Comprehensive Planning. Lifelong Solutions.

Preventing Dementia and Cognitive Decline

By Jessica A. Hayes

The National Academies of Sciences, Engineering and Medicine (NAS) have recently published a report which indicates that it may be possible to prevent dementia and age-related cognitive decline. Just seven years ago, scientists were unwilling to recommend or endorse any interventions, but the most recent findings are encouraging.

The three strategies recommended for preventing dementia and cognitive decline are being physically active, engaging in cognitive training (education, mental stimulation, and cognitive exercises), and controlling high blood pressure. There are other strategies warranting research – engaging in social activities, getting adequate sleep, maintaining a healthful diet, and managing depression, for example – but more research is required before they may be formally recommended.

The NAS report indicates that the three recommended strategies have been found to work in some situations, but not others. For example, cognitive training and physical activity were found to have the potential to delay age-related cognitive decline, but not dementia; and the only strategy identified as a potential way to prevent or delay Alzheimer’s disease is managing high blood pressure, although this strategy appears to have no impact on age-related cognitive decline.

These findings are encouraging, although more research is required before we can fully understand the causes of and potential interventions for dementia and age-related cognitive decline. Because the biological changes associated with some types of dementia begin ten years or more before any symptoms appear, individuals can lower their risk by making healthy lifestyle changes early – as early as when individuals reach their 40s. Furthermore, because Alzheimer’s and related dementias often have several causes, scientists recommend individuals implement several strategies to prevent or reduce age-related cognitive decline or dementia, not just one.

To review the NAS’ complete report, visit: http://nationalacademies.org/hmd/reports/2017/preventing-cognitive-decline-and-dementia-a-way-forward.aspx.

Kit KatAsk Kit Kat – Suburban Deer

Hook Law Center:  Kit Kat, is there a problem with too many deer in the suburbs?

Kit Kat:  Well, that might depend on whom you ask. Take, for example, the town of Oakton, VA. Three neighbors have completely different ideas about the subject. One loves deer and has a deer feeder in her yard. Another permits bow hunters on her property to cull the deer. The third has installed an 8-ft fence to keep the deer out. That kind of sums up the range of reactions to deer in the suburbs. Overall, the number of deer in the Northern Virginia suburbs has been declining. Where there are active deer management programs, there is a definite decline in the number of deer.

Kevin R. Rose, a district wildlife biologist at the Virginia Department of Game and Inland Fisheries (VDGIF), has the following advice regarding deer. First, do NOT feed deer under any circumstances. Besides the fact that it is illegal to feed deer in many localities from Sept. 1 to the end of April, it causes them to artificially congregate, which increases the likelihood of disease transmission. Food also attracts other animals than deer, like raccoons, which are rabies carriers. Bears are also attracted to feeding stations. Feeding bears, at least in Virginia, is illegal at any time of year. Deer are perfectly capable of feeding themselves, even if they have to forage off of evergreens, twigs, and tree bark. He also discourages providing deer with salt licks. Those, too, artificially congregate deer in specific places.

When asked about the most effective way to thin deer populations in suburban areas, Mr. Rose responded that the quickest way is sharpshooting. However, this method is not permitted in every locality, nor in every neighborhood of every locality. Local ordinances regulate the use of firearms. A more effective method is through the use of bow and arrow. Though slower, archery has proven very effective in Fairfax County, VA which has an organized program.

In conclusion, while deer are very attractive, gentle creatures, it appears best to not interfere with their normal rhythms of life. It may seem harsh, but there is a balance in nature which we must respect. (Kevin Ambrose, “Oh, deer, what should we do? Addressing the suburban deer dilemma.” The Washington Post, Capital Weather Gang section, August 3, 2017)

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Distribution of This Newsletter

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

Posted on Friday, August 18th, 2017. Filed under Newsletter.

Beware of Public Benefits: The Cautionary Tale of Overpayments

By Shannon Laymon-Pecoraro

Recently, I have seen an increase in the number of notices from the Social Security Administration and the Department of Medical Assistance Services relating to benefits received by a person not eligible to receive benefits any longer due to a change in circumstances. Some of these cases were the result of administrative error; however, a majority of the cases were the result of beneficiaries, or their representatives, not understanding the rules surrounding benefits.

