Comprehensive Planning. Lifelong Solutions.

IRS Grants Extension for Portability Purposes

By Shannon Laymon-Pecoraro

Many people are aware that in 2013, Congress established a permanent basic Federal estate tax exclusion amount of $5,000,000, as adjusted for inflation. For purposes of the Federal estate tax, a portability election allows a surviving spouse to carryover the unused estate tax exclusion amount of the deceased spouse. This carryover essentially increases the exemption for the surviving spouse by the amount of the unused exclusion of the decedent. However, to make a valid election, the personal representative of the estate (often known as the Executor or Administrator) is required to file a timely IRS Form 706 within nine months after the decadent’s date of death, or in the alternative, filed a six-month extension via IRS Form 4768.

To demonstrate the importance of this election, let’s imagine that Al died with a $7 million estate, of which $4 million went to his wife, Barbara, and $3 million went to his daughter. Al’s estate is entitled to a $4 million marital deduction for the amount left to the surviving spouse, so Al only used $3 million of his $5 million exemption as a result of the gift to his daughter. The Executor of Al’s estate timely filed an Estate Tax Return and made a portability election, which resulted in an additional $2 million exemption carrying over to Barbara to use at her death. This election was important, because Barbara had approximately $3 million in her own name at the time of Al’s death. As a result, if Barbara died shortly after receiving the $4 million from Al’s estate, at the time of her death, the full $7 million owned by Barbara would pass to the beneficiaries free from Federal estate tax. Had the Executor not timely filed the portability election, $2 million of Barbara’s assets would be subject to Federal estate tax.

The failure to elect portability to preserve the unused portion of a decedent’s exemption was a problem a number of attorneys throughout the country faced, and the only way to tackle it over the past few years was to obtain a costly Private Letter Ruling from the IRS. To address this issue, in June 2017 the Internal Revenue Service (IRS) issued Revenue Procedure 2017-34 to grant an extension for those who failed to elect portability in a timely manner. Accordingly, this revenue procedure provided a simplified method to obtain an extension of time to elect portability by permitting the personal representative of an estate for which there was no filing requirement to file a return before the later of January 2, 2018, or the second anniversary of the decedent’s date of death.

Kit KatAsk Kit Kat – Woodpeckers in Dismal Swamp

Hook Law Center:  Kit Kat, what can you tell us about the re-emergence of woodpeckers in the Great Dismal Swamp?

Kit Kat:  Well, this seems to be a victory for conservation efforts. There haven’t been woodpeckers in the Great Dismal Swamp National Wildlife Refuge, which straddles the NC and Virginia state lines, since 1974! I am referring to the red-cockaded woodpecker, that is, which is known for having a very attractive male with a dash of red feathers on its head. They are known to live in live trees, and they select mates for life. Previously, the birds had a range of habitat running as far north as New Jersey; however, that was eventually reduced due to logging and development. By 1970, the species was in decline, and in that year it was added to the endangered species list. Now, it appears that the northernmost limit is in the Sussex and Suffolk counties of Virginia. Colonies in both counties are headed up by the Nature Conservancy’s Piney Grove Preserve (Sussex) and the Center for Conservation Biology (Suffolk).

The woodpeckers which have now bred in the Great Dismal Swamp came from woodpeckers in North and South Carolina. From a group of 18 released into the area over the last two years, 5 remained (2 males and 3 females). They managed to produce several eggs; two survived. Those two have been banded, with two bands being placed on each’s right leg and three on their left leg. Just last month (June), the babies had feathers. Using a telescopic camera, it was determined that both are female. This fall, Bryan Watts, director of the Center for Conservation Biology in Suffolk, says four more pairs will be introduced there. Watts says they are aiming to have five breeding groups by 2020. Keep your fingers crossed that things will develop as planned. As director Watts says, ‘Nature and animals will do their thing. There’s only so much we can manage.’ (Victoria Bourne, “Endangered red-cockaded woodpeckers make a rare re-entrance at Dismal Swamp,” The Virginian-Pilot, July 5, 2017, pg.4)

Upcoming Seminars

Distribution of This Newsletter

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

Posted on Monday, July 17th, 2017. Filed under Newsletter.

SENTARA PACE – Adult Day Care

By Hook Law Center

The primary objective of Sentara’s PACE program is to provide the care necessary to allow the individual to remain at home–care during the day to free the primary caregiver’s time to work/live…

This program is truly ‘Adult Day Care’- not just for the dementia population. The range of participants who are served vary in terms of functional and mental capability. Activities are structured to meet the needs of each individual. Different areas are available to group participants, on occasion, with those of similar capabilities. The program also provides computer access in quiet area for those who possess computer skills.

Before- and after-care is available if it is warranted. The Inter-disciplinary Team (IDT) determines the care needed for their participants. If personal care is warranted, and no one is able to provide the care necessary to get the participant up and dressed and ready to ride the bus, and/or at the end of the day to get home, fed, undressed, bathed etc., PACE will provide it. The IDT meets daily and assesses the needs of their participants.

‘Companion/supervision’ care in the participant’s home is not provided. Home care is based on a medical need and as defined by Assistance with Daily Living (ADL’s) skills. The facility is open for early drop-off by a family member, if the PACE transportation comes later than the caregiver requires for work etc. Weekend service is very limited, but it will be provided if it is prescribed. If a participant is sick and can’t attend and, if the home caregiver calls and informs the director, someone from PACE will be sent to the house to check on the individual.

Other services available are:

  • Manicures, pedicures and hair salon!!!
  • Activities, quiet rooms, a place to nap.
  • PT/OT on-site if prescribed by the IDT- again, the IDT assesses regularly.
  • Clinic onsite can even provide IV therapy.

