Comprehensive Planning. Lifelong Solutions.

How to Cope with the Early Stages of Dementia

By Emily Martin, Esq.

When a parent or loved one is diagnosed with dementia, the diagnosis is devastating not only for the person who has dementia, but also for their friends and family. Because many types of dementia are degenerative, meaning they will continue to worsen with time, a dementia diagnosis often changes the landscape of family relationships. While Dad may have always handled the finances, if he is diagnosed with Alzheimer’s disease and Mom is unable to learn how to manage their money, a child or other caregiver may need to step in and begin handling these things for them. Or if Mom has always loved to drive to her monthly hairdresser appointments and weekly grocery store trips but suddenly finds herself getting lost on the two-mile drive there, it may be time for her to stop driving. How can you tell whether a loved one is suffering from dementia in the first place, and what can you do to help someone who is suffering from the early stages of this disease?

If you suspect that your loved one may suffer from dementia, the first step is to take them to the doctor to get that diagnosis confirmed. The doctor can help develop a treatment plan based on your loved one’s specific medical diagnosis, and having a specifically tailored plan can often slow the progression of the disease. This diagnosis, although difficult to hear, may also help your loved one realize that they need help (at least in the beginning stages of the disease). Although Mom may seem perfectly capable of handling her finances, research has shown that the judgment needed to make financial decisions is impaired even during the early stages of dementia. Even if Mom looks and feels fine and is acting relatively normal, her state of impaired judgment may not allow her to see that something is a scam. Something that she would have easily recognized as a rip-off before her diagnosis may now seem like a good idea to her. Armed with the knowledge of her diagnosis, Mom and her family members will be better equipped to handle these types of situations.

Not only can this impaired judgment make someone vulnerable to abuse from outside parties, but it can also make it easier for unscrupulous family members to prey upon those with dementia. If Dad needs help writing checks and a dishonest family member offers to “take care” of everything for him, Dad might agree to that in a moment of weakness. The same is true of personal decisions, such as whether to move into a nursing home or with another family member. Often these types of situations result in an abuse of power and financial exploitation or elder abuse by family members. Although it is illegal, cases of financial exploitation can be extremely difficult to prosecute. In fact, thousands of cases of financial exploitation of seniors each year go unreported or are not investigated. For these reasons, it is important to make sure that your parent has a strong estate plan in place that is designed to prevent issues from arising when he/she no longer has the capacity to make his/her own decisions.

It is vital that this step be taken as soon as possible – if you wait until your loved one no longer has the capacity to sign legal documents, it may become necessary for a judge to appoint a guardian and conservator to make those decisions for them. When someone does not have a power of attorney, anyone can petition a judge to be appointed conservator for them, so they can manage their finances. In contrast, a financial power of attorney allows you to decide who will make financial decisions for you, and it can also set the stage for Medicaid planning in the future if that becomes necessary. An experienced elder law attorney will draft a financial power of attorney that will give your agent the authority to rearrange your assets and manage them in a way that will allow you to qualify for Medicaid in the future if you need that benefit to cover the cost of long-term care.

Additionally, if someone does not have a healthcare power of attorney, anyone can petition a judge to become guardian over that person, so they can make their personal decisions for them. These decisions include whether they should live in a nursing home, what their course of medical treatment should be, and much more. Not only is this an expensive and public process, but the person the judge appoints  may not have been the same person that your loved one would have wanted managing his affairs, if he/she had been able to make that decision on his/her own. In contrast, an advance medical directive often includes a living will as well as a healthcare power of attorney. A living will allows you to state your wishes for end-of-life care. If you were in a terminal state with no hope of recovery, would you want to be kept alive artificially through a ventilator, respirator, or feeding tube? This document helps make your wishes clear to your doctors as well as your loved ones.

If a loved one has recently been diagnosed with dementia, it is important that they consult an experienced elder law attorney as soon as possible in order to get their affairs in order. Most people in the early stages of dementia have the capacity to sign legal documents, but that can change very quickly as the disease progresses. Do not wait until it is too late to have these important discussions with your loved ones.

Ask Kit Kat: Brave Canine

Hook Law Center: Kit Kat, what can you tell us about the dog in Thailand who ended up seeking refuge on an oil rig that is 135 miles from shore?

