Incapacity Planning | Begin the Begin

Notice of Observation Status – Update on Implementation

December 8, 2016

money-2 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.

Injunction Granted Against CMS’ Rule Prohibiting Arbitration Clauses and D.C. Death with Dignity Act Passes

November 17, 2016

law-books An update regarding the Centers for Medicare and Medicaid Services (“CMS”) new rule banning the use of binding pre-dispute arbitration agreement by nursing homes that accept Medicare and Medicaid patients. As was expected, the nursing home industry has fought back and filed suit in the Northern District of Mississippi. In a 40 page Order, a Federal District Court Judge has granted the preliminary injunction requested by the American Health Care Association and several nursing homes. In the opinion, the Judge recognized the position many families find themselves in cases of abuse and neglect when dealing with the nursing home, but indicated that CMS may have overstepped its authority in issuing the rule, and therefore, enjoined CMS from enforcing the rule until the courts could resolve the issue or Congress passed legislation. Therefore, nursing homes will continue to be able to include such provisions in their contracts. Furthermore, with the election in the rear view mirror, only time will tell what will become of this rule. #elderlaw #elderabuse #nursinghome #arbitrationbanned

Also, a brief update that the Death with Dignity Act in the District of Columbia has cleared the last hurdle before going to Mayor Muriel Bowser. The vote of the D.C. Council was again 11-2 and was passed with an amendment requiring some level of annual reporting by the Department of Health. The Act is expected to become law, but Congress still has oversight and the Act may still be overturned. However, at this juncture D.C. joins Oregon, Washington, Vermont, California and Colorado in passing such legislation. As has been expressed before, the passage of this Act is a reminder to get your plan in place. #endoflife #estateplanning #advancedirective #livingwill @deathwdignity @bgnthebgn

District of Columbia Considers Death with Dignity Act

October 20, 2016

flowers-3 The District of Columbia is considering enacting the Death with Dignity Act (the “Act”) that would allow terminally ill individuals with six months or less to live the ability to receive a lethal dose of medication and end their life. Several procedural steps lie ahead for the Act now that the D.C. Council has voted to place the Act on the legislative agenda for an upcoming meeting. However, it is unclear whether there is sufficient support for the Act to be made into law. Arguments in favor of the Act revolve around giving an individual control over how and when they choose to die, but advocates against the Act are concerned that individuals’ lives will be prematurely terminated.

The issue once again raises the importance of planning. Planning for incapacity and planning for death. Both sides of the death with dignity argument seem to have a common thread involving control, which is exactly what planning gives you. Planning gives you control over who is in charge of your medical decisions when you are not able to make those decisions. Planning gives you control of whether you want life-prolonging procedures when doctors have certified that nothing more can be done except provide comfort care. Planning gives you control of how you want to be remembered in those final moments. Planning gives your family members peace of mind to know that they are truly abiding by your wishes, which in turn may make them feel as if they are in control of the situation. Planning gives your family time to prepare for a life without you in it and to try to control the emotional turmoil that realization creates. Ultimately, planning is a gift to yourself to know that that particular item on a lengthy checklist can be crossed off so that you can enjoy life knowing that your end of life is in the best order you can create. So, regardless of which side of the death with dignity argument you fall, think of the planning that can be done to control your death with dignity. #endoflife #estateplanning #advancedirective #livingwill @deathwdignity @NHDD @bgnthebgn

Changes to Maryland Laws Impacting Estate Planning and Elder Law

September 15, 2016

courthouse On October 1st (unless otherwise noted) a number of new laws will take effect in Maryland that may have an impact on you or those with whom you work. Below is a summary of a few key pieces of legislation of which you should be aware.

HB 507 – Maryland Fiduciary Access to Digital Assets Act: This Act authorizes a person with digital assets to direct the disclosure of information relating to those assets in certain circumstances. A previous Article provides the details.

HB 541 – Upon divorce or annulment, certain provisions of a revocable trust that relate to the spouse will be revoked. This new statute is comparable to what has been established for wills under Section 4-105(4) of the Estates and Trust Article of the Annotated Code of Maryland.

HB 887 – Section 14.5-303 of the Estates and Trusts Article of the Annotated Code of Maryland is amended to add a new subsection (7) allowing for virtual representation of a minor, incapacitated, unborn or unknown individual, by a grandparent or more remote ancestor, provided there is no conflict of interest. In addition, Section 14.5-304 is added to the Estates and Trusts Article permitting anyone to represent a minor, incapacitated, unborn or unknown individual, provided there is a ‘substantially identical interest’ and no conflict of interest exists. The purpose is to avoid having to appoint a guardian ad litem in a court proceeding involving trusts.