Most people do not realize that even a change in household size, income, or assets could impact means-tested benefits. A common example I see is that a child receives Supplemental Security Income (SSI), but something happens to disrupt eligibility. This could be an increase in a family member’s income, potentially due to a new job, or an increase in assets, such as when someone received a personal injury settlement or an inheritance. A family member does not think to report this change of events, despite their affirmative obligation to report these changes to the appropriate agency, which leads to the agency discovering the ineligibility period months, or years later, resulting in a large overpayment due to the agency.

Although Social Security and Medicaid each have their own rules and a number of different programs, ineligibility for one program may detrimentally impact the other. For example, the child receiving SSI is automatically eligible for Medicaid, and as a result of ineligibility for SSI, may be ineligible to receive Medicaid. Not only would money paid by Social Security need to be repaid, but you may need to reimburse Medicaid for services rendered, including payments made to a private insurance company to keep you on the Commonwealth’s plan, during the period of ineligibility.

Often, individuals receiving benefits depend on the benefits for basic survival. In the event of an overpayment, the individual often cannot afford to repay a lump sum to the agency or otherwise suffer the loss of a reduced benefit. As a result, any change in financial circumstance should be addressed with the appropriate agency as soon as possible, bearing in mind that family changes will affect an individual under the age of eighteen.

Because of the severe impact on an individual when there is a misstep, you should not “dabble” in public benefits planning. When receiving public benefits, it is important to work with someone who is knowledgeable in the area. An experienced Elder Law or Special Needs Planning attorney can help navigate the benefits maze by explaining the benefits you are or may be eligible to receive, your responsibilities, and what things to watch out for.

Kit KatAsk Kit Kat – Shelter Tests

Hook Law Center:  Kit Kat, what can you tell us about how shelters determine which dogs are good adoptees and which may be too dangerous to adopt?

Kit Kat:  Well, this is a complicated issue. Shelters themselves are beginning to re-examine their protocols for determining which dogs are suitable to be adopted and which are too aggressive and have to be put down. In the past, shelters thought they were being objective and used prompts that were supposed to tease out who was OK for adoption from those who were not. For instance, they would place a fake, plastic hand on a stick in front of the dog. If they grabbed it, and bit it, they failed the adoption test. Or they would have a hooded person shaking a cane, and see how the dog reacted. Since the adoption tests have proven not to be perfectly reliable, the shelter community in some areas is beginning to adopt a system that relies more on observation of behavior at the shelter. That can be misleading, too, as shelters are an artificial environment where dogs do not get as much individual attention as they deserve. There are also smells and many more dogs than they would ever encounter in real life.

Shelters, however, deserve a lot of credit for even looking at this issue. The Maricopa County shelter which serves the Phoenix, AZ area takes in approximately 34,000 dogs in any given year. In the first half of 2016, 536 dogs were euthanized for behavioral reasons. In the first half of 2017, with a new director, they stopped the behavioral testing, and only 31 dogs have been euthanized for aggressive behavior. According to Dr. Gary J. Patronek, an adjunct professor at the veterinary medicine school at Tufts University, ‘The tests are artificial and contrived. During the most stressful time of a dog’s life, you’re exposing it to deliberate attempts to provoke a reaction. And then the dog does something it wouldn’t do in a family situation. So you euthanize it?’

It is reassuring that shelters are doing all they can to save as many dogs as possible. Shelters which handle large numbers of dogs, like those in LA and NYC, even go as far as placing their dogs in playgroups outside the shelters. Dogs Playing for Life is one such group in which playgroups are used to observe the dogs’ behavior. This issue will continue to be debated. However, much progress is being made in the attempt to treat dogs in the most respectful way possible. (Jan Hoffman, “Is This Dog Dangerous? Shelters Struggle With Live-or-Die Tests,” The New York Times, Science section, July 31, 2017)

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Distribution of This Newsletter

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

Posted on Friday, August 11th, 2017. Filed under Newsletter.

