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Working Grandparents Raising Grandchildren May Qualify for EITC

By Amanda L. Richter, CPA

Grandparents who work and raise dependent grandchildren may be eligible for the earned income tax credit (“EITC”), which is a refundable tax credit, even if the grandparent is 65 years of age or older. This means that those who qualify and claim the credit could pay less federal tax or even receive a tax refund. To qualify, the grandchild must meet the dependency and qualifying child requirements. These requirements are the same for parents claiming the EITC.

Here are some of the basics:

To claim your grandchild as a dependent, the child must be 18 years or younger or a student under 24 years of age as of the end of the year. If the child is permanently and completely disabled, there is no age limit.

In addition, a qualifying child must live with you for more than half of the year and must be your (1) child or stepchild (or descendants), (2) brother, sister, stepbrother, stepsister (or their descendants), or (3) eligible foster children.

If your grandchild meets the above requirements, you may qualify for the credit if your income does not exceed the following amounts and have investment income of less than $3,450:

Filing Status Income Limit for 1 Child Income Limit for 2 Children Income Limit for 3 + children
Single/Head of Household $40,320 $45,802 $49,194
Married filing joint $46,010 $51,492 $54,884

 

The amount of the EITC varies by family size, for instance if you have three or more qualifying dependents, the maximum EITC for 2018 is $6,431. Families with two qualifying dependents have a $5,716 maximum credit and one qualifying dependent has a maximum credit of $3,461.

Be aware that by law, the IRS cannot issue refunds before mid-February for tax returns that claim the EITC or the additional child tax credit. The law requires the IRS to hold the entire refund – even the portion not associated with the EITC.

Please call our office at 757-399-7506 if you wish to discuss these rules further as they apply to your situation.

Kit KatAsk Kit Kat – Llamas & Flu

Hook Law Center: Kit Kat, what can you tell us about llamas and what they have to do with the flu?

Kit Kat: Well, it turns out that llamas are actually contributing to a new type of flu vaccine. It’s still in the preliminary stages, but the research sounds quite promising. Apparently, what is unique about llamas is that they make “an array of immune system antibodies so tiny they can fit into crevices on the surface of an invading virus,” according to Melissa Healy, a writer from the Los Angeles Times, who wrote an article on the subject. This capability is critical to developing a nasal flu vaccine which may have the added benefit of being administered only once in a lifetime! Who knew the humble llama had such capability to help humans?

Leading the way in this research is the Scripps Research Institute in La Jolla, CA. The Scripps study has international participation and partial funding from the National Institutes of Health. What the scientists there are attempting to do is design a universal vaccine against the flu. If such a thing is possible, it will no longer be necessary to design a new flu shot every season to target a specific strain. So, the scientists vaccinated the llamas to fight several types of A and B strains of flu. Next, they extracted blood samples from the llamas which contained antibodies their bodies had developed to fight the flu. They found four extremely small antibodies, which had the ability to destroy many different types of flu. They dubbed these “nanobodies.” Then, here is where the scientists got creative. They realized that it might be difficult to transfer these nanobodies to humans, so they developed a gene delivery system to transfer the nanobodies to humans. This is complicated stuff, so more trials will have to be conducted on other animals and in humans, but the process appears to be sound and shows great promise. Stay tuned for further updates on this fascinating subject. (Melissa Healy, “Llamas may be  key to flu vaccine,” The Virginian-Pilot, November 3, 2018, p.6)

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Distribution of This Newsletter

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

Posted on Monday, November 19th, 2018. Filed under Senior Law News.

Beware of Arbitration Clauses in Nursing Home Admission Contracts

By Jennifer Rossettini, CFP®

A recent Court decision out of West Virginia has many trial lawyers concerned about nursing homes being able to enforce the arbitration clause in an admission contract, despite the fact that the person who signs the admission contract, usually an agent under a Power of Attorney, may not have the authority to waive a jury trial.

In the case of AMFM LLC v. Shanklin on behalf of Est. of Nelson, Ms.Shanklin, who was Ms. Nelson’s successor agent under a Power of Attorney, signed nursing home admission documents, including an arbitration agreement, on behalf of Ms. Nelson. After Ms. Nelson passed away, Ms.Shanklin, on behalf of Ms. Nelson’s estate, filed suit against the nursing home. The nursing home moved to dismiss the case from court and compel arbitration based on the arbitration agreement that Ms.Shanklin signed on Ms. Nelson’s behalf. Ms.Shanklin argued that the arbitration agreement was invalid, because she did not have the authority as a “successor” agent to sign the arbitration agreement. The West Virginia Supreme Court found that, under Section 119 of the state’s Uniform Power of Attorney Act, the nursing home properly relied on the Power of Attorney presented by Ms.Shanklin because it was without actual knowledge (1) that the Power of Attorney was void, invalid or terminated; (2) that Ms.Shanklin’s authority was void, invalid or terminated; or (3) that Ms.Shanklin was exceeding or improperly exercising her authority. The end result was that the court dismissed the case, and the parties were compelled to engage in arbitration, instead of a jury trial, pursuant to the arbitration agreement.

A similar provision is found in Virginia’s Uniform Power of Attorney Act at §64.2-1617(B) of the Virginia Code and reads as follows:

“A person that in good faith accepts an acknowledged power of attorney that has been signed in accordance with § 64.2-1603 without actual knowledge that the power of attorney is void, invalid, or terminated, that the purported agent’s authority is void, invalid, or terminated, or that the agent is exceeding or improperly exercising the agent’s authority may rely upon the power of attorney as if the power of attorney were genuine, valid, and still in effect, the agent’s authority were genuine, valid, and still in effect, and the agent had not exceeded and had properly exercised the authority…”(emphasis added).

In light of these rules, how can an agent under a Power of Attorney make sure that they are not binding their loved one/principal to arbitration when filling out those nursing home admission forms?  According to our good friend and personal injury attorney, Carlton F. Bennett, Esq., a relatively simple solution is to be sure to cross out the arbitration clauses when filling out the paperwork. Another solution is to put the nursing home on notice that the agent DOES NOT in fact have the authority to agree to arbitration by including such language in the Power of Attorney document. We encourage all of our readers to review their Power of Attorney documents to make sure arbitration authority is specifically excluded.

Kit KatAsk Kit Kat – Protecting Whales

Hook Law Center: Kit Kat, what you can tell us about what the Navy is doing to protect endangered whales off the East Coast of the United States?

