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.

Ask 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)

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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.

As a follow-up to our Elder Abuse series, we are pleased to inform you of some new rules issued for the financial services industry that are aimed towards protecting the elderly from financial abuse. Specifically, the Financial Industry Regulatory Authority (FINRA), the organization that regulates the securities brokerage industry, implemented new rules that took effect on February 5, 2018. Regulatory Notice 17-11 describes these new rules as a way for its members “to respond to situations in which they have a reasonable basis to believe that financial exploitation has occurred, is occurring, has been attempted, or will be attempted. Members can better protect their customers from financial exploitation if they have the ability to contact a customer’s designated trusted contact person and, when appropriate, place a temporary hold on a disbursement of funds or securities from a customer’s account.”

Under the amended FINRA Rule 4512 requires member firms to make reasonable efforts to obtain contact information for a trusted contact person who is over the age of 18 and who may be contacted about a customer’s account. Now, during the account opening process or thereafter, your financial advisor should be asking you for contact information for a trusted person and disclosing to you, in writing, that they may contact the trusted person and disclose account information to them in order to determine whether financial exploitation is going on.

Further, new FINRA Rule 2165 provides (1) that member firms must adopt and implement policies and procedures regarding elder abuse; (2) that employees of member firms must be trained about elder abuse; and (3) that member firms can temporarily refuse transactions if elder abuse is suspected.  This new rule defines a “Specified Adult” as someone who is 65 years old or older, or someone who is 18 years or older with an impairment that prevents the individual from protecting his or her own interests. The rule further defines “financial exploitation” as “(A) the wrongful or unauthorized taking, withholding, appropriation, or use of a Specified Adult’s funds or securities; or (B) any act or omission by a person, including through the use of a power of attorney, guardianship, or any other authority regarding a Specified Adult, to: (i) obtain control, through deception, intimidation or undue influence, over the Specified Adult’s money, assets, or property; or (ii) convert the Specified Adult’s money, assets or property.”

If a member firm “reasonably believes” that financial exploitation of a Specified Adult has occurred, is occurring, has been attempted or will be attempted, the firm is permitted to place a temporary hold on a disbursement of funds from the account of the Specified Adult. The member firm must then, within two business days, provide notice of the temporary hold and the reason therefore to all authorized parties on the account and the trusted contact person, unless one of those parties is the one suspected of doing the exploiting. While the temporary hold is in place, the member firm must conduct an internal review of the facts surrounding the suspicion of financial exploitation, and depending on the findings, can extend the temporary hold for an additional 10 business days.

While it remains to be seen how member firms will implement these new rules and what effect it will have on account owners, it is certainly a step in the right direction.

Ask Kit Kat – Tiger in Captivity

Hook Law Center: Kit Kat, what can you tell us about Gustavo, a tiger, who was living in captivity in Mississippi, but now lives in Texas?

Kit Kat: Well, Gustavo is one lucky fellow! He’s 16 years old, and he was rescued just in time. We hope he survives until 20, the average age for tigers in captivity. In 2012, he was rescued from a roadside zoo in Mississippi. His owner there did not treat him well, and his diet was atrocious. This led him to have kidney issues and arthritis. He was fed on a diet of just chicken parts. Tigers need more than that—they need whole prey, which means including the bones and organs to get the nutrients they require. Now he is living at Cleveland Amory Black Beauty Ranch in Texas. He’s got plenty of room to roam and toys to chase like a large, synthetic ball.

Approximately, 5,000 tigers in the US live in poorly-run, roadside zoos or in private hands. This number is greater than the total number of tigers living in the wild across the world. Unfortunately, these untrained operators and owners don’t really know how to care for tigers, according to Nicole Paquette, Vice President of Wildlife Protection at the Humane Society of the US (HSUS). So through HSUS’s advocacy, the Big Cat Public Safety Act was introduced in the Senate this past June. It would outlaw the ability of individuals and unqualified exhibitors to house and breed big cats, like tigers. The Act has not yet been passed, but HSUS will keep advocating for it until it does pass. Big cats are so majestic and beautiful! They deserve to be protected. (“Gusto for the Good Life, All Animals, September/October 2018, 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.

Lay people often mistakenly suppose that seeking legal counsel for advice on the administration of an estate is always more expensive than if you manage to deal with paperwork and other legalities after the death of a loved one on your own. This erroneous assumption often leads to the following scenario.

A loved one, we will call “Mom”, passes away. Sally, who is named an executor of Mom’s will, goes to the bank to seek access to Mom’s account to help pay for funeral expenses and to pay Mom’s bills. While at the bank, Sally is denied access to the accounts, because she does not have the proper paperwork. Sally looking to save money, does not seek the advice of legal counsel and instead seeks advice from the bank teller, her neighbor, her CPA, her friends, or of course, even Google. After seeking all such advice, she heads down to the local courthouse to collect what she now believes she needs to get access to the account. While at the courthouse, Sally elects to qualify as an executor of Mom’s estate, post a bond, and pay probate taxes. While at the courthouse, Sally learns she now has a whole host of new duties, including filing inventories and accountings with the local Commissioner.

