Elder Law and Special Needs | Begin the Begin

May is National Elder Law Month

May 5, 2016

In 1963, President Kennedy declared May to be Senior Citizens Month to honor those who are 65 and older. Since then every President has proclaimed May to be a month to show support for older Americans. President Jimmy Carter changed the name in 1980 to Older Americans Month and the National Academy of Elder Law Attorneys supports this annual proclamation by declaring the month of May to be National Elder Law Month.

But what is encompassed in elder law? And how can an elder law attorney assist older Americans? Here is a brief list of some of the major issues that an elder law attorney advises upon:

Incapacity planning that would include a discussion regarding financial and medical powers of attorney
Tax planning
Estate planning, including a discussion surrounding the management of assets during incapacity and upon death
Medicaid
Medicare
Long-term care, including continuing care retirement communities (CCRCs), skilled nursing facilities (SNFs) and assisted living facilities (ALFs)
Social Security (SSDI and SSI)
Special Needs planning (e.g., special/supplemental needs trusts)
Conservatorship and guardianship
Asset protection
Elder abuse and exploitation
Retirement planning, including beneficiary designations, death benefits and spousal benefits
Mental health law
Estate and Trust Administration

Keep in mind that some elder law attorneys are like your internist, that is, they can spot the issues and advise in broad terms. Other elder law attorneys are specialists. For example, certain elder law attorneys may handle only social security disability claims and appeals while others only litigate nursing home abuse cases. Whatever the issue, it is important to make sure the relationship with an elder law attorney is a good fit for your circumstances and helps achieve your goals. In the meantime, this month and beyond be sure to celebrate older Americans! #elderlaw #olderamericansmonth @aclgov #nationalelderlawmonth

Caring for Pets As Part of Your Estate Plan

April 21, 2016

Many if not all of us have had a pet during our lifetimes. But what happens to that pet if the owner becomes incapacitated or dies? Virginia (Section 64.2-726), Maryland (Section 14.5-407) and the District of Columbia (Section 19-1304.08) all have statutes that permit the creation of a trust for the care of a pet. In determining how to provide for a pet during incapacity and/or at death, here are a few items to remember:

1. The owner should ensure that, at a minimum, they have a Power of Attorney giving someone authority to take care of their pets using the owner’s monies to do so. In addition, the owner should ensure that instructions for caring for the pet have been provided for in their estate plan. This can be done in various ways including specific provisions in a Last Will and Testament or through a Revocable Living Trust.

2. An owner of a pet may want to carry information in a wallet or purse that identifies the fact that he or she owns a pet, what kind of pet, where the pet is located and any special instructions regarding care. The thought is that if the owner is unable to return home those going through the wallet or purse will find this information and ensure the pet receives the proper care.

3. Along with other important papers relating to one’s estate plan, there should be a document that summarizes all pertinent information relating to the pet including any medical history, veterinarian’s contact information, allergies, likes/dislikes, etc. The information carried in the purse or wallet would also be included and further detail provided, if necessary.

4. Many pet owners now post a notice near their front door that they have pets in the house to alert anyone entering the home to be on the look out for the animals.

5. If the owner is considering establishing a Pet Trust, then the following questions must be asked:
     a. Who will be named as caregiver for the pet?
     b. Will there be different caregivers for different pets?
     c. Is the proposed caregiver willing to serve?
     d. Who are the alternate caregivers?
     e. Who will be Trustee of the Pet Trust?
     f. Will the Trustee be the same as the caregiver?
     g. Who will be successor Trustee?
     h. How much money should be set aside for the pet or pets that the Trustee will manage?
     i. What special care instructions should be included in the Pet Trust?
     j. How should the Trustee make distributions from the Pet Trust (i.e., to the caregiver or directly to the vendor)?
     k. Should any monies be paid to the caregiver from the Pet Trust?
     l. What should happen to any remaining monies upon the death of the pet or pets?
     m. Are there any specific burial and/or cremation instructions for the pet or pets?

There is certainly more information that can be included in the Pet Trust depending on the kind of pet, the standard of care, the amount of money to be set aside and the overall goals and objectives of the owner. But these items will help you to start thinking about what happens next for your pets who are more likely than not a part of your family, and therefore, need to not be forgotten in any estate plan. #pettrust #estateplanning #incapacityplanning #caringforanimals

National Healthcare Decisions Day – April 16

April 14, 2016

Previous posts have talked about you controlling your final moments and also how you want to be remembered. April 16 is National Healthcare Decisions Day and provides a reminder that having a living will in which you express your wishes regarding life-prolonging procedures or choosing not to have a living will are crucial components in every estate plan.

To that end, during this past legislative session of the General Assembly of Maryland, a bill was introduced that would authorize a qualified individual to request aid in dying. The Richard E. Israel and Roger “Pip” Moyer End of Life Option Act would have allowed individuals meeting certain criteria to request and receive from their physician a lethal dose of a particular medication. The bill was withdrawn from consideration as it lacked enough support, but not before sparking public conversation about the topic. At this juncture, there are four states that have death with dignity statutes: Washington, Oregon, Vermont and California. In fact, California’s statute is so new it will only take effect in June. Montana does not have a statute, but a 2009 Montana Supreme Court case (Baxter v. State of Montana) examined whether a physician could prescribe a fatal dose of medication to a terminally ill individual without being charged with a crime because consent was involved. In the end, although attempts have been made to pass aid in dying legislation, Montana does not have a statute legalizing the practice and the Baxter case addressed a very narrow aspect of the practice.