HB 888 – The new statute will allow trustees and beneficiaries to enter into a binding settlement agreement relating to the administration of a trust without having to involve the court. The actions that can be agreed upon within a non-judicial settlement agreement by the trustees and beneficiaries must be those that a court could have approved. For example, a non-judicial settlement agreement could address interpretation or construction of terms of the trust, approval of an accounting or trustee succession.

HB 431 – Requires the establishment of the Maryland ABLE Program to allow for savings accounts similar to 529 Plan accounts to be created for a person under a disability. This was effective as of July 1, 2016. Two previous articles discussed the ABLE Program.

HB 718 – Asset Recovery for Exploited Seniors Act: Allows for a civil action to be brought for damages against a person who knowingly and willfully takes from another, who is at least 68 years old, his or her assets. A criminal conviction is not necessary before bringing the civil action.

HB 1385 – If an individual does not have a health care directive, ‘any authentic expression’ made by such person, who is deemed to be competent, regarding his or her wishes and desires about their health care ‘shall be considered.’

#elderlaw #estateplanning #healthcare #Marylandlaw #incapacityplanning #specialneeds #digitalassets @bgnthebgn

Facing a Tough Diagnosis – Four Lessons of Gene Wilder

September 1, 2016

flowers-2 With Gene Wilder’s death, the family released a statement that revealed to the world that Gene Wilder had died due to complications from Alzheimer’s disease. The family also stated that Wilder had not wanted to reveal his diagnosis earlier and risk “one less smile in the world.” In releasing the statement as they did, the family has provided us with a few valuable lessons about planning.

What should ‘the public’ know? From the statement, it seems clear that in receiving an irreversible diagnosis, Wilder’s family talked about how to handle the news both publicly and privately. Families that have received terrible news of a terminal or debilitating illness are aware of the difficulties surrounding such information. Questions about who should be notified are common as well as discussion regarding how much information should be disclosed. In addition, the ‘public’ for each person is different. This means for some only immediate family members while friends, neighbors and colleagues have a less detailed picture. Immediate family may include certain close friends and may very specifically exclude others. What about professional advisors? How much information should they have? Each of us has various circles and those circles have to be evaluated to determine who should know and what should be known, which is important to clarify to avoid confusion in the dissemination of information.
What is the care plan? Certainly from a medical perspective there is a prognosis and then treatment plans that are outlined with various degrees of outcomes and complications. But what about the plan to care for minor children, if necessary? Or a caregiver spouse or partner? Who are or will be the caregivers? Has respite care been discussed for those caregivers? Are there modifications to a residence that are needed? What about access to financial information? Should such access be limited or restricted? Has there been discussion about involving a care manager? These are just a few of the questions to consider to determining the plan of action.
Your final moments. Are friends and family present? Is music played? Is a spiritual leader, such as a priest, rabbi or pastor present? Will the final moments be at home, wherever that may be at the time? The final moments are not only for the person dying, but the family and friends who are part of that passing. Discussions such as these are key in determining end of life care.
How to be remembered? An earlier article outlined six questions to ask surrounding the details of how you want to be remembered. Providing some information about wishes and desires regarding a funeral or service is a relief for family members because decision-making at this difficult is clouded by emotions and shouldn’t be overshadowed with the thought of “Is this really what was wanted?”

Thus, as many of us remember Gene Wilder and the various roles he played in the movies, we can also pause to reflect on how we would face such tough diagnosis with our family, and when the time comes, be prepared to have the important conversations. #GeneWilder #incapacityplanning #estateplanning #advancemedicaldirective #livingwill @bgnthebgn

Three Key Documents Every College Age Child Needs to Sign

August 25, 2016

Classroom The middle of August is a time when families look towards Fall sports, cooler temperatures and the kids going 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. Moreover, this is also a time when adult children are not yet entirely 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. Thus, 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, if the child is unable to act. It also allows parents to speak with the educational institutional, which typically means that grades can be accessed. This 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 a child has to have given their parents access to their medical records. So, if a child is in a car accident and ends up in the hospital unable to communicate, if 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. However, at a minimum, it allows 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 a Advance Medical Directive or healthcare power of attorney, if the child is unable to communicate. Without it, 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.