Kit Kat: Well, this truly is a remarkable story! Somehow a brown dog, resembling a hound to me, but which was identified as an aspin, a breed from the Philippines, ended up near an oil rig, which was 135 miles from the nearest shore off the southern coast of Thailand. No one is sure how he got there. He may have fallen off a ship; nonetheless, he made his way to an oil rig in the middle of the ocean. Fortunately, he was spotted by one of the workers, Vitisak Payalaw, because the water was extremely rough. At first, Payalaw tried extending a pole, but that really doesn’t work for a dog with only front paws to grip it. So, with the assistance of 3 others, a rope loop was devised after some discussion about what was the best way to proceed. The crew was ecstatic when the device worked. Payalaw said, “His eyes were so sad. He just kept looking up just like  he wanted to say, ‘Please help me.’ At that moment, whoever saw this, they would just have to help.” Once rescued, they fed him some water and meat. They also named him “Boonrod,” which means “he has done good karma and that helps him survive.”

On April 15, 2019, Boonrod was transported back to the mainland (Songkhla, Thailand) where he was examined by a veterinarian. He appears to be in good condition. He will stay in Thailand a while to regain his strength. Payalaw has volunteered to adopt him, if he is not claimed by anyone in the near future. This is one lucky dog, who never gave up trying! His story could have ended tragically, but perhaps he does have good karma and deserves to have a few more days on this earth. (Kyle Swenson, “ ‘His eyes were so sad’: Oil rig crew rescues a dog swimming 135 miles off Thailand,” The Washington Post, Morning Mix section, April 17, 2019)

Posted on Monday, April 29th, 2019. Filed under Senior Law News.

Fraud, Scams, & Dementia

By Letha Sgritta McDowell, CELA CAP

A recent study from Rush University analyzed whether decreased awareness to scams was an early indicator of dementia.  The study included more than 900 seniors in their 70s and 80s and their ability to detect scams and fraud. Researchers then examined whether there was a link between susceptibility/awareness of scams and fraud to Alzheimer’s disease or other cognitive impairment. The seniors studied had no obvious signs of dementia or impairment at the outset.  Of those studied, more than 400 later were diagnosed with Alzheimer’s disease or cognitive impairment.

Science has determined that before symptoms of cognitive impairment become obvious, there are changes to the brain which seem to impact executive function.  Many have wondered if an impaired executive function (judgment and reasoning) leave a person open to scams and fraud, especially with the prevalence of Elder Abuse.  The study from Rush University appears to be the first to study a link between the two. Participants in the study who were later diagnosed with Alzheimer’s disease or cognitive impairment demonstrated a higher likelihood of being susceptible to scams or fraud prior to the diagnosis.

It is important to note that the study is not conclusive, and some people who were not diagnosed with dementia were unable to detect scams, and some with cognitive impairment were not victims.  Instead, the study demonstrated an increased possibility that someone unable to detect fraud or a scam may have an increased likelihood of later being diagnosed with a cognitive impairment. The study is both good and bad. Elder abuse is underreported in many cases due to concern by the older adult that he or she will be perceived as being impaired. However, many caregivers want to protect their older adult loved ones and want to prevent them from being victimized. Also, getting an early diagnosis and care for changing cognition may be beneficial in the long term with regard to the elder’s later functioning.

If you are concerned about being the victim of a scam or are concerned about a loved one falling victim, there are some resources available to assist. The Financial Industry Regulatory Authority (“FINRA”) has created a risk meter for individuals to determine their risk factors for investment fraud.  The questions range from whether you live alone to have you considered buying stocks in tech or start-up companies or which sell for less than $5 a share to have you attended an investment seminar with a free meal? Answers to these questions lead to a score on a scale from low to high along with a description of what makes an individual more likely to fall victim to scams.  Interestingly, age is not a factor on FINRA’s risk meter, but whether you live alone is something to be considered.

FINRA has also created a test to determine if you’ve been scammed and asks questions about where you learned about the activity and what sort of guarantees were provided. The results of the “scam meter” show red flags warning of scams and why they are red flags. In addition, FINRA provides additional resources about avoiding fraud and a hotline to help answer questions about investments and investment opportunities and to file complaints if they have been victimized.

Again, a lower than average ability to detect a scam or fraud is not a guarantee of a later diagnosis of dementia.  Instead, it can be an early warning sign which allows the individual and their loved ones to be vigilant and prepared.  The study from Rush University is also a good reminder of the prevalence of elder abuse, ways that seniors can protect themselves, and options for families and friends to keep loved ones safe from predators.

Ask Kit Kat: Canine Hero

Hook Law Center: Kit Kat, what can you tell us about the dog who became a hero saving his family?