The Importance of Re-evaluating Your Estate Plan

By Elizabeth Boehmcke

For decades, estate planners have drafted estate plans around the federal estate tax, looking for ways to minimize or avoid the payment of estate taxes on death. Because the estate tax exemption amount was as low as $600,000 as recently as 1997 and did not top $1 million until 2002, estate tax planning affected a large proportion of Americans. Entire estate plans were created solely to avoid the payment of estate taxes on the death of the first spouse to die and to maximize the use of the estate tax credits available to each spouse. Typically, such planning resulted in the creation of a credit shelter trust upon the death of the first spouse to hold the then maximum estate tax credit amount and any remaining assets would frequently pass to a marital trust for the benefit of the surviving spouse. If the estate was in excess of $1 million, there may also be generation-skipping trusts created for the benefit of grandchildren. Such plans had numerous advantages, including protecting assets passing to the spouse in the marital trust for the remainder beneficiaries (typically children) and step up in basis for the assets in the marital trust upon the death of the surviving spouse. However, there are disadvantages as well for estates where the marital trust made up a larger share of the overall estate than the available credit shelter amount because a marital trust can only be for the benefit of the surviving spouse. In addition, the accounting and income tax filings for the multitude of trusts created under such plans could be cumbersome and confusing. In a time where the maximum federal estate tax rate was 55%, the complications were justified by the tax savings.

Now that the estate tax exemption amount (and the generation-skipping tax exemption amount) is $5.49 million per person (or $10.98 million for a married couple), many of those old tax driven estate plans may no longer be appropriate or wanted because the assets of the couple are well-below $10.98 million. If the first spouse to die has an estate less than the estate tax exemption amount, the credit shelter trust will absorb all the assets, leaving nothing to fund the marital trust. Because the assets in a credit shelter trust are not includible in the estate of the surviving spouse, there is no step-up in basis for those assets upon the death of the surviving spouse. And depending on the family dynamics, it may not be appropriate for the children or grandchildren to be equal beneficiaries with the surviving spouse as is the case in many credit shelter trusts, However, such a plan made more sense when originally drafted because the credit shelter trust was assumed to be much smaller than the marital trust. With the fall in the top rate of the estate tax to 40% and the increase in the exemption amount to almost $5.5 million, and the increase in the income tax to 39.6% with a top capital gains tax rate of 20%, it has become very important to consider the income tax consequences of an estate plan for most Americans.

If you currently have an old estate plan, it will be important to consult with a knowledgeable estate planning attorney to determine if your family circumstances may be better suited to simplified plan. While there are still many reasons, like creditor protection for your beneficiaries and probate avoidance, to create trusts, if the only reason you wanted a trust in the first place was the avoidance of estate taxes, it is time to draft a new plan. Even if your remain subject to estate taxes, your old plan was created for a different environment for securing the marital deduction and it may behoove you to revisit your plan to see if it can be simplified to some degree.

But what if you have one of these old plans and your spouse has died? Don’t despair. There are tools in our toolbox that can help. We may be able to “decant” (or transfer) the trust to a new trust which gives the surviving spouse a general power of appointment over the assets in an old credit shelter trust. Such a power, even if never exercised, will allow a step up in basis for the assets in the trust on the death of the surviving spouse. In other circumstances, it may be appropriate instead to distribute the assets outright to the surviving spouse in order to diminish administration costs and obtain a stepped up basis upon the death of the surviving spouse. For trusts created to take advantage of the generation-skipping exemption, under the right circumstances, it may be possible to grant a general power of appointment to strategically include the assets in the estates of several members of a generation (perhaps children, perhaps grandchildren) to take advantage of multiple estate tax exemption amounts and receive basis step-ups for the assets.

By finding ways that we can increase the basis of assets without increasing exposure to estate taxes, we can dramatically lower the amount of capital gains taxes that your beneficiaries may have to pay if the assets are to be sold in the future. If you haven’t re-visited your estate plan in the last few years, it will be worthwhile to visit with the attorneys at the Hook Law Center to see how we can simplify your plan and hopefully lower the taxes that your beneficiaries will have to pay.

Kit KatAsk Kit Kat – Traveling with Service Animals

Hook Law Center:  Kit Kat, what can you tell us about traveling with a service animal?

