Comprehensive Planning. Lifelong Solutions.

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:




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)

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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 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)

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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 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)

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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 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)

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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 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

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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 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)

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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 or fax us at 757-397-1267.

Posted on Monday, May 15th, 2017. Filed under Newsletter.

The New Elective Share Law Adds a Layer of Complexity for Planning for Long-Term Care

By Elizabeth Boehmcke

As of January 1, 2017, the Virginia Legislature amended our state’s formula for determining the surviving spouse’s elective share rights in the augmented estate. Under prior law, a surviving spouse was entitled to one-third of the decedent’s estate, augmented by certain transfers delineated by statute, such as life insurance, retirement accounts and gifts to others. Under the new law, the amount of the elective share is based on a sliding scale related to the length of the marriage and takes into consideration the assets of both the decedent and the surviving spouse. In theory, for long-term marriages (defined as those of 15 years or more), the idea is that the spouses operate like a partnership and that each spouse contributes equally to the marriage in one fashion or another and so both are entitled to share equally in the assets. Although the new law is worthy of extensive discussion on various points, I want to focus primarily on how it affects our clients who are planning for incapacitated or potentially incapacitated spouses and also planning for the possibility of needing public long-term care benefits, like Medicaid.

Traditionally, we have encouraged clients who see a realistic probability of needing to plan for not only the incapacity of a spouse who may survive them but also for the possibility that such spouse would be using public benefits at the time to consider the creation of a supplemental needs trust (“SNT”) in the Will of the first to die. However, because the surviving spouse has the right to receive an elective share outright, there has always been the concern that the failure to exercise that right created a transfer which would be attract a penalty for Medicaid purposes or, at the very least, would result in a Medicaid payback at the death of the surviving spouse. The new statute has created some alternatives.

The new statute provides that, if the surviving spouse is incapacitated at the death of the first spouse or within the time required for making the election for the elective share, then a conservator or an agent under a durable power of attorney may make the election for the survivor. In that case, the court is required to put the amount of the elective share in a trust for the benefit of the survivor. The trust as described in the statute both protects the survivor’s eligibility for public benefits and allows the assets remaining at the survivor’s death to pass to the beneficiaries chosen by the deceased spouse (typically children). Because the elective share amount is required to be placed in trust by the court, the surviving spouse cannot be considered to have made a transfer to which Medicaid could lay claim.

The statute further provides that if the surviving spouse is not incapacitated within the time required for making the election for the elective share, then assets placed in a trust with certain provisions will qualify for the elective share amount. Again, in this situation, because the elective share amount cannot be deemed to have been transferred by the survivor, Medicaid can make no claim on the assets held in the trust. However, in order to meet the requirements, the surviving spouse must be entitled to all the income of the trust for life and to principal in the discretion of a non-adverse trustee. This means that the income generated by the trust may be used to help pay for the survivor’s care. Careful financial planning can limit the amount of income available to be used for care and to ensure that public benefits remain available to the survivor.

By carefully thinking through the contingencies that could arise on the death of the first spouse, depending on the capacity of the surviving spouse, we can create multiple trusts that maximize the protection of assets for the survivor and his or her access to public benefits. This may result in the creation of multiple trusts on the death of the first spouse to die – one to hold the augmented estate share and one to hold the balance of the assets, probably in an SNT. In addition, if the surviving spouse is incapacitated at or near the death of the first to die, the survivor’s agent under a durable power of attorney will need to file certain papers with the court in a timely manner. However, the added complexity is worth it when you consider the additional protection available for both the surviving spouse and the remainder beneficiaries.

The changes in the elective share statute will affect almost all of our married clients. Your current documents may contain trusts created to accommodate the old rules or you may not yet have considered whether you need to worry about long-term care public benefits for the survivor of you. In either event, changing laws highlight the need for regularly checking in with your estate planning attorneys at the Hook Law Center to determine whether your plan should be updated. Please give us a call to arrange an appointment for one of our knowledgeable attorneys to review your plan and discuss how the changes in the law may affect you.

Kit KatAsk Kit Kat – Dogs’ Duty

Hook Law Center:  Kit Kat, what can you tell us about our faithful friends, dogs, and how they help science?