PACE also provides home safety upgrades, where appropriate, based on assessment by the IDT. This includes adding a ramp to the house for access, widening a doorway, adding safety bars in bathrooms; whatever they can do to keep the participant safe at home for as long as possible. PACE provides Durable Medical Equipment to meet the needs of the participant– including Hoyer lifts etc., for their home.

Finally, when a participant needs to transition to an actual nursing home, PACE assists with this transition. It is a last resort. PACE does whatever it can to keep the individual safe at home for as long as possible.

Kit KatAsk Kit Kat – Animals Predict Earthquakes

Hook Law Center:  Kit Kat, can animals really predict earthquakes?

Kit Kat:  Well, it looks like the data on this subject is in a very preliminary stage, but on a small scale it does look as if there might be some merit to the claim. Mr. Martin Wikelski, director of the Max Planck Institute of Ornithology in Radolfzell, Germany has been investigating farm animals in the Marches region of central Italy for about a year. This is the part of the world where earthquakes have caused such destruction. Last August (2016), was the start of a series of earthquakes and aftershocks in the region resulting in $26 billion of damage and more than 300 deaths. However, the rural area provides almost an ideal place for study. Over the time period of October 2016-April 2017, there were 11 days with earthquakes having a magnitude of 4 or greater.

Mr. Wikelski’s findings are set to be officially released in a scientific journal in the near future, so he could not reveal too many specifics ahead of that. However, he has hinted the he has found data to support the assertion that animals do exhibit certain behaviors shortly before a quake. In previous studies he has conducted, he has found similar data. For example, from 2012-2014, he monitored goats and sheep on one of the sides of Mt.Etna in Sicily. ‘The animals predicted the major volcanic eruptions during these two years between four to six hours before. At night, the animals woke up and nervously walked around, and in daytime, they moved to a safe area’ where thick vegetation indicated no volcanic eruptions had occurred. This data from Mt. Etna seems very authoritative, because during that period of investigation, eight major eruptions took place. Based on that research, he applied for a patent in 2013 protecting his technique. It is called ‘Disaster Alert Mediation Using Nature,’ though the patent is still pending.

Mr. Wikelski’s monitoring devices involve a tag with a small solar panel. The devices can measure movement down to the second. They are relatively small, and do not impede the animals’ movements. They also can measure an animal’s magnetic direction, speed, altitude, temperature, humidity, and location. He tags different species to get a broader view of the entire spectrum of animal behavior. Stay tuned for further information. This area of scientific study is still in its infancy, but it will be potentially valuable to areas to prone to destructive earthquakes. (Elisabetta Povoledo, “Can Animals Predict Earthquakes? Italian Farm Acts as a Lab to Find Out,” The New York Times, Europe section, June 17, 2017)

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, July 7th, 2017. Filed under Newsletter.

Blended Families: Why Pre- or Post-Marital Planning is So Vital

By Elizabeth Boehmcke

Were you aware that you are not legally allowed to disinherit your spouse? You can disinherit your children, even your minor children, if you have a mind to do so. However, your spouse has special statutory protections which entitle him or her to a portion of your estate upon your death, regardless of what your Will or trust documentation may say, or how you may have titled your assets prior to your death. It is also irrelevant that you and your spouse may have an oral agreement that, upon the death of the first of you to die, the children of the deceased spouse will get all the deceased spouse’s assets.

When people get married after one or both have families from prior relationships, there is frequently an element of tension between the families of the new spouses. Even if the families are generally supportive of the relationship and get along with one another, concerns can arise about how the finances of the spouses will be handled. Particularly with marriages between seniors, the children of the prior marriages may feel that they should inherit upon the death of their parent, rather than the new spouse. Many times, the spouses themselves may also have an understanding about how they intend to handles their finances, while they are both living and after one of them passes away. Arrangements can be quite varied and can range from essentially independent financial arrangements to a complete commingling of assets. For instance, it may not be unusual for a couple to decide to split the costs of living together but agree to keep their finances separate. The plan may be that, upon the first to die, the surviving spouse will keep what belongs to him or her and the assets of the deceased spouse pass to his or her children. Or perhaps if one spouse does not have significant independent wealth, he/she may want to have a trust set up to help maintain the survivor, with the remainder going to the children of the wealthier spouse at the death of the survivor.

However, unless these agreements are in writing and follow certain statutory formalities pursuant to the PreMarital Agreement Act (Virginia Code Sections 20-147 et seq.), the reality is that, at the death of the first to die, these plans can go up in smoke. (Importantly, this act also applies to post-marital agreements.) The surviving spouse can bring a claim for his or her elective share of the deceased spouse’s estate. As reported in some of our prior newsletters, Virginia’s law on the elective share has recently changed. While the new law is a bit more complicated than the straight one-third under prior law, it is important to understand that the amount to which the survivor is entitled depends on the length of the marriage, reaching the maximum of 50% of the couple’s combined assets at 15 years of marriage. Given the fact that life expectancies have increased, it would not be unusual to have 15-year marriages, even among couples who got married at age 70.

If elective share claims are brought by a surviving spouse, the children of the deceased spouse may feel aggrieved and resentful, especially if they believe that an understanding had been breached. If the families determine to fight out the value of the claim in court, the costs can be quite high for both the surviving spouse and the deceased’s children, and the process for closing the estate can be significantly delayed.

These problems can be avoided entirely if the couple discusses the issues either before marriage or soon thereafter and then discusses their thoughts with an experienced elder law attorney. At the Hook Law Center, we not only advise you about your marital rights and the effect that your proposed agreement would have on those rights, but we can prepare the necessary documents to memorialize your agreement and incorporate it into your estate planning documents. With careful pre-planning you can minimize the possibility of future problems and misunderstandings. In addition, we can advise you on how to best incorporate your children into your plans. Not infrequently, one of the reasons for conflict between a surviving spouse and the children of the deceased spouse can be that the children do not adequately understand why you are making the decisions you are making or feel left out of the process.

