Comprehensive Planning. Lifelong Solutions.

Using Person-First Language to Communicate With and About People with Special Needs

By Jessica A. Hayes

About 54 million Americans, or 1 in every 5 people, report having a disability. Most Americans will experience a disability at some point, and for many, the disability will occur very suddenly and unexpectedly.  It could happen to anyone, at any time.  As special needs attorneys, we aim to give individuals with disabilities a voice, comprehensive planning, and access to benefits to which they are entitled.  We also strive to raise awareness and encourage understanding.

Individuals with disabilities have historically been marginalized and treated as if their disabilities defined them. Gone are the days that calling someone an “invalid,” “handicapped,” or “retarded” is acceptable.  In its place, we use person-first language to appropriately and respectfully describe and speak about individuals with disabilities.

Instead of referring to a person with disability, “person-first language” (also called “people-first language”) emphasizes the person first, not the disability.   It describes what a person has, but not who a person is.  When describing someone who has a disability, refer to him as “a person with ________,” or “a person who has __________________.”

For example:

Say This: Not This:
Person who is deaf Deaf person
Person who uses a wheelchair Wheelchair-bound/ handicapped
Person with an intellectual disability Retarded
Person with epilepsy Epileptic
Person with autism Autistic
Person with a learning disability Learning disabled
Student who receives special education services Special ed student

This is not political correctness; it is a demonstration of respect. Why does it matter?  Because the words we use affect how people see themselves and others, contribute to social norms, and ultimately influence changes in the law.  Using antiquated terminology that defines a person in terms of his disability sends the message that you have an underlying prejudice or see them as nothing more than their disability.  It’s demeaning and belittling.  Using person-first language, however, sends the message that the person is of value and worthy of respect, and gives the person an opportunity to define himself using his talents, characteristics, and other abilities.

It has been said that the population with disabilities is the only minority group that anyone can join at any time, whether at birth, as the result of an accident or illness, or simply as a part of growing older. If it were to suddenly happen to you, how would you want to be described?

Kit KatAsk Kit Kat – Nurse Kitty

Hook Law Center:  Kit Kat, what can you tell us about the cat who saved his owner from death?

Kit Kat:  Well, this is an unusual story. Glen Schallman adopted a cat whom he named Blake. Turned out it was a smart move! Blake has repeatedly saved Glen’s life by biting Glen’s toes or jumping on him when he senses danger. Glen has some rare medical conditions which mostly affect his brain. Two are polymicrogyria and unilateral schizencephaly. In addition, he has a brain tumor known as hypothalamic hamartoma. The latter causes seizures which are very frequent, almost daily. However, thanks to Blake, Glen is known as oldest living person with this combination of conditions. Without any training, Blake seems to sense when a seizure is about to happen, and he bites Glen’s toes or rouses him, so that Glen can move to a safe place before it happens. Once, Glen was having a seizure in the middle of the night. Blake bit his toes and woke him up before the seizure went on too long. In another, when Glen’s hands began to tremor, Blake jumped in Glen’s lap, stroked his arms and purred and purred until the tremors stopped. This helped to calm Glen, and help him recover more quickly than he otherwise might have done.

Usually it is dogs who are used as therapy companions, but in this case, a cat has fulfilled that role extremely capably. It appears that both our canine cousins and we felines have potential in feeling and perceiving that you humans are only beginning to understand. (Sheeka Sanahori, “Nurse Kitty! Cat bites owner’s toes, saves him from deadly seizure,” USA Today, (Humankind section), Oct.6, 2016)

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 24th, 2016. Filed under Senior Law News.

Musings on Financial Aid

By Elizabeth Galantich, CPA

My oldest child is a senior in high school, and we are filling out the financial aid forms for the first time. There has been a big change in the world of collegiate financial aid. In prior years, the Free Application for Federal Student Aid (FAFSA) form was released on January 1 and required families to report the income for the prior calendar year. The sooner the FAFSA was filed, the more likely your child was to receive aid. However, beginning this year, the FAFSA was released on October 1 and allows families to use the income tax return for the prior year. Thus, for most families, the income tax returns have been filed and the required financial information is more or less readily at hand. For many students, there is also another and more complicated financial aid form, the CSS/Financial Aid PROFILE which is required at many private and/or prestigious schools, including the University of Virginia, William and Mary and all the Ivy League schools.

However, as we have discovered, filling the forms out can be more difficult than it seemed at first glance. First, we applied in the last week of September for a FSA ID which linked to our account at the IRS to allow us to link the FAFSA form (but not as we were later to discover the CSS PROFILE) to our 2015 income tax date as filed. Second, there was the frantic gathering of current information: bank statements, mortgage and car loan information, retirement account values, investment account values, including the 529 accounts and UGMA accounts set up for both the child applying for college and his/her siblings. Third, we set up the FAFSA form and imported the information from the IRS – so far so good.

The trouble arose when, after reading the instructions for the forms multiple times, we discovered we had “special” circumstances that we needed to address. When my mother passed away, she created a testamentary trust primarily for the benefit of my father. However, my brother and I were included as permissible principal beneficiaries. Knowing my mother, it was meant to be “just in case” of a catastrophic emergency. Nonetheless, because I am a permissible beneficiary currently, we have to report one-third of the value of the trust on these forms even though I have no ability to compel a distribution from the trust. Thankfully, my children only have interests in the trust contingent on my prior death, so the trust is considered my asset and not the asset of my child for financial aid. Interestingly, we do not need to report the trust created by my grandfather because my interests in that trust are contingent upon my surviving various family members.

