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

By Hook Law Center

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

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.

New Guidance for Special Needs Trusts

By Shannon Laymon-Pecoraro

On April 30, 2018, the Social Security Administration (SSA) released new Program Operating Manual System (POMS) provisions, which are essentially a set of guidelines utilized by eligibility workers processing claims for Social Security benefits that directly relate to special needs trusts. Although we received a peek into what the POMS might look like at the Special Needs Trust Conference last October, advocates were uncertain what the final provisions would be. Much to our delight, the new POMS promote flexibility. Understanding that there were a number of updates, I have incorporated some of the highlights I believe my clients will most appreciate:

GOODS AND SERVICES

A key element of a special needs trust is the “sole benefit rule.” Essentially, the SSA has held that all distributions must be for the sole benefit of the beneficiary, and those receiving an incidental benefit must contribute a pro rata share. POMS SI 01120.201.F.3.a now establishes a new “primary benefit” rule, thus recognizing that others will inherently receive an incidental benefit and that such incidental benefit is acceptable provided the purchase was for the beneficiary. The examples provided by SSA indicate that others may reside in a home owned by the trust, but that a car purchased by the trust, which is titled in the name of a non-beneficiary, used by the non-beneficiary daily, but also used to transport the beneficiary twice a month would not be considered for the primary benefit of the beneficiary.

FAMILY CAREGIVERS

One controversial inconsistency among the various regions has been the treatment of caregivers. The POMS now clarifies that a caregiver may be a family member, a non-family member, or a professional agency and that such a caregiver may provide companion services.  A special needs trust may compensate such individuals for services and pay related expenses incurred by the provider during the course of service. The example provided by the SSA is payment for an admission ticket to a museum when accompanying the beneficiary.  Additionally, the POMS were updated to clearly indicate that SSA should not request evidence of training for, or the income tax information of, family caregivers.  Payment for such services shall be considered “reasonable” based on the time, effort, and prevailing rate of compensation for similar services within the geographic region.

DEBIT CARDS

SSA has consistently held that distributions to a pre-paid debit card owned by a beneficiary are treated like cash. The new POMS, however, clarifies that if the pre-paid debit card is owned by a special needs trust and controlled by the trustee such that the trustee is able to prevent the use of the card for food or shelter-related items, then distributions will be permitted. Although there may be a number of companies that have “administrator-managed prepaid debit cards,” the most commonly used by advocates would be True Link Financial.

TRAVEL

For years, the payment of non-beneficiary travel expenses, to include transportation, lodging and food, were unclear. Under the POMS, SSA has permitted that payment of non-beneficiary travel expenses when the attendance of the non-beneficiary is necessary to permit the beneficiary to travel. This would be applicable in the situations where a minor cannot travel unaccompanied, as well as beneficiaries that require extensive medical care.  The ability for such care provider to pay his or her own travel expense is irrelevant in determining the reasonableness of the travel expense.

Additionally, the trust may pay for a non-beneficiary’s travel expenses when such travel is necessary “to ensure the safety or medical well-being of the trust beneficiary.” As a result, there is now clarification that travel expenses may be paid for by the trust when the non-beneficiary is traveling to oversee beneficiary’s living arrangements within some sort of facility or supported living arrangement. Additionally, the trust may pay for travel expenses of a trust fiduciary to ensure the welfare of the beneficiary when the beneficiary does not reside in an institutional setting.

 

Kit KatAsk Kit Kat – Vets in Rural Alaska

Hook Law Center: Kit Kat, what can you tell us about how rural Alaskans receive veterinary care for their pets?