Kit KatAsk Kit Kat – Cagey Lady Elk

Hook Law Center:  Kit Kat, what can you tell about female elk as they age?

Kit Kat:  Well, this is very interesting indeed! It appears from some studies largely done in Alberta and British Columbia, Canada that female elk over the age of 10 years become quite adept at avoiding hunters. They can live up to the age of 20! Unfortunately, male elk rarely survive beyond the age of 5 years, because they are permitted to be hunted. Hunters prize their rack of antlers, as well as their larger size. Hunting of females is usually very restricted. Furthermore, males do not live in groups, while females do. The group allows for somewhat of a physically protective effect, because one or two on the outer fringes can be killed, leaving a large part of the group intact. Those survivors seem to learn from these unfortunate encounters. In other settings, female elk actually do seem to learn to evade hunters. In bow and arrow season, they seek steeper terrain when near roads, especially at dawn and dusk, prime time for hunting. Bow and arrow hunters need to shoot at close range, so steeper terrain makes that harder.

Female elk, known as cows, also move shorter distances with age, further reducing their chance of meeting hunters. All of these conclusions were learned during studies conducted by Dr. Henrik Thurfjell of the Swedish Species Information Center, though his research was conducted in Canada. Daniel Sol Rueda, a researcher from Spain, concurs with many of Dr. Thurfjell’s conclusions. He also comments that, ‘The general perception is that learning is only important for humans, but the truth is that it is crucial for many nonhuman animals.’

Who would have guessed these noble, graceful animals could be so intelligent in surveying their surroundings and actually learning from their experiences? There definitely is more going on in an animal’s mind than one might think from a casual glance! (Steph Yin, “As Female Elk Age, They Learn to Evade Hunters,” The New York Times, Science section, June 15, 2017)

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 29th, 2017. Filed under Newsletter.

Refuse Care At Your Own Risk

By Letha Sgritta McDowell, CELA

A recent study shows that as many as 28% of all seniors refuse care after a hospitalization for an acute injury or illness. The study revealed that those refusing care were more likely to be younger, to have been admitted to the hospital from their homes, to have some higher education, and to have less complex medical situations than those who accepted post-acute care. Yet these factors, all which would logically indicate a greater willingness to accept recommendations of a medical professional, actually result in refusal to accept the advice to establish post-acute care. Reasons seniors refuse post-acute care vary from concerns about cost to a misunderstanding of the care provided, to fear of it leading to institutional care, and just plain stubbornness. Regardless of the reason for refusal, the refusal to accept home care results in a higher likelihood of hospital readmission and more severe injury to the senior. In fact, almost a third of those who refused post- acute care were readmitted to the hospital within 60 days of discharge and were twice as likely to be readmitted to the hospital as those who accepted care.

The home care available after a hospitalization is often paid for through Medicare and Medicare supplements and results in very little out-of-pocket expense. This factor appears to not be well communicated or understood by many, especially those who are recommending the care and arranging the referral. Even if the care is not completely paid for through insurance, the cost to the senior is worthwhile, since seniors refusing care are more likely to be readmitted to the hospital and ultimately end up with less quality of life than those who accept the care.

In addition to a misunderstanding of cost, there is often confusion as to the type of care provided after a hospital stay. The home care provided as part of the Medicare rehabilitative benefit includes intermittent skilled care from a nurse, a physical therapist or a speech therapist which typically only lasts four to six weeks after a hospitalization, with a nurse visiting several times a week. The care provided is not long-term custodial care or “babysitting” as one senior described it. This misunderstanding about services is one reason that many cite as the prevailing reason seniors refuse care. The senior often wants to remain independent in their home and fear that the post-acute home care erodes their independence. However, the post-acute home care is designed to help seniors regain their independence. One senior interviewed as part of the study said that he “didn’t need a babysitter,” and that’s why he refused care despite an earlier promise to his daughter that he would accept care.

Another reason cited for refusing care is “my spouse will take care of me.” However, when spousal caregivers are consulted, they often confess they cannot provide the level of care and assistance that the skilled nurse can provide and often get worn out from providing care. This may be one explanation behind hospital readmissions. If post-acute care services are refused in favor of a caregiver at home, and the caregiver cannot provide the necessary care, then the individual is readmitted due to a lack of needed care.

Regardless of the reason, statistics show that receiving post-acute care after a hospital stay reduces the risk of another hospital admission. Fully understanding the care to be provided and the reasons for it, as well as overcoming stereotypes and harbored misconceptions, may be a key to accepting care when offered and staying at home and independent longer.

http://khn.org/news/some-seniors-just-want-to-be-left-alone-which-can-lead-to-problems/

http://www.ajmc.com/journals/issue/2015/2015-vol21-n6/higher-30-day-60-day-readmissions-among-patients-refuse-post-acute-care-services/P-2

Kit KatAsk Kit Kat – Perceptive Canines

Hook Law Center:  Kit Kat, what can you tell us about canines and their extraordinary ability to perceive danger to humans and how they often intervene to save lives?

Kit Kat:  Well, canines are indeed remarkable! There has been case after case reported in which the family pet has saved the lives of its family members. A Connecticut case in 2012 had a happy outcome when the family pet woke up the parents to alert them that an infant child had stopped breathing. The parents intervened in time, and the little girl survived. In Atlanta in 2014, a German shepherd saved 2 family members during a road-rage incident. He jumped in the line of fire, protecting a lady and a child. The dog died of his injuries. In another case, Polo, the family dog, lay on top of eight-month old Viviana, keeping her safe during a devastating fire. The girl survived, but Polo did not.