Kit Kat:  Well, I don’t know a whole lot about it, but I read an interesting article recently in The New York Times about the matter. The article had to do with traveling in airports with service animals and how areas for the animals to relieve themselves beyond security checkpoints vary tremendously. I hadn’t thought much about that particular aspect, but it certainly could prove to be problematic, depending on the type and quality of areas offered.

Michael May, chief executive of Lighthouse for the Blind in Seattle, who is blind himself, has traveled through quite a few US airports. One he praises is Washington Dulles International Airport. On the other hand, O’ Hare International Airport in Chicago is not high on his list. Dulles has 2 post-security relief areas—one off of Concourse B and one off Concourse D. Each is over 200 square feet in size. Built in 2010, they have artificial grass and water systems in the floor that wash away the waste. O’ Hare’s, in contrast, has one area off Terminal 3 which is ‘a little, 2-by-3 box meant for Chihuahuas or small pets, not my guide dog,’ which is a 55-pound golden retriever.

Laurel Van Horn, director of programs for the Open Doors Organization, was critical of Terminal 4 at Kennedy International Airport. She found the relief area ‘small and narrow.’ She thinks the central placement of a fake fire hydrant limits overall space and can snag the animal’s leash.

So it appears some work needs to be done in providing these spaces. The law is relatively new (since 2009 for American carriers and 2010 for foreign carriers). Airports are experimenting with the best options given the space available in each location. Another thing the airports have to contend with is use of the areas by other animals such as security dogs and travelers’ pets. Sometimes there is conflict between the different groups. Service animals and security dogs can have different personalities. Miami International Airport has come up with a clever solution. It has 4 relief areas which are used by 1 animal at a time. “Each has a door with a window and a ‘vacant/in use’ sign with Braille and tactile lettering,” according to Laurel Van Horn of Open Doors.

Planning ahead of time, and selection of particular airports if that choice is available, then may ease some of the stress of travel. Just another thing to consider when making one’s travel plans, especially if that includes travel with a service animal. (Jane L. Levere, “When a Service Animal Has to Go, Airports’ Options May Be Wanting,” The New York Times, Business Day section, July 24, 2017)

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Distribution of This Newsletter

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

Posted on Monday, August 7th, 2017. Filed under Newsletter.

Is Game of Thrones A Victory for Disability Rights?

By Letha Sgritta McDowell, CELA

Recently, approximately 10.1 million people watched the premier of this season of Game of Thrones, making it the most popular show on cable television. For those of you who are not familiar, Game of Thrones is based on the book series by George R.R. Martin. It is fictional and fantastical with a medieval feel including the existence of dragons, giants, sword fighting, kings and queens, and a noticeable lack of internet, smartphones, electricity, and telephones. The series is a fascinating study in intertwined relationships among friends, enemies, and things in between. The series also includes a number of main characters with disabilities. One main character is paralyzed, one has an intellectual disability, one is missing a hand, and one is a little person. All of these characters are strong characters who have a significant impact on the plot and story line. Many who advocate for people with disabilities are thrilled with both the number of people with disabilities in such a popular program as well as the fact that they play main characters whose roles are essential to the story line. Their disability is not emphasized, instead their diversity and talents are celebrated.

While many are celebrating the success of Game of Thrones and believe its positive portrayal of those with disabilities; other are not as convinced. One character suffers from a skin disability and is later burned by her parents. The focus on her disability is meant to invoke sympathy, but some disability activists are concerned that the writing perpetuates the stereotypical portrayal of a person with a disability as a victim. In another scene, a play which makes fun of little people is performed while one of the strongest and most interesting characters is a little person himself. Unfortunately, that crass humor could be seen as perpetuating stereotypes which unfortunately continue to exist.

The Americans with Disabilities Act was signed into law in 1990. It extended the civil rights protections offered to people of color, women, and older adults to people with disabilities. Protection was necessary due to discrimination which existed and which was perpetuated by stereotypes of people with disabilities. Certainly it can be said that a lot has changed since the ADA was enacted. The prominence of people and characters with disabilities in the most popular show on television can be seen as evidence of this positive change.

