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Dept. of Veterans Affairs Publishes Final Rule for Needs-Based Benefits: General Overview

By Shannon Laymon-Pecoraro, CELA

On September 18, 2018, the Department of Veterans Affairs (“VA”) published its final rule for needs-based benefits, including the VA pension program that assists many of our clients with long-term care related expenses. The new rules, which will become effective on October 18, 2018, establish net worth, asset transfer, and medical expense deduction requirements, and further address various other issues raised in the over 850 comments received by the VA during the public comment period that ended March 24, 2015.

I will be addressing the changes over the course of several newsletters, and anticipate that our first seminar on the change will occur in October 2018.

Benefits Affected

Throughout this process, the VA has made it clear that Congress intended the pension benefit to be a needs-based benefit, which they define as meaning that the claimant’s income, or both the claimant’s income and assets, is factored into entitlement consideration.  The final rule makes it clear that the rule only affects the pension benefits, and does not impact the following:

  • Service-connected disability compensation for a veteran (note – if a Veteran is receiving additional compensation for a dependent parent, then the parent’s income and assets for the additional compensation will be considered)
  • Dependent Indemnity Compensation (“DIC”) for surviving spouses or children
  • Death compensation for surviving parent, spouses, or children
  • Spanish-American War pension

The final rule does impact the following needs-based benefits:

  • Pension benefits, which are not service-connected, for veteran and surviving spouse
  • DIC for parents

The Proposed Rule

On January 23, 2015, the VA issued a Notice of Proposed Rulemaking which identified the following proposals:

  • A bright-line net worth limit for claimants, as determined by the community spouse resource allowance utilized by Medicaid
  • Define net worth for VA purposes as the sum of a claimant’s assets and annual income
  • Clarify calculation of claimant’s assets, with a concentrated focus on treatment of a primary residence
  • Establish a 36-month “look-back” period and a penalty period, not to exceed 10 years
  • Impose a penalty for any financial instrument or investment made for the purpose of qualifying for the pension benefit
  • Create a presumption that a transfer during a look-back period was for the purpose of decreasing net worth to establish pension eligibility, subject to a rebuttal by clear and convincing evidence for fraud, misrepresentation, or unfair business practice related to the sale or marketing of financial products
  • Prohibit recalculation of a penalty period unless the original calculation was erroneous or the VA received evidence, within 60 days of the decision, that assets were returned before the date of the claim or within 30 days after the date of the claim
  • Define and Identify medical expenses that the VA may deduct from countable income

For the most part, these rules, all of which will be explained more thoroughly in the upcoming newsletters, were adopted as originally proposed.

Effective Date

The VA will not review asset transfers that occurred before the effective date of the final rule and the VA will not apply the new medical expense deduction rules to current claimants unless they change facilities or in-home care providers. Furthermore, if a claimant is receiving a pension on the effective date of the final rule, then the claimant will continue to receive benefits although his or her net worth exceeds the net worth limit established under the final rule, unless the claimant otherwise loses the pension. A claimant with a pending application will not be denied benefits, provided the claimant’s net worth meets the new limit established under the final rule.

Hook Law Center has been alerting the public of the proposed rule for nearly three and a half years, and has encouraged individuals to take action. The window of opportunity is closing – if you are a current client working on a plan for VA pension, we recommend that you continue to work diligently with your attorney to finalize the plan before the end of this month.

 

Kit KatAsk Kit Kat – Animal-Assisted Therapy

Hook Law Center: Kit Kat, what’s the latest in animal-assisted therapy?

Kit Kat: Well, the big news is that it is no longer just limited to dogs. Not that dogs aren’t great, but Pet Partners, the US’ largest registry of therapy animals, has a database of 13,000 animals. 94% are dogs, but they also have 200 cats and 20 llamas, according to C. Annie Peters, the organization’s chief executive. Not every cat can qualify to become a therapy animal she says, because “they need to have a high tolerance for strangers and hugs to become a registered therapy cat. There are regular grooming and hygiene requirements, and they have to enjoy getting in a car.” One cat who did qualify is named Xeli, who works at Denver International Airport. Another  is the cat who visits sick kids at Primary Children’s Hospital in Salt Lake City. Nevertheless, cats as well as rabbits and miniature horses are being deployed in this growing field.