So what we lay people have long observed is now being studied by scientists. There is preliminary data to verify that dogs indeed possess some unusual abilities of perception and empathy. What is more, they are often motivated to act on these feelings! Scientists in Europe and the United States are conducting investigations on this subject. At Duke University’s Canine Cognition Center, scientists like Brian Hare examines the phenomenon of bonding. He says, ‘What is extraordinary is that dogs are so close to us—and so much a part of our lives—that they sometimes happen to be in the right time and place, and whether intentional or not, manage to save lives.’ He also talks about the bond between people and dogs. He says it is similar to the parent-child bond. When either party gazes into the eyes of the other, a hormone called oxytocin is released. It makes both parties relax and feel at ease. He says, ‘Dogs have basically hijacked this pathway that was meant to be between us and our kids. So when your dog is just staring at your for no apparent reason, they don’t necessarily want anything. They are just hugging you with their eyes.’

Other researchers have used MRIs to study dogs’ brain waves as they react to human voice cues. The human voice stimulates the dogs’ brain to light up, if the vocalizations are positive. Others studies have revealed dogs can distinguish differing facial expressions.

More study will continue. But the positive interactions between man’s best friend and his human companion are well documented. Occasionally, there are negative encounters between the two species, but that is often the result of abuse by the human. We are only now beginning to appreciate the depth and breadth of the canine mind. Science is enabling us to unlock these secrets.

(http://www.cnn.com/2017/06/09/health/champions-for-change-lifesaving-dogs/?iid=ob_ho…)

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 26th, 2017. Filed under Newsletter.

Use this Tool to Prevent Financial Exploitation and Identity Theft

By Jessica A. Hayes

A hot topic of late among elder law attorneys and certainly in our office is financial exploitation. Between data breaches in the insurance and other industries, phone scams, phishing e-mails, malware on computers, and occasional untrustworthy caregivers, our personal information – including full names, dates of birth, and Social Security Numbers – is increasingly vulnerable to exposure and misuse. What is then done with that information can often be financially devastating.

Having had my own personal information compromised in a couple of widespread breaches over the last few years, I had the pleasure of learning firsthand about the best way to guard against the misuse of my information a few months ago: placing a “credit freeze” on file with all three credit reporting agencies.

A credit freeze is a tool by which a consumer (or his agent under a power of attorney) may prevent credit inquiries and the issuance of credit using his Social Security Number. Anytime you apply for a credit card, automobile loan, mortgage, or line of credit, for example, the company submits a credit inquiry to one (or more) of the three credit reporting agencies, Experian, Equifax, and TransUnion. The inquiry then appears on your credit report. Too many inquiries in a short period of time may negatively affect your credit score and your ability to obtain credit. Once you have applied for and received credit, of course, that appears on your credit report, too. However, if you have a credit freeze in place, neither a credit inquiry nor the issuance of credit is permitted unless you contact the credit reporting agency ahead of time and request the freeze be lifted.

Once a credit freeze is in place, anyone who tries to apply for credit on your behalf will be automatically rejected. Your credit will remain as you left it, regardless of who has your information. If you want to apply for credit but continue benefiting from the credit freeze immediately after doing so, you can lift the freeze temporarily, for a duration of time that you select and/or for one particular financial institution only. This is easily done online using a personal PIN number on each of the credit reporting agencies’ websites, and can be accomplished by phone, as well.

Putting a credit freeze into place is a good practice regardless of whether your personal information has been compromised, but it is an especially helpful tool for seniors, who are more vulnerable to financial exploitation. Consider putting one into place today – with each of the three credit reporting agencies – to give yourself peace of mind in knowing that, in the event your information is compromised, your credit will remain intact.

Each of the three credit reporting agencies’ websites on credit freezes may be located here:

Experian: https://www.experian.com/freeze/center.html

Equifax: https://www.freeze.equifax.com/Freeze/jsp/SFF_PersonalIDInfo.jsp

TransUnion: https://www.transunion.com/credit-freeze/place-credit-freeze

The cost of putting a credit freeze into place varies by state, but is generally minimal, and for the peace of mind it brings, worth every penny.

Kit KatAsk Kit Kat – Pet Dangers of E-Cigarettes

Hook Law Center:  Kit Kat, what are some of the dangers of E-cigarettes to pets?

Kit Kat:  Well, there are some really serious dangers to pets from E-cigarettes. While it is laudable that people are trying to eliminate their nicotine craving, E-cigarettes can be extremely hazardous to pets. It is not only the smoke, but refill cartridges themselves which cause problems. Take for example the case of a seven-month-old pit bull puppy who chewed on an E-cigarette refill cartridge. Within an hour, the puppy was trembling and had eye twitches. The owner immediately got her to the vet, and the puppy recovered, but not before she suffered full-blown tremors and accelerated heart rate. Liquid nicotine is extremely potent. It can obviously be consumed orally, but it also can be absorbed through a pet’s skin or mucous membrane. Their bodies are so small, that the deleterious effects happen extremely quickly. Nicotine gum, patches, and even tobacco itself are also hazardous.

Another issue with E-cigarettes is that the potency of the nicotine. Cartridges for E-cigarettes vary from mild to highly concentrated. If your pet has ingested nicotine, the signs will be obvious within 30-60 minutes. Be on the alert for lethargy, vomiting, diarrhea, drooling, agitation, accelerated heart rates, and even seizures. Immediate veterinary care will be necessary, or you can seek help on the ASPCA Animal Poison Control Center at 1-888-426-4435. (“E-Cigarettes: The New Threat to Pets,” ASPCA Action, Issue 1, 2017, pg. 8)

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, June 16th, 2017. Filed under Newsletter.