However, while progress has been made, there is still much to do in the way of advocating for people with disabilities. For every famous television star there are many more persons in need of assistance with finding appropriate health care, services in the community, income and more. In addition, these services are often costly and a small amount of money may cause the loss of services. Proper planning and knowledge about services available in the community can assist a person with a disability in remaining independent in the community.

While it is unclear as to whether the prominence of people with disabilities in Game of Thrones will have a positive impact on the overall lives of people with disabilities, it is a great pop-culture reminder that we have come a long way in treating people with disabilities as equals. Its popularity can be a reminder that there is still work to be done to ensure all people with disabilities are treated equally and have access to the services and supports they need.

If you have questions about services available to assist people with disabilities in either North Carolina or Virginia, please contact the Hook Law Center to schedule an appointment to meet with one of our attorneys.

Kit KatAsk Kit Kat – Too Many Geese?

Hook Law Center:  Kit Kat, does Hampton Roads have a problem with too many Canadian geese?

Kit Kat:  Well, that probably depends on whom you ask. Certain neighborhoods certainly seem to be struggling with the issue. Kings Grant in Virginia Beach recently was the subject of controversy. The neighborhood had tried to discourage the geese from settling there, but to no avail. Residents then petitioned the US Department of Agriculture to have 103 geese rounded up. These geese were then taken to a processing plant to be made into food for use at wildlife sanctuaries. Why are certain areas having problems with too many geese? They certainly are beautiful to look at. However, too many geese in a small area produce so much fecal waste (about 1.5 pounds per day per goose) that it can be a health hazard. Their poop contains pathogens that can cause diseases like E.coli, listeria, salmonella, and giardia.

Overall, the Virginia Department of Game and Inland Fisheries reports that the number of Canadian geese is declining; however, it reports that this is not true in urban areas. Jennifer Cromwell of the Virginia Department of Game and Inland Fisheries attributes the differing settlement rates to the fact that rural areas permit hunting, and urban areas do not. All is governed by the Migratory Bird Treaty Act which limits hunting to certain times of the areas and certain geographical areas. The geese used to be migratory passing through Hampton Roads on their way further south. Now, they are staying for longer periods and rearing offspring. Those that are born here do not seem to leave.

To deal with this increasing problem, the US Fish & Wildlife Service since 2006 have permitted destruction of nests and eggs. A permit is not required, but one must register with the service. The US Fish & Wildlife Service in conjunction with the Dept. of Agriculture will also come and inspect a particular area and offer suggestions about how to discourage geese from settling in an area. So stay tuned as the struggle continues. Citizens are torn about what is the best way forward to deal with these beautiful creatures. Judy Braley, of the Virginia Beach Department of Parks and Recreation, says the city does it best to keep park areas clean, but she will admit, ‘It’s a never-ending battle with our feathered friends.’ (Lee Tolliver, “Tubular and on the green,” The Virginian-Pilot, July 15, 2017, pgs. 1 and 9)

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Distribution of This Newsletter

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

Posted on Tuesday, August 1st, 2017. Filed under Newsletter.

Spotlight on: Senior Services of Southeastern Virginia

By Jessica A. Hayes

To best assist our clients, we strive to familiarize ourselves with the many helpful resources available to seniors in the area. An invaluable resource of which many of our Virginia clients are unaware is Senior Services of Southeastern Virginia (SSSEVA). Hook Law Center’s attorneys and long-term care paralegals recently had the pleasure of meeting with representatives from SSSEVA to learn more about their services. Particularly for our clients who have no family nearby or who wish to remain living in their home but require a little assistance, SSSEVA may improve their quality of life significantly.