Kit Kat: Well, this is interesting, and the Navy should be commended for taking these steps. What the Navy is trying to do is help save the endangered North Atlantic right whale. Back in the 1890s, the right whale was plentiful. It roamed from New England, where it fed and mated in the warmer months, to Florida where it had its young in the winter. Now the National Marine Fisheries Service estimates there are only 450 left. The right whale is not one of the more glamorous whales—it’s dark in color, has no dorsal fin, and has raised patches of rough skin on top of their heads.

What the Navy has decided to do is limit their use of sonar in the entire area the right whale frequents and limit explosions in the same areas. This represents an expansion of protected areas, so much more area is included. Sonar, especially, could be considered as a type of noise pollution. Their delicate hearing cannot take the subtle (to our ears) sonar pings. It interferes with their whale-to whale-communication, which in turn, affects their behavior. In the Jacksonville, FL area, for example, they will not conduct shock trials on ships based there Nov.15-April 15, which is calving season. Shock trials are done on new ships to test their capability to withstand underwater explosions. The Navy, will also alert any ships, even commercial ones, if they happen to see a right whale in a certain location, so that speed can be reduced in order to lessen the chance of a possible collision and to reduce undesirable noise. Navy vessels based in Hampton Roads don’t normally interfere with the right whale, because they train in much deeper water as a matter of course, which are beyond the normal migration pattern of the whale.

The Navy will also alter some of its practices in the certain areas of the Gulf of Mexico in order to protect the Bryde’s  whale. They are even more endangered than the right whale—only 100 remain. There they will limit the use of explosives, except during mine warfare  training. It is hoped these efforts will help both types of whales make a gradual comeback. The Navy should be applauded for being respectful of their seafaring neighbors and fellow mammals! (Brock Vergakis, “Navy to limit sonar; explosions in more areas off East Coast to protect endangered whales,” The Virginian-Pilot, November 2, 2018, p.1 &4)

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

Posted on Friday, November 9th, 2018. Filed under Senior Law News.

Purchasing a Pre-Paid Funeral Plan is An Important Part of a Well-Rounded Estate Plan

By Emily Martin, Esq.

As you approach retirement, it is always a good idea to plan for your future, including developing a plan for what will happen when you pass away. One way to make things easier for your children and loved ones after you’re gone is to purchase a pre-paid funeral plan. This can include buying your grave plot (including closing and opening of the grave, gravestone, and any engravings that you may want), purchasing your coffin, paying for funeral home expenses, or pre-paying for cremation. Because the cost of purchasing a pre-paid funeral plan doubles every five to ten years, it is always a good idea to purchase a plan sooner rather than later. While taking care of all of this before you pass away can be a great way to take some of the burden off of your loved ones, you need to make sure that you purchase a plan that will endure beyond your lifetime, so that it will still be available after you pass away. Below are a few tips that will help steer you in the right direction:

Compare plans before you decide. According to the National Funeral Directors Association, the average cost of a funeral is $6,500 – not including extra expenses such as flowers, obituaries, and cemetery costs. What most people don’t realize is that they are not required to buy the first package the funeral director quotes them. In fact, the Federal Trade Commission requires funeral directors to provide itemized prices for goods and services. This allows you to choose what you need the most. Another good tip – you don’t have to buy every service from one funeral home. Funeral providers are not legally permitted to refuse to handle a coffin you bought elsewhere, nor can they charge an extra fee for handling a coffin they did not sell you.

Understand how your funeral plan affects your eligibility for public benefits. In Virginia, prepaid burial contracts are not considered a countable asset for Medicaid eligibility purposes as long as the burial contract is irrevocable. Purchasing a prepaid burial contract is often an important strategy to implement when planning to protect assets when you or a loved one is preparing to enter a nursing home or needs in-home care and may need to apply for Medicaid. When purchasing this type of prepaid funeral plan, it is important to notify the funeral home that you intend to purchase a Medicaid-compliant plan. It is also vital that you seek the advice of an experienced elder law attorney who will be able to explain how this type of plan works with your overall strategy to protect your assets from being exhausted in the event that you need to apply for Medicaid.

Know what will happen to your money. If you decide to pay the entire cost of your funeral plan up front rather than in installments, make sure you find out where your funds are placed and whether the funeral home will place your funds in a trust account, where it can be kept until it is needed. While the funeral home is required to disclose this information, many people fail to ask where their money is kept.

Ask about refunds and cancellations. One thing many people don’t realize is that funeral homes are not always required to give you a full refund if you cancel your plan. Read your contract carefully to learn what circumstances allow you to cancel the contract and how much money you’ll be able to recoup if you do cancel. Another good question to ask is whether the plan is transferable to a different funeral home in the event that you relocate to a different area. Finally, make sure your contract spells out what will happen if the funeral home goes out of business or comes under new ownership.

Make sure your wishes are clear to your family and loved ones. While thinking about and making plans for your death is not pleasant, it is an important step to take in order to make sure a plan is in place for when you pass away. Many people have specific wishes with regard to their funeral and death, including whether they would like to be an organ donor or whether they prefer to be buried or cremated. It is important to document these wishes, so that your loved ones are able to be sure they are doing what you would have wanted them to do. Making sure that you have an advance medical directive, in which you document your wishes for end-of-life care among other wishes, is an important part of this process. When drafting this document, which is an essential part of a well-rounded estate plan, it is important to seek the advice of an experienced estate planning attorney such as the attorneys at Hook Law Center.

Kit KatAsk Kit Kat – Animals and Workers’ Compensation

Hook Law Center: Kit Kat, what can you tell us about people who get bitten or injured through contact with an animal, and how they may or may not qualify for workers’ compensation.

Kit Kat: Well, this is a complicated issue, but I will attempt to shed some light on some of the factors which affect eligibility for workers’ compensation. Of course, this is coming from a non-lawyer, so I want to make that clear from the start. However, from my reading, this is what I have learned. In Virginia, the decision for eligibility seems to be rather narrow. The risk of a detrimental encounter with an animal must be above the general risk to the public. So, perhaps these two examples will clarify the critical issue. In the case of a carpet installer who was bitten by a snake while on the driveway of a property which had several wood piles along the sides of the driveway, workers’ compensation damages were not awarded to the carpet installer. The judge did not feel the particular house in question had an increased risk of exposure to snakes, nor did he feel that it was common knowledge that snakes inhabit wood piles. In the case of a pet store employee who was bitten by a spider, the opposite occurred. The judge, in that case, ruled in favor of the employee, because the judge ruled that the employee’s work exposed him to an unusual risk.