Kit Kat: Well, thanks to an organization called Pets for Life, Alaskans in certain parts of the state receive free veterinary care for their pets. As you may know, many parts of Alaska are in extremely, isolated areas. Therefore, many receive pet care through Alaska Native Rural Veterinary (ANRV), a Fairbanks-based nonprofit. Because ANRV could not handle all of the vast state’s needs, it formed a partnership with Pets for Life (PFL), another nonprofit devoted to pet care. The area chosen for service for the 2 organizations is in the Yukon-Kuskokwim Delta, about 400 miles west of Anchorage. There are 3 villages that were chosen—Napaskiak, Napakiak, and Kwethluk—none of which is on a road system. Located on arctic tundra, they rely on snowmobiles in cold weather, airplanes, or a network of raised wooden platforms during warm periods when the tundra becomes a soupy mess. Napaskiak’s population is 425. It’s a largely Native American population who lives in the area, and sources for employment are few. Residents mostly rely on hunting and fishing to supply their needs. There is not a lot extra for pet care.

The vets that serve usually do so in teams of 3. One will prep the animals for anesthesia, one does the surgeries, and one provides dental cleanings. When they come to town and use a school which is not in session, the electricity is not even turned on. They have to pay in advance at the general store to pre-pay the bill, before they have power. Over the course of 3 days, they will perform 106 surgeries, give 295 rabies shots, and give 176 dogs de-wormer pills. Cats are a rarity, but there are some. PFL tries to go in several times a year to get the location caught up on the pets’ veterinary needs. After that, they can come less frequently as a community goes into maintenance mode.

This is a tremendous effort for a very worthy cause. The ASPCA and the HSUS help, too, by providing some ancillary support staff who cart animals to the care site, prepare areas for surgery, etc.  By working together, all the organizations make a big difference in the lives of these pets and their owners. (Kelly L. Williams, “Doing the work—Pets for Life brings free veterinary services to rural Alaska, All Animals, May/June 2018, p. 22-27)

 

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

I am a Beneficiary of an Estate – Why Did I Receive a Schedule K-1?

By Amanda Richter

For the most part, property you inherit is not included in your income for tax purposes. However, items which are considered “income in respect of a decedent,” or “IRD” may be taxable to you or a portion thereof.

First, let’s review what IRD actually is. IRD is income which the decedent (person from whom you inherited the property) would have included on his/her individual tax return, except the income was earned/received after their death. Some examples of IRD include but not limited to: Compensation-related benefits paid after death (vacation pay), benefits from an individual retirement account, stock dividends, interest income, stock sales, etc.

Now that we understand IRD, let’s review a decedent’s estate. A decedent’s estate is a separate legal entity for federal tax purposes and comes into existence at the time of death of an individual. A decedent’s estate figures its gross income in the same manner as an individual. However, there is one major distinction, which is that an estate is allowed an income distribution deduction for distributions to beneficiaries. The income distribution deduction determines the amount of any distributions taxed to the beneficiaries. For this reason, a decedent’s estate is sometimes referred to as a “pass-through” entity. The beneficiary, and not the decedent’s estate, pays income tax on his or her distributive share of income. Schedule K-1 is used to notify the beneficiaries of the amounts to be included on their individual income tax returns. Regulation section 1.651(a)-2 discusses income required to be distributed currently and reportable to the beneficiaries. Also, Code section 662 provides information on inclusion of amounts in gross income of beneficiaries of estate and trusts accumulating income or distributing corpus.

The distributable net income is calculated by taking the total IRD received for the estate in that year less expenses in respect of a decedent. The remaining net amount is the estates taxable net income before any distributions to beneficiaries. Distributions to a beneficiary(ies) can then be deducted on the estate’s fiduciary tax return, which decreases taxable income and helps to minimize any tax liability.

A beneficiary in most cases is not being taxed on 100% of the income from the estate’s tax return. Property and principal assets of the estate (which includes cash from the decedent’s bank accounts) are not taxed to the beneficiary since this is not included in IRD. Only the portion of the distribution you received from the DNI that is from the estate’s taxable income is taxable to the beneficiary and then reported on Schedule K-1.

Here is an example: At John’s death, $50,000 of IRD items were included in his gross estate, $10,000 of which was paid to Sally. There were also $3,000 of deductions in respect of a decedent, for a net value of $47,000. Sally will include in her income the $10,000 of IRD she receives from the distributable net income of the estate. The $10,000 will be reported on a Schedule K-1 and must be reported on Sally’s individual tax return for that year. The decedent’s estate return will then be taxed on $37,000 ($50,000 IRD – $3,000 expenses – $10,000 of distributions to Sally).