Unfortunately, what Sally does not realize is that by electing to navigate the legal landscape of probate on her own, she may have chosen the much harder route. It may be the case that the assets in Mom’s estate do not warrant the need to qualify and file accountings before a Commissioner of Accounts. Another possibility is that Mom’s debts far exceed any amount in the bank account, so she very well might have been advised by an attorney not to qualify as an executor at all.  There are a number of instances in Virginia law where it does not behoove you to head to the courthouse first. Always, always¸ seek the advice of counsel before making any such decisions or relying on the advice of a bank teller or court clerk. Believe it or not, simply seeking a consultation with an attorney may actually save you a great deal of money and headaches in the future.

Ask Kit Kat – End to Greyhound Racing?

Hook Law Center: Kit Kat, what can you tell us about Florida legislation which will be on the ballot this November to end greyhound racing?

Kit Kat: Well, hopefully, the time has come to end this awful sport. Greyhounds at tracks are kept in ridiculously small cages, sometimes with 2 in cage. On average, the dogs spend 20-23 hours per day in a cage, with only a small amount of time to stretch and run in a ridiculously small yard. Animal welfare advocates have worked tirelessly to get a proposal on the Florida ballot to remove the requirement for tracks to hold live dog races in order for certain gambling games to take place and to totally outlaw all dog racing there by December 31, 2020. Florida has the majority of greyhound racing tracks—11 of the 17 that still operate nationwide.

The successful effort to get this proposal on the ballot is thanks to the efforts of the US Humane Society (HSUS), GREY2K USA, and advocates such as Sonia Stratemann. Stratemann has founded a greyhound rescue group called Elite Greyhound Adoptions. Since 2006, her group has rehabilitated and found homes for more than 2,300 greyhounds which were castoffs from the racing industry. Stratemann has been forbidden to enter the premises of the Palm Beach Kennel Club, which is near her home, because of her activism. While she can no longer adopt from that particular club, she has joined forces with other organizations to stop this awful industry. Besides abuse, the dogs frequently suffer injuries on the track. Since 2013, more than 460 greyhounds have died from injuries during races, through collisions with other dogs, or other injuries that occur in the brutal racing process.

Let’s hope this initiative is successful! Stay tuned! It’s a tremendously worthwhile endeavor for those of us who love animals and want them treated humanely. (Julie Falconer, “Home Stretch-A History-Making Campaign Could End Greyhound Racing in the US,” All Animals, September/October 2018, p.10-11)

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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.

This month Americans lost the Queen of Soul and, while it is a tragedy within the music world, the passing of Aretha Franklin highlights a legal tragedy as well.  Aretha Franklin died with no estate plan.  That means she had no last will and testament, no revocable trust, no irrevocable her trust, no power of attorney, nothing!  For estate planning attorneys it seems ludicrous that an accomplished woman with a net worth estimated to be in excess of eighty million dollars would have no estate plan.  Such a plan would have minimized the estate tax her estate will pay (which will ultimately born by her heirs), nor has she planned to protect her heirs by placing their assets in further trust, nor is there a clear statement of her intent as to who shall inherit upon her death and who shall be responsible for managing her estate.  Already her four sons and a niece have come forward as interested parties in Ms. Franklin’s estate.  Sadly, Ms. Franklin is not the only person of means to die without an estate plan. Paul Walker, Heath Ledger, Prince, Bob Marley, and Howard Hughes are just a few of note.

Estate planning is not something that is only needed by extremely affluent individuals.  Instead estate planning is needed for almost every adult.  Creating an estate plan allows a competent adult to clearly specify who will make medical and financial decisions upon their incapacity and how assets will pass at their death.  Not having some sort of estate plan can cost heirs in the way of additional legal and court fees, additional taxes, and potentially losses due to a failure to see in the future.  If a person dies without some sort of plan, each state has a set of rules that dictate where assets will pass after all final bills and expenses are paid.  In many cases, the state default is not how most want their assets to be left, and even if the state default is the individual’s intent, the additional fees for passing assets without a will or trust are not a part of the intent.

In addition to the consideration of who will receive certain assets at death, of equal importance is the manner in which the beneficiary will receive the assets.  Are the assets to pass outright, in which case, they may be subject to current or future creditor claims or claims of a  beneficiary’s future ex-spouse.  Perhaps there is a thought that a surviving spouse can and should re-marry.  In many cases, the remarriage of a spouse would be celebrated, but the first spouse to die may wish to preserve his or her assets (or share of their jointly-held assets) for his or her heirs. With a little planning, these goals may be easily accomplished and the goal of preserving and protecting future generations is not one which is isolated to high net worth families.

There are other things to consider such as who will have custody of minor children should both parents die.  And, while the federal estate tax exemption has increased to $11 million per person (neither Virginia nor North Carolina have a state estate tax) all income earners are required to pay income tax.  So, while estate taxes may not be of high importance to many, income tax is still an issue for all, and, therefore, an estate plan should consider tax efficient transfers of wealth to different generations.