Kit Kat:  Well, dogs have always been helpful to mankind in a myriad of ways. They serve on police forces, help the military, guard residences, and are beloved family pets. However, in New York City, they are helping in a different way. Scientists there are studying their fecal waste, or in common parlance, their poop! What could that possibly tell us, you might ask? Well, it turns out a lot! An animal feces study, funded by the Alfred P. Sloan Foundation, is trying to examine the microbial life of New York City’s pets and pests. Not only is dogs’ waste being collected, but they are also collecting fecal samples from cats, rats, mice, pigeons, and cockroaches. The specimens must be fresh (no more than a day old), so the scientists and their assistants wander through the city’s five boroughs collecting. In the case of dogs, if they find the owner nearby, they get the owner to sign a form with certain information, along with the fecal sample. They are expending a lot of effort—rats and mice are trapped, and the posteriors of live pigeons are swabbed. Cat waste comes from shelters, feral cats, and pet felines. In early May, they will extract DNA from the samples, and determine if any patterns emerge.

The study is a collaborative effort with scientists from New York University and Fordham University participating. Dr. Jane Carlton, director of NYU’s Center for Genomics and Systems Biology and lead scientist in the study, says, ‘Characterizing the world around us is very important, especially the microbial world we can’t see.’ They will be comparing information they obtain from different parts of the city, and across species. Are there geographical differences, differences among the species, or does diet and age play a role? Stay tuned for the results of this fascinating undertaking! (Andy Newman, “Dogs Do Their Duty for Science,” The New York Times, (NY Region, Pet City section), April 7, 2017)

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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 or fax us at 757-397-1267.

Posted on Monday, May 8th, 2017. Filed under Newsletter.

Are the New Proposed Tax Cuts Something You Should Be Concerned About?

By Stephan A. Lipskis

The Trump Administration recently announced proposed tax cuts, which received many headlines for reducing corporate tax rates and generally being unclear on how the cuts would be absorbed in the national budget. What do the proposed income tax changes mean for estate planning and elder law? For the wealthy, the plan appears to offer significant benefits, but the proposed cuts would likely have harsh effects on low and middle income individuals with significant health care expenses.

Given the basic nature of the administration’s proposals, there is a lack of clarity with regard to what changes will be made to available income tax deductions and credits. A major piece of the proposal is simplifying the tax brackets to three rates of 10%, 25%, and 35%; unfortunately, it is unclear where those rates would fall. The proposal only specifically saves the charitable and mortgage interest deductions, which are two of the most widely claimed. Losing other deductions would not concern most low and middle income taxpayers, because the standard deduction would be more than doubled.

As an elder attorney, I am seriously concerned for the potential loss of the medical expense deduction. Loss of the medical expense deduction would increase the significant financial burden for those in long-term care or chronic illness, which impacts people of all income levels. Such expenses are only increasing, and the tax credit offers much-needed relief to taxpayers in the middle and lower income categories. When over half of U.S. bankruptcies arise from medical bills, eliminating this deduction would seem unwarranted.

The proposal seeks to eliminate the so-called “Death Taxes” which only impacts those passing with wealth exceeding $5.5 Million (single individuals) or $11 Million if a married couple maximizes their credit. If the implemented measures add elimination of gift taxes to the proposal, it would truly be a rare opportunity for wealth transfers with minimal taxes. This is primarily because an estate tax has been around for over a century now and, while it may go away temporarily, there is a decent chance it would return. Accordingly, only those who pass while the estate tax is gone would reap a benefit. On the other hand, individuals can easily plan to take advantage of changes in the gift tax during their life.

All told, the U.S. tax system is notoriously complex and riddled with deductions, credits, and other various measures that both add to the complexity of the system and offer advantages to certain individuals and businesses. The proposal put forth by the administration illustrates a desire to significantly reduce the complexity of the tax code, but risks oversimplification. The proposed points are certainly not set in stone and would need much refining in order to become coherent policy. However, the prospect of a losing deductions for health-related expenses creates legitimate concern. When combined with rising health care costs and the potential for increased uncertainty if the Affordable Care Act is repealed, the economic outlook for the low or middle-income elderly could become dire. If you have not planned ahead for significant medical costs or unexpected incapacity, these proposed changes offer yet another reason to consult an estate planning attorney specializing in elder law.