Since Estates have a higher tax bracket in most instances, it is usually more beneficial to record distributions to beneficiaries so that the Estate can receive a deduction for the distribution and will result in less taxable income.

 

Kit KatAsk Kit Kat – Reviving Brook Trout

Hook Law Center: Kit Kat, what can you tell us about brook trout in Virginia?

Kit Kat: Well, this is truly a heartening tale! Apparently, brook trout used to be very common in Virginia and could be found in almost all parts of the state. However, today because of farming, foresting, mining, and development pressures, their range has been greatly reduced. In fact, their reduction represents a 38 percent complete disappearance from prior levels, and a 34 percent reduced presence in other areas of Virginia.

Now enter students from the Students for Environmental Action club at James Madison High School in Vienna, VA. They had an interest in raising brook trout and seeing whether they could re-introduce them in certain favorable areas and whether or not their lives could be sustained there. Fortunately, at their school, they had an excellent resource—a faculty adviser who in his 2011 dissertation for George Mason University rated streams that were suitable for brook trout habitation in Maryland. Using this information he and the club created a rating scale which could be used to evaluate streams in Virginia. A score of 80 or more on a 100-point scale indicated that brook trout could be sustained there. The club then checked out various streams in the Shenandoah Valley and northern Virginia and rated them. Their club had raised brook trout fingerlings, and they were looking for a place to launch them. They settled on Catharpin Creek in northwest Prince William County. It had a great score of 87.5, but it had one drawback of a summer water temperature being a little high. So their adviser, Kirk Smith, diverted a spring to cool down the area. They also decided to plant trees along the banks of the creek to lower the temperature of the area during the day. So state officials gave permission for the club to release 50 trout fingerlings, as the young are called, last spring in 2017. They then checked back in December 2017, and they found at least one survivor. That gave them the incentive to try again this spring with 55 more fingerlings.

Time will tell how well their endeavor will succeed. No matter the outcome, this club’s efforts will definitely yield a lot of great information, so that one day in the future the brook trout can be once again a live symbol of its status as being the freshwater fish of Virginia. (Peter Cary, “Budding scientists try to revive state’s once-thriving brook trout,” The Virginian-Pilot, May 7, 2018, p. 1 & 9)

 

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

The Importance of Good Recordkeeping – and Which Documents to Keep

By Hook Law Center

As the ease of managing accounts and finances online continues to increase, many of our clients wonder which documents, records, and papers they actually need to keep around the house. Not having certain documents on hand can be frustrating and can cause a delay in getting the legal services you need, especially if you’re thinking about funding a trust, applying for the VA Aid & Attendance Pension, or applying for Medicaid. Another good reason to keep these documents in a safe place and in an organized format is to make it easier for your children or loved ones to find and interpret your financial and personal information after you pass away or become incapacitated. No one wants to be a pack rat, but it can be even worse to discard documents that you’ll end up needing later on. If you’re looking to de-clutter but you’re worried about discarding an important document, use the following list as a guide as to which documents are important to keep around:

  • Previously filed income tax returns. Not only should you keep the past seven years’ worth of tax returns in the event that you are audited, but these documents often prove to be an important source of information about your income and expenses when you begin to plan for long-term care.
  • Pensions and social security statements. If you meet with an estate planning and elder law attorney for the purpose of getting an income-based benefit, such as Medicaid or VA Aid and Attendance, you will need documentation of what benefits you already receive in order to determine your eligibility.
  • Documents regarding prepaid funeral and burial arrangements. This paperwork will be something that your children will need to see after you pass away. Additionally, information about prepaid funeral plans can be useful information for your estate planning attorney to have, especially if they are looking into crisis planning techniques in order to preserve your assets from a Medicaid spend-down.
  • DD-214. If you served in the military, you know that a DD-214 serves as proof of your military service. It is the document that you receive upon your separation from the military. If you plan on applying for VA benefits, you’re going to need a copy of this document to prove that you are eligible for the benefit.
  • Proof of financial accounts, even those closed within the previous five years. These documents are important so that your attorney can determine your eligibility for Medicaid benefits, as well as for estate planning purposes.
  • Originals of estate planning documents, including your last will and testament, any trust that you may have executed, general durable power of attorney, advance medical directive, medical power of attorney, and HIPAA authorization. It is important to keep these documents in a secure area such as a fireproof safe or safe deposit box so that your loved ones can access them and your wishes can be carried out if you become incapacitated or after you pass away.