Humans have a 100% mortality rate which means we will all die at some point yet, 70% of Americans between the ages of 45 and 54 do not have a will and more than half of Americans over the age of 55 do not have a will.  The reasons for delaying vary from an irrational fear that executing a will or trust will hasten a person’s death or fear of the process.

A good estate planning attorney will work with you to solidify your goals and objectives, discuss potential issues which you may not have yet considered, and then draft documents which achieve your goals.  The process for estate planning does not have to be difficult and the need for planning does not require great wealth, simply a desire to preserve and protect loved ones.

Ask Kit Kat – Burros Booming

Hook Law Center: Kit Kat, what can you tell us about burros in Arizona and how they are actually thriving there?

Kit Kat: Well, yes, it does appear that burros or donkeys are doing quite well in Arizona. Their numbers are increasing to the extent that there are nearly 15,000 burros living in areas that the Bureau of Land Management (BLM) controls in that state. So, with some help from the Humane Society of the United States (HSUS), an experimental program to limit pregnancies is underway. It is called the Platero Project. The four-year project is funded by an anonymous donor who just loves burros.

The project will begin by working with a small sample and injecting females with the  contraceptive vaccine PZP. Burros are bit late to this method, which has been successful with deer and wild horses. What makes the attempt so tricky with burros is that they don’t have a defined breeding season, so it has been difficult to pinpoint their fertility periods. According to Stephanie Boyles Griffin of HSUS, “The question isn’t whether PZP works. The question is how to apply it to a herd of 1,000 female burros on 900,000 acres of land—and it’s best answered by starting on a smaller scale.” Burros are extremely intelligent, and they have learned to thrive in harsh, dry conditions by using their hooves to find sources of underground water.

Heretofore, attempts at birth control for burros has been limited to separating female burros from their herds, and putting them in holding facilities until they can be adopted. But that method is slow and cannot handle much volume. Currently, there are nearly 1,000 burros in BLM corrals. A new approach is needed. Stay tuned to see how the Platero Project progresses. We’re hoping it achieves its goals. (Emily Smith, “A better way for burros,” All Animals, July/August 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.

Hook Law Center will be sponsoring our “Shred With A Purpose” event to support the Alzheimer’s Association THIS Saturday, August 25, 2018, from 9 AM to 12 PM. Bring your documents to our Virginia Beach office at 295 Bendix Rd. for free on-site data destruction provided by Stealth Shredding. We will be accepting donations for the Alzheimer’s Association at this event. Cant make it, but still want to donate? Click here to donate online.

With that in mind, how long should you keep those important documents?

Federal Taxes

Typically, you should keep your federal income tax returns and supporting documentation for at least seven years. The Internal Revenue Service provides that “[t]he length of time you should keep a document depends on the action, expense, or event the document records. Generally, you must keep your records that support an item of income or deductions on a tax return until the period of limitations for that return runs out. The period of limitations is the period of time in which you can amend your tax return to claim a credit or refund, or that the IRS can assess additional tax.” The IRS has several different periods of limitation. Most significantly, if you have ever failed to file a tax return or have ever filed a fraudulent return, you should keep records indefinitely.

However, the IRS has assigned other scenarios (such as failure to report income or failure to claim a credit or refund) varying periods of limitation, ranging from two to seven years. To err on the side of caution, best practice is to keep your records for the longest period of limitation recommended by the IRS. Therefore, consider keeping your federal income tax returns and supporting records for at least seven years from either the due date of the return or the date the return was filed, whichever is later.

Virginia Taxes

You should keep your Virginia tax returns and supporting documentation for the same length of time, at least seven years. The Virginia Department of Taxation recommends keeping your records for three years from either the due date of the return or the date the return was filed (whichever is later) unless the Internal Revenue Service suggests otherwise. Therefore, keep all of your tax records for the same length of time, seven years.

Contracts

How long you should keep a contract and supporting documentation varies. At a minimum, you should keep a contract for the length of time that you (or the other party) could file a lawsuit.  This length of time is determined by the terms of your contract and the laws in your state. While the terms of your contract may control this length of time, each state law provides a “statute of limitations” as well. A statute of limitations is a law that bars a party from filing a claim after a specified period of time. Because a court can find that an express clause in your contract is unreasonable, you should keep your records for the length of the statute of limitations in your state. Once the period of time specified in the statute of limitations has passed, you (and the other party) are barred from filing a claim.

In Virginia, the statute of limitations for a contract also depends on the type of contract. In general, the statute of limitations for a written contract is five years and for an oral contract, it is three years. See Va. Code § 8.01-246 for exceptions.

Credit Card and Bank Statements

According to the FDIC Consumer News keep your bank and credit card statements for a period of one year; unless they have any tax significance (in which case, keep them for seven years).

