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When it’s Time to Hang up the Keys – and How to Have That Difficult Discussion

By Emily Martin, Esq.

As your parents age, you may be realizing that they need more and more help with their daily activities. Perhaps your mother may be forgetting to take her medication, or your father may be having a hard time getting in and out of the bath. All of these changes are upsetting, but perhaps the most disturbing change can be your parent’s sudden inability to drive safely.

Obviously, many seniors are unwilling to give up their independence in any way, and having a car and being able to drive is a major part of that. Your parent may not realize how unsafe it is for them to be behind the wheel, and they may resent you if you tell them they can no longer drive or if you take their driver’s license away.

However, the dangers of continuing to drive when it is unsafe to do so are all too real. In 2014, a 79-year-old woman killed three people and injured four others at a church when she accidentally put the car in reverse instead of drive. Unfortunately, these situations are becoming more frequent. According to the U.S. Census, the number of Americans over the age of 70 is set to increase greatly in upcoming years, from 28.5 million in 2011 to 52.7 million in 2030. Statistics show that drivers over the age of 75 have higher crash rates, including higher rates of fatality behind the wheel, than the average driver.

There are many signs that it may be time to reevaluate whether a loved one should drive. Signs of impaired driving include unexplained dents and scrapes on a vehicle, frequent “close calls” when driving, drifting in and out of traffic lanes, difficulty working gas versus brake pedals, and a delayed response to sudden changes in a traffic pattern.

Before you put away the keys for good, it may be worthwhile to make it easier for your loved one to continue driving. For example, many types of medications can cause delayed response times and drowsiness – see if any of those medicines can be reduced or eliminated altogether. Also, you may want to make sure that older drivers avoid driving in high-traffic areas, especially during rush hour. Mom may be able to drive to church or the grocery store, but driving on the highway could be a whole different story.

So how can you approach this difficult topic with a loved one who possibly should not continue to drive? One way to avoid being the “bad guy” in this situation is to ask your parent to take a driver’s test at your local DMV or driving school. If they cannot pass a simple driving test, this might help them to accept that it is not safe for them to be behind the wheel. Your loved one may be more willing to hear the opinion of a neutral third party than the opinions of family members.

No matter what you do, it is important to make sure that your parent will not be able to hurt themselves or anyone else by driving unsafely. Giving up independence is never easy, but sometimes the hardest thing to do is often the best thing for yourself and your family.

Kit KatAsk Kit Kat – Raccoon Update & Nocturnal Animals

Hook Law Center: Kit Kat, what can you tell us about 1) the St. Paul raccoon who was climbing the UBS building and 2) the habits of mammals that are becoming increasingly nocturnal?

Kit Kat: Well, first, let’s talk about the raccoon. It turns out it was a female, and she was quite healthy. On the same day that she was trapped on top of the 25+ story bank building after scaling the entire facade, she was taken to a wooded area and released on private property near the suburb of Shakopee. According to Suzanne MacDonald, a raccoon expert at York University in Toronto, “Raccoons don’t think ahead very much, so raccoons don’t have very good impulse control.” Phil Jenni, director of the Wildlife Rehabilitation Center of Minnesota, hypothesizes, that she just got scared, and so reverted to what raccoons normally do—they climb when stressed. Whatever the reason, the story has a happy outcome.

Now, on to the 2nd topic of how more mammals are becoming nocturnal as a reaction to dealing with the encroachment of humans in their habitat. According to a new study published recently in Science magazine, “Humans’ presence alone can cause animals across continents—including coyotes, elephants and tigers—to alter their sleep schedules.” It turns out, mammals have been regulating their activity for centuries, depending on external threats. For example, after the dinosaur period, they became more active during the day. Now the reverse is happening, according to Kaitlyn Gaynor, an ecologist and graduate student in environmental science at UC-Berkely, who led the study. They used data from 76 studies about 62 species living on 6 continents to come to their conclusions. Therefore, “an animal that typically split its activity evenly between the day and night would increase its proportion of nocturnal activity to 68 percent of total activity near human disturbance.”

Humans may not be actively threatening the mammals, but the mammals feel stressed nonetheless. Coyotes in the Santa Cruz mountains of California, for example, are becoming more active at night merely because of biking and hiking in the area. Tigers in Nepal are behaving likewise. As their favorite trails are used more often by humans, they too, have changed their habits, and shifted to a more nocturnal schedule to be active. Future research will investigate how these changed patterns will affect mammals’ diet and reproductive patterns. (Steve Karnowski, “St.Paul Raccoon Set Free after Scaling 25-story Tower,” The Associated Press as published in The Virginian-Pilot, June 14, 2018/ Julia Jacobs, “Mammals Go Nocturnal in Bid to Avoid Humans,” The New York Times, June 15, 2018)

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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, June 25th, 2018. Filed under Senior Law News.