Kit KatAsk Kit Kat – Komodo Dragon Babies

Hook Law Center:  Kit Kat, what can you tell us about two Komodo dragon babies at the Virginia Aquarium & Marine Science Center in Virginia Beach?

Kit Kat:  Well, this story has several interesting twists and turns. The babies were hatched from eggs this past August (2016); however, their gender was revealed only recently. They have to be old enough to undergo a blood test for that to happen, and the blood test only occurred on April 13, 2017. The test revealed they are both males, and the museum went about announcing this in a fun way. They had the dad dragon, Teman, kick over some giant, blue plastic eggs in his exhibit using some incentives. The mother, Jude, unfortunately, did not live to see her babies hatch. She underwent surgery last summer to correct a condition known as egg-yolk coelomitis. There were complications, and she had to be euthanized last July. She was almost 9 years old at the time.

Now for the interesting part—staff at the museum were not even aware she had left behind some eggs until they were cleaning the exhibit area, and they discovered 18 eggs buried about two feet beneath the surface. Two of the eggs hatched, and now 8 months later, they are about 3 feet long! Eventually, they will end up being 7-8 feet long. The parents, Teman and Jude, were on loan from zoos in Denver and San Antonio. One of the babies will stay in Virginia Beach, and one will eventually go to San Antonio.

The as-of-yet unnamed babies live separately at this point in an area kept to a toasty 90 degrees, but a new exhibit area is being prepared for them which should be ready by late this summer. The museum is welcoming input to pick their names, so if you’d like to make a suggestion, go to their Facebook page. They are unique. In North America, there are only 123 Komodo dragons spread across 60 facilities. Virginia Beach is fortunate to have 4—Teman, the 2 babies, and another male named Sanchez! (Robyn Sidersky, “Two Komodo Dragon Babies,” The Virginian-Pilot, April 14, 2017, 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 or fax us at 757-397-1267.

Posted on Monday, May 1st, 2017. Filed under Newsletter.

Top Scams Targeting Seniors – And How to Avoid Them

By Jessica A. Hayes

It’s no secret that the elderly are frequently the target of scams, financial abuse, and exploitation. A senior’s declining cognition may make it more difficult for him to distinguish between a legitimate phone call or e-mail and one designed to take advantage of him. Combine this with hearing or vision loss, and it becomes even less of a challenge for unscrupulous individuals to obtain and make use of one’s personal and financial information.

The United States Senate Special Committee on Aging recently issued its 2017 ranking of the top 10 scams targeting senior citizens, based on data collected through its Fraud Hotline from January 1, 2016 through December 31, 2016. The most frequently reported scams of 2016 were as follows:

  • IRS Impersonation Scams

Generally, the scammer will call an individual, pretending to be an Internal Revenue Service (IRS) agent, accusing the individual of owing back taxes and penalties, and threatening the individual with arrest, foreclosure, or deportation if immediate payment is not made.

  • Sweepstakes Scams

The scammer contacts an individual and informs him that he has won a lottery – frequently the Jamaican lottery. In order to “claim” his winnings (or to improve his chance of winning), the individual must pay a fee.

  • Robocalls/Unwanted Phone Calls

The scammer uses technology to dial large volumes of phone numbers and distribute pre-recorded messages to reach a broad audience of potential victims.

  • Computer Scams

The scammer contacts the victim by computer, poses as an employee of a technology company, and convinces the victim that his computer is infected with a virus. In order to get rid of the “virus,” the scammer convinces the victim to give him access to his computer, often in exchange for payment by wire transfer. Sometimes, the scammer obtains the victim’s passwords and uses them to access his financial accounts, as well.

  • Elder Financial Abuse

The Committee’s report defines financial abuse as the “illegal or improper use of an older adult’s funds, property, or assets.” It is often committed by a loved one or an agent under a power of attorney.