Investment Accounts

Keep investment account statements for the life of your investment, plus seven years for tax purposes. This should provide you with basic guidelines from various sources to help you trim your file cabinet. However, opinions vary on the exact dates for retaining records and when in doubt, always err on the side of caution. Moreover, there are many important documents not mentioned above that should be kept indefinitely. If you have any questions or concerns, please feel free to call the Hook Law Center, P.C. and we will be happy to assist you.

Ask Kit Kat – Dogs Respond to Crying

Hook Law Center: Kit Kat, what can you tell us about dogs responding to their owners when they cry?

Kit Kat: Well, this is very interesting and just goes to show how smart and intuitive dogs and other animals are. A new study published  July 24, 2018 in the journal Learning & Behavior suggests that dogs picked up on crying cues by their owners. In the study, dog owners were behind doors with windows, with the door loosely ajar. When their owners made distressed sounds like “help” in addition to a crying sound, the dogs responded significantly more quickly than when their owners sang “Twinkle Twinkle Little Star.” When the distressed sounds were made, the dogs responded on average within 23.43 seconds. When the humming of a children’s song was heard, they responded in 95.89 seconds on average. “It’s really cool for us to know that dogs are so sensitive to human emotional states,” said Emily Sanford, a graduate student in psychological and brain sciences at Johns Hopkins University, who was a co-author of the study. There weren’t any measurable differences among different breeds or dogs of different ages in regard to how they responded.

The study was small with only 34 dogs participating. Still, the scientists believe it is a useful first step in measuring dogs’ emotional states. They also evaluated the dogs’ heart rate and behavior during the experiment. In summary, they found that dogs who were less stressed, responded to their owners’ sign of distress more quickly than those dogs who tended to be stressed themselves. Sanford and her other researchers concluded from this, “ The idea is that if you can perceive someone else being in distress but it doesn’t overwhelmingly stress you personally, then you’re more likely to be able to provide help.”

Isn’t it wonderful to know our canine friends are so attuned to how their owners are doing. Anecdotal reports have shown the caring and concern of dogs, but this study and others prove it really is true. (https://www.cnn.com/2018/07/24/health/dogs-human-crying-empathy-study/index.html)

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.

One of the most common questions we get from clients is whether they should transfer their house to their children. The answer to this question is almost always absolutely not! Many people think that transferring their house to someone else will allow them to protect their home from having to be sold in the event that they need to go on Medicaid or receive VA benefits. They believe that getting the house out of their own name will help them qualify for these benefits more easily, and that such a tactic is easier and less expensive than executing and funding estate planning documents. However, there are several reasons why this is never a good idea.

Your Children May Have to Pay Crippling Amounts of Capital Gains Tax.

If you are elderly, it is very likely that you purchased your home thirty, forty, or even fifty years ago. The price you paid for your house at that time was probably much less than its current value. For example, say that you paid $35,000 for your house, and it is now worth $250,000. If you transfer the house to your daughter and she later wants to sell the house, she would have to pay capital gains tax on the difference between the price you paid for the house and the value it had at the time she received it – $215,000. You can see how much this can add up!

In the alternative, if you transfer the house through a will or a trust, your beneficiaries will receive what is called a step-up in basis equal to the value of the house at the time they inherited it rather than the value of the house at the time you purchased it.

 You Could Be Prevented or Disqualified From Receiving Medicaid Benefits.

As you may know, there is a five-year “look-back” period for Medicaid eligibility purposes. This means that, when your Medicaid application is being reviewed, any gifts or “uncompensated transfers” that you have made in the past five years will result in a “penalty period.” In 2018, every $6,422.00 worth of uncompensated transfers that you made in the past five years will result in your Medicaid benefits being withheld for one month. Medicaid will not penalize applicants for transfers that occurred more than five years ago.

If you transfer your home to your children and then require long-term care within five years of the transfer, Medicaid will consider this to be an uncompensated transfer. This type of transfer has the potential to delay your Medicaid benefits and possibly even prevent you from ever qualify for Medicaid.

Debt, Disability, Divorce, or Death

There are a few other reasons why the idea of transferring ownership of a parent’s house to their children is never a good idea. If you transfer your home to your child and they have significant debts, then creditors could inquire as to the assets in their name. If your house is in their name, then creditors could make claims against that property in order to recover the debt owed to them. This could result in your child having to sell your house to satisfy his or her creditors.

Additionally, if your child becomes disabled and requires Medicaid or government benefits of her own, owning your house could prevent her from qualifying for these benefits in the same way that it might prevent you from qualifying for benefits if you need long-term care.

Another potential issue is divorce. If you transfer your home to your child and then they go through a divorce, your house could be considered an asset to be divided or dealt with as part of the property agreement with their former spouse.

Finally, if your child passes away before you do and you have transferred your home to him, then your house could be considered part of his estate and distributed to his heirs instead of yours.

Obviously, none of these outcomes are ideal. If you own a home and you are looking to qualify for Medicaid, VA benefits, or other long-term care benefits, an experienced elder law attorney can work with you to implement strategies that will preserve your assets while allowing you to accomplish your goals and receive the benefits you need.