If you have all of these records, it is important to keep them organized in a filing cabinet or safe where they will be easily found and interpreted if something were to happen to you. Always make sure that your loved ones know which documents you have and where to find them so that they can access them if they need to. When the time comes to destroy important documents, it is always best to shred them in order to avoid the possibility of identity theft and to prevent others from learning confidential information about you.

Remember, most of these documents can be replicated or found somehow if you accidentally discard them, but that is not always the case. Additionally, the time it takes to find these documents, as well as the cost to replace them, can be devastating. If you are ever in doubt about whether to keep a specific type of paperwork, contact your estate planning attorney before you put it through the shredder.

 

Kit KatAsk Kit Kat – Outer Banks Ospreys

Hook Law Center: Kit Kat, what can you tell us about ospreys in the Outer Banks of North Carolina?

Kit Kat: Well, this story is a pleasant one. Apparently, ospreys have been nesting near power lines along the Wright Memorial Bridge which crosses Currituck Sound in North Carolina for years. Of course, they like to perch high, and would make their nests on the power line poles or wooden platforms constructed by Dominion Energy that lie next to the bridge. When the platforms were rotting from age, Dominion Energy replaced the wooden platforms with aluminum ones. Experts weren’t sure how it would affect the ospreys, but apparently it hasn’t affected them much at all! There are four nests this year—an improvement over last year when there was only one on the aging, wooden platforms.

Ospreys are quite common in the area, and they provide good viewing for people on their way and back from the Outer Banks. Dominion Energy learned a long time ago that it made sense to help their avian friends, rather than fight them. So they decided to build nesting platforms for the ospreys on older, concrete poles which were no longer in use. This way their wings and feet would not destroy or interfere with power transmission, as sometimes previously happened.

Jill Hailey, an operations engineer for Dominion Energy, said the new aluminum platforms should last for decades. The platforms have to be quite substantial as nests can weigh up to 600 pounds. Ospreys mate for life and have a life span of about 20 years. While they winter in the Caribbean and Central and South America, they return year after year to the place of their birth, and so the cycle continues with a new babies each spring.

We are lucky to have such beautiful creatures in our midst. They are graceful and skillful hunters, catching fish every fourth attempt. Watching their comings and goings is pure delight! (Jeff Hampton, “Ospreys nesting on new aluminum platforms along Wright Memorial Bridge,” The Virginian-Pilot, May 3, 2018, p. 3)

 

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

Posted on Monday, May 14th, 2018. Filed under Senior Law News.

Elder Abuse, Neglect, and Exploitation, Part Two: What to Watch For and What is Being Done to Combat the Problem

By Hook Law Center

This is the second 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 will discuss 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.

You may be aware of the story surrounding the abuse of the famous actor, Mickey Rooney. Mr. Rooney suffered abuse mainly at the hands of his step-son, who physically abused him and financially abused him by misappropriating approximately $8.5 million. He did this by issuing himself majority stock in a production company started by Mr. Rooney and appointing himself as Treasurer of the company.  Before his death, Mr. Rooney testified before the Senate Special Committee on Aging that his life had become unbearable. “I felt trapped, scared, used, and frustrated. But above all, I felt helpless. For years I suffered silently. I could not muster the courage to seek the help I knew I needed,” he said.