Elder Abuse, Neglect, and Exploitation, Part Three: What Can You Do?

By Jennifer Rossettini, CFP®

This is the third article in a three-part series discussing Elder Abuse, Neglect and Exploitation. In Part One, we discussed the definitions for elder abuse and the prevalence of it in our society. In Part Two, we discussed what to watch for in detecting the signs of elder abuse as well as identifying the situations in which our elderly citizens are most vulnerable to abuse. We also discussed what the Federal Government and the State of Virginia are doing to help combat the problem. In this Part Three, we will discuss what you can do to protect yourself, your loved ones, and/or your clients from elder abuse, neglect and exploitation.

The Virginia Department for Aging and Rehabilitative Services (DARS) oversees two programs that are helpful in the investigation and remediation of elder abuse, neglect and exploitation: the State Long-Term Care Ombudsman Program and Adult Protective Services. The Ombudsman Program is mandated to receive, investigate, and resolve complaints made by persons in nursing homes and assisted living facilities, as well as those receiving community based long-term care services. If you need help resolving a problem of this nature, contact your local Ombudsman by calling 1-800-552-3402. Adult Protective Services investigates reports of abuse, neglect and exploitation and local family services specialists arrange for a wide variety of health, housing, social and legal services to stop the mistreatment. Their 24-hour toll-free hotline is 1-888-832-3858.

There are also civil and criminal remedies available through the Courts. Even though Virginia does not have a specific statute creating a cause of action for financial exploitation, those civil remedies that are available include actions for breach of fiduciary duty, negligence, assault and battery, theft by conversion, fraud, rescission of transactions, restitution, and/or an accounting of the actions of a fiduciary. Criminally, a person can be found guilty of larceny for financially exploiting a vulnerable adult. In addition, there are penalties for failing to make a required report of elder abuse ranging from $500 to $1,000.

Often the best remedy for elder abuse is the prevention of elder abuse, and some prevention can be done with the drafting of legal documents and the selection of the right fiduciary to act on your behalf. Some of the legal documents that we recommend our clients have are a General Durable Power of Attorney for financial matters, an Advanced Medical Directive for health-related matters, and a Trust. The most important decision you will make, however, is not to have these documents drafted, but who will serve as your agent or Trustee. To prevent abuse, it is imperative that your agent be someone you can trust. Sounds simple, right? Your agent should be organized, efficient, able to open mail, balance a checkbook, make calls in the business world; have good credit, no bankruptcies, and a proven track record for fiscal responsibility; and must be of high moral character, honest, trustworthy and free of active addictions.

There are also things that professionals who work with elderly clients can do in their everyday practice to prevent and/or be able to detect abuse. The first thing to do is to clearly identify the elder as your client. Regardless if the elder is accompanied to an appointment by family members, friends or other advisors, the professional should have a private conversation with the elder to identify which other individuals are authorized to receive information. It is also important to meet privately with the elder so you can assess their capacity and whether they are being unduly influenced. By the same token, professionals should also have frequent meetings with clients. As their client’s capacity diminishes, the professional should shorten meetings, discuss few topics during each meeting, and meet more frequently. After each meeting, the professional should send a letter to the elderly client with a written summary of the meeting.

Finally, here is a list of some of the other resources available:

  1. National Center on Elder Abuse: ncea.acl.gov
  2. Virginia Adult Protective Services: State Hotline: 888-832-3858
  3. Virginia Family Violence Hotline: 800-838-8238
  4. VA Coalition for the Prevention of Elder Abuse: vcpea.org
  5. Virginia Department for the Aging in Richmond – provides information for local area agencies – https://www.agingcare.com/local/virginia-department-for-the-aging-richmond-area-agency-on-aging-va
  6. Caregiver Resources: http://www.pbs.org/wgbh/caringforyourparents/handbook/caringcaregiver/supportgroups.html

Kit KatAsk Kit Kat – Raccoon on a Ledge

Hook Law Center: Kit Kat, what can you tell us about a raccoon that was stranded on the ledge of a building in St. Paul, MN?

Kit Kat: Well, this is another tale of you humans encroaching on the territory of the animal world. No just kidding. But seriously, more and more wild creatures are appearing in urban areas. This story has a happy ending, fortunately.

On June 12, 2018, a raccoon was spotted in downtown St. Paul climbing the UBS building. The windows don’t open, so bystanders and office workers could only watch helplessly. It is thought this same raccoon was seen on another downtown building a few days earlier, perhaps looking for a source of food like baby pigeons. Nevertheless, the building which is more than 25 stories high, has the perfect surface for climbing. It has a rough surface and there were ledges at each window. So the raccoon took all day in its ascent to the top. It never considered going down, only going up. It rested at the 12th floor, the 22nd floor, and the 23rd floor. Then there was a wide lip of rough surface around the top. In the early hours of the following morning (June 13), it made it to the top. Waiting for it (sorry, don’t know the gender) were several live traps with wet cat food which were supplied by animal-control authorities. The plan worked, and it was trapped safely.