Discerning exactly what had to be reported on the various forms in connection with trust funds was not easy. Ultimately, I gave up and called a financial aid officer at the University of Virginia, because I am an alumna and because my child intends to apply there. I did get the answer I needed. Finally. However, here are a few pointers in regards to eligibility for financial aid:

  1. Keep in mind that parents’ resources are assessed at a much lower level than assets owned by a student when determining how much the family should contribute towards college. 529 accounts owned by a parent are assessed as an asset of the parent, not as an asset of the student, even if the student is the named beneficiary of the account. Account balances of 529 accounts owned by a grandparent do not get reported on the financial aid form; however, distributions from the account used for the grandchild’s educational expenses are counted as the grandchild’s income for the year of distribution.
  2. Eligibility for financial aid is heavily based on your income. Although you do get credit for certain obligations, such as a mortgage or a home equity loan secured by your home and on which you are paying, you do not get credit for consumer loans or unsecured debt (such as credit cards). In addition, the contribution that you make towards your retirement account is added back into your adjusted gross income for these purposes.
  3. The balance of your retirement account is not assessed for these purposes.
  4. Interests held in trust are assessed as an asset of the beneficiary, even if the restrictions on the trust fund are such that the beneficiary cannot access the funds. However, contingent beneficiaries are ignored.

If you are interested in creating a trust that is meant to be used for your children’s or grandchildren’s college education, the nuances of how the trust is worded may be unimportant. After all, if you are providing a fund from which college expenses are to be paid, then the funds should be so used. On the other hand, if you are creating a trust that is not necessarily meant to fund a college education, as in the case of a trust primarily for the benefit of a surviving spouse, it may be important to assess and think through the ramifications of giving the descendants of your primary beneficiary current access to trust assets. Your decision will be influenced by the specifics of your family situation. Please feel free to make an appointment to discuss these important issues with the attorneys at the Hook Law Center so we can help guide your estate planning decisions.

Kit KatAsk Kit Kat – Fish Smarts

Hook Law Center:  Kit Kat, what can you tell us about how fish think and feel?

Kit Kat:  Well, there is a lot to tell, actually. Even very tiny fish have some amazing capabilities. Jonathan Balcombe, director of animal sentience with the Humane Society Institute for Science and Policy has written a new book, entitled What a Fish Knows: The Inner Lives of our Underwater Cousins. It turns out that fish have many things in common with other animals, including us humans. That is why they are such a fascinating subject for research. For example, let’s examine the frillfin goby, which is a fish that lives in intertidal areas. They have the capability of jumping from one tidal pool to another when they sense danger. How do they do that so successfully without being stranded on rocks or caught up in vegetation? Scientists tell us that they can memorize the geography of a particular tidal pool and remember it 40 days later. That knowledge serves them well when they sense they can no longer stay in a specific location.

Another example is the case of groupers and moray eels. These two look nothing alike, but they use their differing physical attributes to work together to hunt for food. The grouper elicits the attention of the eel through the use of a head shake or body shimmy. Then they work as a team. The eel chases their prey into a nook or crevice of a rock. Sometimes, the eel gets to the prey first, and has a delicious meal. However, if unsuccessful, the prey swims out, and is captured by the large-bodied grouper. Another capability which grouper have is a pointing ability. They can actually point with their body position to the eel that prey is nearby. Thus the hunt starts, and they begin their cooperative arrangement to capture food.

For more examples, you might want to read the book. It really is fascinating. As more and more people become aware that fish can think and feel, they will treat them with more respect. That is not to say we shouldn’t continue to enjoy them as a source of our own nourishment, but perhaps we can become a little more careful about how they are harvested. Commercial fishing tends to use large nets over many miles which scoop up whatever is in a particular area, including dolphins, when what they are really after that day might be tuna. Hopefully, we can develop more strategic ways to fish without the collateral damage to others, which are not the intended objects of the fishing operation. The author says another thing anyone can do is, if you see a stranded fish washed up on a beach, pick it up and get it back into the water. We all need a little help once in a while. (“Kinder School of Thought,” All Animals, September/October 2016, p.34-35)

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 14th, 2016. Filed under Senior Law News.

Cruising through Caregiving – Book Review

By Andrew H. Hook, CELA, CFP

Cruising through Caregiving is a terrific book helping all those who have cared for or will care for someone in their family through the aging process deal with the stress of serving in such a capacity. The thrust of her book is that there are many roles to play, but all should be played WITHOUT guilt. Whether one serves as the primary, secondary, or even tertiary caregiver, all have something to contribute. Caregivers need to be honest with themselves about their motives for serving and also honest about how much time they can devote to the effort. That in itself is a tremendous stress reducer. Just knowing that you are not the only one to be placed in such a situation is a gigantic relief.

The author, Jennifer L. FitzPatrick, MSW, writes from both professional and personal experience. Ms. FitzPatrick chose the field of gerontology after having had a high school job in a nursing home and assisting with her paternal grandparents. Her grandparents’ outlook in their senior years inspired her to devote herself to aging seniors. Ms. FitzPatrick even has formed her own company to deal with aging issues called Jenerations. The book is full of wonderful tips like, think you don’t have a talent for caregiving? She responds, “Caregiving is like a muscle that can be developed and strengthened. This book helps you strengthen that caregiving muscle.”