So you can see that each fact situation is extremely important. The field is an extremely interesting one with many, almost humorous (to the outside observer) situations. One more story to pique your interest. This is called “The Cat on Pizza Box.” In this case, a warehouse employee was bitten by a cat who was sitting on top of a pizza box. The employee went to get a piece of pizza from the box, and when he approached, the cat bit him. The warehouse was not well sealed, and there were many openings for animals like cats, snakes, birds, and even a possum had entered in the past. Because of the unusual situation where the warehouse was not well maintained which created an unsafe work setting, the employee prevailed, and he was awarded workmen’s compensation.

To read more about this fascinating subject, go to Commissioner Wesley G. Marshall’s article entitled “Bites, Nips, and Stings, Animal Encounters, “Arising Out of,” and Workers’ Compensation,” The Virginia Lawyer, October 2018, p.34-37.

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

Posted on Monday, November 5th, 2018. Filed under Senior Law News.

Guns and Dementia

By Letha Sgritta McDowell, CELA

A recent New York Times article highlighted a subject which is not often discussed but should be.  While gun ownership is generally on the decline in the United States, ownership is still common, and is more common among older adult men than the rest of the population in general.  Gun ownership is higher in rural areas than in urban ones. Thus, while not every household in America has a gun, there are many which do.  While discussions about guns and gun ownership are common political talk, gun ownership and possession is almost never considered when discussing dementia.  However, research has shown that since 2012, more than 100 gun-related deaths have occurred when a person with dementia used firearms within their home and, as the number of people with dementia in the US will increase, the number of injuries or deaths is likely to increase.

In the cases discussed above, the violence occurred during an episode of confusion, paranoia, delusion, or aggression.  In addition to these episodes which are often related to the cognitive impairment, suicide is not uncommon among older adults, especially those suffering from a chronic illness.  While not all individuals living with dementia will demonstrate aggression, delusion, or depression, it is impossible to predict who will.  Therefore, while planning for the future by reviewing and updating legal documents and financial plans, practical considerations should be made as well.

The conversation about gun ownership and dementia may arise in any setting and can be initiated by a professional such as an elder law attorney or financial advisor.  Many are hesitant to reveal gun ownership but, for those who do, they often don’t want to reveal locations, nor do they want to voluntarily give up possession of their firearms.  When the discussion focuses on “taking things away” for a person with a diagnosis of dementia, this may feel like additional loss of control and can be extremely unpleasant.  Instead, the conversation should be approached as one of safety.  Unfortunately, dementia can often interfere with a person’s reasoning and decision-making skills, and the person may lack insight into the potential problem.  However, when the discussion is presented as one of safety for themselves and loved ones, the conversation feels like less of an intrusion.

Once the barrier of having the discussion is breached, next is the matter of what should be done with firearms. Some may suggest simply locking up any guns in the home.  However, the Alzheimer’s Association advises that securing guns may not be enough, because a person with dementia may “misperceive danger” and force their entry into the safe or cabinet; therefore, removing guns from the home is a safer alternative.

Family members and professionals should use caution when removing firearms from a home and when advising individuals.  Many states allow the temporary transfer of a firearm to a family member without a background check but 7 states, including North Carolina, do not allow such transfers.  Individuals convicted of a felony are not allowed to have possession of a gun in any state, and states have strict laws about allowing the private sale of guns.  Some gun stores and ranges offer storage and transportation options.  If removing a firearm from a home is the option all parties feel to be appropriate, be sure to talk to an attorney about what options are available.

The issue about gun ownership and dementia is not one which has been highlighted or much explored given the publicity about other gun violence; nevertheless, it is an issue which exists and will likely increase with the aging population.  Early discussion and planning about how to manage gun ownership and dementia will increase the safety of all involved.

Kit KatAsk Kit Kat – Feline Agility

Hook Law Center: Kit Kat, what can you tell us about feline agility competitions?

Kit Kat: Well, it’s rather new, but yes, felines can compete in agility competitions. Heretofore, it was thought felines would not cooperate, but that is so untrue. International Cat Agility Tournaments (ICAT) have gained some prominence after their appearance at the famed 2016 Westminster Dog Show. Cats were even noted in a NY Times article. According to ICAT, cats are a natural for agility—they can jump 6 times their height, can run up to 30 miles per hour, and have superb short-distance visual acuity.

The nice things about feline agility competitions is that participants do not have to be purebred. Your ordinary domestic shorthair can compete as well. According to Niki Feniak, a certified feline agility ringmaster from Hillside, NJ, a couple of domestic shorthairs won national awards this past season. She also says that a blind cat from a few years ago was a standout and completed an agility course in 32 seconds. “She followed the sound of her owner’s voice. The owner had taught her ‘up’ for when she wanted her to jump. It was amazing.”

Ideally, training for agility competitions should start early—ie., when the cat is a kitten. If the cat is older, he/she may need a little more coaxing, but as long as there is some reward at the end of the training session, older cats, too, can be taught to run and jump on command. The reward can be a nibble, but sometimes playing with a favorite toy like a feather on a string works quite well. If your cat seems to enjoy performing on command, more tips can be gleaned from checking out the websites catagility.com and agility.cfa.org. There are even some YouTube videos on the subject. Who knew feline agility had risen to this level? (Arna Cohen, “The cat jumped over the moon-Agility is not just for dogs anymore,” All Animals, September/October 2018, p. 32-33)

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Distribution of This Newsletter

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

Posted on Monday, October 29th, 2018. Filed under Senior Law News.

4th Quarter Review of Estimated Taxes

By Amanda L. Richter, CPA

The U.S. tax system is a pay-as-you-go system, which means that individuals must make four quarterly installment payments (due on April 15th, June 15th, September 15th and January 15th) of estimated tax based on the amount of his/her “required annual payment” to avoid an underpayment penalty. The required annual payment is the lesser of:

  • 90% of your tax bill for 2018, or
  • 100% of your tax bill for 2017 (110%, for higher income individuals).

While you may not view it as major disaster if you owed some money when you filed your return – after all, you would rather have the use of the funds for as long as possible and hope to earn interest or invest the funds. But what you want to avoid is having to pay the Internal Revenue Service (“IRS”) a penalty for underpaying your taxes during the year. If you owe the estimated tax underpayment penalty, which is nondeductible, you are in effect paying the IRS interest for part of the money you should have prepaid during the year for taxes, but did not. On the other hand, if you received a large refund on your prior year return, you essentially made an interest free loan to the government – something you may want to avoid this year. If that happened, you should consider reducing the amount of withholding taken from your wages and/or the amount of estimated tax payments you make.