Soon the raccoon will be relocated to a more suitable area. While I’m sure the people in downtown St. Paul were mesmerized by this little creature, the pictures showed it scared and tired. It’s wonderful that this one little creature will get another chance to exist, hopefully, in a more appropriate environment. (Karen Brulliard and Keith McMillan, “Raccoon triumphs over skyscraper in a climb that captivated the internet, celebrates with cat food,” The Washington Post, (Animalia section), June 13, 2018)

 

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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, June 18th, 2018. Filed under Senior Law News.

Executor or Trustee of a Family Member’s Estate or Trust? Be careful.

By Sarah Schmidt, Esq.

The role of an executor or trustee is often misunderstood by lay people who have never served as an executor or trustee. Beneficiaries of an estate often litigate or argue over who should serve as the executor, administrator or trustee. Lawyers, and those who have served in such a capacity, know all too well that being an executor is a difficult job which comes with a great deal of obligation and responsibility. If not handled properly, it can even subject the executor/trustee to personal liability.

I always tell my clients, colloquially, it is not fun to be an executor. Your mother, father, or close friend most likely named you as an executor, because you are responsible and someone they trust, but they did not do you a favor by naming you. You will be charged with paying final debts and expenses, filing final tax returns, properly distributing any assets according to law, and filing inventories and accountings with the Commissioner of Accounts who, by the way, will oversee all of your work.

Because executors are a fiduciary and held to that standard under the law, it is of the utmost importance that, if you are serving in such a capacity, you seek the advice of legal counsel as to your actions.  The best course of action for a great majority of issues you will face can be easily explained by a trust and estate attorney. And where the law is unclear, a trust and estates attorney can assist you in seeking guidance from the court concerning the best course of action.  The Virginia Supreme Court has explained, “in all cases of doubt as to what the law is, and what their conduct ought to be under it, [trustees] are entitled to direction and instruction from the court.” Gooch v. Old Dominion Trust Co., 121 Va. 29 (1917).

If you’re currently serving as an executor or trustee, I highly recommend you contact an attorney to seek out advice and counsel regarding your duties and obligations. As an executor, administrator, or trustee, it is best to ask for permission, rather than forgiveness.

 

Kit KatAsk Kit Kat – Pet Trusts Update

Hook Law Center: Kit Kat, what can you tell us about pet trusts and some things to include so they are done the correct way?

Kit Kat: Well, yes, it can be difficult to plan for the care of one’s pet after one has died. However, with some planning, your pet can be taken care of as you have instructed. Legal experts recommend a pet trust. It has several advantages to just leaving instructions as part of a will. Probating a will can be a lengthy process, during which time, the pet’s care would be in limbo. With a trust, provisions can be made for care of the pet to begin immediately upon incapacitation or death. According to Judy Mandell, an author on the subject of pet trusts, “A pet trust is a legal way to provide for your pet and is the option that allows you to directly give pets anything, since many states consider them personal property, no different from your fine jewelry, antiques, computers, or cars.” In addition she continues, “With pet trusts, a trustee is appointed to hold property and cash and make payments for the benefit of the pet upon the disability of the grantor. Trusts continue for the life of the pet or 21 years, depending on which comes first, although rules may vary by state.” As a cat, I would say we cats would be in favor of the up-to-21-year-provision, since we tend to live longer than our canine friends. My parents had a cat who lived to age 19, and I myself will be 15 in August.

The only caveat for a pet trust is to make sure you have secured a trustee who is willing to assume this responsibility. Also, include in the trust, direction as to what should be done with any remaining money in the trust, after the pet dies. Many decide to leave any balance in the trust to an organization like the Humane Society or the ASPCA.

Some have gone to extravagant lengths to care for their pets. In one situation, a home in Texas valued at $1 million was left as the residence for the deceased’s 10 cats. The appointed caretaker was given a salary of $50,000 per year to live in the house and take care of them. In another, a New York attorney was asked to ensure that the deceased’s cat would be buried in a custom-made wooden coffin.

So whatever your wishes, incorporate them in a pet trust. Your pet will thank you! (Judy Mandell, “The Pets Are All Right (Even Though You’re Gone), The New York Times, May 24, 2018)

 

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 Thursday, June 7th, 2018. Filed under Senior Law News.