Elder abuse does not only happen to the rich and famous, but the story shows that it can happen in any situation in which an elder adult is vulnerable. Vulnerability can come in several different forms. If an elder adult is dependent on someone for their physical or financial well-being, this can sometimes open the door for abuse. A perpetrator may threaten to discontinue assisting them in order to manipulate the elder into meeting his or her demands. If an elder adult is suffering from a cognitive impairment, they may lose both their good financial judgment and their ability to detect and prevent exploitation.  If an elder adult is in poor physical health, they may not have the time or energy to review their financial statements, making detection of financial exploitation unlikely.

So who are the primary perpetrators of elder abuse? You may or may not be surprised to learn that it is those who are closest to us: family members, caregivers and fiduciaries. Often abuse at the hands of a family members goes unreported because the older adult is fearful of being placed in a nursing home, fearful that their only caregiver (the family member) may be removed from the home, and quite simply, ashamed. Dependence on or by the family member is a key indicator of the potential for abuse. Caregivers may create reliance and dependency on their services alone and then exploit their care recipients out of the idea that they have “earned” the extra compensation. Fiduciaries, such as agents under a Power of Attorney, have been known to abuse the powers granted to them under the document. For example, by using the power to make gifts, they could gift all of the elder adult’s assets to themselves.

Some of the warning signs of physical abuse include unexplained injuries, persistent physical pain and soreness, nutrition and hydration issues, and sleep disturbances. Some of the warning signs for psychological abuse are distress and depression, learned helplessness and posttraumatic stress disorder. For financial exploitation, watch out for the unexplained disappearance of funds, valuables, or personal belongings; excessive payment for care and/or services; the sudden appearance of previously uninvolved relatives and friends; a sudden change in a person’s power of attorney or Will; and checks no longer coming to the older adult’s home.

The Federal Government has attempted to begin addressing the problem by passing the Elder Justice Act, which authorizes a specific source of federal funds to address elder abuse, neglect and exploitation, but funding for the Act has never been approved. Similarly, the Social Services Block Grant, which is intended to be used for elder abuse victims, pales in comparison to federal support for other services. It is estimated that federal funding provides only $.89 per elder abuse victim, compared to $6,000 per child victim, or $240 per domestic violence victim.

The State of Virginia has made some legislative changes over the past several years to enhance the safety and well-being of older adults. These changes include: expanding the list of professionals who are required to report suspected elder abuse; requiring Local Department of Social Services (LDSS) to refer relevant information to the appropriate licensing, regulatory, or legal authority for action or investigation; authorizing LDSS, with informed consent, to take or request relevant photographs, video recordings, or medical imaging of the adult and his environment; expanding the list of Adult Protective Services (APS) situations in which law enforcement must be notified; authorizing civil penalties for cases of non-reporting by all mandated reporters of elder abuse; making financial exploitation a criminal offense; and removing the $50,000 threshold for prompting APS to report suspected financial exploitation to law enforcement.

In the next and final part of the series, we will discuss what you can do to protect yourself, your loved ones, and/or your clients from elder abuse, neglect and exploitation.

 

Kit KatAsk Kit Kat – Canine Pair

Hook Law Center: Kit Kat, what can you tell us about the unusual canine pair of a pit bull and a blind dachshund?

Kit Kat: Well, this is indeed an unusual pair. The pit bull’s name is Blue Dozer (age 6) and the blind dachshund’s (age 12) name is OJ. Sadly, their owner became homeless, and surrendered them to the Richmond, VA Animal Care and Control shelter. The Richmond shelter had instructed the adopting person to keep the pair together, because they were a devoted pair. Blue Dozer would lead the way, and OJ would follow behind. OJ can see some shadows, but in essence, were he a person, he would be considered legally blind.

On April 22, the shelter thought they had found the right person to take the pair. Two days later, however, OJ was found wandering along the side of a road. A Good Samaritan turned him in to the Shenandoah Valley Animal Services Center near Staunton, VA. Staunton is about 2 hours from Richmond, but he was identified via microchip. When the adopting person was contacted, she said that someone had been watching OJ for them. She didn’t know how he got loose. She didn’t want to give up Blue Dozer, but she eventually reconsidered after receiving pressure to do so on social media. So the pair went back to the Richmond shelter where they are stabilizing.