Let’s go over a few basic rules:

  • For 2018, there is no estimated tax underpayment penalty if your tax due on the return (total tax less withholding) is less than $1,000, or if other specified exceptions or waivers apply.
  • If the amount you owe on your individual return is $1,000+ after factoring in your withholding, the estimated tax underpayment generally will not apply if you have met your required annual payment.

Here is an example: Let’s say your 2017 tax bill was $10,000 and your tax bill for 2018 will be $20,000. You will need to prepay $10,000 during 2018 in order to avoid the underpayment penalty. (90% of 2018 tax liability = $18,000 and 100% of 2017 tax liability = $10,000. The lessor of the two is $10,000)

What happens if your 2018 tax bill is expected to be lower? Take the same scenario for 2017 but now your 2018 tax bill is $5,000. In this scenario you will need to prepay $4,500. (90% of 2018 tax liability = $4,500 and 100% of 2017 tax liability = $10,000).

Now that we are in the 4th quarter and the extended due date for individual returns (October 15th) has now passed, it’s time for a checkup! You already know what your 2017 tax liability was but you may not be quite sure what your 2018 tax bill will be due to all of the new tax law changes that went into effect this year. At Hook Law Center, we can assist you with projecting what your 2018 tax liability will be based on your current financial picture in order to help you determine whether or not changes should be made to your 4th quarter estimated tax payment. If you decide you want to tackle this on your own, make sure you review our Publication on the Tax Cuts and Jobs Act of 2017 that was issued earlier this year so that you can familiarize yourself with the new changes that will impact your 2018 return including higher standard deductions and the elimination of personal exemptions.

Kit KatAsk Kit Kat – Animal Intelligence

Hook Law Center: Kit Kat, what can you tell us about animal intelligence? I’ve always heard dogs are smarter than many other animals. Is that true?

Kit Kat: Well, there is some interesting new research from Great Britain that indicates some  refinement in what is known about animal intelligence. Stephen Lea, an emeritus professor in psychology at the University of Exeter, England, has recently published in the journal Learning & Behavior about his recent study on the subject. The study compared  dog cognition among three different groups: carnivores, social hunters, and domestic animals. Some of the animals they considered were wolves, cats, chimpanzees, dolphins, horses, and pigeons. The result: “dog cognition does not look exceptional.” What is meant by that is that there are many animals that display intelligence, however, they may not be as affectionate as dogs.

Some of the examples Dr. Lea cites are in the fact that dogs, unlike dolphins, New Caledonian crows, and chimpanzees, cannot use tools. Chimpanzees have been observed to use plant stems to dislodge termites in a piece of wood. Homing pigeons are trained to return home, even when it involves flying hundreds of miles in unfamiliar territory. “Far be it for me to suggest that pigeons are smarter than dogs; they are not intellectual giants. But if you want to get 1,000 miles, I trust a pigeon over a dog.” Horses, too, can perform complicated tasks. And cats—they have been known to return to their original home, even if lost several hundred miles away.

Dogs do stand out, according to Dr. Clive Wynne, the director of the Canine Science Collaboratory at Arizona State University, in their capacity for affection. He comments that Dr. Lea’s study is not negative about dogs, but that actually “he is putting them in context.” Dogs are intelligent, but just not any more so than a host of other animals. (Laura M. Holson, “Your Dog May Be Smart, but She’s Not Exceptional,” The New York Times, Oct. 8, 2018)

Upcoming Seminars

Distribution of This Newsletter

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

Posted on Monday, October 22nd, 2018. Filed under Senior Law News.

Do You Have To Name a Virginia Resident as the Executor of Your Will?

By Sarah Schmidt, Esq.

A common question we receive from clients is whether he or she must name a Virginia resident to serve as an executor of his or her will.  While the Virginia Code used to prohibit the qualification of nonresident fiduciaries, the General Assembly has revised the statute as to who may qualify over the years. In 1997, the prohibition against nonresident fiduciaries was effectively removed. This means not only can a nonresident of Virginia qualify as an executor, he or she may also qualify as a trustee, guardian, or conservator, as the statute applies to all types of fiduciaries.

Although the law changed over twenty years ago, the rumor or belief that you should name a resident of Virginia persists. This is in part due to differing opinions of attorneys, because the statute requires a little bit more from a nonresident. A nonresident fiduciary must (i) appoint a Virginia resident or the Clerk of Court to receive service of process on his or her behalf, and (ii) post a surety bond if (a) the estate exceeds the value of $25,000 and surety is therefore waived, or (b) a resident is not also appointed to serve simultaneously. See Va. Code § 64.2-1426. In most cases, in my experience, these two “requirements” are only small hurdles and should not be seen as obstacles.

First, appointing a Virginia resident to receive service of process is particularly easy if your executor or trustee hires the Hook Law Center, because the firm will regularly serve as a resident agent for our clients. But even if your executor or trustee does not hire Hook Law Center, he or she may appoint the clerk of the circuit court. The purpose of this requirement is to ensure that if the fiduciary is ever sued, the papers to be served may be served upon the resident agent who will then obtain a copy of the legal process for the fiduciary. The Virginia General Assembly wants to make sure that if you are agreeing to be appointed in the Commonwealth, you can also be held accountable in a lawsuit filed in the Commonwealth. This is one reason why appointing your own resident agent is preferable to appointing the clerk of the court, so that you have some assurance as to the timely receipt of such papers.

Second, posting a surety bond for an estate which exceeds the value of $25,000 should also not be seen as an entirely negative thing. Although a surety bond comes at some cost for the premium, it protects the beneficiaries of the estate and is a relatively inexpensive cost to be able to appoint the person whom you trust. To get around the surety requirement, some attorneys will recommend also appointing a resident executor to serve simultaneously with the nonresident executor. You should speak thoroughly with an attorney as to the pros and cons before taking this approach. Often naming co-executors brings on a host of problems and issues that are far greater than the problem they were intended to avoid. Unless the two persons named as co-executors are also the two only beneficiaries under the will, I will often not recommend this approach. But every case is different, and you can only come to the correct answer by discussing this with your attorney in detail.

In summary, there are a host of factors that go into the choice of an executor. Often the most important factor in naming an executor is choosing someone you trust, but you should talk thoroughly with your estate planning attorney before making this decision. Do not choose your executor solely because he or she is a resident of Virginia.