The benefits of animal-assisted therapy is now being scientifically studied in a number of places. There is a Human Animal Research Institute in Washington, also one at the University of Pennsylvania, Purdue University, University of California-Davis, to name a few. Research is focused on the benefits of animal-assisted therapy for those with autism, depression, and post-traumatic stress disorder. Dr. James A. Serpell of the U. of Pennsylvania says the hormone oxytocin is key to understanding the pet-human interaction. “The petting and physical contact side of things is critical in terms of oxytocin release. Physical contact with something warm and fuzzy and soft is also a good trigger.”

It’s good to know that we animals are not just ornaments, but really can help our humans cope with everyday stresses of life, especially in times of illness. According to Jennifer Toomer-Cook of Children’s Hospital in Salt Lake City, “When kids have pets at home, having a therapy animal normalizes their stay here. They help with pain management and fear, and they’re a diversion. Having a purring cat next to you creates calm.” (Jennifer A Kingson, “As Animal-Assisted Therapy Thrives, Enter the Cats,” The New York Times, Sept. 6, 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 Monday, September 24th, 2018. Filed under Senior Law News.

Making the Transition to a Long-Term Care Facility

By Emily Martin, Esq.

Making the decision to have your parent or loved one move into a long-term care facility can be difficult. Maybe you have been caring for your mother for the past five years and feel that you can no longer do it.  Perhaps your 85-year-old mother can no longer care for your 90-year-old father without help and she has asked you to step in. Maybe your parents have declared, “I never want to live in a nursing home,” and now you feel guilty for making the decision to find a place for them to live.  Whatever your situation may be, making the right decisions about long-term care can help make the last years of your parents’ lives much more pleasant and dignified while giving you peace of mind that you have done the right thing.

When should we make the transition?

Many people aren’t sure when to begin thinking about long-term care for their parents. The most important thing that we tell most of our clients is to never wait until the situation has reached a crisis point. All too often, our clients wait until Mom has fallen at home and broken a hip before they consider long-term care. Sadly, if they had faced the situation earlier, Mom would have had the help and guidance she needed to prevent a fall from ever taking place.  It is always best to consider in-home care or assisted living help if you notice any of the following with your parents:

  • Difficulty cooking, cleaning or maintaining the house
  • Difficulty driving or inability to drive
  • Mild confusion
  • Frequent episodes of dizziness or clumsiness that result in minor falls.

If you parent is experiencing any of these problems, you might want to consider having someone come into the home to help them with day-to-day activities.  Additionally, while many people wish to stay in the home for as long as possible, others may want to move into an assisted living facility. Assisted living facilities do not provide 24/7 nursing care like a nursing home does, but the staff and nurses in the facility help with some activities of daily living like dressing and giving out medication.  These communities have the advantage of allowing your parent to have social interaction on a regular basis. Most assisted living facilities have regular social events such as movie night, bingo, and church services, as well as periodic outings to museums, local malls, grocery stores, and the bank. If you believe that your parent would thrive with more social interaction, an assisted living community may be the best decision for them.

One problem that we see all too often is that people wait until it is almost too late to make the transition to long-term care. If you wait until a tragedy has taken place, such as the death of a spouse or a severe illness, the trauma and confusion that come with moving into a long-term care facility will only be worse.  The best time to make this change is while your parent is still able to process the transition and welcome their new environment.

What do I need to do to prepare?