Older Adults and Romance

By Letha Sgritta McDowell, CELA

It is no secret that American families come in all shapes and sizes.  Gone are the days when a family consisted of a husband and wife who have only been married once and their children from that marriage.  Much research has been done on blended families at any age but not much information exists on older adults and relationship.  Indeed when the issue arises, many families (adult children and grandchildren) are shocked that romantic relationships are a concern.  Yet, romantic relationships and the resulting intimacy and companionship can vastly improve the quality of life for many older adults.  However, the relationship may also require some legal planning to protect all involved.

There are trends with relationships among older adults which may surprise many (especially their children).  One such trend is a coupling where the partners cohabitate but choose not to get married.  In times past, this arrangement may have been seen as unusual at best and judged harshly at worst.  However, since 2007 there has been a 75% rise in the number of couples where the parties are 50 or older in the United States who live together but who choose not to get married.

The reasons for the choice vary widely.  For some, the possible loss of pension benefits or health insurance benefits from a prior spouse provide a financial incentive to avoid remarriage.  For many who have been divorced, they look at cohabitation, commitment, and personal happiness as more valuable than the ceremony.  In addition, there is less risk in that they are not legally responsible for the debts of their cohabitating partner, but they would be responsible for the debts of a spouse.  For many, women in particular, cohabitation offers financial stability in that there is a combination of incomes to support the household, but no risk of loss of assets which were accumulated with a prior spouse.

In addition, to the many couples who choose to cohabitate, there is a trend emerging known as “living apart together.”  This refers to couples in loving and committed relationships who desire to remain committed but who do not want to get married or cohabitate.  Unlike the dating relationships of most younger adults, where dating is a step on the way to marriage, these couples see no need for anything beyond the commitment.  As for those who choose to cohabitate, the reasons for this vary widely.  Some have been through devastating divorces and do not want a similar entanglement.  Others don’t want the crowded feeling that accompanies another living in the same space and they want to maintain separate social circles and events.

From a legal perspective much emphasis is placed on careful planning for married couples.  However, for couples in alternative arrangements, planning may be even more important.  For many older adults in alternative arrangements, they want their non-spouse partner to make medical or financial decisions for them in the event of an incapacity or they may wish for their partner to make medical decisions but other family members to make financial decisions.  Whatever the desire, appropriate legal documents must exist so that wishes are clearly expressed.  It can also be helpful to let all parties, especially adult children who may expect to take on certain roles, to know the express wishes of the individual prior to a medical crisis or incapacity.  Failure to do can result in negative feelings between parties or, in some cases, contested litigation over who should be allowed to make certain decisions.

Being an older adult does not preclude a romantic relationship and, if you are an older adult in an alternative relationship, you are not alone.  Relationships can take on a variety of appearances, all of which can contribute to a happy and positive old age.  However, some legal planning is recommended to protect all involved.

 

Kit KatAsk Kit Kat – Retired Chimps

Hook Law Center: Kit Kat, what can you tell us about retired chimps living at a sanctuary in Georgia?

Kit Kat: Well, this is an interesting story. A refuge for retired research chimpanzees has been established in Blue Ridge, GA. Naturally, it is called Project Chimps. Currently, there are 40 chimps living there who were once used in research projects. Most have come from the New Iberia Research Center in Louisiana. There are 173 more awaiting placement. This relatively new effort at retiring research chimps began in 2015 when chimps were classified as endangered by the U.S. Fish and Wildlife Service (USFWS). USFWS had been in litigation with the Humane Society of the US (HSUS) which forced the re-classification. It’s an expensive proposition. Chimps usually live into their 50s, and costs approximate $22,000 per year to care for each chimp.

Lucky are the chimps who are being cared for in Georgia. Their habitat is a 236-acre wooded area comprised of large yards and four villas. Initially, males and females are kept apart. Males have been sterilized, and females are given oral contraceptives as an added precaution. Socialization is done gradually and very carefully. Males and females are allowed to interact, but always under supervision, at least at the beginning. Emma and Eddie when they met, did so under the watchful eye of a supervisor, who lifted a series of gates, until they finally were allowed to hug and groom each other out in the open.

Another example are twin sisters—Buttercup and Charisse—who frequently display a rocking motion, even when given something to eat. Other chimps in their yard rush out and grab lettuce leaves when they’re offered, but not these two. They rock back and forth in stages, before they separate and take the lettuce. This behavior is not seen in the wild, so their caretakers hypothesize that is done as a comforting behavior. They were raised by their mother in captivity, but their mother was not raised by her mother, so they are not sure how nurturing their mother was.

All 40 chimps are considered individually and carefully as to their needs. If you would like to donate to the chimps’ care, you may do so at www.projectchimps.org or mail your gift to Project Chimps, P.O.Box 2140, Blue Ridge, GA 30513 with “All Animals” on the check memo line. (Emily Smith, “It’s their time,” All Animals, May/June 2018, p. 18-21)

 

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, June 4th, 2018. Filed under Senior Law News.
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