Comprehensive Planning. Lifelong Solutions.

Are You Ready for REAL ID?

By Jennifer Rossettini, CFP®

The REAL ID Act, passed by Congress in 2005, established minimum security standards for license issuance and production as a result of the 9/11 Commission’s recommendation that the Federal Government “set standards for the issuance of sources of identification.”  By October 1, 2020, everyone must have a REAL ID card, or an acceptable alternative, if they wish to travel by commercial aircraft or access federal facilities.  A few Virginia DMV “horror stories” heard around the office lately prompted this article to make sure you are ready for REAL ID.

All applicants for a REAL ID compliant credential must apply in person at the Virginia Department of Motor Vehicles.  Even if you currently hold a valid Virginia driver’s license, you must apply in person for a REAL ID, and provide physical documentation of your identity, legal presence, full Social Security number, Virginia residency (two proofs required), and, if applicable, name change.

Your name must appear the same on all of your proof documents.  If your name does not appear the same on all proof documents, you will be asked to provide additional documentation to connect the names, such as a marriage certificate (a marriage license is not acceptable), divorce decree (if the divorce decree provides for the name change) and/or court order.  Documents submitted for proof of identity must include your full legal name and your date of birth, and can include: official birth document issued by a U.S. State, jurisdiction, or territory; valid unexpired U.S. Passport or U.S. Passport card; U.S. Certificate of Naturalization or Citizenship.

All first time applicants or applicants whose Virginia credential has expired or been suspended, revoked or cancelled, will need to present proof of legal presence in the forms described above or listed here for proof of identity.  For proof of Virginia residency, you must choose one from the primary list and one another from either the primary list or secondary list.  Some examples include: deed, mortgage statement or lease; voter registration card; Virginia driver’s license; and utility bills.

Although your Social Security number will not be displayed on your REAL ID, Virginia law requires that proof of it be submitted to DMV.  The proof you provide must show your name and all nine digits of your Social Security number.  Examples of acceptable documents include your Social Security card, W-2 form, or payroll stub.

Applicants who successfully complete the process will receive a temporary driving permit or an ID card receipt.  Your new license or ID card will be mailed within 7 to 10 days and will display a star in the top right corner.

Of course, if you choose not to apply for a REAL ID, you may still use your standard driver’s license or ID to drive, vote or register to vote, verify your identity at banks, utility companies and retail stores, and apply for federal benefits.  Also, as long as you have an alternative form of federally acceptable identification, such as a valid U.S. Passport, a U.S. Department of Defense ID Card, a Transportation Worker Identification Credential, etc., you may use it to board commercial aircraft and access federal facilities.

Ask Kit Kat: Nutria in North Carolina

Hook Law Center: Kit Kat, what are nutria, and why are they in North Carolina?

Kit Kat: Well, I must admit I didn’t know what nutria were until I read a recent article about them in The Virginian-Pilot newspaper. Nags Head, NC is having a particularly hard time right now with them, since this winter is unusually warm. Nutria are rodents that resemble a small beaver, have a rat-like tail, and large orange front teeth. They like to feed off plants in drainage ditches and wetland areas. The problem is that they eat so much of these plants, that ditches sometimes collapse and wetlands become open ponds. Nags Head town engineer, David Ryan, says the town tries very hard to maintain the ditches, which are used for drainage after big storms. Dealing with the nutria is like taking 2 steps forward, but 1 step backwards. The town tries to keep the nutria numbers down by trapping those they become aware of. Also, some homeowners hire their own pest control services or line driveway ditches with rock.

Nutria were brought to the United States to control certain plants and for their fur. They were introduced to Hatteras Island in the 1940s. Unfortunately, they are experts at reproducing. It is not unusual for them to have 4 litters a year, with as many as 12 pups! Also, nutria are quite aggressive, and are known to fight and even bite dogs. Muskrats, which are native to the area and much smaller, are no match for the nutria. So, Hatteras Island does indeed have quite a problem. Trapping appears the main way to curb their numbers, and it is legal to trap them year-round in eastern Virginia and North Carolina. Normally, I’m not in favor of eliminating types of animals, but in this case, it does appear justified. (Jeff Hampton, “Beaver-like nutria tearing up Nags Head ditches,” The Virginian-Pilot, January 9, 2020)

Posted on Monday, January 27th, 2020. Filed under Senior Law News.