Perhaps the most helpful chapters are five and six—5) Think Really Hard Before Moving In and 6) Think Really Hard Before You Quit Your Job. From my vantage point as a certified elder law attorney and a certified financial planner who sees many families struggling with all the concerns described in this book, I found the recommendations extremely helpful.

In summary, this is a wonderful reference for those involved with or contemplating a caregiving role for a senior. As anyone involved in such an endeavor knows, the caregiver’s attitude will be crucial in how the senior adapts to the aging process.

Kit KatAsk Kit Kat – Corn Cob Danger

Hook Law Center:  Kit Kat, what can you tell is about the dog who ate 7 corn cobs?

Kit Kat:  Well, this is a true story. Fortunately, the story has a good ending, but not without some drama along the way. What happened is this—a boxer from the Sandbridge section of Virginia Beach, VA named Roxie got a little greedy, and she ate 7 corn cob halves which she foraged from the family trash. Shortly thereafter, she started throwing up the cobs over a 2-day period. She threw up all but one. The last would just not seem to come up. So the next day, her owner, Dakota Hudson, took her to the vet. X-rays revealed the last corn cob stuck deep in her stomach which would require surgery costing $5000 to remove it. Ms. Hudson was in a quandary—she didn’t want her to suffer, but there was no way she could afford the surgery. She was just about to give her permission for Roxie to be euthanized, when the vet, Dr. Beth Tynan of Blue Pearl Veterinary Partners on Independence Blvd. said that she had contacted Frankie’s Friends, a national pet charity. Frankie’s Friends would cover the surgery costs.

Roxie is one lucky girl! She was able to return home to her human family and her canine sibling, Quigley. Her previous escapades have included ingesting a pack of cigarettes and a tussle with a water snake in which she received several bites. Lesson to owners—keep close watch on your pets, if they have a tendency to eat things. Vets report finding hair ties, plastic figurines, and even bathing suits in the stomachs of dogs. While dogs have fairly strong constitutions, there is a limit to what they can safely eat. Don’t let your dog end up like Roxie!

(Jane Harper, “ A corn cob nearly took this dog’s life—until a charity stepped in,” The Virginian-Pilot, September 22, 2016, p.1&7)

Upcoming Seminars

Distribution of This Newsletter

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

Posted on Tuesday, October 11th, 2016. Filed under Senior Law News.

Planning for Small Business Owners Is Critically Important

By Stephan A. Lipskis

At times we all fall victim to focusing on the present at the expense of planning for the future. Many business owners continually focus on the daily, monthly, quarterly, and annual goals of the business and often do not consider what would happen if they, or one of their key team members, would suffer and incapacity or worse. Failing to have a succession plan creates an incredible amount of stress on a business and can be insurmountable in the event of death or incapacity of key members of the business. Proper estate planning coordinates the needs of the individual, the needs of the individual’s family, and the needs of any business interests held by the individual to provide for a smoother transition.

I often describe proper estate planning for business owners as providing “schock absorbers” during a difficult time. Lets face it, the incapacity or death of a business owner impacts many things: the business, the employees, the family of the owner, other businesses that have contracts with the business, among others. Further complicating matters, is that transitions in ownership of the business (even due to death or incapacity) often trigger legal obligations under documents like leases, franchise agreements, loans, shareholder agreements, and more.  Failing to address these obligations in the context of an estate plan can have disastrous results.

So what happens if you fail to plan? Well, it is a similar outcome to driving a care without shock absorbers over a rocky road, you may get through but your car will likely be damaged and the wheels may fall off. To be clear damage from an unplanned transition can impact the owner and the owner’s family, the business, or both. Effective planning means that there are “shock absorbers” on all areas that would be impacted by the death or disability of an owner.

Business succession planning at the business level provides for continuity in the business but may not prevent adverse impact against the business owner’s family. For instance, a business that provides a buyout of an owner’s shares may preserve the business, but an undercompensated buyout may leave the owner’s spouse and family in bad shape financially. In reviewing their estate plan a business owner should closely look at what would happen to their ownership interest in the event of incapacity or death.

Even if an attorney represents a business in which you have an ownership interest, properly integrating any business succession plan with your estate plan requires a comprehensive look at your personal needs and estate planning goals. The estate planning and elder law attorneys at Hook Law Center regularly assist business owners in establishing and implementing their personal estate plans so that they are coordinated with the business’ succession plan. If the opportunity to plan has passed then our attorneys also can help coordinate the aftermath so that the shocks to the individual and business are minimized.

Kit KatAsk Kit Kat – Furless Fashion

Hook Law Center:  Kit Kat, what can you tell us about fashion designers and their use of animal fur in their clothing lines?

Kit Kat:  Well, there has been a lot of progress in this area. In 2015 the brand Hugo Boss discontinued its use of fur fashions. Now, there is word that Giorgio Armani will follow suit. In 2008 Armani stopped using fur in all its products, except for rabbit. Now that, too, will be eliminated. There had been and is tremendous pressure on fashion designers to use fur in their collections, especially the high end ones. Fur has traditionally meant elegance and wealth. However, thanks to lobbying efforts by the Humane Society of the United States (HSUS) among others, Armani decided the time had come to eliminate fur and stand up for what he believes is right. PJ Smith corporate engagement manager of HSUS says, ‘Having the leadership of somebody like Armani is very important: One of the cruelest form of fashion is unnecessary now, and you have the biggest name in fashion design saying that.’ Impacting their decision, in part, is the realization that fake fur has become so attractive, and is a great alternative to using the hide of helpless animals. It’s a win-win for all those involved.