Breach of Fiduciary Duties under a Power of Attorney

By Shannon Laymon-Pecoraro

Many agents may be unaware of their duties and limitations under a power of attorney. This is causing an increased amount of family disputes related to mismanagement of the principal’s funds, and a claim for breach of fiduciary duties.

The Commonwealth of Virginia has adopted the Uniform Power of Attorney Act. With the adopting came the codification of inherent duties, termed fiduciary duties, of an agent acting under a power of attorney. In general, these duties include, but are not limited to:

  • Acting in accordance with the principal’s reasonable expectations, to the extent actually known, and, otherwise, in the absence of such knowledge, then in principal’s best interest.
  • Acting in good faith and so as not to create a conflict of interest that would interfere with the agent’s impartiality.
  • Acting within the scope of authority granted in the power of attorney.
  • Act loyally for the principal’s benefit;
  • Acting with the care, competence, and diligence ordinarily exercised by agents in similar circumstances, and, if selected as a result of special skills or expertise, acting with such care, competence, and diligence under the circumstances.
  • Keeping a record of all receipts, disbursements, and transactions made on behalf of the principal.
  • Attempting to preserve the principal’s estate plan, to the extent actually known by the agent, if preserving the plan is consistent with the principal’s best interest. Based on things such as the value and nature of the property, foreseeable obligations and need for maintenance, minimization of taxes, and eligibility for a benefit or other program.
  • Disclosing, upon request, receipts, disbursements, or transactions conducted on behalf of the principal.

The single-most common cause for complaint I see when disputes arise over a power of attorney is the lack of transparency for actions taken. In many circumstances, the agent has not maintained sufficient records and cannot properly disclose the actions taken by them upon request. This lack of transparency and failure to produce the disclosure as required often leads to the belief that the agent has not acted appropriately. While some cases may result in a finding that the actions taken were appropriate, a large number of cases reveal that there have been wrongdoings by the agent. These wrongdoings, intentional or not, are often are the result of not understanding what authority the agent has under a power of attorney.

Despite the provision in most powers of attorney that grants an agent authority to do all acts that a principal would otherwise be able to do, the Commonwealth has detailed a number of powers that, absent express authority, may not exercise. These powers include:

  • Creating, amending, revoking, or terminating a trust.
  • Making gifts.
  • Creating or changing rights of survivorship or beneficiary designations.
  • Delegating authority granted under the power of attorney.
  • Waiving the principal’s right to be a beneficiary of a joint and survivor annuity.
  • Exercising fiduciary powers that the principal has authority to delegate.

Even when a power of attorney provides for these special powers, there are additional limitations such as vesting interests in property to non-family member agents and gifting limits.

A failure to understand your duties as an agent and the specific provisions of your power of attorney can lead to lawsuit, which would essentially hold you personally accountable. Professionally-drafted documents will be tailored to the individual, and will often come with specific information to be provided to agents, so that they understand the scope of their authority. This advice and the ability to seek continued legal advice when treating business on behalf of your principal becomes paramount in your success as an agent and the ability to avoid costly litigation.

Kit KatAsk Kit Kat – Laughing Gulls

Hook Law Center:  Kit Kat, what in the world are laughing gulls?

Kit Kat:  Well, this is not a made-up name at all. Their scientific name is Leucophaeus atricilla, which literally means “laughing gull.” Now to the casual observer, all gulls may look alike, but not so, especially in the warmer months and breeding season, when their colors change. The laughing gull is distinguished by its black head with light grey back and wings. The beak and inside of the mouth is bright orange. Quite a handsome specimen! It is considered a medium-sized gull, having a wingspan of a tad more than a yard. However, it is the sound it makes for which it is named. The writer of the newspaper article from which this information was taken, Dave Taft, says, “ Its rollicking call is as evocative of the summer beach season as the smell of Coppertone and salt air.” The laughing gull is mostly found along the coast from Nova Scotia to Venezuela. It has a particular fondness for the New York City area. Managers at Kennedy International Airport have to keep constant watch to keep runways clear of them. One of their largest colonies borders its runways.

The laughing gull is just not a pretty fixture along the coast. It actually helps to keep unwanted pests at a tolerable level. They love to consume ants, termites, beetles, and grasshoppers. So, they actually are quite useful! In this aspect, they contrast with their cousins—the herring gull and ring-billed gull—who like to scavenge from garbage or eat fish and eggs. Who knew the laughing gull could be so useful and entertaining, all at the same time! (Dave Taft, “Laughing Gulls, New York’s Handsome Scavengers,” The New York Times (NY Region/NYC Nature), May 25, 2017)

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, June 9th, 2017. Filed under Newsletter.

World Elder Abuse Awareness Day

By Elizabeth Boehmcke

June 15 is World Elder Abuse Awareness Day. The theme this year is “Understand and End Financial Abuse of Older People: A Human Rights Issue”. The UN reports that 5-10 percent of older people worldwide may experience financial abuse. Here in Virginia, the Department of Social Services Adult Protective Services (“APS”) is charged with investigating reports of elder abuse, including acts of financial exploitation, and assisting seniors who may be victims of abuse and their families to obtain help. In particular, APS serves adults over the age of 60 and incapacitated adults over the age of 18.

According to APS, signs of financial exploitation may include the following: missing personal belongings, suspicious signatures, little to no understanding of one’s monthly income, many checks made payable to “Cash”, numerous unpaid bills, discrepancies in income tax returns, large withdrawals from accounts and a changed Will or power of attorney, particularly with the addition of non-family agents and beneficiaries or family members who are not the natural objects of the person’s bounty. For family and friends who begin to notice signs of financial exploitation, or even if you think you may be a victim yourself, a quick call to APS’s 24 hour hotline (1-888-832-3858) can save the day. APS may be able to intervene before too much serious trouble begins, may be able to recognize signs of incapacity that require legal action and, if necessary, notify local police of criminal wrongdoing. Reports can be made anonymously.

