In May, I sat down with Jason Howell to discuss the process of estate planning and why it is important that families “begin the begin”. Check out the podcast/video recording of our time together. #estateplanning #incapacityplanning #beginthebegin
Out of an abundance of caution and with the utmost respect for our seniors and their caregivers, we have postponed the launch of our upcoming series, Real Talk: The Essentials of Aging with Confidence, until further notice.
We hope to proceed with our April session if it is prudent to do so. Be sure to watch for more information in the coming weeks.
This month we begin the first of a 3-part series in which we tackle topics involving The Essentials of Aging with Confidence. Details below including where to register. We look forward to seeing you there!
March 18th – Part 1: Getting Your Estate in Order
April 22nd – Part 2: Aging in Place or Assisted Living? Which option works for your lifestyle?
May 13th – Part 3: The Essential Guide to Aging and Caregiving.
@bgnthebgn @ofplaw @sandyspringbank #shepherdscenter #agingwithconfidence
Here is a little humor to keep you going and is a gentle reminder of a situation you want to avoid. Plan your journey! #estateplanningmatters #planyourjourney @bgnthebgn
Check out the brief interview I did regarding my new role as President of the Virginia Academy of Elder Law Attorneys.
The Virginia Academy of Elder Law Attorneys, or VAELA, is a non-profit professional organization. Its mission is to educate and empower legal representation of elderly and/or disabled clients and their families. OFP Shareholder Catherine F. Schott Murray currently serves as VAELA’s President.
How does VAELA help protect/advocate the interests of seniors or the disabled?
Catherine F. Schott Murray: VAELA Is leading the way in special needs and elder law in Virginia by educating, inspiring and empowering legal representation of elderly and disabled clients and their families, and by advocating their issues before courts and legislatures. In representing a diverse set of individuals and families with unique issues by providing practical and common-sense advice, VAELA members help their clients to protect family members with disabilities and to age with dignity.
Going back to school is right around the corner…what!? How can that be? However, it is true that as August approaches families will be sending kids back to school. For those families with children starting college, this time is fraught will all sorts of emotions, checklists, logistics and large bills. It is also often a time that parents forget that their little one, who has now grown to an adult, is treated as an adult in the eyes of the law. Furthermore, this is also a time when ‘adult’ children are not fully independent of their parents, but their parents may not be permitted to help because the child is deemed to be an adult. Age 18 is the age of majority for pretty much every activity, including signing contracts and making healthcare decisions. To avoid circumstances where parents and their children are separated by legal requirements, here are three key documents every 18-year-old should have.
General Durable Power of Attorney – This document permits the child to name his or her parents to help make financial decisions. It allows the parents to deal with financial institutions, housing issues, such as speaking with a landlord, insurance questions, like car insurance or renter’s insurance, and generally stand in the shoes of the child. It also allows parents to speak with the educational institutional and gain access to their child’s grades, which may be a downside for the child and he or she may hesitate to sign the financial power of attorney. However, most other sources on the subject argue that if the parents are footing the bill for the education, the parents have a right to make certain demands and receive certain information like the child’s grades. But, regardless of the motive, the discussion surrounding the need for a financial power of attorney should hopefully generate some thoughtful discourse between parents and children regarding how financial transactions and other legal, contractual transactions will be handled.
HIPAA – The Health Insurance Portability and Accountability Act of 1996 (“HIPAA“) regulates the use and disclosure of protected health information. HIPAA was intended to add a layer of protection for individuals so that their medical history or health status could not be wrongfully used against them. However, HIPAA brought with it many more hoops to clear in order to receive medical information. Having a familial relationship, like parent and child, does not get around the requirement that an adult child has to have given their parents access to their medical records. Thus, if a child is in a car accident and ends up in the hospital unable to communicate and there is no HIPAA release in place, the parents may be left in the dark regarding their child’s status. A separate HIPAA release allows the child to nominate individuals who can give and receive medical information. It does not necessarily mean that those same people have a right to make medical decisions. It does, however, at a minimum, allow parents to be present.
Advance Medical Directive – This document permits the child to name his or her parents to make medical decisions. College is a time when lots of new adventures occur, and sometimes, those adventures go awry. There are times when accidents do indeed just happen, like car accidents or a slip and fall. In those circumstances, if a child is at a medical center on campus or off campus, the parents have no right to find out what is going on and to help make decisions unless their child has given them access and authority to do so. Access can be granted by way of the HIPAA release mentioned above, which could also be a part of the Advance Medical Directive. But, actual authority to make decisions is only granted by way of an Advance Medical Directive or healthcare power of attorney, if the child is unable to communicate or make decisions for themselves. Without an Advance Medical Directive, parents may be able to be present, if a HIPAA release is in place, but have no right at the decision-making table. Thus, similar to the financial power of attorney, the discussions surrounding the need for a healthcare power of attorney should help enlighten parents and children about medical wishes and desires. It is also a good time to talk about extraordinary measures if a catastrophic event occurs, which may lead to conversations supporting the creation of a Living Will (a fourth document). Although, for an 18-year-old, it may be too difficult to focus on that specific possibility.