So kudos to Mr. Armani! He is a cat lover and has two in his family. We continue to hope that other designers will follow his lead. HSUS and the Fur-Free Alliance, a coalition of 40 organizations from 28 countries, will continue to press their case for fur-free fashion the world over. (“Fashion without fur,” All Animals, September/October 2016, p. 32-33)

Upcoming Seminars

Distribution of This Newsletter

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

Posted on Tuesday, October 4th, 2016. Filed under Long-Term Care, Senior Law News.

Protecting Seniors From Isolation

By Hook Law Center

Although we frequently think of seniors as living among family members or in a senior community or other shared housing arrangement, the likelihood of living alone rises as one ages, according to the U.S. Census Bureau. Among women 65 to 74 years old, the probability of residing alone is 32 percent. This rate increases to 57 percent for those who are 85 or more years old. Among men, the rates are 13 percent and 29 percent respectively. And among those who are 100 years or older, approximately one-third reside alone at home.

Isolation of the elderly can lead to some upsetting health results, and can raise the risk of death. According to a review published in the Journal of Primary Prevention, social isolation has been shown to cause many harmful health problems in seniors, such as a heightened risk for all-cause mortality, dementia, re-hospitalization and more falls.

As stated in the UChicago News, social isolation can interrupt sleep, raise blood pressure, cause a morning surge in the stress hormone, cortisol, change gene expression in immune cells, escalate depression and reduce a sense of well-being.

There are several measures friends and family can take to combat such feelings of social isolation in seniors. You can make sure that they have a sufficient amount of incontinence supplies and that they are tested for hearing and vision on a regular basis. You can also ask neighbors to help by visiting them to see if they are feeling OK. In addition, you can call or email them frequently if you are unable to see them in person.

Another preventative measure is to arrange for food to be delivered to them so as to prevent them from suffering from malnutrition. An organization such as Meals on Wheels can provide this service along with some social interaction. You can help seniors become more socially active by encouraging an enabling them to use hearing aids or walkers. Give rides to senior relatives whenever possible or arrange rides for them.

Contact your local Area Agency on Aging to discover senior centers, transportation services and other programs to help the elderly.

Sources

  • http://www.aplaceformom.com/blog/2-25-14-preventing-senior-isolation-in-winter/
  • Posted on Tuesday, September 20th, 2016. Filed under Senior Law News.

    New Changes Coming for Family-Owned Businesses

    By Elizabeth Boehmcke

    The IRS has published proposed regulations concerning the valuation of family-owned businesses for estate and gift tax purposes that are potentially game changing. The sweep of these regulations is broad and encompasses both active family businesses and passive, investment-driven family enterprises that have primarily been created for wealth transfer planning purposes. Anyone with an interest in a family-controlled business of any kind needs to pay attention to these changes.

    For many years, families whose fortunes exceeded the applicable estate tax exemption amount (currently $5.45 million) have tried to reduce the value of their estates for estate and gift tax purposes by utilizing planning techniques that take advantage of discounts available in the valuation of assets held by entities such as LLCs, partnerships or corporations. For instance, clients have been advised to create family limited partnerships or family limited liability companies and to transfer a portion of their assets to these entities. Then, clients are encouraged to make gifts of sufficient interests in the business such that they are left with a minority interest in the company and their children each also own minority interests. The gifts of the minority interests to the children are subject to valuation discounts such as minority discounts and lack of marketability discounts that reduce the “cost” of the gift for gift tax purposes. And then, when the client passes away, similar discounts are available to lower the estate tax value of the interest retained by the client. In this way, it is possible to reduce the value of the property passing subject to estate and gift taxes by 30-40% or more. For clients with active businesses, the same discounting techniques are available and often advisable.

    The new proposed regulations may change the ability of family business owners, even of active businesses, to take discounts once the regulations become effective. Although there is some disagreement among commentators about the scope of the Section 2704 Proposed Regulations, there is some consensus that there is a significant risk that the discounts will simply disappear for family-controlled entities or, at the very least, become far less attractive as a planning tool.

    The proposed regulations add a new three-year rule which would treat certain transfers which occur within three years of the death of the original transferor, like the plan described above, as a deemed transfer of the lapsed voting or liquidation power at the transferor’s death. This results in the value being included in the gross estate of the transferor. As a result, it seems that the discounts that otherwise would have been available on the transfer of minority interests are recaptured, and no discount is available for the minority interest that is retained. Additionally, the proposed regulations would deny the ability for discounts based on the status of a transferee as a mere “assignee” instead of being a full member of the business.

    In addition to these roadblocks, the Service has proposed that certain restrictions be “disregarded” for valuation purposes. These would include the ability of a non-family member, such as a charity, to prevent the removal of the restrictions that would otherwise allow for discounts unless the non-family member meets certain criteria, including significant ownership interests for significant periods of time and the right to be bought out of the business for cash or property. The criteria are such that it is unlikely to be workable in practice. In addition, the proposed regulations state that restrictions that are not mandated by federal or state law are to be disregarded. This is particularly problematic, because most state statutes are not mandatory by nature. Rather, they provide default rules in many cases but allow the business entity to make choices for itself about liquidation rights, voting rights and many of the other important rights that affect the valuation of an ownership interest in a business entity.