Ask Kit Kat – Light Bulbs & Wildlife

Hook Law Center: Kit Kat, what is the connection between the type of light bulbs one uses and the impact on wildlife?

Kit Kat: Well, I must admit when I saw the title of this article I was intrigued. I just never had thought about any connection between the two things, but apparently there is one. The increase in the use of outdoor lighting is having, in some cases, a negative effect on wildlife. Worldwide, there has been a 2.2% increase annually of outdoor areas that are artificially lit. Inexpensive LED lighting is partially responsible. According to Paul Bogard, author of The End of Night, “Every creature on this planet has evolved in bright days and dark nights. None has had the evolutionary time to adapt to the blitzkrieg of artificial light.” Some of the harmful side effects of artificial light are: 1) baby turtles heading toward lit-up hotels instead of seeking the sea guided by moonlight, 2) migrating birds disoriented by spotlights, 3) salamanders sleeping later, 4) moths stopping mating, 5) delayed maturation of soybean plants near sodium lighting, and  many more  according to experts.

What can be done to reduce this stress on ecosystems? Well, awareness is the first step. If one didn’t know there was a problem, then there could never be a solution. So, this is what the experts tells us: 1) turn off outdoor lighting when it is not being used, 2) install motion-detector lighting which only comes on when an object is approaching, 3) generally, LED lights are better than other types, but not in all cases. It depends on what creatures are native to an area, and how they interact with the particular type of lighting, and 4) close your curtains or blinds at night to eliminate glare which may be affecting the animal world. There are a surprising amount of them who are nocturnal—30% of vertebrates and 60% of invertebrates. They thrive in the dark, so let’s help keep it that way for them as much as we can. (Nancy Lawson, “Going to the dark side,” All Animals, May/June 2018, p. 38-39)

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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.

As Generation X approaches its retirement years and the Baby Boomer generation is in the midst of theirs, this question should be on the minds of millions of Americans. The answer to the question is not quite as simple as some of the “rules of thumb” out there.  For instance, the “10% Rule” which suggests saving 10% of your income annually may not work for someone who waits until age 40 to start saving. Similarly the “4% rule” which theorizes that you can withdraw up to 4% of your investment portfolio safely, is an old rule based on assumptions that no longer hold true, such as bonds paying higher rates.  Finally, the myth that seniors should not invest in stocks could prove fallible if the return they do have in the portfolio does not keep pace with the rate of inflation.

More important than why the above mentioned rules of thumb may not work, is that every situation is unique. What works for your neighbor may not work for you and vice versa. A good financial planner will not rely on rules of thumb alone, but will take your individual goals, resources and risk tolerance into account.

If you are approaching retirement, chances are that you have a pretty good idea of what your spending needs are, and you may have even accumulated some savings. Your financial planner should take a snapshot of where you are today, compare that snapshot to your goals for the future, determine whether those goals can be accomplished on your current path, and if not, work with you to straighten out the bumps in the path.  If you are in the midst of retirement, it is just as important to evaluate your current path and determine whether the path leads straight to a successful retirement or veers off in an unpleasant direction.

The current snapshot should include an analysis of your income sources, including whether those sources increase with inflation and provide a survivor benefit for your spouse if you are married; your annual spending and savings; the amount and allocation (stocks vs. bonds) of your investment portfolio; and your risk tolerance (how you feel about the prospect of your portfolio’s value dropping). Based on how your investment portfolio is allocated, an average rate of return can be estimated. Taking into consideration that rate of return, how much you need to withdraw from your portfolio to supplement your income, and your life expectancy, your financial advisor can calculate whether you will run out of money before the end of your life.

This “straight-line” approach has its limits, however. It assumes that your portfolio will achieve that same rate of return year after year. It assumes that inflation will remain the same year after year. We all know from experience that the financial markets do not behave that way.  Just as important as how much the value of your portfolio declines or appreciates is the timing of such decline or appreciation.  Many financial planners use a Monte Carlo analysis to more accurately predict the answer to the question: “Will I Outlive My Nest Egg?”

What is Monte Carlo analysis? It is a computer simulation that takes into consideration the allocation of your portfolio and the rate of withdrawal from your portfolio and runs them through a random number of trials (usually 1,000 or more).  The simulation is designed to take all of the possible ups and downs in the market and the timing of the ups and downs to come up with a “probability of success.” The probability of success is based on the number of trials during which your portfolio runs out of money before the end of your life expectancy. For example, if your portfolio ran out of money in 200 of 1000 trials, you have an 80% probability of success.

If your probability of success is below the 70% to 90% range, you and your advisor have some work to do. There are a number of variables that could change the result.  You may achieve your goals with a little less risk in your portfolio (or a little more risk); by spending less or choosing to take Social Security at a later age; by delaying retirement or saving more if you are still in your earning years; and by doing any combination of these things.

The Hook Law Center has two CERTIFIED FINANCIAL PLANNERS™ on hand and the resources available to help you develop a financial plan that is customized to your needs and helps you determine whether you are on the path to success or whether some adjustments need to be made.