Obviously, the goal here is to make the change as smooth and painless as possible.  While it will never be easy to move your parent out of a house that they may have lived in for decades, there are some things that you can do to make the transition easier:

  • Make the move gradually. Nothing is worse than rushing a move to a long-term care facility. If it is at all possible, make the transition over the span of a couple of weeks or even a month.  If your parent has lived in her home for decades, organizing, packing and moving everything out of the house will take a great deal of time! Start with rooms that are not used very often – decide what to donate, what to put in storage, and what to bring to the new facility.  Go through every room until all of the work is done.  This might take a while, which is another great reason not to wait until the situation has reached a crisis point.
  • Familiarize your parent with the facility. Before your mother or father moves into the new community, take them to visit it a few times. Show them what their new room or rooms will look like, have them eat a meal in the dining room, and have them talk with some of the residents and staff.  The transition will be much smoother if they are already comfortable with the place and the people who live there.
  • Don’t give your parent too many responsibilities. On the day of the big move, try to make things as carefree as possible for your parent. Take him/her out to lunch or somewhere tranquil while others move the rest of his belongings into the new facility.  Make sure that the move is as stress-free as possible for your parent.  If they want to be involved, be sure to include them in as many decisions as possible.  Only you can gauge what level of involvement would be best for your parent.
  • Make sure they have an estate plan in place. This last step is the most important. Unfortunately, it is also the most overlooked one in the process. It is absolutely essential that you make sure that your parent has all of his/her legal and financial affairs in order before moving into a long-term care facility.  The cost of assisted living and nursing home care is several thousand dollars a month, and it is increasing steadily.  Most people do not have enough assets to cover these costs for more than a few months to a year.  It is vital that you meet with an experienced elder law and estate planning attorney who can give your parent advice on how to shield his/her assets from a Medicaid spend-down.  Your attorney can also give you important information on how to qualify for veteran’s benefits, if your parent is eligible, and can ensure that your parent has a plan in place in the event that they become unable to handle their financial or medical affairs on their own.  Without these documents in place, many people are forced to go through the lengthy, stressful, and expensive process of getting a guardianship and conservatorship so they can help their parent.  If there is no plan in place for how the parent’s assets will be distributed after death, the child may need to go through even more legal hoops, including the probate process and making difficult decisions that could have easily been made by the parent when they were still alive.

Making the transition to a long-term care facility is always difficult, but it doesn’t have to be a traumatic and stressful event for your parent – or for you.  With a little bit of advance planning, the transition can be made smoothly and a plan can be put in place that will help give you and your parent peace of mind for years to come.

Kit KatAsk Kit Kat – Foals in Outer Banks

Hook Law Center: Kit Kat, what can you tell us about the new arrivals to the herd of wild horses in the Outer Banks of North Carolina?

Kit Kat: Well, it looks like some new foals have been born recently, which is exceedingly good news. In the past year, the herd had been reduced by eleven horses. Two older horses died of natural causes. One mare was hit by a vehicle and died. One stallion died after a fight with another stallion. Six horses were removed after repeatedly escaping through an opening in a fence, and munching on local lawns. Finally, one of the five foals born this year died. So with the birth of a filly born in August, which was the fifth for the year, fans of the wild horses there are rejoicing! According to Jo Langone, chief operating officer of the Corolla Wild Horse Fund, usually only three or four foals are born each year. Two more are on the way. This year exceeded everyone’s expectations.

The herd size is a bit of a balancing act, according to Langone. The ideal size is around 120, which permits enough room for the horses and less stress on the habitat from over-grazing, especially within the Currituck National Wildlife Refuge. Currently, the herd size is around 100 and managed through birth control of the mares between certain ages. Mares under age four and older than twelve receive a contraceptive called PZP. Certain mares which have already had several pregnancies also are vaccinated. Before this program started in 2007, 26 foals were born. That was too many. But now, a few more foals is desirable. Experts don’t want the herd to get too small, because inbreeding could then lead to disease or birth defects. They continually monitor the numbers, and make adjustments as necessary. (Jeff Hampton, “Baby boom among Corolla’s wild horses brightens spirits after deaths and dismissals,” The Virginian-Pilot, August 31, 2018, p. 4)

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 Wednesday, September 12th, 2018. Filed under Senior Law News.

