Comprehensive Planning. Lifelong Solutions.

Avoiding Guardianship/Conservatorship

By Elizabeth Boehmcke

Recently, I was struck by what we have been seeing in our office much more frequently: clients coming in for guardianships and conservatorships for their loved ones. The vast majority of these matters are not contested: the potential ward is clearly incapable of managing his/her own financial and medical affairs because of advanced dementia, brain injury, congenital disease or other clear medical issues. Furthermore, the other members of the family are in agreement as to who should care for the potential ward and what needs to be done for his/her care. Occasionally, we see contested matters where the potential ward’s incapacity is not so clear cut, or where the family cannot agree on who should be in charge, or how the potential ward should be cared for. Putting aside for the moment those cases where the potential ward may in fact have capacity, the overwhelming majority of the other cases, contested or not, can be prevented through the execution of three relatively simple documents: a durable general power of attorney, an advanced medical directive and a HIPAA release.

A durable general power of attorney is the document in which you name an agent to act for you in connection with your financial affairs. An advanced medical directive is the document in which you name an agent to act for you in connection with medical and personal matters (such as where you live and who cares for you). The HIPAA release gives your medical providers permission to speak with your agent about your medical conditions. These documents are sometimes collectively thought of as necessary for “planning for incapacity”. I prefer to think of these documents as “your voice” because they frequently speak when you, the principal, are no longer able to effectively voice your opinion or to process the information necessary to make an informed opinion. In other newsletter articles, we have discussed the importance of choosing a good agent, of deciding whether your agents can or should work together, and of informing your agents about your end-of-life choices and decisions and where your assets are held. However, I would really like to emphasize an important benefit that should not be glossed over.

Statistics show that approximately 1 in 9 people who reach age 65 will develop dementia, and 1 in 3 who reach age 85 will develop dementia. Alzheimer’s Association – Risk Factors (www.alz.org). Others will suffer accidents and other medical emergencies that affect their abilities, physical and mental. Without a durable power of attorney and advanced medical directive in place, court action to appoint a guardian and conservator to manage your personal and financial affairs may be necessary. Court action is expensive, costing thousands of dollars. The durable power of attorney and the advanced medical directive allow you, in most cases, to completely AVOID the need for court action in the event of your incapacity. Further, if the durable power of attorney and advanced medical directive are prepared as part of a comprehensive long-term care plan such as are advocated at the Hook Law Center, both you and your agent will be comfortable in the knowledge that in the event asset protection planning for government benefits is necessary after your incapacity, your documents will work for you to that end. Even if your durable power of attorney and advanced medical directive are not part of a comprehensive plan and even if it becomes desirable to obtain a guardianship or conservatorship in order to implement a strategic asset protection plan, simply having those documents in place and nominating your agent to act as your guardian and conservator can potentially save legal costs by reducing the risks of litigation. Simply put, these documents will save you money during your lifetime – money which can be used for your care, for the care of your spouse and potentially saved for your heirs. Failure to execute these documents may well result in the needless expenditure of your money on attorneys and court fees and the loss of your right to choose who will be making important decisions for YOU. It’s as simple as that.

Kit KatAsk Kit Kat – Myths about Black Cats

Hook Law Center:  Kit Kat, since this article will appear around the time of Halloween, what can you tell us the myths surrounding black cats?

Kit Kat:  Well, actually there are quite a few myths about black cats, and none of them are true! As Jodie Valade who wrote an article in All Animals says, “the curse of the black cat is really that they are so misunderstood.” What is true is that black cats are the most common in the feline population, followed by grey. A 2013 ASPCA study found that 33 percent of all cats coming into shelters are black, and grey was the 2nd highest coming in at 22 percent. As Inga Fricke of the Humane Society of the US (HSUS) says, ‘When you’re getting more black cats in, it creates this perception that black animals aren’t getting adopted as much.’ On the contrary, black and grey cats are adopted at shelters almost equal to their percentages of entry.

To counter any adoption reluctance, shelters have become quite clever at marketing. Using free media such as Facebook, they have created postings for Black Friday deals (Nebraska Humane Society of Omaha), Me and My Shadow (Arizona Animal Welfare League and SPCA), Black Goes with Everything (Pet Rescue of Mercer, NJ), and Don’t Be Afraid to Adopt (The Humane Society of Utah waives adoption fees for black cats during the month of October) to name a few. Fricke of HSUS also says, ‘This is kind of a remarkable age for sheltering in that we have people working in shelters who are not just dedicated animal lovers who are committed to homeless animals, but who are actually stepping back and looking at the data and the numbers and figuring out what’s true and what’s just anecdote.’