    The details of the proposed regulations are too extensive and complicated to cover completely in this newsletter. The proposed regulations will not be effective until 30 days after the regulations are finalized. There is a hearing scheduled in Washington, D.C. on December 1, 2016 to discuss the proposed regulations, and we expect that the regulations will not be finalized until sometime in 2017. We, therefore, have some time to take advantage of planning opportunities for discounts that may not be available next year. Of course, we do not know the scope of the three-year rule and exactly how it will be changed when the regulations are finalized. There is some risk that transfers made before the regulations are finalized may become subject to the regulations that will include the discounts taken into the estate of the transferor if the transferor dies within three years of the transfer.

    The attorneys at the Hook Law Center are ready to meet with you to discuss your options, to review your operating agreements and to assist you in planning to meet the challenges posed by the proposed regulations. Furthermore, if transfers have already taken place, it may be important to discuss a plan for the payment of estate taxes on any amount added back to the gross estate. For all our clients engaged in active family businesses, business succession planning is always challenging; however, the proposed regulations do provide some safe harbor relief that must be investigated on an individual basis to determine what may work for your situation.

    Kit KatAsk Kit Kat – Reindeer Struck by Lightning

    Hook Law Center:  Kit Kat, what can you tell us about the reindeer in Norway that were killed on August 26, 2016 by a terrible lightning strike?

    Kit Kat:  Well, this is a very sad tale, indeed! 323 reindeer were struck by lightning in a hunting area of the Hardangervidda mountain plateau of central southern Norway on Friday, August 26. At those altitudes, the mountains are treeless, and the reindeer took the brunt of the lightning strikes. From a picture in the article which appeared in The Washington Post, it looked like something out of a science-fiction or horror movie. Deer were stopped in their tracks, and fell dead right where they stood. In some cases, this meant falling right on top of one another. Reindeer when grazing, cluster in herds, and this was quite a large herd. This is especially true during bad weather. A gamekeeper discovered them. He notified NTB, a Norwegian news outlet. In turn, experts were called in to take samples of the carcasses which were later sent to a state veterinary institute to officially determine the cause of death.

    Unfortunately, animals being struck by lightning is not unheard of. Before this latest incident, the largest group of animals known to be killed by lightning was a group of 68 Jersey cows in Australia in 2005. And just this past March (2016), 21 cows in South Dakota were killed when they became electrocuted from their metal feeder, which was struck by lightning. Yet, some animals get lucky! A male bison in Iowa, who lives at Neal Smith Wildlife Refuge, was struck by lightning in the shoulder in 2013. He lives to this day, though he has a large, hairless patch where he was hit. His caretakers have fittingly named him “Sparky!” (Karin Brulliard, “A lighning strike killed 323 reindeer, and this is the ghastly aftermath,” The Washington Post, Animalia section, August 29, 2016)

    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 12th, 2016. Filed under Senior Law News.

    Protect Yourself from Identity Theft & Credit Card Fraud

    By Bobby Buhr

    With identity theft and credit card fraud becoming a growing problem, there are things that each of us can do to minimize the risk.

    Shred sensitive documents: Regularly shred outdated bank statements, credit card applications, bills, tax returns, and anything with your personal information before tossing it into the trash or recycling. Join us at our Virginia Beach office on September 17th for our annual shred day, “Shred with a Purpose”, from 9AM to Noon.

    Guard your information online:  Clear your logins and passwords.  Change logins and passwords frequently.  Pay for online purchases with a credit card which provides better guarantees under federal law than your online payment services or your debit card.  Be alert for phishing, a trick that mimics legitimate businesses to obtain your personal information. Use a wipe utility before disposing of hard drives and mobile devices.  Encrypt your data to keep online transactions secure.  Use strong passwords and keep passwords private.

    Monitor your bank and credit card statements:  Check your accounts regularly for fraudulent charges.

    Monitor your credit report:  By law, you are entitled to a free report every year from each three credit bureaus: Equifax, Experian, and TransUnion.  You can order through each agency or www.annualcreditreport.com.

    Credit and debit cards: Pay attention at the checkout line.  If a cashier, wait staff, or salesperson takes your card and either turns away from you or takes too long to conduct what is usually a normal transaction, they could be scanning your card into a skimming terminal or even taking a picture of your card front and back with a cell phone. Do not sign the back of your credit and debit cards; instead, write “Photo ID Required.”

    Checks: If you want to put a telephone number on your checks, use your work telephone number instead of your home number. If you have a post office box, use that address on your checks instead of your home address. Never have your Social Security number printed on your checks.

    Wallet: Limit what you carry. When you go out, take only the identification, credit, and debit cards you need. Keep photocopies of the contents of your wallet and all credit and debit cards. Copy both sides of each item, including your driver’s license, other identification cards, and credit/debit cards. This will permit you to know what you had, including account numbers, so you know which entities to contact if your wallet is lost or stolen. Keep the photocopy in a safe place. Also, when traveling, bring a copy of your passport and store it in an alternate location, like a locked suitcase or hotel safe, in case your passport is lost or stolen.

    Kit KatAsk Kit Kat – Louisiana Pets In Norfolk

    Hook Law Center:  Kit Kat, what can you tell us about the Louisiana pets caught in the flood being brought to Norfolk?

    Kit Kat:  Well, it was a terrible shame about the flood in the Baton Rouge area of Louisiana a couple of weeks ago! Not only were thousands of people displaced and their property destroyed, but pets were victims, too. Crash, the cockatiel, almost drowned in his cage before he was rescued. His owner had to give him up, because his owner lost everything in the flood. So nearly 60 animals, including rabbits, cats, dogs, and 2 cockatiels (Hula and Crash) came to Norfolk via vans. Their first stop was PETA headquarters on Front Street in Norfolk. From that starting point, they were met by staff from various local pet sanctuaries, including Norfolk Animal Care and Adoption Center, Chesapeake Animal Services, Chesapeake Humane Society, Danville Area Humane Society, and the Chowan-Gates shelter in North Carolina. Some of the pets already have homes waiting for them, but others will be available for adoption once they have been checked for any health issues. If you are interested in adopting one of these lovely creatures, email PETA at adopt@peta.org.