So, if you are part of a family with college bound children, having these key documents in place will help avoid added stress during emergent situations, which is when these documents are most likely necessary. Moreover, both parents and children get to plan their journey during life’s next chapter. Therefore, speak with your professional advisor about getting these important documents in place, and if your child has already left, Homecoming, Fall break and Thanksgiving are right around the corner! #estateplanning #collegebound #incapacityplanning #powersofattorney @bgnthebgn

The Increase of Crowdfunding in Estate Planning

August 18, 2016

Crowdfunding seems to be everywhere, but does it have a place in estate planning? Wikipedia defines crowdfunding as “the practice of funding a project or venture by raising monetary contributions from a large number of people…” Thus, it seems that in the beginning crowdfunding was a form of venture capitalism with the public at large. Websites like Kickstarter and GoFundMe allowed for individuals to present an idea and raise capital to get the project off the ground. However, in relatively recent history, crowdfunding has taken on a prominent role in response to any tragedy. Now it seems that if there is a sudden illness or death, crowdfunding appears to help defray costs. But for those both using or donating through a crowdfunding website, there are a few questions to consider.

Are there any tax consequences to a donation? – In general, giving to a fund that benefits an individual is not a taxable gift so long as you stay below certain thresholds. An individual can give up to $14,000.00 per year to each of any number of different people under current law without incurring any gift tax consequences. Typically in crowdfunding, the fund is set up and smaller contributions are requested or simply contributions of any amount, big or small, are accepted, so hitting that threshold is not an issue. Also, keep in mind that your contribution to such a fund is typically not tax deductible. If the contribution is not to a public charity or other qualified tax-exempt organization, then you are not otherwise allowed to deduct your contribution from your personal income taxes.

Are there fees associated with crowdfunding? – The answer is it depends on the site being used to support the fund. Kickstarter applies a 5% fee and then there are processing fees of approximately 3-5% if the campaign is successful. GoFundMe charges a 5% fee and then approximately an additional 3% processing fee. The fees are charged against each contribution. The donor or person contributing is not charged the fees, but the person receiving the funds does not receive 100% of the monies contributed. Thus, if I give $100 to a GoFundMe fund to help pay for costs associated with the illness of a friend’s child, my friend will only see $92 of my gift. This reality then begs the question as to whether it is simply better to write a check directly to my friend. That way my friend receives $100. Of course the theory behind crowdfunding is that if everyone else is contributing then you will want to do so as well, and therefore, perhaps the fees are worth it if in the end more monies are raised.

How do you determine that the request is legitimate? – You need to be careful that you are going to the actual fund page. Spoof pages can pop up or emails that look legitimate can arrive in your inbox. You may click through and donate not realizing that you are not donating to the actual cause or person that you intended. Thus, you should take care to ensure that the URL for the fund that you are using is from a source you know and trust.

Overall, it appears that recently during times of hardship and tragedy, crowdfunding has become a way that people can express their sympathy and/or support for others. I would expect that any monies received are welcomed and appreciated, but may not be enough. Furthermore, crowdfunding is not a substitute for financial and estate planning where questions relating to life insurance, disability insurance, retirement assets, fiduciaries, guardianship and the like are discussed and analyzed to ensure that in the event of the unexpected, covering expenses does not create additional stress. So the question to ask yourself is, what preparations have you made for the unexpected? #crowdfunding #estateplanning @gofundme @kickstarter @bgnthebgn

The Marriage of Divorce and Estate Planning

August 11, 2016

In case you missed the series about the impact of divorce on estate planning, here is a brief recap of some points to consider.

1. The Property Settlement Agreement may require that you maintain life insurance for any minor children. If that is the case, then have you revisited your estate plan recently? What obligations to maintain life insurance do you have? Does the Property Settlement Agreement have certain requirements for the creation of a trust, and if so, what are those requirements? Have the requirements of the Property Settlement Agreement been fulfilled or incorporated through your estate plan? Are there any provisions of the Property Settlement Agreement that will survive death?

2. When was the last time you updated your beneficiary designations on qualified retirement accounts (e.g., 401(k) or IRA accounts), annuities, life insurance or payable on death or transfer of death designations on bank or brokerage accounts?

3. What should happen to your real and personal property? Are there steps you need to take to ensure your real and personal property are distributed to the individuals or entities you want to have benefit?

4. If you are divorcing and have a disabled child, how is that child being provided for upon the incapacity or death of a parent? Is eligibility for public benefits preserved through a properly structured special or supplemental needs trust? Who has authority to make healthcare decisions for the child and in what manner? Has guardianship been determined and the terms in which parents plan to share guardianship specified, if applicable?

5. What happens if an estate plan already exists and you do nothing to update it?

#estateplanning #divorce @bgnthebgn

Elder Law Update – Changes to Laws Impacting Virginia’s Seniors and the Disabled

July 21, 2016

On July 1st (unless otherwise noted) a number of new laws took effect in Virginia that may have an impact on you. Below is a summary of a few key pieces of legislation of which you should be aware.