Kit KatAsk Kit Kat – Endangered Pangolins

Hook Law Center: Kit Kat, what can you tell us about endangered pangolins who live in South Africa and Southeast Asia?

Kit Kat: Well, I must admit that I didn’t even know what pangolins were until very recently. The pangolin is a mammal, which looks somewhat like an anteater, except that its scales resemble that of a pine cone. They are also similar in color to a pine cone. When threatened by animal or human, they curl up in a ball. Animals then tend to leave them alone, but poachers have an easy task to just pick them up and abscond with them. Though China forbids the sale of the mammals’ meat, it is the largest consumer of pangolin scales. They are used in making medicines, though there is little verification that the medicines derived from their scales really have any significant medical impact. It’s just tradition. 1 million pangolins have been killed worldwide since 2000.

As of this moment, all 8 species of pangolins are endangered. Humane Society International (HSI) is working with organizations like African Pangolin Working Group and the Johannesburg Wildlife Veterinary Hospital to increase awareness of the problem and treat those pangolins who are rescued from poachers. This year 14 pangolins have been rescued. There are also experimental efforts being undertaken to track the pangolins’ whereabouts in the wild using satellite tags or telemetry tracking units, depending on the funding source. “The monitoring will ensure the highest chance of survival post-release and significantly contribute to the scientific knowledge pool of these elusive creatures,” says Audrey Delsink, executive director of HIS Africa. (Michael Sharp, “Keeping watch over pangolins,” All Animals, September/October 2018, p. 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, October 12th, 2018. Filed under Senior Law News.

Dept. of Veterans Affairs Publishes Final Rule for Needs-Based Benefits: Deductible Medical Expenses

By Shannon Laymon-Pecoraro, Esq.

The Department of Veteran Affairs (“VA”) has published a final rule relating to the needs-based VA pension benefit for veterans and spouses. The new rule, which was published on September 18, 2018 will be effective on October 18, 2018. I have previously provided a general overview of the proposed rule and the net worth and asset transfer rules imposed under the final rule. In this newsletter, I will breakdown the requirements for the deductible medical expenses.

The VA permits deductions for amounts paid by a veteran or veteran’s spouse for unreimbursed medical expenses to the extent such expenses exceed 5% of the maximum annual rate of pension. In general, such expenses are payments for items or services that are medically necessary, improve functioning, or prevent, slow, or ease a functional decline. The VA considers the following medical expenses:

Health Care Providers – services performed within a professional capacity are medical expenses. Cosmetic procedures that improve a congenital or accidental deformity or are otherwise related to treatment for a diagnosed medical condition are medical expenses. A health care provider is someone licensed by a State or country to provide health care in the State or country in which care is received. This may be a physician, physician’s assistant, psychologist, chiropractor, registered nurse, licensed vocational nurse, licensed practical nurse, physical therapist, or occupational therapist. A health care provider may also be a nursing assistant or home health aide who is supervised by a health care provider.

Medications, Supplies, Equipment, and Food – medication, including over-the-counter medications, procured lawfully, as well as medical supplies and equipment are included as medical expenses. Medically necessary food, vitamins, and supplements as prescribed or directed by a health care provider, and authorized prescriptions are medical expenses.

Adaptive Equipment – adaptive devices and service animals, including veterinary care, used to assist a person with an ongoing disability are medical expenses. This does not include routine expenses associated with owning an animal.

Transportation – payments for transportation for medical purposes is a medical expense. For purposes of a privately owned vehicle, this can include mileage reimbursement, at the current rate established by the General Services Administration, parking and tolls.

Insurance – health, medical and hospitalization premiums, including Medicare parts A, B, and D, are medical expenses. Long-term care insurance premiums are also included.

Smoking Cessation – payments related to smoking cessation are medical expenses.

Institutional Care – Care received in a facility or in-home are subject to specific requirements, which are further detailed herein. Hospitals, nursing homes, medical foster homes, and inpatient treatment centers, including the cost of meals and lodging charged by such facilities, are a medical expense.

Payments for assistance with Activities of Daily Living (ADLs) and Instrumental Activities of Daily Living (IADLs) by an in-home attendant are medical expenses, provided the individual receives health care or custodial care. The attendant must be a health care provider unless the individual needs Aid & Attendance or is housebound, or a physician, physician’s assistant (PA), certified nurse practitioner (CNP), or clinical nurse specialist (CNS) states in writing that, due to the individual’s needs, the care provided by the attendant is required. Breaking this down further:

  • Custodial care is defined as either (i) assistance with two or more ADLs or (ii) supervision because an individual with a mental, developmental, or cognitive disorder requires assistance on a regular basis to protect the individual from hazards or dangers incident to his or her daily environment.
  • ADLs are basic self-care activities consisting of bathing, dressing, eating, toileting, and transferring, which is the ability to move oneself from one position to another.
  • IADLs are independent living activities, such as shopping, food preparation, housekeeping, doing one’s laundry, managing finances, handling medications, using the telephone, and transportation for non-medical purposes.

With regard to facilities other than nursing homes, the individual must be receiving care provided by the facility, contracted by the facility, or otherwise obtained from a third-party provider, including a friend or family member. The provider does not need to be a health care provider provided the requirements for in-home attendants, which are identified above, are met. The meal and lodging costs charged by facilities are considered medical expenses only if the facility provides or contracts for health care or custodial care for the individual, or a physician, PA, SNP, or CNS states in writing that the individual must reside in such facility to separately contract with a third-party provider, including friends or family, to receive health care or custodial care.

Kit KatAsk Kit Kat – Rare Turtles

Hook Law Center: Kit Kat, what can you tell us about the Kemp ridley sea turtles in the Cape Hatteras National Seashore?

Kit Kat: Well, the ridley sea turtle is the rarest sea turtle on planet Earth. In the past, the beaches on the Outer Banks have only seen the nests of the rare sea turtle twice—one nest in  2011 and one in 2016. This year, 8 nests have been spotted. There were 4 more reported on other North Carolina beaches—a state record! The normal nesting grounds for the Kemp ridley sea turtle are in Mexico, along the Gulf of Mexico in the eastern state of Tamaulipas, and in the Padre Island National Seashore in South Texas. Experts are not really sure why this year was so good for them on the Outer Banks. Jeff George, executive director of the nonprofit Sea Turtle, Inc. hypothesizes that the regular nesting grounds may be reaching capacity, but he really has no proof of this—just an educated guess. However, the Outer Banks have many things that meet the Kemp ridley’s preferences perfectly—gradually sloping beaches, their favorite diet of blue crabs in plentiful numbers,  and uncrowded with people. The lack of people is important to them, because they nest during daylight, unlike most turtles, who nest at night.