    Why did the pets have to come all the way to Norfolk? Well, the shelters in Baton Rouge and other towns in Louisiana were so overwhelmed with processing the pets who lost their homes during the flooding, there was no room for the pets that were already there. PETA stepped in and offered to help, says Daphna Nachminovitch, senior Vice President of PETA. The shelters in Louisiana will focus on reuniting pets caught in the flooding with their owners who are interested in reuniting with them. (Cindy Clayton, “In Louisiana, it kept on raining. Now it’s raining cats and dogs here.” The Virginian-Pilot, August 23, 2016, p. 3)

    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, September 2nd, 2016. Filed under Senior Law News.

    Home Upgrades to Help Aging in Place

    By Stephan A. Lipskis

    Many individuals want to stay in their home through old age. Frequently, our clients are concerned that their home is a poor place to age in place because it is two-story, split-level, or simply old. Also, many are unwilling to move to a new home in order to accommodate decreased mobility due to their connection with their home or the lack of affordable options for relocation. Finally, our clients worry that any remodeling to accommodate disability would hurt their home value and result in their home appearing “clinical” like the nursing homes they are trying to avoid. Fortunately, the concept of “Universal Design” has been adopted by many contractors, architects, and designers, to create more accessible homes while maintaining stylish and appealing homes. Often such a remodel can create a better home environment for our clients and enable them to age in place.

    What is Universal Design?

    Universal Design incorporates subtle, but important, features that benefit disabled individuals of all ages who live in the home. Simple changes such as widened doorways and levered door handles instead of knobs create a more accessible home without detracting from the home’s aesthetics. Additionally, the positioning of cabinetry, switches, and outlets significantly affects a home’s accessibility. The goal of Universal Design is to provide a livable home for individuals in all stages of life and mobility. In addition to older individuals seeking to age in place, these design concepts benefit children and younger disabled individuals.

    By using Universal Design principles, a remodeling project will provide more utility while the owner keeps the home, and, because the design is meant to be aesthetically pleasing, the marketability of the home will not be affected. In fact, the home will be marketable to buyers with young children or disabled family members who may not have considered it previously. If accessibility is created without using Universal Design or aesthetically pleasing methods, many prospective purchasers will want to reverse the renovations. Accordingly, the home will likely be less marketable when it is eventually sold.

    If you are building a new home or considering remodeling your home to be more accessible, you should consider using professionals familiar with Universal Design concepts. The National Association of the Remodeling Industry (“NARI”) certifies remodelers as  Universal Design Certified Professionals (“UDCP”). This certification means that the individual has at least taken a course and passed a test on Universal Design principals. Avoid using remodelers who are not familiar with Universal Design concepts, because they may not think beyond widening hallways and limiting stairs and incorporate aesthetic concerns that many remodels for accessibility simply do not address.  Universal Design is mostly felt in the details of the home such as the location of towel hooks, the types of faucets used, and choices in flooring.  While any remodeler or contractor can create a wider hallway, if they are unfamiliar with the subtle changes required to make a home truly accessible and aesthetically appealing, the result will be a slightly more functional home that may be less marketable.

    If you are considering the significant step of remodeling your home for accessibility concerns, it is likely a good time to review your plan for long-term care and incapacity. Meeting with the estate planning and elder law attorneys at the Hook Law Center can help walk you through what the financial and medical changes you are experiencing mean for your retirement and estate plans.

    Kit KatAsk Kit Kat – Bear 399

    Hook Law Center:  Kit Kat, what can you tell us about Bear 399?

    Kit Kat:  Well, this is another interesting story about a female grizzly bear in Grand Teton National Park. Bear 399, as she is known because of the number on her tracking device, is approximately 20 years old. She makes her home in the national park, and has been quite fertile during her lifetime. She has given birth to 3 sets of triplets It is thought that she has had 16 offspring, about half of which are dead due to accidents or straying off park property, and being killed by hunters. This past spring, 399 gave birth to one cub . In June, “Snowy” as the cub was known was killed by a hit-and-run- driver in the park. 399 dragged her to the side of the road, and took her into the brush.

    Although one may think that 399 should choose more secluded areas to raise her cubs, there is a reason she has not done so. Given the choice of roadside areas or more hidden areas of the backcountry where male bears could prey on them, she has chosen roadside  meadows. Now even 399 may be at risk as she sometimes roans outside of park land. The Wyoming Fish and Wildlife Service in conjunction with the US Fish and Wildlife Service gave only a 30-day comment period this spring when they tried to delist grizzlies from the Endangered Species List. The Humane Society of the US (HSUS) is now suing Wyoming to re-open the comment period. No decision to date has been made. Hearings have also taken place in neighboring Idaho and Montana.