At this back to school time when checklists are aplenty, add these key documents to the checklist. Having these documents in place will help avoid added stress during emergent situations. Moreover, both parents and children get to plan their journey during life’s next chapter. #estateplanning #collegebound #backtoschool #incapacityplanning #powersofattorney @bgnthebgn
Last year, the Centers for Medicare and Medicaid Services (“CMS”) issued a rule banning the use of binding pre-dispute arbitration agreements by nursing homes that accept Medicare and Medicaid patients. The result of the new rule would have been that families who have an issue with a nursing home regarding care, abuse, and the like, would have been able to sue in court to have their case heard versus having to go through a binding arbitration process. However, the American Health Care Association along with four long-term care providers filed suit against the Health and Human Services Secretary and CMS arguing that the agencies overstepped their authority in issuing the rule. Injunctive relief was granted preventing the rule from going into effect.
In May of this year, the U.S. Supreme Court in Kindred Nursing Centers L.P. vs. Clark, overturned a ruling by the Kentucky Supreme Court in which the Kentucky Supreme Court stated that durable powers of attorney must explicitly permit an agent to enter into an arbitration agreement or otherwise risk violating the Kentucky Constitution where access to the courts and a trial by jury is ‘sacred’ and inviolate’. Instead the U.S. Supreme Court held that Kentucky’s ruling violated the Federal Arbitration Act by treating arbitration agreements differently.
As a result, earlier this month CMS issued proposed revisions to its arbitration agreement requirements for nursing homes and long-term care facilities. CMS is no longer proposing a ban on arbitration agreements in admissions agreements, but it is requiring greater transparency as to the meaning and understanding of such provisions in admissions agreements. Thus, it appears at this juncture that CMS is trying to find some middle ground between a complete ban on arbitration agreements and the decision in the Kindred case, but only time will tell if that middle ground has been found between the rights of the families of patients and the long-term care facilities. #elderlaw #elderabuse #nursinghome #arbitration #CMS #SCOTUS @bgnthebgn
At a recent Moms at Work event hosted by Claire M. S. Meade, discussion was held about those who are part of the “sandwich generation”, that is those who have young children, but also older parents. In particular, the conversation centered on questions to ask retired or retiring parents to help facilitate a discussion about aging. Many earlier articles have addressed estate planning, including planning for incapacity and planning for death. But this discussion highlighted three basic questions that MIT AgeLab identified as key when considering what it means to be retired. The simple questions are: (1) Who will change my light bulbs? (2) How will I get an ice cream cone? (3) With whom will I have lunch? These seem like very basic questions, but when you start to think beyond the initial concept to the considerations that each question raises, you realize that there are a lot of details to address in each question as it relates to retirement and aging. Check out the MIT AgeLab article for more details and think about beginning the conversation with your retired or retiring family member to avoid finding yourself in a situation where it is too late to plan. @bgnthebgn @josephcoughlin #incapacityplanning #estateplanning #aginginplace #retirementplanning #sandwichgeneration
Earlier articles have talked about how you can control your final moments and also how you want to be remembered. This year National Healthcare Decisions Day is a week long event beginning April 16 and ending on April 22. Such recognition provides a reminder that having an advance medical directive and a living will in which you express your wishes regarding medical care, if you cannot decide, and whether you want life-prolonging procedures, are crucial components in every estate plan. Several states and the District of Columbia have addressed end of life decision-making through death with dignity statutes. But, regardless of your position on death with dignity statutes, end of life decision-making and advance healthcare planning is a necessary conversation to have and to share with your loved ones and National Healthcare Decisions Day (or for this year week) helps remind us of the need to begin the dialog on the subject. @deathwdignity @NHDD #livingwill #estateplanning #endoflife #advancedirective #NHDD
Happy New Year! Very often the New Year brings all sorts of ‘changes’ for individuals, particularly after having spent any time with family members and friends over the holiday season. Here is a quick list of five resolutions to consider for your estate plan.
True, there are a lot of questions and not a lot of answers here, but that is the planning process. One has to begin with the questions to reach the answers. Working with a professional advisor can both provide you with the guidance needed to navigate these questions and ensure that you complete the process. #planyourjourney #lifeplanning #legacyplanning #estateplanning @bgnthebgn
In August 2015, Congress passed the Notice of Observation Treatment and Implication for Care Eligibility Act (the “Notice Act“). The Notice Act requires hospitals to give individuals who are receiving observation services as an outpatient for more than 24 hours, oral and written notification of observation status within 36 hours of the beginning of such services. This notice is critical for individuals on Medicare because Medicare will only cover nursing home care following a hospitalization if the individual is classified as an inpatient for three (3) days prior to needing nursing home care. If the individual is not classified as an inpatient, Medicare will not cover the hospitalization or subsequent care, such as rehabilitation or skilled nursing, which can be financially devastating to a family.
Implementation of the Notice Act was to have taken effect in August of this year, and the Centers for Medicare and Medicaid Services (“CMS”) indicated that the final rules associated with the Notice Act would be effective October 1st. However, the written notice does not become effective until 90 days following approval of the Medicare Outpatient Observation Notice by the Office of Management and Budget and such written notice does not yet have approval. What this all means is that the Notice Act has not yet been fully implemented and may not be until early next year. In the interim, the Center for Medicare Advocacy has created an infographic to help individuals understand observation status and what it means as it relates to the cost of their care so that families can be engaged in the process. #AskAboutObservation #elderlaw #observationstatus @bgnthebgn
FLASH UPDATE: The Medicare Outpatient Observation Notice and instructions are now available online. The standardized form is giving individuals notice of their ‘observation status.’ Hospitals and critical access hospitals are required to start using this Notice no later than March 8, 2017.