Kit Kat: Well, this is truly a remarkable story. Zero, as the family named him after a ghost dog in Tim Burton’s “The Night Before Christmas,” proved himself to be a loyal and faithful family member. The Martinez family found Zero, a Great Pyrenees, on a Texas highway when he was only a month old. He was in terrible shape, and a veterinarian the family consulted recommended that he be put down. The family resisted, and they’re glad they did—he saved their lives by giving his own. Even before the incident in which he saved their lives, they had begun calling him—Zero the Hero—because of his attentive, calm personality.

Here’s what happened. Zero, by this time, was almost 3 years old. On March 10, 2019 the family was celebrating their daughter’s 12th birthday with an outdoor cookout. There were more than a dozen children at the party. Then, a family friend pulled up in the driveway, and Laura Martinez had an uneasy feeling. Just the day before, she had confronted the young man, Javian Castaneda, about his possibly having broken into her house and having stolen cash and jewelry. An argument ensued, and Castaneda started shoving Laura and hitting her in the face. When one of Laura’s sons joined in the melee, Castaneda pulled out a gun. No one in the family was expecting that at all—Castaneda was one of the son’s friends and had even spent overnights at their house. He fired 9 times. The first shot hit the garage door. Then, Zero was hit, but Zero still managed to lunge at Castaneda. Another shot landed on one of Laura’s son’s foot. One hit Laura in the leg. Another hit Zero’s ear. Zero lunged again. The final shot hit Zero in the stomach. After all this, Castaneda fled the scene. He was arrested a few days later, and he is in jail with a $90,000 bond.

Unfortunately, Zero had to be put down. He was paralyzed, and such a large dog could not live like that. Zero earned his name that day. He truly was a hero. Laura said, “I can honestly tell you there’s no way we would be here without Zero. The reason all our wounds are below the waist is because every time Zero jumped… it kept (Castaneda) from being able to aim.” (Reis Thebault, “A family rescued a dog from certain death. Years later, he died saving their lives in a shooting.” The Washington Post, (Animals section), March 26, 2019)

Posted on Monday, April 22nd, 2019. Filed under Senior Law News.

Filing Status for Years After Spouse’s Death

By Hook Law Center

Taxpayers must use one of five filing statuses when filing their individual tax return. Your filing status determines your income tax rate and the amount of your standard deduction. When selecting a filing status, you may qualify for more than one status. You will want to select the filing status that results in the lowest tax.

In the year of your spouse’s death, you can still file a joint tax return. It is your responsibility to file a final return for your deceased spouse. While you can’t file a joint return for a tax year after the year in which your spouse died, you can continue to use the joint return rates for two more years if you qualify as a “surviving spouse.” The joint return rates are more favorable than the single rates or the head-of-household rates. A surviving spouse also receives a larger standard deduction than a single taxpayer or head of household.

To qualify as a “surviving spouse,” you must meet all of these requirements:

  • You have a child who qualifies as your “dependent” for the tax year.
  • Your spouse died during one of the two years immediately preceding the tax year for which the return is being filed.
  • The child lived with you for the entire year, except for temporary absences.
  • You paid over half the cost of maintaining your home.
  • You were eligible to file a joint return with your deceased spouse for the tax year of the death (even if you didn’t actually file jointly).
  • You have not remarried before the end of the tax year for which the return is being filed.

If you do not meet the requirements for surviving spouse status and you do not have a qualifying dependent, than you will file as Single for the tax years after your spouse’s death.

Adjusting income tax withholding. As a result of your spouse’s death, you may be have to adjust the amount of income tax you have withheld or make quarterly estimated tax payments. To ensure that the correct amount of tax is withheld, you should check your withholding and, if necessary, submit a new Form W-4 with the revised information.

Remarriage. If you remarry, you won’t be able to file as a surviving spouse, but you’ll be able to file a joint return with your new spouse.

Ask Kit Kat: USDA and Cat Experiments

Hook Law Center: Kit Kat, what can you tell us about the USDA and their decision to end experiments using cats?

Kit Kat: Well, in my opinion, this decision was long overdue. The announcement was made on April 3, 2019. “The agency said cats will no longer be used as ‘part of any research protocol in any ARS (Agricultural Research Service) laboratory’ and the remaining cats in its labs are in the process of being adopted by USDA employees.” This is a huge victory for cats! As the White Coat Waste Project, an animal advocacy group, has revealed, cats used in research by the USDA were in some cases injected with parasites to learn of ways to control certain diseases like toxoplasmosis in both felines and humans. Afterwards, they were put to death once the research had been completed.  Though the goal was laudable, the means were not.