Ask Kit Kat – Wildlife Land Trusts

Hook Law Center: Kit Kat, what can you tell us about the Humane Society of the United States’ (HSUS) wildlife land trust?

Kit Kat: Well, this is interesting. HSUS is an affiliate of the Humane Society Wildlife Land Trust which has 116 sanctuaries in the United States and Canada. The land mass covered is more than 20,000 acres. The best part is that all that land is safe from hunters. Recently, a wildlife researcher and rehabilitator, Alice Henderson, and Jason Patnode, a photographer and filmmaker, visited seven of the land trusts. The following is what they observed in 3 of the land trusts.

Allranch Wildlife Sanctuary, New Mexico, 1,280 acres – What is unique here are the bats. They spotted a greater bonneted bat, which has a 2-foot wingspan. This particular bat roosts in cliffs and has a call which is audible to humans. Other interesting creatures were horned lizards, and a bird (the loggerhead shrike) which is in decline due to habitat loss.

Demetriades Wildlife Sanctuary, Montana, 240 acres – This is one of the smaller sanctuaries, but it was teeming with life. They observed pronghorns (a deerlike animal with black horns), sandhill cranes, eagles, trumpeter swans, badgers, and moose. They also conducted a Bortle dark-sky test, which is a measure of darkness, or on the flip side, of light pollution. It had a very low score, which is a sign that darkness is being preserved. Darkness is helpful to migratory birds, because it helps them see lots of stars, which they use for navigation.

Meadowcreek Wildlife Sanctuary, Arkansas, 1,219 acres – Once again, bats were observed, but different species than in NM. Here is the home of the gray and Indiana bats, which are endangered. Also seen were the following: deer, coyote, river otters, whip-poor-wills, Eastern screech owls, and barred owls. What a wonderful mix of species!

We are indeed fortunate that HSUS and its affiliate, the HS Wildlife Land Trust, protect these wonderful species for all of us to enjoy! (“Trust in the wild,” All Animals, May/June 2018, p.28-29)

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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.

What if your mother or father assured you that you should expect some version of an inheritance after death, but the Will reveals that you have been disinherited?

This scenario is unfortunately common, and it raises a number of questions: Was the will, or portions of it, forged? Was it a product of undue influence or other fraud? Or was it indeed the testamentary intent of the testator and he or she either changed his or her mind after the discussion with you or simply did not want to hurt your feelings by telling you the truth? These questions can be difficult to answer after some one has passed away. If you indeed believe the will was a product of fraud or undue influence you will need evidence to prove those allegations.

If your mother repeatedly assured you that you could expect an inheritance, though they may help, the statements your mother made to you during life, standing alone, will likely be insufficient to set aside the will. This is because “such declarations, standing alone, are not admissible as direct evidence to prove or disprove the genuineness of the will.” See Canody v. Hamblin (2018), quoting Samuel v. Hunter, 122 Va. 636, 95 S.E. 399 (1918). Only where testamentary intent is first found on the face of the will is extrinsic evidence, such as the declarations, “admissible as circumstances, either to strengthen or to weaken the assault, according to their inconsistency or their harmony with the existence or terms of the will.” Id. Furthermore, Virginia’s Dead Man’s Statute requires corroboration of such testimony when offered by an interested party. See Va. Code § 8.01-397.

Thus, standing alone, allegations that your mother told you differently will likely be insufficient. Once a proponent of a will proves that the statutory formalities of a valid will have been met, a presumption of testamentary capacity arises and the burden of going forward will be placed on you, the contestant to produce evidence to support your claims.

If you have been unexpectedly disinherited you should seek the advice of an estate litigation attorney as soon as possible. The time frame in which to contest a will is very short and you should act immediately to seek legal advice to see whether you have a case worth bringing.

Note* This article is referring to generally vague promises of a decedent as to how their will disposes of property and is not intended to address gifts causa mortis.

Ask Kit Kat – Sunk Costs Apply to Animals

Hook Law Center: Kit Kat, what do you mean by saying, “Sunk costs apply to animals?”

Kit Kat: Well, there is a psychological theory called the “sunk cost fallacy” which applies to humans, and now, apparently to animals. Let me explain. According to this theory, once someone has invested in an idea or paid money for something, for example, they are extremely hesitant to abandon their endorsement or activity. For instance, if you have paid a lot of money for a concert or Broadway show, but 10 minutes into the performance, you realize you hate the show, you still may stick it out until the end, because you have already invested so much time and money at this point.

Now new research suggests that animals operate the same way. In a study published July 12, 2018 in the journal Science, researchers from the University of Minnesota report observing the same phenomenon in rats and mice. The rats and mice were waiting for a reward of flavored pellets and persisted longer than normal, even when the reward was extremely delayed (varied from 1-30 seconds). Once they decided to enter the waiting zone for the pellets (though they had a choice not to enter at all), they did not exit before receiving the reward. Dr. A. David Redish, one of the authors in the study, further observed, “Even more important than the similarity among species was the study’s findings that sunk cost effects appeared only after the subjects had decided to pursue a reward, not while they were still deliberating whether to do so.”