  • Grandparent Scams

The scammer calls a senior pretending to be a family member, often a grandchild, and asks for money to pay for an emergency (frequently a medical bill or legal problem).

  • Romance Scams/Confidence Fraud

A form of “catfishing,” this scam involves the fraudster creating a fake online dating profile, gaining the trust of the victim over a period of time, then requesting money to help out in an “emergency” or to allegedly visit the victim.

  • Government Grant Scams

The scammer contacts the victim, pretending to be from a “Government Grants Department” (which does not exist), and informing the victim that he or she will receive a grant after paying a fee.

  • Counterfeit Check Scams

The scammer sends the victim a check and instructs him to cash or deposit the check, then turn around and wire some of the money back to the scammer. For his trouble, the victim may keep a portion, he is told. The victim later learns from the bank that the check has bounced, and now he is liable for the funds wired.

  • Identity Theft

The Committee’s report categorizes several forms of “identity theft,” including online impersonation, actual theft of a wallet or mail, and illegal efforts to obtain a person’s identifiable information. Use of someone’s personal information to apply for a credit card is a common form of identity theft, as is filing an income tax return using someone else’s personal information, generally to obtain a refund from the government.

To avoid becoming the victim of these and other scams, exercise caution when you are contacted by someone you do not know personally or are not expecting to hear from. Almost all of the scams above involve someone else contacting you, either by phone, mail, or e-mail. If someone purportedly calling from your financial institution contacts you and asks for identifying information, hang up and call the institution back at a known, legitimate phone number to verify whether the call was legitimate. Avoid opening e-mails from unknown senders and clicking on links in e-mails unless you are absolutely certain that the e-mail or link is legitimate. Shred documents containing personal information such as dates of birth and Social Security Numbers, rather than throwing them away. Keep in mind that anything that sounds too good to be true (lottery winnings and free trips, for example) most likely IS too good to be true. And when in doubt, if you receive a phone call, piece of mail, or e-mail that doesn’t seem quite right, get the opinion of a loved one or an attorney before responding.

If you receive a suspicious call or message, contact the U.S. Senate Special Committee on Aging’s Fraud Hotline at 1-855-303-9470. For more information relating to each of the above scams, you may access the 2017 report online at

Kit KatAsk Kit Kat – Follow the Bears

Hook Law Center:  Kit Kat, what can you tell us about the bears in Yosemite National Park?

Kit Kat:  Well, this is so interesting! The rangers at Yosemite now have a website in which the public can follow the location of black bears throughout the park. The bears are outfitted with tracking collars, and they can be followed as they go about their daily routines. There is a time delay, so industrious visitors cannot know where they are in real time, but you can see them doing a lot of things like climbing 5,000-foot canyon walls, foraging for food, etc. There are approximately 500 black bears in Yosemite.

The reason behind the tracking system and website is twofold—one is to satisfy the public’s curiosity about the bears, but secondly, and most importantly it is to give the rangers and the public information about the bears. With more than 5 million visitors to the park last year, rangers hope the public will be more aware how to interact with bears—slowing their driving in places bears frequent most and properly storing food at campsites. Last year alone, 28 bears were hit by cars, and for some, it was a fatal encounter. Ryan Leahy, a wildlife biologist at the park says, ‘It’s our responsibility to keep bears wild.’ Another expert, Jesse Garcia, a black bear specialist from the California Department of Fish and Wildlife, says, ‘You’ve got to give them their distance and always be aware, knowing that they’re there.’ In other words, visitors are encouraged to enjoy the bears, but at a safe distance for both parties.

The tracking system has resulted in learning more about black bears, which in Yosemite, tend to be more of a brownish color. One of the things they have learned is that mating season begins in May, about a month earlier than previously thought. Continued monitoring will help us learn more about these powerful, yet beautiful animals. (By Associated Press, “Keeping track of Yosemite’s busy bears,” The Washington Post (Kids Post), April 4, 2017)

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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 or fax us at 757-397-1267.

Posted on Tuesday, April 25th, 2017. Filed under Newsletter.