The Richmond shelter will re-offer them for adoption, after a thorough screening process. Hundreds of people have made inquiries about the pair. The shelter will require the next adopter to sign a pledge that they not be separated. In the meantime, however, the two seem to be content. 10-pound OJ and 90-pound Blue Dozer, who always stay close to one another, are quite a sight! Christie Chipps Peters, director of the Richmond shelter says, they always try to find the right person to adopt a pet, however, sometimes we “cannot account for decisions that are made by citizens after adoption. In the end, we have to trust people—trust them to love the pets we have cared for and  trust them to do what is best.” (Dana Hedgpeth, “A blind dachshund and his guide dog, who were adopted then split up in Virginia, have been reunited,” The Washington Post, April 26, 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 Friday, May 4th, 2018. Filed under Senior Law News.

Should you add your child to the title of your real property?

By Sarah Schmidt

It seems as though there is a myth circulating among aging adults that it is wise or prudent to add a child’s name to the title of one’s real property. Where this myth generated, I have no idea. There is little to be gained by doing so, while the complications and problems it might impose are numerous. If you explain your objective for considering this option to an estate planning attorney, he or she will most definitely propose a way to accomplish the same objective that does not involve adding your child’s name to your title or gifting your house outright to your child during your life.

Are you worried about avoiding probate? Are you worried about protecting your house from Medicaid? Are you looking to leave the house to a particular child upon your death so as to provide him or her a place to live? It doesn’t matter. Adding your child to the title of your real property is not the best way to accomplish any of those objectives.

To list just a few examples of potential complications, if you add your child to the title of your real property, it then becomes subject to his or her creditors, bankruptcy or divorce.  If you have lived in the property for a very long time and its value has appreciated over time, gifting a portion of it now will lose your child’s ability to gain a step-up in basis as to the value of the real property at your death.  Further, gifting your home to your child outright also does not assist in any application for Medicaid, but actually may cause you to be disqualified.

Before you sign any deeds or change title to your home seek the advice of an elder law attorney who can explain the options and most effective strategies to accomplish your objectives.

 

Kit KatAsk Kit Kat – Prescient Oscar

Hook Law Center: Kit Kat, what can you tell us about Oscar, the cat, who can sense when the end of life is near?

Kit Kat: Well, this is an interesting story. Oscar, a seemingly ordinary, domestic shorthair cat, has been a resident in the Steere House Nursing and Rehabilitation Center in Providence, Rhode Island since 2005. He is mostly white, with some tabby markings on his head, back, and tail—a handsome fellow! He was brought in to serve as a therapy cat in the dementia unit. At the start, he was extremely shy, and would hide in a closet or wherever. Then, gradually, he started to come out when he sensed that someone was near the end of life. He would get in bed with the person, and, essentially, hold vigil until they had passed from life. Staff eventually caught on to what was happening when he accurately “predicted” 20-30 deaths in a row.

Oscar is now famous, thanks to a book written by Dr. David Dosa, a health researcher at Brown University and geriatrician who works part-time at Steere House. Dr. Dosa is not sure how Oscar knows when it’s the final hours for a person, but he speculates, “I think that ultimately your guess is good as mine. It (could be) likely that he’s responding to some smell when cells start to break down.” However Oscar has figured out life’s end for people is unimportant. What is important is that he models how we humans can respond at the end of a life. Comfort and just being there may seem like small things, but to the dying person, it is extremely soothing and uplifting. If you would like to learn more about Oscar, read Dr.Dosa’s book entitled Making the Rounds with Oscar. (https://www.crosssroadshospice.com/healthcare-professionals-resources/palliative-care-blog/2016/april/11/meet-oscar-the-cat-that-predicts-death-and-provides-comfort)

 

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Distribution of This Newsletter

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

Posted on Friday, April 27th, 2018. Filed under Senior Law News.

Penalty Periods and the 5-Year Lookback: Some Good News

By Letha Sgritta McDowell, CELA

On April 17, the acting director of the Centers for Medicare and Medicaid Services issued a policy clarification to all state Medicaid Directors regarding the imposition of penalty periods for individuals requesting Home and Community Based Services.  This clarification may be beneficial to many hoping to receive services in their home.