Black cats are lovable like most felines. Our family has adopted two from Savannah, GA. We all have different personalities, and cats are no exception. That’s what makes life so interesting and challenging! (Jodie Valade, “Black is the new black,” All Animals, September/October 2017, p. 16-17)

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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 30th, 2017. Filed under Newsletter.

Planning for Death the Swedish Way

By Letha Sgritta McDowell, CELA

A large part of elder law is helping clients plan for what happens after their death. To that end we, help clients execute wills, revocable trusts, irrevocable trusts, change beneficiary designations, review joint account titling, etc. all with the goal of helping clients pass monetary assets after their death. Many times I’ll be asked to include a specific gift of a tangible item within these same documents, and it consistently gives me pause. There are legal ramifications to including such a specific gift in a will. For example, a specific gift of a tangible personal item can force an estate through probate even if it isn’t otherwise necessary. If that tangible item is a Picasso or the Hope Diamond, then that is appropriate. In the vast majority of cases, the item is much less valuable and, in many cases, the named gift recipient isn’t interested in receiving the item.

A recent article in the New York Times explained what many clients struggle to determine, the next generation, largely generation X and millennials, are not interested in inheriting heirlooms or other tangible person items. There are always exceptions to this, of course; however, many people struggle with either how to have this delicate conversation while their family members are still living, or they struggle with what to do with years of accumulated possessions after their loved ones have died.

This desire not to inherit has been a major change from previous generations and, according to experts, this is the first time in history that the next generation isn’t looking for material goods from the previous generation. This shift away from possessions has arisen for many different reasons. First, many Americans are living longer than ever before. This means that, by the time a parent has passed away leaving tangible items, the children already have a fully furnished household with minimal room for more material goods. In addition, we live in a society which values material possessions, so a fully furnished household is an over-furnished household as well as a storage unit with excess items. Add to that items from a parent and homes of the next generation are crammed with objects.

Another reason for the lack of desire to inherit tangible items is a change in style. The 90s saw an uptick in rich and elaborate decoration with a country style. However, beginning in the 2000s, minimal with clean lines became the new style, leaving lots of parents with the 90s look and feel which was completely opposite from what a young person starting their life was looking for.

Yet another reason is that, for many millennials, they simply don’t have the place to put new objects. Living spaces are getting smaller (think Tiny Houses on HGTV and minimal living space designs from Ikea). Even for children who want their parents dining room set either after they die or when they downsize, they have no place to put them.

So, what is the solution to this growing problem of unwanted stuff? The Japanese Art of decluttering has been a popular movement and the book “The Life-Changing Magic of Tidying Up” has been a best seller for years. The Swedish have also developed a concept called “death cleaning.” Death cleaning is based on the idea that the Swedish don’t want to be a burden to anyone, and cleaning out personal possessions to leave a minimal amount for loved ones left behind benefits everyone.

As an attorney, my suggestion is to have a conversation with loved ones about what items they may like to inherit. If there are specific items that a loved one would choose to inherit, be sure to specifically list that on a tangible personal property list. Be sure to encourage loved ones to be honest with their feelings to avoid anyone feeling “guilted” into taking items they may not want or have room for. For those everyday items which do not have appeal to anyone in particular, begin decluttering early and giving those items to a charity such as Habitat for Humanity or Goodwill which will help ensure they are given to those in need who could use the items. Cleaning out and decluttering early is often a gift for loved ones and is often more appreciated than unused items from a storage unit.

Kit KatAsk Kit Kat – Taming Wild Horses

Hook Law Center:  Kit Kat, what can you tell us about prison inmates taming wild horses out in the West?