The Kemp ridley sea turtle is making a  bit of a comeback. In 1947, there were about 40,000 nests in Mexico. Then, in the 1970s, their numbers declined significantly due to people taking their eggs, etc., and Mexico and Texas began working to protect them. Their numbers were steadily increasing, but the 2010 Gulf of Mexico oil spill interrupted that upward trajectory. In 2017, they rebounded again, and 24,000 nests were counted in Mexico with an additional 353 in Texas. The ultimate goal according to wildlife officials is to be able to remove them from the endangered species lists altogether. They’re making progress, but there is still more work to be done, before that can safely occur. (Jeff Hampton, “World’s rarest sea turtle nests in record numbers in Hatteras,” The Virginian-Pilot, Sep.22, 2018, p. 1 & 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 Thursday, October 4th, 2018. Filed under Senior Law News.

Dept. of Veterans Affairs Publishes Final Rule for Needs-Based Benefits: Net Worth and Transfer Rules

By Shannon Laymon-Pecoraro, Esq.

The Department of Veteran Affairs (“VA”) has published a final rule relating to the needs-based VA pension benefit for veterans and spouses. The new rule, which was published on September 18, 2018 will be effective on October 18, 2018. I have previously provided a general overview of the proposed rule, and intend to dive into the new net worth and asset transfer rules imposed under the final rule.

Net Worth Limits

The final rule established a bright-line net worth limit for pension entitlement.  This is a drastic change to the prior methodology, which considered multiple factors and resulted in inconsistent results among similarly situated claimants.  The VA believes that the new bright-line net worth limit will provide uniformity in decisions and promote efficiency in claims processors.

When considering the net worth limit, the VA will consider the assets and annual income of the individual. In setting the net worth limit, the VA adopted the standard maximum Community Spouse Resource Allowance (“CSRA”) promulgated by Congress for Medicaid eligibility, currently $123,600, subject to a cost-of-living adjustment to account for inflation.  While the VA pension benefit is vastly different than the benefit provided under the Medicaid system, the VA determined that because Congress has established that individuals with a net worth beyond the CSRA are sufficiently protected from impoverishment for Medicaid purposes, that is was reasonable for the VA to conclude that individuals with a net worth beyond the maximum CSRA would also be sufficiently protected from impoverishment and would therefore not need the VA pension.

When calculating net worth, the VA will consider the income and assets of any child living in the primary residence. The VA will also consider the assets of a veteran and a spouse, even if the spouse and veteran do not reside together. The VA will also consider tangible personal property, except to the extent such property is suitable to and consistent with a reasonable mode of life (i.e.: appliances and family transportation vehicles).

In considering the assets and spend down, the VA liberalized the proposed rule by providing that a claimant may decrease assets by spending them on items or services for which fair market value is received. A claimant may not, however, spend down assets by purchasing items the VA would include as a resource, such as an expensive painting or gold coins. The VA has indicated that the purchase of a burial policy is a fair market value purchase.

Primary Residence Exclusion

The VA has excluded the primary residence and the residential lot area of 2 acres from the includable assets in the net worth calculation. The lot size may be larger than 2 acres if the additional acreage owned by the claimant is unmarketable, for example, if the property is slightly larger than 2 acres, the additional property is not accessible, or there are zoning limitations. Marketable acreage in excess of 2 acres will be included in the asset calculation.

If real property is sold after eligibility for benefits is established, the net proceeds from such sale will be an asset except to the extent the proceeds are used to purchase another residence within the same calendar year in which the sale occurred. A sale within three years of a claim can be used to purchase another residence at any point prior to the date of the claim, without penalty.

The VA failed to address how they will treat life estates, in particular if property subject to a life estate is sold.

Reducing Income

When calculating annual income, the VA will deduct projected unreimbursed medical expenses from income when the medical expenses are reasonably predictable.  I will discuss this in detail in the next newsletter.

Asset Transfers

The VA has imposed a 36-month look-back period, whereby, any assets transferred within such time for less than fair market value, defined as the price in which an asset would change hands between a willing buyer and a willing seller, taking into account best available information such as appraisals, will be subject to a VA imposed penalty period.

The purchase of annuities or transfers to trusts will be considered a transfer for less than fair market value unless the claimant retains control and the ability to liquidate.  If a claimant has such control, then the annuity or trust will be included in the claimant’s net worth.

An exception to the annuity policy is a retirement plan required conversion of deferred accounts to an immediate annuity. Under such a plan, the amount transferred to the immediate annuity will not be considered a transfer, but the distributions will be counted as income.

The VA is also excluding transfers to trusts created for the benefit of a child of a veteran who became permanently incapable of self-support prior to attaining the age of 18 years old. Note that a child of a spouse, and not of the veteran, will not be entitled to benefit from such a transfer.

Penalties

The VA has implemented a penalty period calculation, which utilizes the Maximum Annual Pension Rate (“MAPR”) in effect at the time of the pension claim as the penalty divisor. The MAPR used will be at the aid and attendance level for the veteran with one dependent (currently $26,036 annually/ $2,169.67 monthly). The assets subject to the calculation will only be those assets transferred within 36 months of a claim that were in excess of the bright-line limit. The penalty period shall begin the first day of the month following the last asset transfer.

The VA will allow claimants 60 days following a penalty period decision to cure, or partially cure, a transfer and allow 90 days following a penalty period decision to notify the VA of the cure.

 

Kit KatAsk Kit Kat – Tracking Poachers

Hook Law Center: Kit Kat, what can you tell us about how researchers are tracking poachers of elephant ivory?

Kit Kat: Well, I love it when science solves a problem! And it looks like this is another example of scientists coming to the rescue! Dr. Samuel Wasser, director of the Center for Conservation Biology at the University of Washington, and his colleagues have developed a map of African elephants’ territory by analyzing their scat (or droppings). The map details what types of elephants reside in each area of the continent. When the authorities or police find a tusk on the black market, the location of the elephant can be pinpointed, leading to better protection of the elephants that remain. It also can lead to catching the poachers. Just knowing exactly where they operate in a continent as large as Africa is helpful to police. It costs about $100 per tusk to perform the analysis.