SSSEVA’s programs and services include:

  • Transportation – The “I-Ride Transit” program provides accessible transportation options for seniors age 60 and up and individuals with disabilities in metropolitan Hampton Roads and Western Tidewater. They offer fixed routes, medical transportation, paratransit, and on-demand response transit. Fares are extremely affordable (generally $4 or less).
  • Meals SSSEVA is a member of Meals on Wheels of America. Its meal delivery service provides 10 microwavable meals every two weeks to individuals age 60 and up who are homebound and unable to prepare their own meals. The meals are free, but donations are welcome.
  • Companionship – The Senior Companion Program will match a senior living at home with a senior volunteer who visits and assists with a variety of tasks such as grocery shopping or light meal preparation. The service is free to those who need the assistance.
  • Ombudsman Services – The Long-Term Care Ombudsman Program assists individuals who have concerns about assisted living facilities, nursing homes, in-home care, and adult day care, mediating between seniors and their medical providers and investigating and resolving complaints. This service is free of charge.
  • Medicare benefits counseling – SSSEVA has counselors on staff who can assist seniors in applying for Medicare, filing Medicare claims and resolving billing issues, enrolling in Medicare Part D (Prescription Drug Program), and choosing a Medicare Advantage Plan, among others. This service is free of charge.

A call to SSSEVA’s resource specialists (757-461-9481) can help you identify which of these and other SSSEVA programs and services may be beneficial for you or your loved one. For more information, visit https://www.ssseva.org/.

Kit KatAsk Kit Kat – Monkey Talk

Hook Law Center:  Kit Kat, what can you tell us about why monkeys cannot talk? They have so many of the preliminary skills, but for some reason, it just doesn’t result in speech?

Kit Kat:  Well, as is usual, scientists have different opinions on the subject. The groundbreaking original study on the subject was done around 1969 by Philip Lieberman of Brown University and published in the journal Science. The study examined rhesus macaque monkeys. It compared live rhesus macaque monkeys who were sedated with that of a plaster mold of the throat made from a rhesus macaque monkey that had died. The monkeys could produce sounds, but they could not produce certain vowels, like the long E sound, which appears in many languages. The study postulated that the shape of their windpipes was not adequate to produce speech. Nor did they possess a sufficiently long vocal tract.

Until 2016, the Lieberman study appeared to be the accepted thought on the matter. Then, other scientists from the University of Vienna (Austria) and Vrije University in Brussels (Belgium) conducted their own study using a series of x-rays of rhesus macaque monkeys’ vocal tracts. They concluded that monkeys had a much broader speech capability than previously thought. They could indeed make many short vowel sounds (a, e, i, u), as in the words bat, bet bit, and but. However, Anna Barney of the University of Southampton (England) commented, that “the new research was convincing, but raised questions, such as a lack of macaque consonants. What they’ve shown is that monkeys are vowel-ready, not speech-ready.”

So the debate continues. Scientists undoubtedly will seek more clues as to why intelligent primates such as rhesus macaque monkeys, chimpanzees, and bonobos cannot go beyond their cooing and babbling and execute real speech, as humans define it. They certainly possess nonverbal communication; however, real speech continues to elude them. (Ben Guarino, “No More Than Monkey Talk,” reprinted from The Washington Post and appearing in The Virginian-Pilot, p. 4, July 8, 2017)

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Distribution of This Newsletter

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

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

IRS Grants Extension for Portability Purposes

By Shannon Laymon-Pecoraro

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

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

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

Kit KatAsk Kit Kat – Woodpeckers in Dismal Swamp

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

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

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

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Distribution of This Newsletter

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

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

SENTARA PACE – Adult Day Care

By Hook Law Center

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

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

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

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

Other services available are:

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

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

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

Kit KatAsk Kit Kat – Animals Predict Earthquakes

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

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

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

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

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

Posted on Friday, July 7th, 2017. Filed under Newsletter.

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

By Elizabeth Boehmcke

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

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

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

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

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

Kit KatAsk Kit Kat – Cagey Lady Elk

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

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

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

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

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

Posted on Thursday, June 29th, 2017. Filed under Newsletter.

Refuse Care At Your Own Risk

By Letha Sgritta McDowell, CELA

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

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

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

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

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

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

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

Kit KatAsk Kit Kat – Perceptive Canines

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

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

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

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

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

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

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

Posted on Monday, June 26th, 2017. Filed under Newsletter.

Use this Tool to Prevent Financial Exploitation and Identity Theft

By Jessica A. Hayes

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

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

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

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

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

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

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

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

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

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

Kit KatAsk Kit Kat – Pet Dangers of E-Cigarettes

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

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

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

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Distribution of This Newsletter

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

Posted on Friday, June 16th, 2017. Filed under Newsletter.