Comprehensive Planning. Lifelong Solutions.

Medical Expense Deduction Spared

By Jessica A. Hayes

All eyes have been on Congress in recent weeks to see what would happen with regard to tax reform.  Republicans released their final tax bill on Friday, December 15, 2017, and we were pleased to learn that not only does it retain the medical expense deduction, but it also temporarily expands it for two years.

The medical expense deduction previously permitted an individual who spends more than 10% of his adjusted gross income (AGI) on qualified unreimbursed medical expenses to deduct those expenses on his federal individual income tax return, provided the individual itemizes.  The new tax bill, however, provides that taxpayers who itemize their deductions may write off qualifying medical expenses that exceed 7.5% of their AGI for the tax years 2017 and 2018.  After that, the threshold will return to 10%.

Deductible medical expenses include preventive care, treatment, surgeries, dental and vision care, psychiatric treatment, prescription medications, prescription eyeglasses, contacts, false teeth, hearing aids, and long-term care expenses.  Qualified long-term care services must be necessary diagnostic, preventive, therapeutic, curing, treating, mitigating, and rehabilitative services, and maintenance and personal care services required by a chronically ill individual and provided under a plan of care prescribed by a licensed health care practitioner.  To qualify as chronically ill, an individual must be certified by a licensed health care practitioner (e.g., a physician, registered professional nurse, or licensed social worker) as being unable to perform without substantial assistance from another individual at least two activities of daily living for a period of at least 90 days due to a loss of functional capacity, or as requiring substantial supervision for protection due to severe cognitive impairment, such as memory loss or disorientation.  The licensed health care practitioner should prepare a letter certifying that the individual is chronically ill based upon the previously stated criteria.

Prior to December 15th, the future of the medical expense deduction was unclear. An earlier version of the tax bill proposed its elimination, which would have resulted in a higher tax bill for nearly 9 million Americans.

Kit KatAsk Kit Kat – Where is Mary Lee?

Hook Law Center:  Kit Kat, who is Mary Lee?

Kit Kat:  Well, you probably wouldn’t guess this in a million years! Mary Lee is a great white shark that was tagged in 2012 off Cape Cod, Massachusetts. Her tag hasn’t pinged since June of this year (2017). Scientists are baffled as to the cause. It could be that the battery has died in the device, or the device has fallen off, or organic material has grown over the sensor rendering it inoperative. The scientific community and the general public miss her, because her whereabouts were followed by 129,000 people on Twitter. She was a huge specimen weighing nearly 3,500 pounds and having a length of 16 feet. She is one of the largest sharks ever tagged—that was part of her uniqueness. Chris Fischer, founder of Ocearch.org, which tagged her and other sharks, estimates she is between 40 and 50 years of age.

She became an ambassador of sorts for the shark community. For the five years that her transmitter transmitted signals, scientists learned a lot about the travel patterns of great whites. Originally tagged in Massachusetts in 2012, by 2015, she was off the coast of North Carolina and Virginia. From their other data points, they estimate she is probably now swimming along the coast of South Carolina or Georgia. Her various sightings, which occur when she surfaces long enough to activate a wet-dry sensor, led to Jim Ware, a digital specialist with the Wilmington Star News, creating posts on Twitter with the handle @MaryLeeShark. According to Mr. Ware, “The (Twitter) account really took on a life of its own. It just kept going and going. And it spawned many other shark Twitter accounts.” This past June (2017) was the last Mary Lee has been heard from. Stay tuned for more information on Mary Lee. We’re not giving up on her just yet. (Lee Tolliver, “America’s most famous shark has gone silent. We may never hear from her again,” The Virginian-Pilot, Dec. 18,2017, p. 1 & 7)

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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, December 22nd, 2017. Filed under Newsletter.

IRVING v. DIVITO: BEWARE OF HOMEMADE ESTATE PLANNING DOCUMENTS

By Shannon Laymon-Pecoraro, Esq.