Why Funding Your Trust is So Important

By Emily Martin, Esq.

One of the most common difficulties we run into is clients who have an unfunded trust.  Many people go to an estate planning attorney because they want to avoid probate or protect their assets through a trust-based plan.  Clients who may need Medicaid benefits in the future or who want to become eligible for veterans’ benefits may be advised to execute an irrevocable trust.  Hoping to meet these goals, they go to an attorney’s office, design their estate plan, and sign their estate planning documents.  Unfortunately, and all too often, this is where many people end the estate planning process. However, an estate plan, especially a trust-based plan, is not something to be tossed casually into a dresser drawer or closet to gather dust for the next twenty years. When you execute a trust, it is vital that you also go through the process of funding the trust. If a trust is completely unfunded, it often may as well not exist.

Funding a trust refers to the process of retitling some or all of your assets into the trust so that your goals, whether they be protecting your assets or avoiding probate, can be met.  If you have a revocable trust, it is important that all of your assets that would normally pass under probate be funded into the trust.  Otherwise, your goal of avoiding probate will not be met. 

If you have an irrevocable trust, you can place as many assets as you wish into the trust in order to avoid having to spend down those assets to become eligible for Medicaid or veterans’ benefits.  Some clients place all of their assets into an irrevocable trust, while others are only comfortable with placing their home or most of their bank accounts into the trust.  Remember, if you’re considering an irrevocable trust in order to preserve your assets, it is important that you transfer all of the assets that you wish to title into the trust as soon as possible.  Medicaid currently has a five-year lookback, meaning that they will look back at all of the uncompensated transfers you made over the past five years (including those into an irrevocable trust). Depending on the amount you transfer, you may not be permitted to receive Medicaid benefits for several months. On the other hand, there is a three-year lookback in place for the VA Aid & Attendance Pension.

Depending on your financial situation and the amount and types of assets you have, funding a trust can be as simple as filling out a form with your financial institution, or it can be so complicated that you have to work with an attorney to complete the process.  The only way to make sure that you fully and properly fund the trust is to seek the advice of an experienced attorney who will be able to make recommendations as to which assets need to be retitled into your trust.  Remember – if you do not fund a trust, you might as well not have executed it at all. Only a fully funded trust will work the way you intended it to in order to protect your assets and provide for your family after you pass away.

Ask Kit Kat: America’s Parrot

Hook Law Center: Kit Kat, what can you tell us about the Carolina parakeet that is now extinct?

Kit Kat: Well, this is an interesting story. As recently as the late 1930s to early 1940s, a Carolina parakeet existed. Its face was red, its head yellow, and its wings green. Its length was in the range of 12 inches from beak to tail. Imagine encountering this exotic creature—it must have been a sight to behold! Its territory ranged from the mid-Atlantic and southern Atlantic coasts to Oklahoma. Oklahoma’s parakeets became extinct in 1913. Those along the Atlantic coast did not die out until 1938-1944, the best estimate available at this time.

So how have we learned so much about a bird which has been extinct for 80-100 years? Research has come from Spain. In 2016, Carles Lalueza-Fox, an evolutionary biologist at Pompeu Fabra University in Barcelona, was offered the opportunity to examine the remains of the bird in a private collection. Dr. Lalueza-Fox and his colleagues then set about to examine it by drilling a piece of bone in the bird’s leg to extract genetic fragments. The team was ecstatic about the condition of the bird. Similar human samples of this age often to not have viable DNA to extract. Using the sun parakeet of South America as a guide, they were able to reconstruct the Carolina  parakeet’s genome, because the two are so similar. Conclusions  reached were: the sun parakeet and Carolina parakeet split about 3 million years ago; whatever led to the extinction of the Carolina parakeet must have happened suddenly, since there is no evidence of genetic mutations or poisoning. Kevin Burgio, a researcher in New York at the Cary Institute of Ecosystem Studies in Millbrook, NY, suspects it was disease. A favorite in their diet was cockleburs. The plant is found as weeds, especially near poultry farms. He suspects a disease from the chickens may have infected them.