There were 14 cats remaining at USDA-ARS labs which had not been infected with parasites, and these will be adopted. It took advocacy by several animal rights organizations as well as by the US Congress to accomplish this result. It’s great to see advocacy that results in permanent change. The saying “You can make a difference,” is certainly true. (Hilary Hanson, “USDA Ends Deadly Cat Experiments, Plans to Adopt Out Remaining Cats,” The Huffington Post, April 2, 2019)

Posted on Tuesday, April 16th, 2019. Filed under Senior Law News.

Why Informed Decision-Making for Retirement Income Is So Important

By Jennifer Rossettini, CFP®

For those of us still in our working years, there are two things we are good at from a financial planning perspective: earning income and saving some of that income.  What we are not so good at as we head into our retirement years is figuring out how to turn all of that hard work and savings into an income stream that will help us live comfortably in our retirement years.  While we are working, we have a couple of things going for us. We are contributing to Social Security. Some of us (and our employers) are saving to an employer retirement plan. And some of us are saving over and above our employer retirement plans into personal savings and investments. Where many of us miss the boat is coming up with a plan to turn all that we had going for us during our working years into a secure retirement income.

Granted, there are many variables to contend with as we enter retirement. Where are we going to live? How long are we going to live? What is happening with the stock market? How high is inflation going to be? When should I begin taking Social Security? How on earth are we going to pay for health care? Fortunately, a secure retirement doesn’t necessarily require a crystal ball.  What most of us need is a financial plan that not only incorporates our income needs, contingent expenses, and legacy goals, but also addresses things like longevity, inflation, long-term care, and market risk. Being in a position to make informed decisions can improve your income dramatically. For example, just choosing the right Social Security claiming strategy can increase your retirement income by 9%.[1]  Social Security benefits can be claimed between the ages of 62 and 70, with credits provided for those who wait. Nearly one-half of Americans claim Social Security benefits at age 62, presumably because they haven’t been counseled otherwise. With the right advice and the ability to make an informed decision on when to take Social Security, you can maximize the benefits that you will receive over your lifetime.

Similarly, planning for a tax-efficient withdrawal of your assets can increase your income by an additional 3.2%. Instead of keeping the same asset allocation for both tax-deferred and taxable accounts, and withdrawing proportionately from each account during retirement, a better approach may be to spend down taxable accounts first and let the tax-deferred assets continue to grow.  Finally, instead of relying on the “4% rule” by taking 4% of your portfolio at retirement and increasing that amount by inflation in the following years, consider going through an annual process of determining the maximum withdrawal rate based on your asset allocation, time horizon and a desired probability of success. This “dynamic withdrawal strategy” could increase your retirement income by an additional 10%.

In summary, there are many important decisions to be made at retirement to turn savings into income that will last. A good financial advisor and/or financial plan will help you make informed decisions that will increase your income and improve your odds of financial success.


Ask Kit Kat: Baby Panda On the Way?

Hook Law Center: Kit Kat, what can you tell us about a baby panda watch at the National Zoo in Washington, D.C.?

Kit Kat: Well, we’ll keep your fingers crossed. Mei Xiang, a female panda at the National Zoo, was artificially inseminated on March 30, 2019. However, the zoo won’t know if the procedure was a success for 3-6 months. The zoo didn’t want to leave things to chance, because the window of fertility for a female panda is only 24-72 hours each year. Also, Mei Xiang is 21, and nearing the end of her reproductive life, perhaps. Zookeepers had been watching her hormone levels since about mid-March, because she had begun acting like she was ready to breed. She was restless, vocalizing more than normal, playing with water, and marking her scent around her pen—all typical for a female panda that was ready to mate. A male panda named Tian Tian, had also noticed. The two share a “howdy window,” which enables them to socialize, but still maintain their separate areas. He was very attentive, and didn’t want to lose sight of her. However, Mei Xiang didn’t respond to his advances in the way the zookeepers had hoped. Therefore, they took the matter into their own hands. They used his sperm, and they artificially inseminated her.