On December 14, 2017, in Donal A. Irvin, in his capacity as Executor of the Estate of Declan Patrick Irving v. Carol DiVito, et al, the Virginia Supreme Court recently opined that a handwritten amendment to a Will, drafted wholly in the handwriting of the decedent and then initialed by him, was not a valid codicil. Although you will often hear attorneys advise against homemade estate plans or amendments, this case emphasizes the importance of professionally drafted documents, and even more so when there is a major life change.

After Declan Irving’s passing on March 30, 2014, his brother, Donal Irving, found two notes addressed to him which indicated that Declan’s Will was with a local law firm. Donal was unsuccessful in obtaining an original from the law firm, because they only had an electronic copy, and subsequently located the original Will in a briefcase within Declan’s self-storage unit.

The Will, despite language to the contrary contained in a property settlement agreement executed during a divorce, identified Patrick Irving as Declan’s son, but named Declan’s siblings and parents as beneficiaries of his estate, with Donal serving as Executor. Across a binder tab in Declan’s estate planning binder, Declan has written the following, in cursive, with his initials affixed thereto:

11/17/03

I wish to remove Patrick as my son entirely from this will – no benefits.

The binder tab was admitted to the Circuit Court for probate, but it was rejected as an invalid codicil to the Will. Donal appealed the decision, contending the writing was a holographic codicil as permitted by the code, or otherwise intended as a codicil. Despite the finding that the writing was in fact made by Declan, the court concluded that it was not clear that Declan intended to utilize initials as a signature, since he had signed his full name on other documents, and that the writing merely established a thought or plan to change a Will, and as a result, had no testamentary intent.

A holographic will is validly established when the will is wholly in the testator’s handwriting and signed by the testator as proved by at least two disinterested witnesses. While initials may serve as a signature, whether initials are intended to serve as a signature is dependent upon the facts of each case. The Virginia Supreme Court, in upholding the lower court’s opinion, found that Declan’s initials appeared at the end of the writing and thus provided authentication. However, in considering the case, the Virginia Supreme Court found that the lower court appropriately relied on extrinsic evidence, such as the use of a full signature on Declan’s property settlement agreement and Will, and a referred to his will without mentioning the writing.

In the event that a writing fails to comply with the requirements set forth above, the proponent can nonetheless establish the writing when clear and convincing evidence demonstrates that the will was intended by the decedent to serve as the decedent’s will or alteration thereof. When a court determines that there may be some testamentary intent, it should look to extrinsic evidence to determine the nature of the writing. The Virginia Supreme Court found that the failure to mention codicil in his note to Donal and the failure to sign the writing in the same manner as other legal documents demonstrated that Declan did not consider the writing to be a codicil to his Will. As a result, there was a finding that the burden of clear and convincing evidence of testamentary intent was not met.

While the lay person may disagree with the court’s determination, the case demonstrates the importance of professionally documented documents. And, while Hook Law Center, P.C. often educates our clients and prospective clients that estate plans are more than just documents, it is important to note that the construction is critical. As a result, when making important changes to your documents, you should consider seeking professional guidance.

Kit KatAsk Kit Kat – Coyotes Near Us

Hook Law Center:  Kit Kat, what can you tell us about coyotes in Hampton Roads (southeastern Virginia)?

Kit Kat:  Well, once again, there is an interesting story to tell. Coyotes are not native to Virginia, but they now can be found in all parts of the state. Wildlife experts believe they first appeared in the western part of Virginia in the 1950s. They made their way here, according to Mike Fies, a biologist with the state game department, by either of two routes—one from Canada to the Northeast corridor; the other from the south and west where they probably crossed the Mississippi River in winter when it was  frozen. In Hampton Roads, Mr. Fies estimates they number in the hundreds.

They like urban areas. They don’t have to contend with their #1 enemy—the wolf. They are mostly nocturnal, so people frequently confuse them with a German shepherd or some other dog. The coyotes found in Hampton Roads do have some small percentage dog (about 10 per cent) in their makeup due to inbreeding when their regular mates could not be found. Also, in urban areas, they are not hunted. It is illegal to do so. So here they thrive.