More research needs to be done, and there is even the possibility that the species could be revived. It’s called de-extinction. We’re a long way from that, however.  At least 500 genes would have to edited and re-created. Also, if disease was the cause of extinction, would a lot of money be spent for the same extinction process to re-occur? It’s an intriguing proposition. Stay tuned as science develops in the 21st century! (Carl Zimmer, “Once America Had Its Own Parrot,” The New York Times, (Science section), Dec. 20, 2019)

Posted on Monday, January 20th, 2020. Filed under Senior Law News.

Nursing Home Preadmission Screenings

By Shannon Laymon-Pecoraro, CELA

As elder law attorneys, we frequently see nursing homes attempt to wrongfully discharge clients. Under the Nursing Home Reform Act, there are strict rules regarding when a nursing facility may involuntarily discharge a patient. Specifically, a nursing home must allow a resident to remain in the facility unless one of the following conditions is met:

  1. the resident’s welfare cannot be met in the facility;
  2. the resident no longer needs the services provided by the facility;
  3. the safety of individuals in the facility is endangered;
  4. the health of individuals in the facility would otherwise be endangered;
  5. the resident has failed, after reasonable and appropriate notice, to pay for a stay at the facility; or
  6. the facility ceases to operate.

And, even under those circumstances, the facility is still responsible for the development of a safe-discharge plan. Specifically, a facility is responsible for developing a post-discharge care plan that assesses the continuing care needs and development of a plan designed to ensure the individual’s needs will be met after discharge from the facility into the community.

While we have repeatedly received stories regarding the fact that there are “no long-term care beds available” or the patient was “only admitted for short-stay rehabilitation”, the most recent trend in attempted discharges relates to the facility failing to require a preadmission screening prior to accepting a patient. 

A preadmission screening is necessary when a patient will be admitted inpatient and are in need of long-term care services, which may need funding by Medicaid within 180 days of admission.  While this is not a new requirement, in April of 2019, the Virginia Department of Medical Assistance Services issued a bulletin that, effective July 2019,  they would begin implementing a process to verify that a valid screening exists prior to admission into a nursing facility, and that, in accordance with policy, they will not provide reimbursement for services unless a screening is completed prior to admission into a nursing facility.  They also made it clear that it is the nursing facility’s responsibility not to accept residents without pre-authorization who are Medicaid-eligible in less than 180 days of admission.

In practice, we see many hospitals failing to perform the screening, and nursing homes accepting patients without the screenings. If you or a loved one intend to be admitted into a nursing home, prior to discharge from the hospital, you should request the hospital perform a screening, if there is any possibility the stay may become long-term. This will avoid future problems if you or your loved one needs to apply for Medicaid services.

Ask Kit Kat: Deaf/Blind but not Out

Hook Law Center: Kit Kat, what can you tell us about Opal, an Australian shepherd mix, who is both blind and deaf and lives in the Spokane Valley of Washington State?

Kit Kat: Well, this truly is a remarkable story. Opal, who has both blindness and deafness, was lucky to be adopted at 4 months old by the Brays. At the time, she couldn’t go up and down stairs, couldn’t play games like fetch, etc. With a little help from her new parents, she learned to respond to touch—one tap on her back means to sit, two taps on her shoulders means to lie down. She also developed a keen sense of smell. Utilizing these two senses, she now functions almost like any other dog. She can even sense when her human dad gets home from work. As soon as he enters their yard, she is barking and jumping, happy to welcome him home.