Kit Kat:  Well, this is another interesting story. This particular story occurs at a ranch near Carson City, Nevada at a 1,100 acre property. The ranch is part of the Northern Nevada Correctional Center, a medium-security prison which serves minimum-security inmates. Approximately 2,000 wild horses can be served there. There is an abundance of wild horses and burros in the West that come under the jurisdiction of the Bureau of Land Management. One way it is handling as many as 86,000 foals born during the spring of 2017 is to have them tamed or ‘gentled’ at facilities such as the Northern Nevada Correctional Center (NNCC). Similar programs exist in other states such as Arizona, Colorado, Wyoming, and even California and Kansas. Inmates in those states can volunteer to serve their time at such facilities. It’s a win for both the inmates and the horses, many of whom end up being adopted.

Take for example, the case of John Harris, 38. When he first came to NNCC, he had a bit of a temper. He had worked with farm animals where he grew up in Northern Iowa, but never horses. Initially, when he worked with the horses, he got ‘worked up’ and the horses did too. Over time, he learned through the expert instruction of Hank Curry, an experienced cowboy, that one can get better training results by being calm and low-key. Mr. Curry has come to see his job as being more than a horse trainer. ‘I’m a counselor, a teacher, a horse trainer. You establish pride in the guy and pride in his job, he’s going to be a lot more successful when he gets out of here.’ The training cycle lasts four months. A big rodeo is then held and open to the public. Horses and burros are auctioned off, and the whole process starts again.

It’s a terrific program. As a photographer named Ryan Shorosky, who took pictures of the program during the spring of 2017, commented– there is a ‘beautiful parallel between the inmates and the horses, using each other to get to that next point.’ (Steven Kurutz, “Wild Horses and the Inmates Who ‘Gentle’ Them,” The New York Times, Oct.5, 2017)

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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 20th, 2017. Filed under Newsletter.

New Medicare Cards Coming Soon

By Jessica A. Hayes

Between April 2018 and April 2019, Medicare will be issuing new Medicare cards to all of its beneficiaries, approximately 60 million Americans, in an effort to cut down on identity theft and fraud. Instead of using Social Security Numbers to identify individuals, they will now be using randomly generated identification numbers, called “Medicare Beneficiary Identifiers” (MBIs), which will contain both numbers and uppercase letters and be 11 characters in length. An MBI is confidential and should be protected as personally identifiable information. Beneficiaries do not need to do anything to receive these new cards; they will be provided with them automatically and free of charge.

While this is designed to reduce instances of identity theft and fraud, consumers should be aware that there is nonetheless the potential for scammers to use this development to their advantage. They may contact Medicare beneficiaries and inform them that there is a fee that must be collected before a new card may be issued. Or perhaps they will make beneficiaries believe they will lose their benefits if the scammers’ demands are not met right away. Scammers are creative and convincing, but knowledge up front about the free rollout of new cards is the best defense against the unscrupulous.

In anticipation of thousands of calls from beneficiaries and medical providers as a result of this change, the Center for Medicare & Medicaid Services has set up a website, is sending out handbooks to all beneficiaries, and has call centers ready to field questions. More information is available at https://www.cms.gov/Medicare/New-Medicare-Card/index.html.

Kit KatAsk Kit Kat – Vika of the Solomon Islands

Hook Law Center:  Kit Kat, what is a vika?

Kit Kat:  Well, it’s a giant, tree-dwelling rat that has recently been discovered in the Solomon Islands, which are located in the South Pacific Ocean, east of Papua New Guinea. Indigenous peoples had sighted it for years, but scientists could never catch a glimpse of it. That is until recently when Hikuna Judge, a ranger at the Zaira Resource Management Area on the island of Vangunu, spotted an injured, giant rat waddling away from a fallen tree. Mr. Judge joined Dr. Tyrone Lavery of the University of Queensland (Australia) in the reporting of the new species, dubbed Uromys vika. It’s been about 80 years since any new rat species have been discovered in the area.

Uromys vika is indeed quite large. It can measure up to 1.5 feet from nose to tail with a weight of nearly two pounds. It also has small ears and very wide feet, which help it navigate in the dense tropical forests of its native environment. Its tail is smooth, but it also has tiny scales, similar to an opossum’s. It is further distinguished by its preferred discarded food—ngali nuts. The vika drills a hole in the center of the nut with its teeth to extract the nut’s soft core. Then it discards the shell. Now that is known that this is the consumer of the discarded nuts, scientists will have an easier time studying it and its habits.