If you respect their space, you have nothing to fear. Usually, if they become aggressive, it’s because they may feel threatened, for example, if a dog gets too close. A dog is seen as a competitor.  They are becoming emboldened, however, as to where they seek to live. They have been spotted at the traffic circle on Laskin Rd. near the oceanfront, Ft. Story, Regent University, a Yorktown oil refinery, and a backyard garage in Smithfield. According to Kevin Cornwell, the owner of a wildlife control business based in Carrollton, “When it comes to coyotes, every generation seems to be a littles less afraid of humans.” So don’t think your eyesight is playing tricks on you. If you see something which resembles a coyote, it probably is! (Joanne Kimberlin, “The Coyote Next Door,” The Virginian-Pilot, December 10, 2017, pg.1 and pg. 13)

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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, December 15th, 2017. Filed under Newsletter.

Death & Procedure:

By Sarah Schmidt, Esq.

What to do when your client or a family member dies or becomes incapacitated during litigation.

As elder law attorneys, we routinely deal with the ambit of legal issues arising from the death or incapacity of a client, but the death or incapacity of a client may create a whole set of new legal issues and procedures for attorneys not well versed in elder law or for pro se litigants.  For example, what happens if a party dies while litigation is pending?

In many instances when a party dies during the pendency of litigation, once the proper personal representative qualifies on the estate of the decedent, the parties can (and should) move to substitute the personal representative for the deceased or incapacitated party. See, e.g., Bartee v. Vitocruz, 288 Va. 106, 111 (2014) (citing Va. Code § 8.01-56 and Rule 3:17) (“[I]f a person becomes incapable of prosecuting or defending a case due to death, the action may proceed on behalf of the decedent’s estate by and through the substitution of decedent with his personal representative.”). The Rules of the Supreme Court of Virginia very sensibly allow this motion to be made by a successor, but it must be properly served with the proposed amended pleading, and the opposing party should be given twenty-one days to respond, unless they agree otherwise. Va. Rule 3:17(B). If the motion to substitute is not made within a reasonable and proper time, upon death the suit will be discontinued. See Va. Code § 8.01-18. Additionally, when making a motion to substitute, Virginia attorneys must be careful to style the case properly. See Va. Code § 8.01-6.3.

A helpful tip for attorneys practicing in circuit courts in the Commonwealth of Virginia: when you make a motion to substitute a party, and your motion is granted, be sure to also submit an order which directs the clerk to amend the style of the case. Alternatively, this language can be included in your order granting the motion to substitute. If the clerk does not have any direction to amend the style of the case, it may very well go unchanged with the potential of creating a number of filing and administrative issues for both parties in the future.

In many instances following the simple procedural rules for substitution (after proper qualification) will allow the case to go forward. In some cases, however, the death of party means the death of the action. For example, in the case of a pending action for divorce, if one party dies while the suit is pending, but before entry of the final decree, the action abates and the court will no longer have jurisdiction over the matter. The action abates because “the death terminates the marriage, thus rendering the divorce suit moot as it relates to the parties’ marital status.” Estate of Hackler v. Hackler, 44 Va. App. 51, 67 (2004) (quoting Sprouse v. Griffin, 250 Va. 46, 50 (1995)). The court lacks jurisdiction because a circuit court’s jurisdiction in divorce suit is purely statutory. And because the court no longer has jurisdiction over the parties’ property, it cannot make any award of equitable distribution.

The same is not true, however, if the party to a divorce proceeding dies after entry of the final decree—even if litigation is pending over enforcement of the final decree or separation agreement. For example, the Virginia Court of Appeals addressed a case where a party passed away after the entry of the final decree, but before entry of a proposed qualified domestic relations order (“QDRO”). The court held that the action did not abate, and that the circuit court indeed had continuing jurisdiction to enter the QDRO. See Forest v. Forest, 2013 Va. App. LEXIS 80, at *6 n.6 (Va. App. Mar. 12, 2013). Moreover, it is well established in Virginia that “property rights and interests become vested in the parties when they agree upon them, set them forth in a valid separation agreement, and have them incorporated into their final divorce decree.” Griffin v. Griffin, 62 Va. App. 736, 765-66 (2014).