Unfortunately, Opal is not unique. The loss of her sense of sight and hearing is due to the presence of two merle genes. It can happen to any type of dog that has the merle gene, like Great Danes, border collies, and certain kinds of corgis. One merle gene will not make an impact except for a marbling effect on its coat, but two merle genes can result in the dog being deaf, blind, or both. Most professional breeders are aware of this issue, and know how to avoid this problem, but inexperienced breeders are not. Amanda Fuller, who runs a dog rescue for deaf and blind dogs and is a vet technician in Baltimore, has helped create and shared videos on the subject to increase awareness of the problem.

The Brays are to be commended. They not only have Opal but also another dog (a terrier mix) named Pearl, who is deaf. Both dogs fit right in with the family which now includes their daughter, Lily. Lily presents no problem for Opal. When Lily was an infant, they introduced them to each other. Without them saying where the baby was, Opal instinctively knew, and she slowed down as she entered the room where the baby was. She is probably relying most heavily on her sense of smell. The Brays say Opal can even sniff out an ice cube if one happens to fall in their kitchen. What a unique and intelligent dog! (Meryl Kornfield, “Opal is deaf and blind, but her owners insist she’s no underdog,” The Washington Post, December 30, 2019)

Posted on Monday, January 13th, 2020. Filed under Senior Law News.

More Than a Form: Analyzing the Power of Attorney

By Letha Sgritta McDowell, CELA CAP

A recent case from the Circuit Court of Wythe County Virginia provided a good a reminder of why a well-drafted power of attorney is a critical part of every person’s estate and disability planning. The case of Rae Lee Davis v. J. Garnett Davis Jr., et al analyzed the propriety of an agent’s transfer of property prior to the death of the principal.

The case arose from questions raised by the wife of a decedent regarding transfers which were discovered after the death of the principal. Samuel Dickey Davis (“Dickey”) was injured in an accident while he was in his 40s. The accident left him a quadriplegic who required assistance with daily functions such as dressing and bathing. Dickey’s mother, Agnes, added an addition to her home and made arrangements to provide care for Dickey in her home. Agnes was Dickey’s primary caretaker and Dickey’s sister Susan, and a family employee, Rae, also assisted in providing care for Dickey. Shortly after the accident, on September 23, 1993, Dickey executed a power of attorney naming Agnes as his agent. The power of attorney gave Agnes the ability to “sell and convey any and all personal property and real property” and “to execute and perform all and every acts, thing or things in law needful and necessary to be done in and about [Dickey’s] affairs, as fully, largely and amply, and to all intents and purposes whatsoever as [Dickey] might or could do if acting personally.”

In 2010 Rae moved into Dickey’s home and became his full-time care provider, replacing Agnes as the primary caregiver. In 2013 Dickey became ill and subsequently moved into a nursing facility in Tennessee. While Dickey was not able to return to his home, he was competent and able to make decisions for himself. Rae continued to be a supportive caregiver and, on October 1, 2013, Dickey and Rae were married. Later in October Dickey’s condition worsened, and he briefly went into cardiac arrest on October 25, 2013. On October 31, 2013, using the power of attorney executed in 1993, Agnes transferred three parcels of real property to Dickey’s sister and brother and the majority of his remaining property to herself. The total value of the property transfers was approximately $2 million. Dickey died on November 15, 2013.

In 2016 the Executor of Dickey’s estate (presumably after questions were raised by the beneficiaries of Dickey’s estate, including his wife and a charitable organization) requested aid and direction be provided by the court as to the propriety of the transfers made by Agnes prior to Dickey’s death. The lower court approved the transfers; however, on appeal the court decision was overturned and the appellate court found that the transfers were invalid.