Individuals requesting Medicaid assistance with the payment of their nursing care expenses must meet certain eligibility criteria, both financial and non-financial, before Medicaid will begin assistance.  The non-financial criteria includes US Citizenship or lawful permanent resident status, state residency, and a demonstrated need for a certain level of care.  The financial criteria includes meeting certain income requirements and having minimal countable assets (there is no limit on non-countable assets).  In addition, if an applicant or their spouse has made any uncompensated transfers, then Medicaid will impose a penalty based on the asset transfer.

Asset transfers including gifting cash or property, paying bills or expenses for other individuals, or selling real or personal property for less than fair market value.  For example, selling real property for less than the tax assessed value, even if it was a third party sale, is considered an uncompensated transfer.  Paying for a grandchild’s wedding or college tuition is considered an uncompensated transfer.   If a Medicaid applicant has made uncompensated transfers, then the total value of the transfers will be added together and the amount divided by a penalty divisor (set by each state).  The resulting number is a period of months in which Medicaid will not pay for the applicant’s care.

Prior to the Deficit Reduction Act of 2005, the penalty for an uncompensated transfer began in the month of transfer.  Therefore, for many applicant’s gifts made prior to any spell of illness never affected them.  The Deficit Reduction Act of 2005 altered the Medicaid policy on uncompensated transfers by stating that any uncompensated transfer made within the sixty months prior to application had to be disclosed and the resulting penalty would not run until the applicant was otherwise eligible for Medicaid services and receiving institutional level of care services.  It is important to note here that the sixty month lookback only applies to uncompensated transfers (not transfers for value) and that an uncompensated transfer does not automatically render a person ineligible for benefits for sixty months.

For individuals in a nursing facility, the “otherwise eligible for Medicaid services” standard is obvious.  It includes meeting the financial eligibility requirements as well as the non-financial eligibility requirements, including residence in a nursing facility.  For individuals hoping to receive Medicaid services in their homes however, the interpretation of receiving institutional level of care services meant that the penalty period would not begin unless they moved into a nursing facility.  For many remaining in their homes, this put them in limbo because their penalty never began.

The clarification issued on April 17 states that the policy shall now be interpreted to read that the penalty will begin when the applicant meets the financial and non-financial criteria for Medicaid and would otherwise be receiving Medicaid services but for the penalty.  This new policy will allow a penalty period to begin without the need to move into a nursing home.

The reasons for penalty periods and uncompensated transfers are varied and may be part of a broader asset protection plan or may simply be the result of a life action taken with no thought of the need for nursing services.  For whatever the reason, this development will likely be useful for those wishing to receive services in the home.

 

Kit KatAsk Kit Kat – Corolla Herd

Hook Law Center: Kit Kat, what can you tell us about how the wild horse herd is doing in Corolla, NC?

Kit Kat:

Well, the wild horses in Corolla have suffered a bit of decline, so some action is being taken to improve their situation. Enter Gus, a male, wild stallion that has come from another herd on the Shackleford Banks, NC. It is hoped that introducing another genetic line will help improve the health of the Corolla herd, which has become inbred. The Corolla herd is based on a single, maternal line. Over the years, since their introduction by the Spanish in the 1600s, the herd has displayed such defects as locked patellas, parrot mouth, and decreased stature. Gus is descended from the Shackleford Banks herd which has three maternal lines.

Poor Gus! A lot of hope is being placed in him. He’s almost seven, which means he’s reaching his reproductive maturity. Thus far, after being in Corolla for three years, he has not yet fathered any offspring, as far as can be determined. Interestingly, Gus is named after an equine expert from Texas A & M University named Gus Cothran. Cothran is the one who recommended expanding the Corolla herd to 150. Presently, the herd size hovers around 60, due to previous grazing restrictions and birth control measures given to females, like darting them with a birth control chemical.  Next month, a compromise agreement is to be signed by the Corolla Wild Horse Fund, which will allow the herd to increase to between 110-130 horses. The Corolla Wild Horse Fund will also begin monitoring the herd every two months instead of  one time per year to gather information on the herd’s movements and grazing patterns. The goal is, according to Jo Langone, chief operating officer of the Fund, to have healthy horses, while maintaining the integrity and health of the land on which they graze—the Currituck National Wildlife Refuge and the North Carolina Estuarine Research Reserve. (Jeff Hampton, “The new stud on the range: Gus offers the promise of a greater genetic mix to the Corolla wild herd,” The Virginian-Pilot, April 16, 2018 p. 1 & 9)

 

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, April 27th, 2018. Filed under Senior Law News.