As practitioners within the elder law community, we also run across situations in which a family member expresses concern about how their loved one is being treated by a neighbor, caregiver or sometimes even other family members. Determining when it is appropriate to call APS to report suspected elder abuse in our clients can be a difficult dilemma, since we are not always able to see the evidence firsthand and sometimes our clients deny any wrongdoing or concerns. However, APS reports that there are steps that you can take to protect yourself from potential financial exploitation.

  1. Stay involved with friends, family and neighbors. Social isolation increases your risk for exploitation because the people who care about you are not around enough to notice you may be in trouble. Do not allow people into your home to provide care who are not licensed and had a criminal background check.
  2. Beware of scams of all kinds. They can range from in-person to internet to email or telephone solicitations for phony charities, requests for help from a bogus relative (someone pretending to be your grandchild for instance), bogus threats of audit or overdue taxes from the IRS (the IRS does not call you to talk about your income taxes), exclamations that you have just “won a prize” (almost always a total scam or solicitation to purchase something you do not need or want) or claims that your computer has a virus that they can fix for a fee (nothing wrong with your computer). DO NOT give out your personal information to anyone who asks for it; if it seems potentially legitimate, you initiate a call to the bank or agency using a trusted phone number (like the one on the back of your credit card) to verify that the person asking for the information is doing so legitimately. Also you should know that if you are scammed once you are more likely to be targeted again.
  3. Keep on top of your finances. If you need help with your finances, do not abdicate total responsibility. Ask lots of questions and review your account statements or have a trusted friend or family member help you do this. Shred documents with your personal information on it.
  4. Do not sign documents you do not understand, whether it is in relation to an investment opportunity or for the provision of goods or services. Ask questions about risks, all costs and fees and be sure that you can withstand a loss or the worst case scenario.
  5. Plan ahead for potential incapacity and work with trusted advisors who can assist you in making solid plans for the future and who can help you to choose agents who can assist you as well. A knowledgeable elder law attorney will be able to help you think through all the issues that may confront you as you age. Since everyone’s circumstances are different – from family to finances – one plan will not fit everyone. Work with trusted legal and financial advisors to craft a plan that works for you.

Remember June 15 is World Elder Abuse Awareness Day. Take some steps to protect yourself and those you love and give the attorneys at the Hook Law Center a call. We are here to help.

Kit KatAsk Kit Kat – Moving North

Hook Law Center:  Kit Kat, why are shelter animals moving north from places in the south?

Kit Kat:  Well, it’s their best shot at not being euthanized. Warm weather places have a glut of animals in shelters that need homes. Warm weather and more daylight fosters more breeding and births. Shelters in the north, on the other hand, have the space and the people who are willing to adopt. So it’s a win for pets for sure! The number of animals which have had to be euthanized has declined dramatically since the 1970s when 20 million cats and dogs were put down. In 2011, the American Society for the Prevention of Cruelty to Animals estimated the number of animals euthanized was down to about 2.6 million. In 2017, it has declined even further to 1.5 million. That’s especially good news for cats who account for 60% of those euthanized.

So how are the pets transported? Well, there are a variety of ways, including bus, car, vans, and even planes. One very active group is called Rescue Express, based in southern California. In one year, they have transported more than 10,000 animals to safety in other regions, mostly in states to the north, like Oregon and Washington. “Nearly a third of the 30,000 dogs and cats received by a Portland, Oregon coalition of six shelters in 2016 came from outside the area, including from Hawaii,” according to Karin Brulliard, author of The Washington Post article reviewed here.

A success story is May, a charcoal-and-white pit bull mix, who came from a shelter in Los Angeles County, California. She had passed one temperament test, but failed the second one. The tests are required for adoption. Rescue Express agreed to transport her to Eugene, Oregon, and another rescue group said they would find her a home. She was then placed at Northwest Dog Project. She lives in her own cottage along with 10-17 other dogs, depending on the need. They have piped-in music and even skylights. Quite a change from the overcrowded situation she came from. According to director, Emma Scott, May will be evaluated and receive training. She ‘already knew how to sit, and now we’re working on her leash manners. …We’ll do everything we can to make her as adoptable as we can.’ With all that, May can’t help but succeed and find her forever home! (Karen Brulliard, “From death row to adoption: Saving animals by car, van, bus, and even plane,” The Washington Post, (Animalia), May 13, 2017)

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, June 2nd, 2017. Filed under Newsletter.

What Do You Mean Electronic Will?

By Letha Sgritta McDowell, CELA

In a world of rapid change, the process of estate planning seems to have been relatively stagnant; at least until recently. The process has always been something like a client meeting with an attorney to discuss his or her wishes in the event of disability or death. The attorney then discusses documents like a will, trust and power of attorney and together the attorney and client determine the best plan for the client. Then, the attorney drafts the plan and the client returns to sign all the documents. Whether written by hand, on a typewriter, or with a word processor, the process has remained largely unchanged.

Technology has changed so much around us, including in the legal world. Potential clients now Google basic legal questions before coming to see an attorney, so they are more versed in legal documents before an attorney suggests them. Deeds can be electronically recorded and so an inked signature is never sent to the register of deeds. Legal Zoom and other electronic services have changed many transactional law practices, including estate planning. Some now bypass the attorney and use online services with which to draft their estate planning documents or business plans. Whether created using Legal Zoom or drafted by an attorney, all wills require the testator to sign it with an ink pen. So, despite the existence of such online services and the rapid evolution of technology, the manner in which wills are executed remained unchanged; at least until recently.