Shelly Flagel, as associate professor of psychiatry at the University of Michigan, who was not involved in the study, said the research had “far-reaching implications across fields including education, economics, psychology, neuroscience, and psychiatry.” She clarified by adding, “Persisting in a behavior even though it has adverse consequences is reminiscent of the conduct exhibited by people with addictions.” This new knowledge may lead to better treatment methods for those who have psychiatric disorders, of which addiction is a prime example. It has much to say about what motivates people and animals and what doesn’t. Further research will elucidate whether this theory is operational in other animal species. (Eric Goode, “Mice Don’t Know When to Let It Go, Either,” The New York Times, July 12, 2018)

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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.

On July 11, 2018, the IRS announced in IR-2018-148 that certain veterans who received disability severance payments after January 17, 1991, and included that income on their returns, may claim a credit or refund of the overpayment. This announcement is a result of the Combat-Injured Veterans Tax Fairness Act that was signed by President Obama in 2016 to keep the Department of Defense (DOD) from improperly taxing veteran’s disability severance payments.

Most veterans who received a one-time lump-sum disability severance payment when they separated from their military service will receive a letter from the DOD with information on how to claim tax refunds to which they are entitled. The DOD estimates that over 133,000 veterans may be eligible for a refund of Federal taxes under the Combat Injured Veterans Tax Fairness Act.

To claim the credit or refund of the overpayment attributable to the disability severance payment, veterans will need to file Form 1040-X, Amended U.S. Individual Income Tax Return. The IRS is allowing veterans to submit a claim based on the actual amount of their disability severance payment or a simplified method can be used. The simplified method is a standard refund for a set period of years. Veterans who choose to use the standard refund (simplified method) may find this to be the easier way to claim a refund, because you do not need to access the original tax return that was filed from the year of their lump-sum disability severance payment. Below are the standard refund amounts and the years to which it applies:

$1,750 for tax years 1991-2005

$2,400 for tax years 2006-2010

$3,200 for tax years 2011-2016

As with most tax refunds, there is a statute of limitations to claim the credit/refunds. The law provides veterans making these claims have the normal limitations period for claiming a refund or one year from the date of their letter from the DOD, whichever expires later. This is especially important, since some of the claims for refunds are on taxes paid as far back as 1991.

If this applies to you or someone you know, please contact Hook Law Center if you would like assistance with completing Form 1040-X to claim the refund.

Ask Kit Kat – Dogo Argentino Rescued

Hook Law Center: Kit Kat, what can you tell us about the Dogo Argentino breed and how one was rescued recently in Alabama?

Kit Kat: Well, this is interesting. I had never heard of the Dogo Argentino breed before reading about how one was rescued in January 2015 from a puppy mill in Alabama. The dog in question, named Ann, was bred repeatedly for puppies, only to have them yanked from her. Along with Ann, there were more than 60 dogs rescued from this living nightmare of malnourishment and mistreatment. At last justice prevailed, and the owner of the farm was convicted in February 2018 of six felony counts of animal cruelty and one misdemeanor.

After Ann was seized from her delinquent owner, she and others from the Alabama property soon were placed by the Humane Society of the United States (HSUS) in a shelter belonging to HSUS in Ann Arbor, Michigan. There they were rehabilitated and received therapy from canine behaviorists. One of Ann’s favorite canine friends named Ivan was adopted quickly after his arrival. Ann, however, lingered for almost a year and a half. Her adoption day did arrive eventually. She was adopted by Jane Harlow, who was visiting the shelter for a special event. It has been a happy arrangement for both. Ann is getting up to her ideal weight, and she has the run of large, fenced yard. To top it off, she even has play dates with Ivan, who lives nearby.

The Dogo Argentino is a relatively new breed. According to Wikipedia, “The Dogo Argentino, is a large, white, muscular dog that was developed in Argentina primarily for the purpose of big-game hunting, including wild boar; the breeder, Antonio Nores Martínez, also wanted a dog that would exhibit steadfast bravery and willingly protect its human companion.” The breed was first introduced in 1928 from the Córdoba Fighting Dog and other breeds such as the Great Dane. Although the Dogo Argentino is banned or has ownership restrictions in some countries, Ann is a wonderful example of the breed. She displays no aggressive tendencies, and has been living uneventfully with Ms. Harlow for over a year at this point. Thanks to HSUS for their timely intervention! (Kelly L. Williams, “To the rescue—case history: Ann,” All Animals, May/June 2018, p. 6-7 / Wikipedia)

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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.

A recent study has found that anxiety during middle age may be linked to higher rates of dementia late in life.  The study followed almost 30,000 for more than a decade and there was a clear link between anxiety mid-life and dementia later in life.  The study wasn’t a controlled study with the intent to calculate the magnitude of increased risk.  Instead the study simply indicated an increased risk without eliminating other factors.