This newsletter is not intended to be exhaustive; there are many other considerations, scenarios, and legal issues that arise when a client or party dies during the pendency of litigation that are outside the scope of this article. When faced with these issues, the advice of an elder law attorney should be sought.

 

Kit KatAsk Kit Kat – New Baby Lion in Norfolk

Hook Law Center:  Kit Kat, what can you tell us about the new baby lion born at the Virginia Zoo in Norfolk?

Kit Kat:  Well, this is a feel-good story if there ever was one! A baby male lion was born to a female lioness named Zola on Oct.28, 2017. Zola is thirteen. As of yet, her cub is unnamed. The zoo plans to have a naming contest in the next few weeks. A Cub Cam is planned, too, so the public can follow his progress. Currently, he is kept secluded in a cubbing den, as he gains strength and girth. At birth, he weighed 3 pounds and 5 ounces. He now weighs about 10 pounds. Eventually, he will weigh around 350 pounds, if he takes after his dad, Mramba, another resident at the zoo.

Baby lion is getting a lot of attention—maybe a little too much. Most litters of lion cubs have between two-to-five cubs. Since baby lion is an only cub, his mom Zola is lavishing all her maternal love on him. Her grooming has been a little excessive, according to Colleen Clabbers, the zoo’s veterinarian. Baby lion has developed a sore under his right arm. The zoo is monitoring the situation. Stay tuned for further updates on Baby Lion! (Ryan Murphy, “ ‘Fuzzy and vocal’ lion cub born at Virginia Zoo,” The Virginian Pilot, December 1, 2017, pg. 1 and 8)

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, December 8th, 2017. Filed under Newsletter.

Home for the Holidays: Conversations for Every Stage of Life

By Elizabeth Boehmcke

It’s that time of year again when families gather to celebrate the holidays. For many, it may have been months or a year since they visited with family and a lot may have changed in the interim. Perhaps we notice that Grandpa is not as steady on his feet as he was, or that Mom seems to be having trouble remembering where she put the car keys. Perhaps we see that an illness has taken hold or has progressed further than before. Perhaps Dad just retired and he and Mom are making plans for a cruise to Alaska. Children may have been born. Friends and other relatives may have passed away. What is certain is that whatever changes have occurred since the last big get- together will be a topic of conversation.

In addition to celebrating the joy of being together, it is important to think about setting aside some quiet time to address serious issues. If it seems clear that aging parents are in need of assistance of some kind, it is important to discuss that issue with them. Assistance needs can run the gamut from needing an extra hand with house and yard work to medication management to meal preparation to 24/7 custodial care and everything in-between. It is possible that they are unaware of the challenges they are facing. But more likely, it is apparent to them what kind of assistance, if any, they need. If they in fact have a comprehensive plan which covers their financial and physical needs and goals, sharing that information with concerned children and other family members may put their minds at ease. On the other hand, if there is no comprehensive plan in place, finding ways to discuss the needs may allow the family to identify problems and develop solutions. Finally, these conversations can allow a family, who has identified problems and become overwhelmed by them, to seek help from those qualified to help, especially in terms of making financial recommendations for how to pay for and plan for long-term care and protection of assets.

It is also important to have conversations about end-of-life medical decision-making and about financial decision-making. It is vitally important that every adult over the age of 18 have in place advance medical directives and durable powers of attorney to prevent the need for going to court to obtain guardianships and conservatorships in the event that a person can no longer make decisions for himself/herself. But as important as having the documents in place is and as important as it is that those documents be prepared by an experienced elder law attorney who can help you weigh the importance of including special powers that are necessary for public benefits planning, it is just as important that your wishes about who makes decisions for you and how you wish to die be known to your family.  This is your opportunity to let the family know how you feel and what you would like to see done in the event that you can no longer speak for yourself.

For parents of almost any age, having an open discussion with family about what your wishes are in the event of death is critical. Parents of young children need to consider how their young children will be cared for in the event both parents are killed. Naming a guardian in a Will ensures that your desires will be heard and will hopefully keep other well-meaning relatives from fighting over the children and your estate. Adults of all ages need to discuss who they want to administer their estates, how they want their assets distributed, what their plans are. While for some families keeping these plans a secret is desirable, for most, secrecy only means that your loved ones are guaranteed to fight among themselves and perhaps harbor resentments towards each other. While obviously not good for family relationships, such dysfunction can also lead to court battles which are never cheap.