Last week Florida passed an electronic wills law. The Florida law allows individuals to electronically sign their own will, by-passing the need for a second trip to the attorney’s office or an ink pen. In order for the will to be considered valid, it must be electronically signed by the testator and signed in the presence of two witnesses, much in the manner in which wills are traditionally executed, but the witnesses do not have to be in the same room as the testator. Instead the witnessing of the will can be done virtually (by web camera), so long as the execution is videotaped. There are a number of other requirements that must be met in order for a will to be a valid electronic will; however, the revolution does not exist so much in the details, but rather in the fact that electronic signatures and thus purely electronic wills exist.

Currently, neither Virginia nor North Carolina are considering similar laws; however, Florida’s electronic wills statute will impact both states. Will Virginia and North Carolina accept Wills which were validly executed under Florida’s electronic wills statute as a means to pass title to a Florida resident’s real estate located here, even though the will wouldn’t be considered valid here? Should Virginia and North Carolina consider similar electronic wills statutes to make travelling to and from our states easier?

Many believe that allowing the electronic creation of wills will allow the more than half of Americans who don’t have wills, to create them at a reasonable cost. Others are concerned that allowing the electronic execution of wills will result in an increase in fraud, undue influence, and elder abuse. The actual impact of allowing electronic signatures and electronic wills remains to be seen. But one thing is for certain, technology continues to change the practice of law.

At Hook Law Center we understand that your time is limited and valuable. For that reason we offer virtual appointments (via web cam) and a limited number of evening appointments

Kit KatAsk Kit Kat – Prairie Dog ‘Talk’

Hook Law Center:  Kit Kat, what can you tell us about how prairie dogs communicate?

Kit Kat:  Well, if you’ve ever heard a prairie dog whistle, you’ve heard prairie dogs “talking.” What may sound to you like a cheerful whistle is actually how they communicate. The premier expert in the field is Con Slobodchikoff, emeritus professor of biology at Northern Arizona University. He’s been studying prairie dogs’ communication for more than 30 years!

According to Dr. Slobodchikoff, prairie dogs have such complex communication abilities, that he has labeled it as language. Not all his colleagues in the scientific community agree, but he still clings to his assertion. Dr. Slobodchikoff says that the prairie dog can not only telegraph what type of outsider there is, but also the outsider’s size, shape, color, and speed. He also says they can describe something they have never seen before. One way they do this is through the use of intonation. Much like in the Mandarin language in which one word (ma) can mean horse, mother, or to scold, the prairie dog combines 6-7 overtones (compared with a human’s 3-4 overtones) to compose different strings of words—“dog big yellow fast” or “human small blue slow.” Dr. Slobodchikoff is dedicated to this field and will continue his research into these fascinating creatures.

Sadly, his subjects are in decline right now. They are not a protected species, because some see them as pests who consume the grass that cattle depend on. Dr. Slobodchikoff says they are not really a threat, because it would take hundreds of prairie dogs to eat as much grass as one cow does. Before 1800, it is estimated that as many as 5 billion prairie dogs occupied the Great Plains. They live in colonies in underground burrows and rarely venture more than a few hundred feet from the home colony. As soon as a threat is detected, the one who realizes danger sounds the alert, and all run for cover. Now, it is estimated that only 10-20 million exist. Another problem for them is disease. Since 1900, they have been prone to contract plague, brought to North America by flea-bitten rats from Asia. Nevertheless, Dr. Slobodchikoff will continue his studies, even though it now requires him to travel further from Flagstaff where Northern Arizona University is located to find his subjects. (Ferris Jabr, “Can Prairie Dogs Talk?” The New York Times Magazine, May 12, 2017)

Upcoming Seminars

Distribution of This Newsletter

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

Posted on Tuesday, May 30th, 2017. Filed under Newsletter.

Virginia’s New Access to Digital Assets Act

By Jessica A. Hayes

Effective July 1, 2017, Virginia will be repealing its current law relating to digital assets, the Privacy Expectation Afterlife and Choices Act, and will adopt the Uniform Fiduciary Access to Digital Assets Act, which will be codified as Virginia Code §§ 64.2-116 through 64.2-132 (the “Digital Assets Act”).

Under the Digital Assets Act, a “digital asset” is broadly defined as “an electronic record in which the individual has a right or interest.”  The Digital Assets Act will permit a fiduciary – the executor or administrator of an estate, the trustee of a trust, the guardian and conservator of an incapacitated person, and the agent under a power of attorney – to manage the principal’s digital assets such as computer files, web domains, and virtual currency.  However, it will restrict a fiduciary’s access to electronic communications such as email and text messages (the “content of an electronic communication”) and social media accounts, unless the original user specifically consented to such access in a will, trust, power of attorney, or other record. Whereas the previous law concerning digital assets applied only to executors and administrators of estates, the new law will apply to also to guardians, conservators, and agents under powers of attorney, broadening the scope of the law, and will provide more specific guidance to the “custodians” of digital assets (those who carry, maintain, process, receive, or store digital assets) which closely mirrors the laws of other states that have enacted the Uniform Fiduciary Access to Digital Assets Act. What does this mean for you?  If you wish for your executor, trustee, or agent to be able to access the content of your electronic communications, as opposed to merely a log of the parties to and date of the communications, you should include wording in your will, trust, and power of attorney to specifically permit it, in accordance with the terms of the new Digital Assets Act.

Kit KatAsk Kit Kat – Cats and Boxes

Hook Law Center:  Kit Kat, what can you tell us about cats and why they love boxes so much?

Kit Kat:  Well, we cats have our own special idiosyncrasies. One of them is that we love small, defined spaces. They make us feel protected and secure. It’s not just me saying this, or what you might have observed yourself about cats. Dr. Nicholas Dodman of Tufts University’s Cummings School of Veterinary Medicine says, “When young, they used to snuggle with their mom and litter mates, feeling the warmth and soothing contact. Think of it as a kind of swaddling behavior. The close contact with the box’s exterior, we believe, releases endorphins—nature’s own morphinelike substances—causing pleasure and reducing stress.” Pigs have a similar liking, he says about research he conducted with Temple Grandin of Colorado State University. However, for them, ‘lateral side pressure’ is all it takes to have a soothing effect.