Financial Industry Issues New Rules to Protect The Elderly

By Jennifer Rossettini, CFP®

As a follow-up to our Elder Abuse series, we are pleased to inform you of some new rules issued for the financial services industry that are aimed towards protecting the elderly from financial abuse. Specifically, the Financial Industry Regulatory Authority (FINRA), the organization that regulates the securities brokerage industry, implemented new rules that took effect on February 5, 2018. Regulatory Notice 17-11 describes these new rules as a way for its members “to respond to situations in which they have a reasonable basis to believe that financial exploitation has occurred, is occurring, has been attempted, or will be attempted. Members can better protect their customers from financial exploitation if they have the ability to contact a customer’s designated trusted contact person and, when appropriate, place a temporary hold on a disbursement of funds or securities from a customer’s account.”

Under the amended FINRA Rule 4512 requires member firms to make reasonable efforts to obtain contact information for a trusted contact person who is over the age of 18 and who may be contacted about a customer’s account. Now, during the account opening process or thereafter, your financial advisor should be asking you for contact information for a trusted person and disclosing to you, in writing, that they may contact the trusted person and disclose account information to them in order to determine whether financial exploitation is going on.

Further, new FINRA Rule 2165 provides (1) that member firms must adopt and implement policies and procedures regarding elder abuse; (2) that employees of member firms must be trained about elder abuse; and (3) that member firms can temporarily refuse transactions if elder abuse is suspected.  This new rule defines a “Specified Adult” as someone who is 65 years old or older, or someone who is 18 years or older with an impairment that prevents the individual from protecting his or her own interests. The rule further defines “financial exploitation” as “(A) the wrongful or unauthorized taking, withholding, appropriation, or use of a Specified Adult’s funds or securities; or (B) any act or omission by a person, including through the use of a power of attorney, guardianship, or any other authority regarding a Specified Adult, to: (i) obtain control, through deception, intimidation or undue influence, over the Specified Adult’s money, assets, or property; or (ii) convert the Specified Adult’s money, assets or property.”

If a member firm “reasonably believes” that financial exploitation of a Specified Adult has occurred, is occurring, has been attempted or will be attempted, the firm is permitted to place a temporary hold on a disbursement of funds from the account of the Specified Adult. The member firm must then, within two business days, provide notice of the temporary hold and the reason therefore to all authorized parties on the account and the trusted contact person, unless one of those parties is the one suspected of doing the exploiting. While the temporary hold is in place, the member firm must conduct an internal review of the facts surrounding the suspicion of financial exploitation, and depending on the findings, can extend the temporary hold for an additional 10 business days.

While it remains to be seen how member firms will implement these new rules and what effect it will have on account owners, it is certainly a step in the right direction.

Kit KatAsk Kit Kat – Tiger in Captivity

Hook Law Center: Kit Kat, what can you tell us about Gustavo, a tiger, who was living in captivity in Mississippi, but now lives in Texas?

Kit Kat: Well, Gustavo is one lucky fellow! He’s 16 years old, and he was rescued just in time. We hope he survives until 20, the average age for tigers in captivity. In 2012, he was rescued from a roadside zoo in Mississippi. His owner there did not treat him well, and his diet was atrocious. This led him to have kidney issues and arthritis. He was fed on a diet of just chicken parts. Tigers need more than that—they need whole prey, which means including the bones and organs to get the nutrients they require. Now he is living at Cleveland Amory Black Beauty Ranch in Texas. He’s got plenty of room to roam and toys to chase like a large, synthetic ball.

Approximately, 5,000 tigers in the US live in poorly-run, roadside zoos or in private hands. This number is greater than the total number of tigers living in the wild across the world. Unfortunately, these untrained operators and owners don’t really know how to care for tigers, according to Nicole Paquette, Vice President of Wildlife Protection at the Humane Society of the US (HSUS). So through HSUS’s advocacy, the Big Cat Public Safety Act was introduced in the Senate this past June. It would outlaw the ability of individuals and unqualified exhibitors to house and breed big cats, like tigers. The Act has not yet been passed, but HSUS will keep advocating for it until it does pass. Big cats are so majestic and beautiful! They deserve to be protected. (“Gusto for the Good Life, All Animals, September/October 2018, p. 14)

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, September 7th, 2018. Filed under Senior Law News.