The power of attorney document did not specifically include provisions authorizing gifts; therefore, the court carefully examined the term “sell and convey” contained within the document. In its analysis, the court determined that the term “convey” standing alone would authorize gifting; however the term “sell and convey” indicated that consideration (money) should be exchanged for a conveyance. Therefore, based on a careful analysis of the terms, the court found that Agnes did not have authority to make transfers to Dickey’s siblings. In addition, the court confirmed that, absent language specifically authorizing gifts be made to the agent, transfers made by an agent from a principal’s property to or for the benefit of the agent are presumptively fraudulent. Therefore, the transfers Agnes made to herself were considered fraudulent transfers.

When reading the facts of the case, particularly due to the value of the property in question, it is easy to conclude that no gifts should have been made from Dickey’s assets. However, there are many times in which transfers should be specifically authorized. For example it is common for husband and wife to use income belonging to one party or another (social security, pensions, paychecks, etc) to pay bills which may belong to one party or another. Absent specific provisions in a power of attorney, this practice would be presumptively fraudulent.

It is not often that actions undertaken by the agent under a power of attorney are analyzed by a court. However, this case serves as an important reminder that actions by an agent can be reviewed and be found fraudulent. When creating an estate plan, it is critical to consider current and future needs and, should certain actions be potentially necessary, then the language included in the power of attorney must be specific. In addition, should an agent wish to take certain actions on behalf of the principal, they should seek guidance to be assured that they are not taking action which would violate any civil laws. For these reasons, it is critical to have a professional prepare legal documents. Power of attorney documents are not simply forms and should not be treated as such, as we are reminded by this case.

Ask Kit Kat: Grandma Orcas

Hook Law Center: Kit Kat, what can you tell us about how grandma orcas help raise their grand-whales?

Kit Kat: Well, this is an interesting phenomenon. Among mammals, whales and humans seem to be unique in their ability to parent their children’s offspring despite having gone through menopause.  Scientists point to Shachi (J19 is her formal name) who is an orca or killer whale  estimated to be about 40 years old. She lives in the Salish Sea off Seattle and Vancouver. Now in menopause, she has been seen helping her daughter Eclipse raise her son Nova. Scientists say Eclipse, who is now around 14, gave birth to Nova at age 10—the youngest female orca known to have offspring. Even more remarkable, Eclipse gave birth during a period of low numbers of Chinook salmon, the staple of the Orca diet. Michael Weiss, a behavioral ecologist from the University of Exeter (UK), comments, “Most of the calves that were born in that period did not survive. But (Nova), the son of this small, inexperienced mother, is still growing, looking healthy, and is one of the most active, social members of the pod.” What made the difference? Weiss says it was the attention Grandma Shachi gave him. She stuck by his side while mom Eclipse was off foraging. He says, she “seems to have really taken on a major caregiving role.”

Grandma Shachi is not a one-time phenomenon. Researchers from University of Exeter (UK) and University of York (UK) used more than 40 years of observational data to construct statistics about births, deaths, and family relationships of orcas. What they found (which was published in the Proceedings of the National Academy of Sciences) is that there is a “grandmother effect” among whales. The grandmother effect is so powerful, that it affects the life span of her grand-offspring, even after it has become an adult. With a potential life span which can range up into the 90s, grandma orcas have lots of time to influence and guide their grand-offspring. Granny, an orca known as J2, was one such example. Her estimated age at the time she disappeared from her pod was over 90 years old.

The UK study is the first to record the grandmother effect in a nonhuman menopausal species. Grandmas are extremely valuable to this species, but as a group, orcas are still  endangered due to the reduction of numbers of  Chinook salmon, their dietary staple. According to the Environmental Protection Agency, the causes of the decline of the Chinook are dams, agricultural runoff, and overfishing. Daniel Franks, a biologist and one of the researchers from the University of York in the study, says “When the salmon are not doing well, the killer whales do not do well, and there is very little time left to take action.” (Jason Bittel, “Grandmother orcas help their grand-whales survive,” The Washington Post, (Science section), Dec. 9, 2019)

Posted on Thursday, January 2nd, 2020. Filed under Senior Law News.
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Ask Kit Kat: Pet advice and wisdom as Kit Kat sees it.