General Information | Begin the Begin

Use of Pre-Dispute Arbitration Agreements Restricted in Nursing Home Admissions Agreements

October 13, 2016

man-in-coffee-house The Centers for Medicare and Medicaid Services (“CMS”) recently issued a final rule banning the use of binding pre-dispute arbitration agreements by nursing homes that accept Medicare and Medicaid patients. Such arbitration clauses are typically found in the admissions agreements between a new resident (or their family) and the nursing home, but are very often overlooked. The result of this new rule is that families who have an issue with a nursing home regarding care, abuse, and the like, can now sue in court to have their case heard versus having to go through a binding arbitration process.

The original proposed rule only required nursing homes to explain the arbitration agreement to new residents and obtain an acknowledgement that they understood. The final rule is the result of many comments on the proposed rule that favored an outright ban on such arbitration agreements. The nursing home industry has stated that the arbitration agreements have kept costs down and the new rule will undoubtedly increase costs and force closures of some facilities. Moreover, there is an argument that CMS has overstepped its authority in issuing such a rule and we may see the nursing home industry fight the implementation of the rule currently scheduled to take effect on November 28th. The new rule will only apply to future admissions agreements and not to existing contracts, but stay tuned to see whether a battle erupts between the nursing home industry and CMS. #elderlaw #elderabuse #nursinghome #arbitrationbanned @bgnthebgn

October is National Special Needs Law Month

October 6, 2016

children-hug The National Academy of Elder Law Attorneys (“NAELA”) has designated October to be National Special Needs Law Month in an effort to educate individuals with disabilities, families and caregivers about what is encompassed in the realm of special needs. For example, topics such as guardianship, conservatorship, powers of attorney, Medicare, Medicaid and special education will be addressed by professional advisors throughout the country. Local resources such as Commonwealth Community Trust and The Arc of Northern Virginia and more national resources such as Special Needs Alliance may hold special awareness events and have resources available for review. Designating a month is an opportunity for individuals with disabilities, families and caregivers to develop their knowledge of available options and emphasizes the importance of speaking with the appropriate professional advisors. Below is a selection of earlier articles discussing a few topics involving special needs planning. #specialneeds #specialneedsplanning #estateplanning @bgnthebgn

The Able Act – An Additional Resource for Families and Advisors

The Able Act – Proposed Legislation Will Modify Certain Provisions

How Divorce Can Impact Your Estate Plan – Special Needs

Changes to Virginia Laws Impacting Seniors and the Disabled

Changes to Maryland Laws Impacting Seniors and the Disabled

Special Needs Trust Fairness Act

Special Needs Trust Fairness and Medicaid Improvement Act Passes House

September 29, 2016

On September 20, 2016, the Special Needs Trust Fairness and Medicaid Improvement Act (H.R. 670) (the “Act”) passed the House of Representatives. This bill corrects an omission in Section 1917(d)(4)(A) of the Social Security Act created in 1993 when first-party or self-settled special needs trusts were first recognized by Congress. Under 42 U.S.C. 1396p(d)(4)(A), an individual under age 65 who is disabled, may have assets, which are deemed to be theirs (such as assets received from an inheritance or as a result of a personal injury settlement), set aside for their benefit in a trust that is created by a parent, grandparent, legal guardian or the court. Noticeably absent from that list was the disabled individual being permitted to set up the trust themselves. Over time what has been realized is that a disabled individual does not always lack capacity to create a trust, so the Act amends 42 U.S.C. 1396(d)(4)(A) by inserting the words “the individual” into the list of people who can establish this type of trust.

Last year, the Senate passed the Special Needs Trust Fairness Act of 2015 (S. 349), which made the same change. Unfortunately, since these new provisions were part of separate pieces of legislation, the provisions cannot yet be signed into law. Various supporters of the new provisions are now working with the Senate to ensure the provisions ultimately do become law. But what is promising for many is that the provisions of the Act, once signed into law, will do away with the need for court involvement every time a disabled adult wants to create a special needs trust and will instead allow the disabled adult to have some control in his or her public benefits planning. #specialneedstrusts #selfsettledtrusts #estateplanning @bgnthebgn

Proposed Legislation Addresses Thorsen Case

September 22, 2016

books An earlier article talked about the Virginia Supreme Court case of Thorsen, et al. vs. Richmond Society for the Prevention of Cruelty to Animals (RSPCA) that was decided in June of this year. Thorsen involved an error in the drafting of a Last Will and Testament that resulted in the intended beneficiaries receiving a fraction of what they would have otherwise received. Those intended beneficiaries sued for legal malpractice. The Virginia Supreme Court found that a third-party beneficiary who is ‘clearly and definitely’ the intended beneficiary of a contract (even one where no written agreement exists) may sue to enforce its rights derived from the contract even though the third-party beneficiary may not know it is a beneficiary for many years (as is the case in most estate planning documents). The impact of Thorsen on individual clients and estate planning attorneys was wide spread, although clients may not have directly been aware that they were being impacted.

Now, as was suggested would be the case, proposed legislation will be presented to the Virginia General Assembly in the 2017 Session that will look to address the concerns raised as of a result of the Thorsen case. In particular, a proposed amendment to Section 64.2-520 of the Virginia Code would clarify that an action for damages based on legal malpractice involving an estate plan “shall accrue upon completion of the representation in which the malpractice occurred.” Furthermore, only the individual client, his or her legal representative (in the case of incapacity) or the personal representative or trustee (in the case of death) can bring the action. The action for damages must be brought “within five years after the cause of action accrues”. The proposed legislation, if passed, would not take effect until July 1, 2017.

Furthermore, a new statute (Section 64.2-404.1) is being proposed that would allow for the court to reform a Last Will and Testament to reflect the individual client’s intentions, provided clear and convincing evidence of intent are presented and the terms were impacted by a mistake of fact or law. This new statute would also permit reformation of a Last Will and Testament to achieve an individual client’s tax objectives. The reformation action must be filed within one year of date of death and notice must be provided to all interested parties. The proposed legislation, if passed, would take effect on July 1, 2017.

Ultimately, the proposed legislation is meant to apply similar rules to wills that are currently applied to trusts under the Uniform Trust Code. The expectation is that by passing these statutes, the overall chilling impact the Thorsen case had on the estate planning process is overcome, and attorneys and clients can return to having an attorney-client relationship without having to watch out for disgruntled beneficiaries. The estate planning process can be difficult enough for individuals to begin without having both the attorney and the client leery of unintended consequences. However, at this juncture, only time will tell whether the General Assembly passes the legislation. #estateplanning #estateadministration #Thorsen @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

National Grandparents Day

September 8, 2016

generations-hands Since 1978 the United States has celebrated grandparents on National Grandparents Day. The day falls on the first Sunday after Labor Day. This year, National Grandparents Day will be celebrated on September 11th, a day when many will pause to reflect on the terrible and tragic events that occurred 15 years ago in New York, Pennsylvania and outside Washington, D.C. A day when grandparents may have been taken from their families or when grandparents became the solid foundation for those who lost parents. Thus, this year in particular National Grandparents Day allows us to remember the impact grandparents may have had in our lives, but also reminds us the time marches on, and that the memories and stories that our elders have will be lost unless captured by the next generation. Those memories and stories may help plan or shape our journey. So in recognizing grandparents on National Grandparents Day, it is a chance to bring the generations together to build a legacy. What is it that you want your legacy to include? #GrandparentsDay #Buildalegacy #estateplanning #September11th #NeverForget @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