Section 51.5-44.1 – It is a now a Class 4 misdemeanor to misrepresent your dog as a service dog to gain access to public areas with the animal.

SB 553 – Requires the Board of Health to promulgate regulations relating to audio and visual monitoring of residents in a nursing home by July 1, 2017. The regulations are to address privacy, notice, disclosure, liability, responsibility for equipment, costs and security, among other items.

Section 63.2-1806 – An assisted living facility is not required to provide or allow hospice care at the facility so long as this is disclosed to the resident prior to admission and is otherwise allowed by Federal law.

Section 64.2-2019 – A guardian of an adult incapacitated person is not permitted to ‘unreasonably restrict’ an incapacitated person’s ability to communicate with, visit, or interact with others with whom they have had an ‘established relationship’.

Sections 37.2-817, 37.2-837 and 37.2-838 – A person being discharged from involuntary admission in general or to mandatory outpatient treatment who does not have an advance medical directive must now be provided with a written explanation of the process for executing an advance medical directive and a form of an advance medical directive.

Sections 64.2-2011 and 64.2-2014 – The Department of Medical Assistance Services must now be notified of guardianship appointments, modifications and terminations.

Sections 64.2-2001 and 64.2-2009 – In a petition for a guardianship and/or conservatorship of an incapacitated individual who has not reached age 18, the statute clarifies that the court may enter an order for such guardianship/conservatorship appointing a guardian or conservator prior to age 18, but the court order should state whether the order is effective immediately or when the person turns 18.

Section 63.2-1605 – When investigating financial exploitation of an individual age 6o or older, if the department of social services or adult protective services believes there is ongoing exploitation totaling more than $50,000, then the police are required to be told so an investigation can ensue.

Section 8.01-220.2 – The principal residence held by tenants by the entireties (i.e., ownership between spouses) cannot be used to pay for one spouse’s debt incurred for emergency medical care unless the property is refinanced or transferred to new owners.

Section 23-38.81 – ABLE savings accounts are excluded as countable resources for means-tested public benefits. (Effective October 1, 2016.)

#elderlaw #guardianship #Virginialaw #incapacityplanning #specialneeds @bgnthebgn

Digital Assets Under Virginia Law

July 14, 2016

In an earlier post, there was a discussion about Maryland’s Fiduciary Access to Digital Assets Act. But what has Virginia done with respect to digital assets? Virginia has not adopted the Uniform Fiduciary Access to Digital Assets Act (“UFADAA”) or any version of it. Instead, in 2015 Virginia adopted a version of the Privacy Expectation Afterlife and Choices Act (“PEAC”). Under this statute, a personal representative or executor may petition a court for access to certain information within a deceased individual’s digital records for the 18 month period prior to death. However, the petition will not permit the personal representative to gain access to the content within the digital records unless it can be shown that the deceased individual consented, in some fashion, to have that information released. If the deceased individual did not consent or deleted the information, the information will not be released. Furthermore, the holders of the digital content have the ability to show an undue burden if they release the information, and therefore, can argue against disclosure. The overall impact of Virginia’s statute is still being tested, and therefore, whether it is now simpler for a personal representative to gain access to digital assets is questionable. Furthermore, the statute does not appear to apply to trustees, guardians or agents under a power of attorney or address access to such digital assets during any period of incapacity.

So, what can you do to protect your digital assets but also ensure that your fiduciaries have authority to act on your behalf with respect to your digital assets? You can make sure your last will and testament, revocable living trust and/or general durable power of attorney are updated to include authority and power regarding digital assets. Moreover, you need to organize your digital assets by making sure the location of hard files and back-up files (i.e., in the cloud, on a USB drive, etc.) are known to your fiduciaries. Your fiduciaries will need to be able to provide user names, passwords, answers to security questions and any other authentication methods associated with the accounts.

Finally, your fiduciaries also need to know what digital assets are out there, so be sure to list the following information: e-mail accounts, domain names, online storage accounts (e.g., Dropbox), financial software, bank accounts, securities or brokerage accounts, types of devices, taxes, retirement accounts, credit cards, insurance (e.g., health, homeowners’, car, disability, etc.), debts (e.g. mortgage or car loans), utilities, social media, digital media (e.g., Netflix, Kindle, iTunes), membership or loyalty programs (e.g., frequent flyer accounts) as well as any other account that requires an online presence (e.g., Skype, Amazon or professional affiliations).

When you really think about it, your digital footprint might be quite extensive and your fiduciaries need the information to be better able to provide for your care and handle your estate. #estateplanning #incapacityplanning #estateadministration #digitalassets @bgnthebgn