Now the wait begins. The zoo staff will periodically do ultrasounds, but that in itself is a  difficult feat on a panda. The fetus tends to be small and will only weigh about a pound at birth. Also, Mei Xiang has had false pregnancies in which she acts like she’s pregnant (nesting, eating less), but she really isn’t. In 3-6 months, they’ll know for sure. Mei Xiang has given birth at the zoo, but only 3 have survived—Tai Shan, Bao Bao, and Bei Bei. Tai Shan and Bao Bao are 14 and 6, respectively, and they have been returned to China under the terms of a placement agreement. China requires that most pandas leased to the United States be returned to China at the age of 4. Giant pandas are considered “vulnerable” by the International Union for Conservation of Nature. Worldwide, there are only 500 in captivity and about 1,800 in the wild.

So let’s hope for the best, and that Mei Xiang gets one last chance to be a mother! We’ll all enjoy it, too! (Dana Hedgpeth, “Baby panda watch hits National Zoo,” appeared in The Virginian-Pilot from The Washington Post, March 31, 2019, p. 7)

Posted on Monday, April 8th, 2019. Filed under Senior Law News.

Due Process Rights in Guardianship Proceedings

By Shannon Laymon-Pecoraro, CELA

The 14th Amendment of the Constitution of the United States of America provides the right to due process attaches to anyone who is threatened with loss of liberty or property. In guardianship proceedings, an individual that is found to be incapacitated may lose all of his rights and property. The respondent in a guardianship may lose such things as his right to vote, the ability determine where he will live, and be denied access to his property. The loss of such rights is a deprivation of liberty and property for which a court is required to ensure due process protections are afforded.

Pursuant to Virginia Code § 64.2-2003, a guardian ad litem, a licensed attorney who has been vested with a number of statutory responsibilities and duties, must be appointed by a court in every guardianship matter. The guardian ad litem represents only the “interests” of the Respondent, and not the Respondent himself. In essence, the guardian ad litem serves as the eyes and ears of the court by investigating the case and making a recommendation. Such recommendation may, however, wholly ignore the respondent’s wishes, thus depriving the respondent of the due-process protections afforded to him. As a result, the respondent has a right to choose independent counsel to serve as an advocate during the course of the guardianship proceeding.

Additionally, Virginia Code § 64.2-2007 expressly provides a respondent with the right to request a jury trial and the ability to, “compel the attendance of witnesses, present evidence on his own behalf, and confront and cross-examine witnesses.” The right to a jury is often viewed as to application of the citizens’ perspective to the law. This right, combined with the other rights afforded to a litigant, help ensure that a respondent is afforded the right to defend against an accusation of incapacity and that there is a fair process.

Ask Kit Kat: Lucky Calf

Hook Law Center: Kit Kat, what can you tell us about a young calf that got loose in New York City?

Kit Kat: Well, this is the craziest story! Did you know that New York City has approximately 80 slaughterhouses? Neither did I, until I read an article in The New York Times about it. So, on March 19, 2019, one little, darling male calf managed to escape from the conveyance which brought him, and he was trotting along the Major Deegan Expressway near Yankee Stadium in the Bronx. He had a tag in his ear, and clearly looked bound for a slaughterhouse. The NYC police sought assistance, and they had the calf tranquilized. He was then transported to an Animal Care Centers facility in Harlem. Animal Care Centers are a nonprofit which provides animal control services across the city. Someone with a sense of humor dubbed the little calf, which was under a year old, Major Deegan, after the expressway where he had been found.

Major Deegan is not the first animal to have escaped the fate of being sent to a slaughterhouse. Already this year, Katy Hansen of the Police Department says, a lamb and two goats have appeared on city streets. In the case of one of the goats, someone had taken it to a slaughterhouse as a way to get rid of the animal. Fortunately for the goat, it was rejected, and the person who brought it there, apparently just let it fend for itself.  In all of 2018, there were only three goats, seven pigs, and one sheep taken into custody after being found wandering aimlessly, so Ms. Hansen is not sure why there is a sudden spike in farm animals being abandoned.

Major Deegan, like the goat and lamb that had been recently found, were then sent to Skyland Sanctuary in Wantage, NJ, where they could have a more natural setting. The other goat was sent to the Farm Sanctuary in Watkins Glen, NY. These creatures sure got lucky! (Liam Stack,  “Slaughter-Bound Calf Escapes on Expressway, Earning New Name and a Life of Leisure,” The New York Times, March 19, 2019)

Posted on Monday, April 1st, 2019. Filed under Senior Law News.
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Ask Kit Kat: Pet advice and wisdom as Kit Kat sees it.