Why You Need an Estate Administration Attorney After the Death of a Loved One

By Sarah Schmidt, Esq.

Lay people often mistakenly suppose that seeking legal counsel for advice on the administration of an estate is always more expensive than if you manage to deal with paperwork and other legalities after the death of a loved one on your own. This erroneous assumption often leads to the following scenario.

A loved one, we will call “Mom”, passes away. Sally, who is named an executor of Mom’s will, goes to the bank to seek access to Mom’s account to help pay for funeral expenses and to pay Mom’s bills. While at the bank, Sally is denied access to the accounts, because she does not have the proper paperwork. Sally looking to save money, does not seek the advice of legal counsel and instead seeks advice from the bank teller, her neighbor, her CPA, her friends, or of course, even Google. After seeking all such advice, she heads down to the local courthouse to collect what she now believes she needs to get access to the account. While at the courthouse, Sally elects to qualify as an executor of Mom’s estate, post a bond, and pay probate taxes. While at the courthouse, Sally learns she now has a whole host of new duties, including filing inventories and accountings with the local Commissioner.

Unfortunately, what Sally does not realize is that by electing to navigate the legal landscape of probate on her own, she may have chosen the much harder route. It may be the case that the assets in Mom’s estate do not warrant the need to qualify and file accountings before a Commissioner of Accounts. Another possibility is that Mom’s debts far exceed any amount in the bank account, so she very well might have been advised by an attorney not to qualify as an executor at all.  There are a number of instances in Virginia law where it does not behoove you to head to the courthouse first. Always, always¸ seek the advice of counsel before making any such decisions or relying on the advice of a bank teller or court clerk. Believe it or not, simply seeking a consultation with an attorney may actually save you a great deal of money and headaches in the future.

Kit KatAsk Kit Kat – End to Greyhound Racing?

Hook Law Center: Kit Kat, what can you tell us about Florida legislation which will be on the ballot this November to end greyhound racing?

Kit Kat: Well, hopefully, the time has come to end this awful sport. Greyhounds at tracks are kept in ridiculously small cages, sometimes with 2 in cage. On average, the dogs spend 20-23 hours per day in a cage, with only a small amount of time to stretch and run in a ridiculously small yard. Animal welfare advocates have worked tirelessly to get a proposal on the Florida ballot to remove the requirement for tracks to hold live dog races in order for certain gambling games to take place and to totally outlaw all dog racing there by December 31, 2020. Florida has the majority of greyhound racing tracks—11 of the 17 that still operate nationwide.

The successful effort to get this proposal on the ballot is thanks to the efforts of the US Humane Society (HSUS), GREY2K USA, and advocates such as Sonia Stratemann. Stratemann has founded a greyhound rescue group called Elite Greyhound Adoptions. Since 2006, her group has rehabilitated and found homes for more than 2,300 greyhounds which were castoffs from the racing industry. Stratemann has been forbidden to enter the premises of the Palm Beach Kennel Club, which is near her home, because of her activism. While she can no longer adopt from that particular club, she has joined forces with other organizations to stop this awful industry. Besides abuse, the dogs frequently suffer injuries on the track. Since 2013, more than 460 greyhounds have died from injuries during races, through collisions with other dogs, or other injuries that occur in the brutal racing process.

Let’s hope this initiative is successful! Stay tuned! It’s a tremendously worthwhile endeavor for those of us who love animals and want them treated humanely. (Julie Falconer, “Home Stretch-A History-Making Campaign Could End Greyhound Racing in the US,” All Animals, September/October 2018, p.10-11)

Upcoming Seminars

Distribution of This Newsletter

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

Posted on Tuesday, September 4th, 2018. Filed under Senior Law News.
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