    Naturalists want to keep the grizzly listed as endangered, or at a minimum, threatened. Or the bears could be delisted, if the states in the region ban trophy hunting. People advocating for protection say that, in recent years, the grizzly population has plateaued, due to the grizzly’s increasingly difficult search for food. Cutthroat trout and whitebark pine nuts, their favorite foods, are not as plentiful, and they are forced to search further and further away. It is estimated  that there are currently 700 grizzlies in the Yellowstone and Grand Teton parks, known as the Greater Yellowstone Ecosystem. A population of 600 is desirable, so that would only allow for a reduction of 100 bears. In the early 70s, when the grizzlies were not protected, there were as few as 136. Stay tuned as naturalists face off with hunters who are advocating for the change. (Karen E. Lange, “Protect Wonderland,” All Animals, July/August 2016, p. 23-29 and All Animals, September/October 2016, p. 14)

    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, August 26th, 2016. Filed under Senior Law News.

    Recent Court Ruling Creates Difficulty Obtaining Documents from Nursing Facilities

    By Stephan A. Lipskis

    Frequently, disputes with nursing homes related to resident care arise. When they do, the contracts, policies, and documents of the nursing facility become critically important. A recent Supreme Court of Virginia decision found an executor’s attempt to obtain those documents via court action to be inappropriate. This ruling affects the ability to bring an action on behalf of a loved one (or their estate), and it is important to understand for anyone who has loved ones in a nursing facility.

    On July 14 in Cherrie v. Virginia Health Services, Inc., the Supreme Court of Virginia precluded an Executor’s action under the Declaratory Judgment Act compelling the production of policies and documents by a healthcare facility. The Executor’s action used rights found in Virginia administrative regulations as premise for the action. The Supreme Court of Virginia avoided construing the application of the term “residents and their designated representatives” found in the regulation and instead limited the holding to the availability of the Declaratory Judgment Act in enforcing duties of regulated parties. The method used to seek the documents was found to be improper, because administrative remedies were more appropriate than a court proceeding. Furthermore, the administrative regulations were held not to create a right to bring an action.

    This decision clearly eliminates an avenue for obtaining documents from nursing facilities, but does not resolve the issue of how to obtain such documents when necessary. If the individual is in the nursing home is still alive, the nursing home resident or the resident’s designated representative can request copies of the documents. In the case of a deceased resident, it is unclear whether the nursing home has to provide those documents to the personal representative of the administrator’s estate. Given the confusion generated by this case, it is critical to obtain copies of these documents before a problem occurs at the nursing home.

    In the event an incident occurs at a nursing home, it is critical to consult an attorney. The nursing facility may refuse to provide requested documents unless a party has certain documented authority. An attorney can assist in obtaining necessary documents and taking necessary action.  If no designated representative has been appointed, an attorney can assist in working around that limitation. Furthermore, an attorney can help take necessary actions against the nursing home in a timely manner. If out-of-court disputes with a nursing home drag on, then a subsequent action against the nursing home may be barred due to statutory time limitations. Seeking the counsel of an attorney can help prevent this from happening. The attorneys at Hook Law Center are available to counsel you in how best to manage you or your loved one’s relationship with their nursing home and assist in any disputes that may arise.

    Kit KatAsk Kit Kat – Drones with Peanut Butter

    Hook Law Center:  Kit Kat, are there really such things as drones armed with peanut butter?

    Kit Kat:  I know it sounds wild, but yes, the US Fish and Wildlife Service is considering using drones to drop peanut-butter pellets in northeast Montana. The reason—the peanut-butter pellets would be food for prairie dogs who frequently are infected with plague contracted from fleas. The pellets have a vaccine against the flea-based plague. However, the ultimate goal is to help black-footed ferrets, who are currently listed as endangered. In 1987, only 18 black-footed ferrets still existed.

    The favorite food source for ferrets? You guessed it—prairie dogs! Prairie dogs make up 90% of this particular type of ferret’s diet. So in a roundabout way, the drones would be actually helping ferrets! The importance of the black-footed ferret is that is also the only one native to the United States. Its food source—prairie dogs—have significantly declined in number as the West has become developed either through farming or increased human population. The pellets have been used in lab trials, but now the government wants to expand their use to 1,000 acre tracts. The only alternative to drones appear to be sending in humans on an ATV. That would be more costly and disruptive to both animals, so the drone is being developed as we speak.

    The concept of using drones may be new, but airdrops from planes or helicopters have been used in the past. For example, in 2013, helicopters were used in Guam to get rid of brown tree snakes. 2,000 dead mice, injected with Acetaminophen, a common painkiller for humans, were dropped in the forests there. Acetaminophen, while helpful to humans, is poisonous to snakes. In the 1970s and 1980s, vaccine-stuffed chicken heads were dropped in Switzerland to keep foxes free of rabies. The state of Texas fights rabies to this very day by airdrops of millions of fishmeal-coated anti-rabies packets. Consumers of this bait are coyotes, foxes, and even skunks.

    So, once again, technology is being used to help man solve complex problems more efficiently and quickly. Stay tuned as we await more information about this interesting and creative project! (https://www.washingtonpost.com/news/animalia/wp/2016/07/15/drone-fired-peanut-butter…)

    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, August 1st, 2016. Filed under Senior Law News.

    Understanding a Resident’s Transfer and Discharge Rights under the Nursing Home Reform Act

    By Shannon Laymon-Pecoraro

    One of the most frequent issues I face revolves around the discharge of a resident from a nursing home. Often times, an agent or advocate visits my office with a concern, because their loved one is being discharged from the nursing home, and they want to assess what their options are. The good news is that the nursing home cannot just kick a resident out of the nursing home.