Selling Real Property to Satisfy the Debts of a Decedent

By Shannon Laymon-Pecoraro

In Virginia, real property vests with the heirs of an estate unless the heirs are divested of legal title. As a result, it is settled law that unless a personal representative of the estate is granted an express power to sell the real estate of the decedent by Will, the personal representative must seek such authority from the Court. The Court will usually reserve granting such authority for good cause and is primarily granted when the assets of the estate exceed that value of the debts of a decedent

The personal representative of an estate (could be termed an Administrator or Executor) has a fiduciary duty to fully administer the estate of the decedent. In doing so, the personal representative must ensure that the debts of the estate are paid. When an estate is insolvent, there is a particular order in which such debts may be paid. A failure to pay the debts in the order prescribed by the Virginia Code could result in the personal representative being held personally liable for the debt

Specifically, when the assets of the estate are not sufficient to satisfy all the debts, the debts are to paid as follows:

  1. Costs and expenses of administration;
  2. Allowances afforded to a surviving spouse or dependent child under the Code of Virginia;
  3. Funeral expenses not to exceed $4,000;
  4. Debts and taxes with preference under federal law;
  5. Medical and hospital expenses of the last illness of the decedent, including compensation of persons attending him not to exceed $2,150 for each hospital and nursing home and $425 for each person furnishing services or goods;
  6. Debts and taxes due the Commonwealth;
  7. Debts due as trustee for persons under disabilities; as receiver or commissioner under decree of court of the Commonwealth; as personal representative, guardian, conservator, or committee when the qualification was in the Commonwealth; and for moneys collected by anyone to the credit of another and not paid over, regardless of whether or not a bond has been executed for the faithful performance of the duties of the party so collecting such funds;
  8. Debts and taxes due localities and municipal corporations of the Commonwealth; and
  9. All other claims.

Only after the debts are fully satisfied are beneficiaries of the estate entitled to benefit from the estate.

Since the problem usually arises with a decadent who owned real property that has vested with a beneficiary and there is just not a sufficient personal estate to satisfy the creditors, the Code of Virginia specifically provides that real property must sold when the personal property is insufficient to do so.

To enable a personal representative with the authority to engage in the sale of real estate, the personal representative, unless there is an express direction of sale under a Last Will and Testament, will often need the cooperation of the heirs and/or the granting of the power to sell the property. The Court, in granting such authority, divests the heirs of legal title and grants full authority over the property to the personal representative.

Kit KatAsk Kit Kat – Affectionate Cats

Hook Law Center:  Kit Kat, are cats naturally affectionate, or do they tend to be aloof?

Kit Kat:  Well, according to some new research, cats really are naturally affectionate. Here’s what the latest research says. We have Oregon State University (OSU) to thank. In OSU’s own publication, Behavioral Processes, it was reported that cats frequently choose love from their parents over food. Dogs and tortoises were previously studied, so the researchers decided it was time to focus on cats. One researcher said, ‘Increasingly cat cognition research is providing evidence of their complex socio-cognitive and problem-solving abilities. Nonetheless, it is still common belief that cats are not especially sociable or trainable. This disconnect may be due, in part, to a lack of knowledge of what stimuli cats prefer, and thus may be most motivated to work for.’

In the study, a total of 50 cats (some from shelters, some were pets) were examined. They isolated the cats for a few hours from all stimulation such as human interaction, playing with toys, or being given food. After the deprivation period, the cats were given the option of interacting with humans, playing with toys, or eating. Only 37% of the cats chose food. Most of those opting for contact were quite content with chin rubbing. To top it off, they found no difference between the shelter cats and pet cats. These results confirm what my parents have long known. The 5 cats in our house love our parents, and miss them terribly when they go away. Someone comes in and feeds us and clean our litter while they are away, but it’s not the same. Even if they are gone one night, when they come back, we cuddle up to them with purring, and they, in turn, pet us to our hearts’ content! (Kelli Bender, “Study: Your Cat Probably Loves You More Than It Loves Food (Take that, Dogs!), People, March 28, 2017)

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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 or fax us at 757-397-1267.

Posted on Monday, April 17th, 2017. Filed under Newsletter.
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Ask Kit Kat: Pet advice and wisdom as Kit Kat sees it.