This technique came just in time. It is estimated that poachers are killing 40,000 elephants every year. At that rate, we could see almost an extinction of these magnificent creatures. Northern Gabon in West Africa is a favorite of poachers. That country has lost 60% of its elephant population in the last eight years, according to John Brown, a special agent in the US Department of Homeland Security, who is involved in prosecuting ivory poachers.

What can the average person do to help reduce the number of elephant deaths—yes deaths, because the poachers kill the animals to get the tusks? The public can simply stop buying ivory, which come from the elephants’ tusks. Ivory is used for jewelry, figurines, and as aphrodisiacs. Some people even seem to be hoarding tusks and holding them, hoping their price will go up with time. At present, the sale of ivory is estimated to be a $4 billion business worldwide. Each person can simply stop the demand and dry up the market. Along with Dr. Wasser’s identification test, we now have a tool to assist in protecting these beautiful animals from needless slaughter. (Karen Weintraub, “Elephant Tusk DNA Helps Track Ivory Poachers,” The New York Times, Sept.19, 2018)

Upcoming Seminars

Distribution of This Newsletter

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

Posted on Monday, October 1st, 2018. Filed under Senior Law News.

Dept. of Veterans Affairs Publishes Final Rule for Needs-Based Benefits: General Overview

By Shannon Laymon-Pecoraro, Esq.

On September 18, 2018, the Department of Veterans Affairs (“VA”) published its final rule for needs-based benefits, including the VA pension program that assists many of our clients with long-term care related expenses. The new rules, which will become effective on October 18, 2018, establish net worth, asset transfer, and medical expense deduction requirements, and further address various other issues raised in the over 850 comments received by the VA during the public comment period that ended March 24, 2015.

I will be addressing the changes over the course of several newsletters, and anticipate that our first seminar on the change will occur in October 2018.

Benefits Affected

Throughout this process, the VA has made it clear that Congress intended the pension benefit to be a needs-based benefit, which they define as meaning that the claimant’s income, or both the claimant’s income and assets, is factored into entitlement consideration.  The final rule makes it clear that the rule only affects the pension benefits, and does not impact the following:

  • Service-connected disability compensation for a veteran (note – if a Veteran is receiving additional compensation for a dependent parent, then the parent’s income and assets for the additional compensation will be considered)
  • Dependent Indemnity Compensation (“DIC”) for surviving spouses or children
  • Death compensation for surviving parent, spouses, or children
  • Spanish-American War pension

The final rule does impact the following needs-based benefits:

  • Pension benefits, which are not service-connected, for veteran and surviving spouse
  • DIC for parents

The Proposed Rule

On January 23, 2015, the VA issued a Notice of Proposed Rulemaking which identified the following proposals:

  • A bright-line net worth limit for claimants, as determined by the community spouse resource allowance utilized by Medicaid
  • Define net worth for VA purposes as the sum of a claimant’s assets and annual income
  • Clarify calculation of claimant’s assets, with a concentrated focus on treatment of a primary residence
  • Establish a 36-month “look-back” period and a penalty period, not to exceed 10 years
  • Impose a penalty for any financial instrument or investment made for the purpose of qualifying for the pension benefit
  • Create a presumption that a transfer during a look-back period was for the purpose of decreasing net worth to establish pension eligibility, subject to a rebuttal by clear and convincing evidence for fraud, misrepresentation, or unfair business practice related to the sale or marketing of financial products
  • Prohibit recalculation of a penalty period unless the original calculation was erroneous or the VA received evidence, within 60 days of the decision, that assets were returned before the date of the claim or within 30 days after the date of the claim
  • Define and Identify medical expenses that the VA may deduct from countable income

For the most part, these rules, all of which will be explained more thoroughly in the upcoming newsletters, were adopted as originally proposed.

Effective Date

The VA will not review asset transfers that occurred before the effective date of the final rule and the VA will not apply the new medical expense deduction rules to current claimants unless they change facilities or in-home care providers. Furthermore, if a claimant is receiving a pension on the effective date of the final rule, then the claimant will continue to receive benefits although his or her net worth exceeds the net worth limit established under the final rule, unless the claimant otherwise loses the pension. A claimant with a pending application will not be denied benefits, provided the claimant’s net worth meets the new limit established under the final rule.

Hook Law Center has been alerting the public of the proposed rule for nearly three and a half years, and has encouraged individuals to take action. The window of opportunity is closing – if you are a current client working on a plan for VA pension, we recommend that you continue to work diligently with your attorney to finalize the plan before the end of this month.

 

Kit KatAsk Kit Kat – Animal-Assisted Therapy

Hook Law Center: Kit Kat, what’s the latest in animal-assisted therapy?

Kit Kat: Well, the big news is that it is no longer just limited to dogs. Not that dogs aren’t great, but Pet Partners, the US’ largest registry of therapy animals, has a database of 13,000 animals. 94% are dogs, but they also have 200 cats and 20 llamas, according to C. Annie Peters, the organization’s chief executive. Not every cat can qualify to become a therapy animal she says, because “they need to have a high tolerance for strangers and hugs to become a registered therapy cat. There are regular grooming and hygiene requirements, and they have to enjoy getting in a car.” One cat who did qualify is named Xeli, who works at Denver International Airport. Another  is the cat who visits sick kids at Primary Children’s Hospital in Salt Lake City. Nevertheless, cats as well as rabbits and miniature horses are being deployed in this growing field.

The benefits of animal-assisted therapy is now being scientifically studied in a number of places. There is a Human Animal Research Institute in Washington, also one at the University of Pennsylvania, Purdue University, University of California-Davis, to name a few. Research is focused on the benefits of animal-assisted therapy for those with autism, depression, and post-traumatic stress disorder. Dr. James A. Serpell of the U. of Pennsylvania says the hormone oxytocin is key to understanding the pet-human interaction. “The petting and physical contact side of things is critical in terms of oxytocin release. Physical contact with something warm and fuzzy and soft is also a good trigger.”

It’s good to know that we animals are not just ornaments, but really can help our humans cope with everyday stresses of life, especially in times of illness. According to Jennifer Toomer-Cook of Children’s Hospital in Salt Lake City, “When kids have pets at home, having a therapy animal normalizes their stay here. They help with pain management and fear, and they’re a diversion. Having a purring cat next to you creates calm.” (Jennifer A Kingson, “As Animal-Assisted Therapy Thrives, Enter the Cats,” The New York Times, Sept. 6, 2018)

Upcoming Seminars

Distribution of This Newsletter

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

Posted on Monday, September 24th, 2018. Filed under Senior Law News.