    A common discharge is related to a loss of Medicare coverage for rehab or skilled nursing care. Under Medicare rules, coverage of rehab services will not extend beyond day 100 and will be cut short due to a refusal to participate in therapies or if daily skilled care is no longer necessary. However, what most facilities fail to explain to the residents and their advocates is that they have the option to remain in the facility, and the nursing home may only involuntarily discharge under a set of parameters as set forth under the Nursing Home Reform Act. Specifically, a nursing home must allow a resident to remain in the facility unless one of the following conditions is met:

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

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

    All too frequently, we receive a statement from a discharge planner that the “safe-discharge plan” includes going to an assisted living facility or returning home with private duty staff to assist with 24/7 care. The problem; however, is that the resident may not be able to afford either of those options, and as a result, would not be safe alternatives to the nursing home. Not only has the nursing facility not informed the resident of his or her right to remain at the facility under private pay (or that Medicaid may be able to assist with paying for care), but has failed to consider whether the “safe-discharge plan” is a viable option.

    The question then becomes what is the motivation to discharge a patient. It is simple– the nursing home is a business. Most nursing homes prefer Medicare reimbursement or private pay over Medicaid reimbursement to protect the financial stake of the company. Furthermore, most nursing homes prefer residents who do not have extraneous care needs or advocates that are determined to present a problem to a nursing home.

    So, you are probably wondering what you can do in light of an improper discharge:

    1. Appeal the discharge. If you feel that your loved one still requires skilled nursing care or is otherwise being improperly discharged, you may appeal the decision. The facility is required to provide you with a statement pertaining to your right to appeal with the discharge notice.
    2. Demand bill. If you disagree with a facility’s decision of coverage, you may request that the facility submit the bill to Medicare even when the facility believes that services will not be covered by Medicare. The facility cannot bill the beneficiary for the disputed charges until the Medicare fiscal intermediary issues a formal claim determination. If the determination is unfavorable, you should be prepared to pay for the expense.
    3. Find an alternative source for payment. Understand that your loved one’s stay in the nursing home will not be covered by Medicare as of day 101 of institutionalization. If your loved one cannot afford the private pay rate, act promptly to develop a plan for long-term payment in facility. It is imperative that you determine whether an application for Medicaid is necessary, and that the necessary planning for Medicaid, and the submission of an application, occur prior to the expiration of the Medicare covered period.
    4. Investigate bed certification. Many facilities will inform a resident that they do not have any more Medicaid beds available, despite the fact that most facilities have dually-certified beds. What this means is that if you are currently in a bed, they must allow you to stay in the bed even if you are on Medicaid – the number of “Medicaid beds” is most often determined by the facility itself for budgetary purposes.
    5. Be Prepared for a Hospital Discharge. A facility may have the resident admitted to a hospital on in-patient status and deny readmission. Since Virginia Medicaid does not pay for a bed hold, you should consider privately paying for a bed hold.
    6. Do not sign in an individual capacity. If you are an agent for the resident, you should never sign the nursing home admission documents in your personal capacity, and the nursing home cannot require you to sign as a responsible party. Instead, you should clarify, in writing that you are signing on behalf of the resident.

    Seek an experienced advocate. If you feel something isn’t right, you should seek someone experienced with resident rights.

    Kit KatAsk Kit Kat – Helping Feral Cats

    Hook Law Center:  Kit Kat, what can someone do to help feral cats which may be living in a neighborhood?

    Kit Kat:  Well, there are some things which can be done, but you will need help from your community. At least, that is what is suggested in a recent article in the All Animals magazine published by the Humane Society of the United States (HSUS). In that article, it is suggested that the person spearheading the effort must first talk to their neighbors and get their input. If one person just captures a few cats with traps, there may be many more out there who will continue breeding, and the situation will not become manageable. Let me provide an example, so you will see what I mean.

    Beth McNulty, an operations manager with the HSUS, who lives in rural Monrovia, MD noticed in 2010 a spike in the number of stray cats which were wandering through her yard. Occasionally, she would see one or two, but this was almost a dozen. She herself had 3 indoor cats, and one was just recovering from a spraying behavior, so she was afraid to take in anymore cats would set hers off again. In her sleuthing, she discovered that the cats had been living in a nearby junkyard which was being cleaned out. The cats fled in the confusion. To make a long story short, she discovered that the best way to start the process of helping the feral cat colony was to involve her neighbors. Their awareness and help resulted in a neighborhood-wide trapping effort. Thirty older cats and older kittens were sterilized, and returned to their former abode (the now clean junkyard). Three small kittens were placed with a rescue group. McNulty hasn’t seen another addition to the clan yet. This approach of capturing feral cats, sterilizing them, and returning them to live on their own is known as TNR (trap-neuter-return). It appears to be a humane way of caring for them without resorting to euthanasia.

    You can tell if a feral cat has been sterilized by a clipped ear lobe. That is done after the sterilization, so all will know. How can you tell the difference between someone’s pet who has just gotten lost or a feral cat? Usually, the feral cat will not eat in the presence of a human. The feral cat will only eat after the human has walked away. So, be aware of stray cats in your community. There may be a way to humanely maintain them there, as they live out their lives.(Julie Falconer, “The Outsiders-How to Help your Neighborhood’s Felines,” All Animals, July/August 2016, p. 16-21)

    Upcoming Seminars

    Distribution of This Newsletter

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

    Posted on Tuesday, July 26th, 2016. Filed under Senior Law News.
    Like us on Facebook
    Planning Guides

    Sign up for our email newsletter and get access to our free planning reports.

    SUBSCRIBE NOW

    Ask Kit Kat: Pet advice and wisdom as Kit Kat sees it.

    ASK ME