Regardless of your position on death with dignity statutes, end of life decision-making and advance healthcare planning is an important conversation to have and to share with your loved ones and National Healthcare Decisions Day helps remind us of the need to begin the dialog on the subject. @deathwdignity @NHDD #livingwill #estateplanning #endoflife #advancedirective #NHDD

Alternative Living Solutions – “The Granny Pod”

April 2, 2016

As the population ages and the costs of entering and living in a continuing care retirement community (CCRC) or an assisted living facility (ALF) continue to rise, families are looking for alternative living arrangements for their loved ones. One alternative is ‘the granny pod‘ or ‘MedCottage.’ In general, these tiny houses are comprised of a bedroom, bathroom, kitchen area and living space. The pod is meant to reside in the backyard of an existing residential location and be a safe living area for an aging family member. So, instead of families looking to buy a bigger home or to construct a large addition to accommodate their family member, the pod gives everyone the space they need. Arguably, the cost is less than several months at an assisted living facility or the entry fee for a CCRC (depending on location). Of course, one cannot simply move a pod into the backyard without first ensuring compliance with zoning ordinances, permit requirements for construction and hooking up utilities, insurance coverage and an overall fit for the family lifestyle and the care needs, among other considerations. However, the idea is unique and innovative and may relieve a lot of stress and avoid family arguments during what may already be difficult times. #alternativeliving #grannypod @KennethDupin #elderlaw

The ABLE Act – Proposed Legislation Will Modify Certain Provisions

March 22, 2016

An earlier post gave a brief summary of the Achieving a Better Life Experience Act of 2014 or the ABLE Act. Three different pieces of legislation were introduced on March 17, 2016 that would change some of the provisions of the ABLE Act. Below is a brief summary of each proposed change.

Current law limits eligibility for the creation of an ABLE account to individuals with disabilities where the disability occurred before turning 26 years old. H.R. 4813 would increase that age from 26 to 46.
H.R. 4794 would allow for rollovers between 529 accounts and ABLE accounts.
Finally, H.R. 4795 would permit individuals with disabilities to save additional monies to an ABLE account above the annual maximum ($14,000.00) now in place. Such additional contributions would be allowed for those individuals with disabilities who work and earn income. The additional contribution would equal the lesser of (a) his or her “compensation…for the taxable year” or (b) “an amount equal to the poverty line for a one-person household, as determined for the calendar year preceding the calendar year in which the taxable year begins.”

Updates will be posted as the legislation moves forward. #specialneeds #ABLEact #estateplanning #proposedlegislation

The ABLE Act – An Additional Resource for Families and Advisors

March 15, 2016

In 2014, the Achieving a Better Life Experience Act of 2014 or the ABLE Act was signed into law. Under the ABLE Act, certain savings accounts could be established for individuals with disabilities. Such accounts allow for monies to be set aside for an individual with disabilities without disqualifying the individual from public benefits such as Social Security Income (SSI) or Medicaid. The total annual contributions are currently capped at $14,000, but the accounts can grow and be funded up to state mandated limits. Virginia and Maryland limit these accounts to $350,000 while the District of Columbia caps the accounts at $260,000. Various other restrictions apply including restrictions that may impact an individual’s SSI benefit for a period of time and require any remaining amounts in the account to be used to pay back for Medicaid benefits that are received; generally known as a “Medicaid pay-back” provision.

Recently, the ABLE National Resource Center, an organization founded and managed by the National Disability Institute (NDI), went live with an informative website for families and professional advisors interested in learning more about the ABLE Act and establishing an account for an individual with disabilities. In addition, the website provides state specific information since each state has implemented the ABLE Act differently. Families of individuals with disabilities now have another resource in addition to consulting with their professional advisors if they are considering creating an account to ensure such planning fits within their overall goals and objectives. #specialneeds #ABLEact #estateplanning @RealEconImpact

How Do You Want to Be Remembered…

January 26, 2016

When it comes to being remembered, you may have very detailed plans that you want implemented or you may not have thought about it at all. During the recent blizzard or Snowzilla on the East Coast, the Tomb of the Unknowns was constantly guarded, as it has been since 1937, a tribute to those who had fought in earlier wars. Of course this raises the question as to how you would want to be remembered. Here is a short list of some considerations:

(1) Who should be notified – Family, friends, colleagues, organizations or groups, listservs, newsletters or other publications?

(2) What personal information would you want to have included? Certain information is required for a death certificate, but are there certain accomplishments or interesting stories you would want shared? Do you want an obituary, and if so, what should it say?

(3) How do you want your remains handled and where do you want to be buried? This could include your preference for cremation versus burial or use of a family burial plot, mausoleum crypt or cremation niche for an urn.

(4) Do you want a marker or headstone? If so, what should the engraving say and how should the marker be designed? Do you have a preference as to the type of urn or casket?

(5) Do you want a memorial service or just a big party? Should any service be religious, and if so, are there particular hymns to sing, certain readings to include and/or particular persons you want to provide eulogies or words of remembrance? Are there military honors to be bestowed? Should any service be for family and close friends only? If you are to be buried, are there personal items to include in the casket? A particular outfit in which you want to be buried? Do you want a viewing?

(6) How should the costs and expenses be paid and by whom?

This list includes only a few of the items to consider, but will hopefully start the conversation with family members. Ultimately, the more planning that is done can help alleviate stress on surviving family members during an already difficult time and also pay tribute in a respectful, thoughtful manner. #estateplanning #howtoberemembered #blizzard2016 #snowzilla