Making the Transition to a Long-Term Care Facility

By Emily Martin, Esq.

Making the decision to have your parent or loved one move into a long-term care facility can be difficult. Maybe you have been caring for your mother for the past five years and feel that you can no longer do it.  Perhaps your 85-year-old mother can no longer care for your 90-year-old father without help and she has asked you to step in. Maybe your parents have declared, “I never want to live in a nursing home,” and now you feel guilty for making the decision to find a place for them to live.  Whatever your situation may be, making the right decisions about long-term care can help make the last years of your parents’ lives much more pleasant and dignified while giving you peace of mind that you have done the right thing.

When should we make the transition?

Many people aren’t sure when to begin thinking about long-term care for their parents. The most important thing that we tell most of our clients is to never wait until the situation has reached a crisis point. All too often, our clients wait until Mom has fallen at home and broken a hip before they consider long-term care. Sadly, if they had faced the situation earlier, Mom would have had the help and guidance she needed to prevent a fall from ever taking place.  It is always best to consider in-home care or assisted living help if you notice any of the following with your parents:

  • Difficulty cooking, cleaning or maintaining the house
  • Difficulty driving or inability to drive
  • Mild confusion
  • Frequent episodes of dizziness or clumsiness that result in minor falls.

If you parent is experiencing any of these problems, you might want to consider having someone come into the home to help them with day-to-day activities.  Additionally, while many people wish to stay in the home for as long as possible, others may want to move into an assisted living facility. Assisted living facilities do not provide 24/7 nursing care like a nursing home does, but the staff and nurses in the facility help with some activities of daily living like dressing and giving out medication.  These communities have the advantage of allowing your parent to have social interaction on a regular basis. Most assisted living facilities have regular social events such as movie night, bingo, and church services, as well as periodic outings to museums, local malls, grocery stores, and the bank. If you believe that your parent would thrive with more social interaction, an assisted living community may be the best decision for them.

One problem that we see all too often is that people wait until it is almost too late to make the transition to long-term care. If you wait until a tragedy has taken place, such as the death of a spouse or a severe illness, the trauma and confusion that come with moving into a long-term care facility will only be worse.  The best time to make this change is while your parent is still able to process the transition and welcome their new environment.

What do I need to do to prepare?

Obviously, the goal here is to make the change as smooth and painless as possible.  While it will never be easy to move your parent out of a house that they may have lived in for decades, there are some things that you can do to make the transition easier:

  • Make the move gradually. Nothing is worse than rushing a move to a long-term care facility. If it is at all possible, make the transition over the span of a couple of weeks or even a month.  If your parent has lived in her home for decades, organizing, packing and moving everything out of the house will take a great deal of time! Start with rooms that are not used very often – decide what to donate, what to put in storage, and what to bring to the new facility.  Go through every room until all of the work is done.  This might take a while, which is another great reason not to wait until the situation has reached a crisis point.
  • Familiarize your parent with the facility. Before your mother or father moves into the new community, take them to visit it a few times. Show them what their new room or rooms will look like, have them eat a meal in the dining room, and have them talk with some of the residents and staff.  The transition will be much smoother if they are already comfortable with the place and the people who live there.
  • Don’t give your parent too many responsibilities. On the day of the big move, try to make things as carefree as possible for your parent. Take him/her out to lunch or somewhere tranquil while others move the rest of his belongings into the new facility.  Make sure that the move is as stress-free as possible for your parent.  If they want to be involved, be sure to include them in as many decisions as possible.  Only you can gauge what level of involvement would be best for your parent.
  • Make sure they have an estate plan in place. This last step is the most important. Unfortunately, it is also the most overlooked one in the process. It is absolutely essential that you make sure that your parent has all of his/her legal and financial affairs in order before moving into a long-term care facility.  The cost of assisted living and nursing home care is several thousand dollars a month, and it is increasing steadily.  Most people do not have enough assets to cover these costs for more than a few months to a year.  It is vital that you meet with an experienced elder law and estate planning attorney who can give your parent advice on how to shield his/her assets from a Medicaid spend-down.  Your attorney can also give you important information on how to qualify for veteran’s benefits, if your parent is eligible, and can ensure that your parent has a plan in place in the event that they become unable to handle their financial or medical affairs on their own.  Without these documents in place, many people are forced to go through the lengthy, stressful, and expensive process of getting a guardianship and conservatorship so they can help their parent.  If there is no plan in place for how the parent’s assets will be distributed after death, the child may need to go through even more legal hoops, including the probate process and making difficult decisions that could have easily been made by the parent when they were still alive.

Making the transition to a long-term care facility is always difficult, but it doesn’t have to be a traumatic and stressful event for your parent – or for you.  With a little bit of advance planning, the transition can be made smoothly and a plan can be put in place that will help give you and your parent peace of mind for years to come.

Kit KatAsk Kit Kat – Foals in Outer Banks

Hook Law Center: Kit Kat, what can you tell us about the new arrivals to the herd of wild horses in the Outer Banks of North Carolina?

Kit Kat: Well, it looks like some new foals have been born recently, which is exceedingly good news. In the past year, the herd had been reduced by eleven horses. Two older horses died of natural causes. One mare was hit by a vehicle and died. One stallion died after a fight with another stallion. Six horses were removed after repeatedly escaping through an opening in a fence, and munching on local lawns. Finally, one of the five foals born this year died. So with the birth of a filly born in August, which was the fifth for the year, fans of the wild horses there are rejoicing! According to Jo Langone, chief operating officer of the Corolla Wild Horse Fund, usually only three or four foals are born each year. Two more are on the way. This year exceeded everyone’s expectations.

The herd size is a bit of a balancing act, according to Langone. The ideal size is around 120, which permits enough room for the horses and less stress on the habitat from over-grazing, especially within the Currituck National Wildlife Refuge. Currently, the herd size is around 100 and managed through birth control of the mares between certain ages. Mares under age four and older than twelve receive a contraceptive called PZP. Certain mares which have already had several pregnancies also are vaccinated. Before this program started in 2007, 26 foals were born. That was too many. But now, a few more foals is desirable. Experts don’t want the herd to get too small, because inbreeding could then lead to disease or birth defects. They continually monitor the numbers, and make adjustments as necessary. (Jeff Hampton, “Baby boom among Corolla’s wild horses brightens spirits after deaths and dismissals,” The Virginian-Pilot, August 31, 2018, p. 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 Wednesday, September 12th, 2018. Filed under Senior Law News.
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