April 17th Marks the Tax Deadline! Have You Filed Your Return?

By Amanda Richter

Tuesday, April 17th, 2018 is the deadline for most taxpayers to file their federal income tax return and pay any tax liability that is owed. If you miss the deadline to file, you may be assessed penalties for failing to file and failing to pay your tax liability on time. The good news is that there is no penalty if you file a late tax return but are due a refund.

Don’t worry, if you have been procrastinating when it comes to preparing and filing your tax return this year. You may want to consider filing an extension. You may be asking what does the extension do? An extension is a formal way to request additional time from the Internal Revenue Service (IRS) to file your tax return. Filing an extension gives you an additional six months to file and prepare your individual tax return. The extension is done by filling out Form 4868, Application for Automatic Extension of Time to File U.S. Individual Income Tax Return.

By filing an extension, you can avoid a failure to file penalty which is equal to 5% per month (or partial month) of lateness to a maximum of 25%. If you file an extension, you are not filing late, unless you miss the six-month extended due date.

It is important to be aware that an extension of time to file your return does not grant you an extension of time to pay your taxes. Any tax that is due on your return must be paid by April 17th, 2018 in order to avoid penalties for failure to pay your tax liability on time.  The failure to pay penalty is a separate penalty from that of the failing to file penalty. The failure to pay penalty is the “gentler” of the two, running at 1/2% for each month (or part of a month) the payment is late. For example, if payment is due April 15 and is made May 20, the penalty is 1% (1/2% times 2 months (or partial months)). The maximum penalty is 25%.

If you have any questions or need to file an extension for your tax return, please do not hesitate to call our office at 757-399-7506.

 

Kit KatAsk Kit Kat – Bathing Monkeys

Hook Law Center: Kit Kat, what can you tell us about the snow monkeys of Japan and how they like to bathe in hot springs?

Kit Kat: Well, this is quite a funny story! Japan has long been known for their snow monkeys, also known as macaques. One group of macaques lives in the north, near Nagano, the site of the 1998 Winter Olympics. Others of their species live even further north, so all are used to severe, cold weather. However, it is the group near Nagano which is the subject of this article. These macaques are very particular about where they will bathe. Though there are natural, hot springs in their area with water over 140 degrees Fahrenheit, they apparently find these too hot. They have come to prefer man-made pools which hover around the 104-Fahrenheit degree mark. It happened like this. Around 1963, a female macaque wandered into a hotel heated pool. At first hotel guests welcomed her and a couple of other macaques, finding it to be a novelty. As the number of macaques visiting the hotel increased, there were health concerns. So, a park was built exclusively for the macaques, so they could have their own spring-like hot pools, heated to their preferred temperature of 104 degrees.

This in turn aroused the curiosity of scientists. Led by Rafaela S.C.Takeshita of Kyoto University, she and her team wondered what was causing this unique behavior. They have published their results in the journal Primates. They don’t really know why the macaques prefer the slightly warmer pools, but they did find that bathing in hot springs causes their stress levels to decrease. In cold weather, glucocorticoids, which indicate stress levels, naturally go up. Bathing in the hot springs lowers the number of glucocorticoids, hence, reducing the level of stress.

It turns out these macaques are really smart! Who knew there was a scientific explanation for their behavior! (James Gorman, “Hot Springs Lower Stress in Japan’s Popular Bathing Monkeys,” The New York Times, Science section, April 3, 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 Friday, April 13th, 2018. Filed under Senior Law News.
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