Researchers suspect it remained undetected for so long, because they believe there are relatively few of them. Vika is now considered critically endangered, because this particular island of Vangunu is rapidly losing rain forest to logging. The rain forest is its home. However, Dr. Lavery is hopeful. He says, ‘Now that we know it definitely exists, we can work out ways to conserve it.’ (Joanna Klein, “The Elusive Giant Coconut-Cracking Rat of the Solomon Islands,” The New York Times, Science section, Sept. 29, 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 Friday, October 13th, 2017. Filed under Newsletter.

Protecting Public Benefits from Child Support Payments

By Shannon Laymon-Pecoraro, CELA

The majority of us know that a parent has a duty to support his or her minor children, and that the law presumes that upon reaching majority, a child is capable of self-support. Very few people understand that the responsibilities of a parent may extend beyond the age of majority when the child is disabled and unable to support him or herself. In Virginia, a court order may require a parent to support an a person over that age of 18 who is “severely and permanently mentally or physically disabled,” provided the disability began before age 18 (or 19 if certain factors are met) and, as a result of such disability is unable to live independently and support himself. The affect of such an order may have a significant impact on the child if not carefully considered.

The purpose of requiring child support is to ensure a child can experience a similar standard of living as he would have if the parents lived in the same household. Virginia utilizes a guideline calculation to determine the support obligation, although the parents can voluntarily enter into their own agreement. The public benefits being received by the child may factor into what the child support payment should be.

Although many parents want to offset their support obligation by public benefit income received by the child, it is unlikely to occur if the child is receiving Supplemental Security Income (SSI). Nearly all courts that have addressed the issue have determined that since the benefit is not a reflection on the work history of a retired or disabled parent, no offset should be made. If, however, the child receives a benefit other than SSI from the Social Security, it is likely the result of a retired or disabled parent and a support obligation may therefore be reduced.

Pursuant to the Social Security Administration and the Department of Medical Assistance Services, child support is a form of unearned income to the child. The Social Security Administration will disregard the first $20 of unearned income, and thereafter reduce an SSI benefit dollar-for-dollar. If SSI is lost, the child will lose his or her automatic entitlement to Medicaid and will need to meet the requirements of the traditional or long-term care Medicaid program.

The good new is that the Code of Virginia specifically permits the court to order child support payments be made to a special needs trust or an ABLE savings trust account. The good news is that the Social Security Administration has determined that when a court requires child support payments into a first party special needs trust, such payments will not be considered income to the child, and will therefore not detrimentally impact that child’s benefits. In contrast, although formal policy has not yet been published, it is believed that court ordered payments into an ABLE savings trust account will still be considered income to the child, and therefore cause a reduction in benefits.

Kit KatAsk Kit Kat – Wildlife Healers

Hook Law Center:  Kit Kat, what can you tell us about the South Florida Wildlife Center which specializes in the rehabilitation of small animals?

Kit Kat:  Well, this is an interesting story. This particular center, which is located in Ft.Lauderdale, has developed an expertise over the last 10 years in rescuing baby opossums. Opossums are the only marsupial in the United States. At first, it was trial and error. Baby opossums have a very different digestive system, than other young mammals and young birds. However, through collaboration with researchers in Australia, which has the bulk of the world’s marsupials, techniques improved drastically. Baby opossums of 17 grams are now regularly saved and eventually re-released into the wild.

The discovery that made the critical difference was what to feed them. Regular formula for other baby animals did not work. It contained lactose, and baby opossums cannot digest that. They would do OK with it for a few days, but then diarrhea took over. Eventually, they discovered by diluting it with water, the babies could handle it. They also began giving them injections of saline which helped them not get dehydrated. In the wild, the mother opossum has antimicrobials in her pouch as well as secretions in her saliva which helped nurture them. Remember that baby opossums generally stay in the mother’s pouch for about 85 days, as they continue to develop to the point that other baby mammals are at birth—eyes fully open and moving around significantly.

So kudos to the South Florida Wildlife Center, which is HSUS-affiliated! They not only save baby opossums, but other wildlife as well, such as squirrels, birds, pelicans with ripped pouches—the list goes on. On one May day this year, 33 animals were admitted, 68 in the hospital, 165 in the nursery, and a whopping 649 were being cared for. They are an exemplar in their field!

(Karen E. Lange, “The Heart of Healing,” All Animals, September/October 2017, p.18-23)

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, October 9th, 2017. Filed under Newsletter.
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