exhibit with them opened in December 2016. They’re not sure where the alligators are from—probably Florida—because they were acquired after a sting operation on some illegal operators of exotic pet sales. While at the aquarium, they’ve doubled in size and measure 18 inches in length. Ironically, the baby gators have been named Cheese, Turkey, Ham, and Gravy after the diet that their captors fed them. We can laugh now, but if they had continued on such a regime, they would have died prematurely.

The gators are being trained to respond to their given names through the use of distinctive lures. Cheese’s is a yellow star on the end of a pole. Turkey’s lure is a blue-and-white oval on a pole. By combining the lure with calling their name, the gators are taught to touch the lure with their snout. If they do the task correctly, they are rewarded with a piece of fish. Being able to identify each gator correctly, even though they have unique markings, will help staff treat them should they need medical attention. They are also being accustomed to human interaction.

Alligators in North Carolina are beginning to be an issue. The state is their northernmost range, but as people get them as pets when they are only a few inches long, they have tended to release them in streams or ponds in rural areas once they become untenable as a pet. Jeff Hampton, staff writer for The Virginian-Pilot, says, “It is not unusual to see an alligator swimming in a dark roadside canal around East Lake in Dare County. Merchants Millpond State Park in Gates County is home to a small group.”

For now, the 4 baby alligators are doing fine. They’re eating well and being treated to live crickets, which serve as a tasty reward, and as practice for hunting prey. Time will tell whether they remain at the aquarium. Some adult males grow to be as large as 12 feet. Space is one of the prime considerations. Stay tuned for further updates. (Jeff Hampton, “What’s in a name?” NC Aquarium’s baby gators know,” The Virginian-Pilot, Feb. 6, 2017, pg.3)

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 Friday, March 3rd, 2017. Filed under Newsletter.
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