When experiencing anxiety or stress, the body produces the hormone cortisol and prolonged heightened cortisol levels have been linked to weight gain, lower immune function, lower bone density, higher rates of mental illness and depression, higher rates of heart disease and more.  It is possible that dementia is another possible side effect of prolonged increased cortisol levels.  On the other hand, anxiety is often a symptom of dementia, making the corollary between the two difficult to connect.

Therapy exists to assist individuals with the reduction of anxiety and cortisol levels.  For individuals who live with high stress and anxiety, pursuing therapy to reduce these levels is critical due to the host of other health problems which may result.  The possibility of reducing the chances of developing dementia later in life is simply an added bonus to reducing stress.

While there is no way of eliminating the chances of developing dementia, there are some things one can do to aid in prevention.  Reducing stress is one and maintaining heart health through diet and exercise is another.  The Alzheimer’s Association also recommends education and regularly getting the right amount of sleep as another.

How do you recognize dementia?  The Alzheimer’s Association has provided 10 signs of dementia which, if you notice any one of them in yourself or a loved one, warrants a visit to a physician for further testing.  They are:

• Memory loss that disrupts daily life – This includes forgetting recently learned information, important dates or events, or repeatedly asking for the same information. This does not include occasionally forgetting a name or an appointment, then remembering later.
• Challenges in planning or problem solving – This includes difficulty with following a familiar recipe or keeping track of bills but would not encompass the occasional math error or learning a new task.
• Difficulty completing familiar tasks at home or work.
• Confusion with time or place – While it is common for many to occasionally forget what day it is but then remember later, it is not common to forget and not remember at all.
• Trouble understanding visual images or spatial relationships. This includes trouble judging distances or determining color contrasts.
• New problems with words in speaking or writing – Examples of this are trouble in following a conversation or having trouble finding the right word for something and calling it by the incorrect name.
• Misplacing things – While everyone misplaces their keys on occasion, a person with dementia may place their keys in an inappropriate location (such as the freezer) then later be unable to find them and not have the ability to retrace their steps.
• Decreased or poor judgement – This is difficult to ascertain, but is unfortunate and an often missed early sign. Decreased judgment is often what leads individuals to take action such as gifting sums of money when they otherwise would not do so.
• Withdrawal from social activities – This is often as result of having difficulty in following a certain activity or being able to engage in conversation.
• Changes in mood or personality – Different from simply becoming irritable when a routine is changed, a person with dementia may become easily upset, afraid, depressed or fearful, even when in a familiar setting.

Studies now show a link between anxiety and developing dementia.  While the strength and nature of this connection remains unknown, it is certainly cause to take steps to reduce stress and anxiety now.  To the extent any preventative measure can be taken, it is critical to implement.  For those who have prolonged exposure to stress and anxiety; be sure to know the early warning signs of dementia and pursue treatment in order to improve overall quality of life.

Ask Kit Kat – Virginia Honeybees

Hook Law Center: Kit Kat, is it true the Virginia honeybee population was reduced by half after this past winter?

Kit Kat: Yes, unfortunately, it was closer to 60% that was lost. This was the highest reduction of managed colonies of honeybees since the Commonwealth of Virginia started tracking them in 2000. Normally, only 30% are lost over the winter period. It could be devastating for the state’s agriculture, because honeybees are critical to pollinating crops, and wild bees perform the same function in wild areas such as wetlands and forests. Honeybees are responsible for about 90% of the pollination of apples, cranberries, broccoli, and blueberries. They are also essential for pollinating almonds, to name just a few of the crops which they pollinate. According to Keith Tignor, apiarist for the Virginia Department of Agriculture and Consumer Services. Virginia was 4^th in the nation for loss of bees, with only Arizona, Tennessee, and Louisiana losing more. The phenomenon is known as “colony collapse.” Scientists have not yet figured out why this is happening. They have some ideas, however.

According to Margaret Couvillon, assistant professor of pollinator biology and ecology at Virginia Tech, the four stressors for bees are known as “the four P’s—pesticides, pathogens, pests, and poor nutrition.” Contributing factors this year were an unusually long winter and a brief warm-up in February which tricked them into thinking spring had come. Also, the bees battled parasitic Varroa mites and infections from nosema fungi. Furthermore, they have had to deal with a loss of habitat, as more and more woodlands are converted to farming nationwide. Finally, it is becoming harder to make a living as a full-time beekeeper. Therefore, fewer people undertake the task, thus reducing the number of bees, because there are fewer active agents revitalizing their numbers each year after a cold winter.

What can you do to help the situation? 1) Become a beekeeper, or expand the number of hives you have, if you already keep bees, 2) plant flowers; even if you live in an apartment, you can plant in pots, 3) monitor your bees if you are a beekeeper for mites, especially in July and August, and 4) seek advice from state extension agents before applying any pesticides. (Katherine Hafner, “Over half of Virginia’s honeybees died last winter. Here’s what that means.” The Virginian-Pilot, pg. 1 and 7, July 9, 2018)

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Distribution of This Newsletter

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