More validation for cats’ preference of small spaces like boxes comes from Dutch scientists. Their research showed how shelter cats that were provided with boxes as retreats adapted much faster to their new environment when compared with those who were not provided boxes as a safe haven.

To take this a step further, it even appears that cats, with no available boxes at hand, will choose to sit in a taped representation on the floor or carpet of a box. It certainly is not a perfect substitute for the real thing, but it does represent to them, a smaller space which corresponds to their diminished stature.

And there you have it! To make your cat happy, all you have to do is provide a box or basket for them to snuggle in. My mom lines them with towels which can be regularly washed, so that the area is always fresh and clean! (Nicholas Dodman, “Your cat loves hopping into boxes. Here’s why.”

The Washington Post, Health and Science section, April 22, 2017; Originally published on theconversation.com.)

Upcoming Seminars

Distribution of This Newsletter

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

Posted on Tuesday, May 23rd, 2017. Filed under Newsletter.

The Role of an Elder Law Attorney in Personal Injury Actions

By Shannon Laymon-Pecoraro

People are often surprised when they hear that elder law attorneys assist personal injury attorneys with public benefits issues associated with their case. Our working knowledge of the intricately woven issues associated with medical insurance, means-tested benefits, capacity and asset protection often make us vital members of a settlement planning team. Some of the recurring issues we assist personal injury attorneys include the following:

Guardianships: When an individual lacks the requisite capacity to make the complex decisions associated required in bringing litigation, we are often called upon to bring a guardianship. In most cases, such causes of action are necessary to ensure that there is a proper fiduciary is empowered to bring the cause of action because the individual does not have an effective estate plan. In other cases; however, the personal injury may want the judicial determination of incapacity to streamline the decision making process.

Trusts: We most often called upon to draft settlement trusts to protect the hard-earned settlements or awards received by a client. In some cases, we draft these trusts prior to a trial in preparation for the final disposition, and in other cases, we are called upon on the back-end to resolve lingering issues. With few exceptions, trusts should be the preferred vehicles for settlement funds for children or individuals with disabilities because of greater flexibility and protections for the individual beneficiaries. Important protections offered with a settlement trust include:

  • Protection of means-tested public benefits such as Supplemental Security Income (SSI), Medicaid, Section 8, and Food Stamps
  • Resolving Medicare issues such as liens and set-asides
  • Professional management of assets and spendthrift protections

Medicare Issues: The Medicare manual is complex, and the intricacies involved with Medicare’s status, as a “secondary payer” can be difficult to navigate. If you take into account the steep penalties associated for failing to address Medicare’s right to recover conditional payments or a future interest, having a second set of eyes becomes even more important. We are often asked to opine as to whether Medicare has a valid lien against settlement proceeds or if a set-aside is required.

Medicaid Issues: We are sometimes called upon to prevent the impoverishment of a family due to skilled-nursing required by an individual that has fallen victim to a catastrophic injury. We are most often called, however, to protect benefits that are already in place. While a minor may have Medicaid as a basic health insurance policy that can easily be substituted by purchasing private insurance, Medicaid benefits for the elderly or disabled will likely need much more protection due to more intensive care needs. This is especially true when an individual is receiving one of Virginia coveted ID/DD waivers, for which the waiting list is years long.

 

Bringing an elder law attorney in early becomes a critical component of settlement or trial preparation and often prevents delays associated with back-end tackling of issues. By being involved, an elder law attorney can assist with lining up allocations for Medicare and Medicaid, preparing Medicare Set-Asides, and drafting settlement trusts, settlement agreements, releases and orders to protect benefits and limit liabilities.

Hook Law Center, P.C. has been actively assisting clients and personal injury attorneys in resolving various elder law issues associated with settlements and awards. Our goal is to be an integral member of a settlement team and maximize the funds received, while protecting the clients and attorneys involved.

Kit KatAsk Kit Kat – Moose on Isle Royale

Hook Law Center:  Kit Kat, what can you tell us about moose on Isle Royale, Michigan?

Kit Kat:  Well, this is an interesting story. Isle Royale is a national park belonging to Michigan which is located in Lake Superior, close to the Canadian border. It is a large island, 45 miles in length. Hundreds of smaller islands surrounding it are included in the national park. Right now, there is an imbalance in the moose-wolf population. Moose are increasing, while the wolf population is in significant decline. Inbreeding of the wolves have contributed to their decline, with only 2 left—a male and female who are too old to reproduce. Moose, on the other hand, who feed on Balsam fir trees, are thriving. This may sound fine, but it’s really not. If the moose population gets too large (it’s estimated to be around 1,600 currently), they will continue to denude the island of its fir trees. Already, many once forested areas have been turned into grassy plains. A good balance between wolves and moose is what scientists call a predator-prey balance. In the past, when the moose population got too large as it did in the 1990s and reached a number close to 2,500, many moose died of starvation during a severe winter in 1996. There are no easy solutions.

The National Park Service is looking into 4 alternatives to address the problem, one of which is to let the wolves die out. Their preference, however, is to relocate 20-30 wolves to the park over a 3-5 year period. They will make a decision this fall (2017). Mother Nature sometimes gets out of balance. It will be interesting to see how the park service decides to intervene, if at all.

(Associated Press, “As wolves die out, moose numbers boom on Michigan’s Isle Royale,” The Washington Post (Kids Post), April 19, 2017)

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, May 15th, 2017. Filed under Newsletter.