Finally, for those who come home to older family members and notice, perhaps for the first time, that there is a change in how the older family members are acting or reacting, it may be time to have a serious conversation about whether a visit to the doctor is needed to rule out or diagnose dementia. The Alzheimer’s Association’s website lists 10 warning signs of dementia and recommends that anyone experiencing any of these symptoms should consult a physician:

  • Memory loss that disrupts daily life, especially recently learned information;
  • Challenges in planning or solving problems, like following a familiar recipe;
  • Difficulty completing familiar tasks at home, work or leisure, like how to drive to a familiar location or remembering the rules of a favorite game;
  • Confusion with time or place, like losing track of seasons or the passage of time;
  • Trouble understanding visual images and spatial relationships, like difficulty reading or judging distance, the latter of which may manifest as trouble driving.
  • New problems with words in speaking or writing, like having trouble following a conversation, stopping in the middle of a conversation and repeating themselves, or struggling with common vocabulary and calling thing by the wrong name;
  • Misplacing things and losing the ability to retrace steps, like putting eyeglasses in the freezer;
  • Decreased or poor judgment, like giving large amounts to telemarketers or losing track of cash, or like paying less attention to personal grooming;
  • Withdrawal from work or social activities they used to enjoy; and
  • Changes in mood and personality, like becoming confused or suspicious or anxious.

The attorneys of Hook Law Center know the importance of having these family conversations. Please make time to have them with your family and consider allowing us to join you. We are happy to meet with your whole family in person, on the phone or over the internet to assist you all in finding comprehensive solutions to the problems that may become apparent when you come home for the holidays

 

Kit KatAsk Kit Kat – Fiona the Hippo-Zoo Star

Hook Law Center:  Kit Kat, who is Fiona the Hippo, and why is she so famous?

Kit Kat:  Well, this is one of the cutest stories I have heard about recently. Fiona is a hippopotamus who resides at the Cincinnati Zoo. She was born there last January 24 (a bit prematurely), and has been a major sensation ever since. The zoo’s vice president of marketing says, “I feel like I represent Beyoncé. People fly across the world to just catch a glimpse.” All this attention is due to Michelle Curley, the zoo’s communications direction and her four-person team. Ms. Curley had the brilliant idea to publicize Fiona’s every move from the moment she was born on social media. There have been videos of Fiona on Facebook. Fiona has posed with couples for their engagement photos. One of these photos ended up being on “The Tonight Show.” A local ice cream company even named a summer flavor after her called “Chunky Chunky Hippo.” The list goes on and on.

It’s wonderful that Fiona has gotten this far. Her future did not always look so rosy. She was born 6 weeks early and only weighed 29 pounds. A normal hippo baby should weigh between 55 and 120 pounds at birth. However, zoo personnel made every effort to keep her alive. Fiona was placed in the equivalent of a newborn I.C.U. with round-the-clock care. Doctors from Cincinnati Children’s Hospital assisted with her care. She, at one point, had to have an IV inserted to address dehydration. There were lots of other health issues along the way until May 15 when she seemed to turn a corner and gain strength. The struggles were documented on social media, and the public fell in love with her. When the zoo said they would cut back on the daily social postings, 100,000 people responded clamoring for more. It seems as if Fiona is serving as a pleasant diversion from the stresses of life. According to Amy LaBarbara, the zoo’s coordinator for marketing and events, “People tell us all the time that Fiona is something everyone can agree on. We have heard from countless people online that Fiona has been uniting the United States. We hear from people going through chemo that tell us she is the only bright spot in their day.”

It appears that Fiona is quite a girl! She seems to bask in the attention. She floats between the animal world and human world with the greatest of ease. (Rachel Syme, “Hooray for Fiona the Hippo, Our Bundle of Social-Media Joy,” The New York Times, Nov. 25, 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, December 1st, 2017. Filed under Newsletter.
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