Tag: Elder Law

Learn More About the Virginia Academy of Elder Law Attorneys (VAELA)

August 3, 2018

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.

What are the biggest challenges to protecting the legal interests of older Virginians and those with special needs, and how can VAELA help to drive change?

CSM: Each year members of VAELA tackle changes to the rules and regulations relating to guardianship, financial exploitation, Medicaid, estate planning, and estate and trust administration.  Given that VAELA members are very often the first responders to incidents involving these issues, these same members are among the most knowledgeable in providing advice and guidance to navigate those changes.  Furthermore, members of VAELA can provide invaluable input into proposed legislation that may impact an individual’s life.

What are your key priorities this year as you take the helm of VAELA?

CSM: One of the key priorities this year is for VAELA to help cultivate the next generation of elder law attorneys through its mentorship program and annual conferences such as its Fall Conference and annual UnProgram.  Through these programs, VAELA can ensure that the elderly and people with disabilities receive the specialized service and advice they need by educating this next generation.

How can elder law attorneys learn more and get involved with VAELA?

CSM: Anyone interested in learning more about VAELA should visit our website: www.vaela.org.

A New Year Means New Exemption Levels

January 14, 2018

Welcome to the New Year!  As with any new year, there are usually changes to a variety of important numbers for estate planning and elder law purposes.  This year the applicable exclusion amount from Federal estate tax is set at $11.18 million per person thanks to tax reform.  The lifetime exclusion from gift tax is also $11.18 million per person and the exemption from generation skipping transfer tax is $11.18 million.  The annual exclusion from gift tax will be at least $14,000.

For local jurisdictions that have estate tax, the District of Columbia increased its estate tax exemption from $1,000,000 to $2,000,000 last year and this year has increased the threshold further to match the Federal exemption.  Maryland’s exemption from estate tax has increased to $4,000,000.  Virginia continues to have no state level estate or inheritance tax.

In the elder law field, the Medicaid spousal impoverishment numbers were released increasing the minimum community spouse resource allowance (CSRA) to $24,720 and the maximum CSRA to $123,600.  The maximum monthly maintenance needs allowance is now $3,090.00 while the minimum remains at $2,030.00.  The minimum home equity limit is now $572,000 and the maximum is $858,000, but be aware that local jurisdictions may apply these limits differently.

If you have questions regarding the new limits and how they may impact your estate planning, your should consult your professional advisor.  #estateplanning #taxplanning #elderlaw #taxreform #HappyNewYear @bgnthebgn

Tax Update – 2018 Estate and Gift Tax Exemptions and More…

October 27, 2017

The IRS recently announced the estate and gift exemption levels for 2018 and they continue to increase as per legislation passed in January 2013.  The applicable exclusion amount from Federal estate tax will increase to $5.6 million per person allowing a married couple to shelter $11.2 million from Federal estate tax, the rate for which is currently set at 40%.  The lifetime exemption from gift tax remains coupled with the exemption from Federal estate tax, and therefore, this exemption will also increase to $5.6 million per person.  The annual gift exclusion amount will also increase for the first time since 2013 and will be $15,000 per person.  Virginia continues to not impose a state level estate tax.  Maryland’s exemption from estate tax will increase to $4 million while the District of Columbia’s now $2 million exemption will rise to meet the Federal exemption beginning in 2018 so long as there is a revenue surplus. 

Additionally, in the last article, the fate of the proposed valuation discounting regulations was still up in the air.  However, Treasury issued a second report to the President in which those regulations were withdrawn.  Therefore, the availability of valuation discounting on certain transfers of interests held in closely held or family owned businesses remains available and is currently no longer under threat.

For seniors and those with disabilities, a cost-of-living adjustment (COLA) for Social Security and Social Security Income (“SSI”) will increase monthly benefits by 2.0%.  In addition, the cap on the amount of earnings subject to payroll tax will increase to $128,700.  Finally, the tax brackets, standard deductions, Pease and PEP limitations, kiddie tax and other credit and deduction levels for 2018 were announced. Many are watching the tax reform debate to see if any of these numbers will change, so stay tuned… #taxreform #estateplanning #estatetax #taxplanning #taxtime #COLA2018 @bgnthebgn

Revision to Proposed Rule Banning Arbitration Clauses in Nursing Home Admissions Agreements

June 18, 2017

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

Aging in Three Simple Questions

May 6, 2017

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

National Healthcare Decisions Day – Week Long Event for 2017

April 13, 2017

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

New Virginia Legislation Addresses Thorsen Case

March 14, 2017

The Virginia General Assembly has passed SB 1140 and HB 1617 both of which address the issues raised in Thorsen v. Richmond Society for the Prevention of Cruelty to Animals (786 S.E.2d 453 (Va. 2016).  As may be recalled, the Thorsen case involved an error in the drafting of a Last Will and Testament that resulted in the intended beneficiaries receiving a smaller amount than was originally expected.  In connection with a lawsuit for legal malpractice, the Virginia Supreme Court found that a third-party beneficiary may sue to enforce its rights even though those parties are not known for many years, which is very often the case in estate planning matters. 

Now under the aforementioned legislation, the statute of limitations for legal malpractice relating to estate planning is five years if the representation was based on a written contract and three years if the representation was based on an unwritten contract.  The statute of limitations begins to run on the date representation is complete.  Furthermore, a third-party has standing to sue “only if there is a written agreement between the individual who is the subject of the estate and the defendant that expressly grants standing…”  This legislation is effective July 1, 2017.  Fortunately once in force, the potential chilling impact the Thorsen case had on the estate planning process will hopefully be overcome, and attorneys and clients will be able return to having an attorney-client relationship without having to watch out for disgruntled beneficiaries who may appear decades later.  #estateplanning #estateadministration #Thorsen @bgnthebgn

A New Year Means New Exemptions from Estate Tax

January 5, 2017

Welcome to the New Year!  As with any new year, there are usually changes to a variety of important numbers for estate planning and elder law purposes.  This year the applicable exclusion amount from Federal estate tax is set at $5.49 million per person.  The lifetime exclusion from gift tax is also $5.49 million per person and the exemption from generation skipping transfer tax is $5.49 million.  The annual exclusion from gift tax remains at $14,000.  The annual exclusion for gifts to non-U.S. citizen spouses increased to $149,000.

For local jurisdictions that have estate tax, the District of Columbia increased its estate tax exemption from $1,000,000 to $2,000,000.  Maryland’s exemption from estate tax has increased to $3,000,000.  Virginia continues to have no state level estate or inheritance tax.

In the elder law field, the Medicaid spousal impoverishment numbers were released increasing the minimum community spouse resource allowance (CSRA) to $24,180 and the maximum CSRA to $120,900.  The maximum monthly maintenance needs allowance is now $3,022.50 while the minimum remains at $2,002.50.  The minimum home equity limit is now $560,000 and the maximum is $840,000, but be aware that local jurisdictions may apply these limits differently. 

If you have questions regarding the new limits and how they may impact your estate planning, your should consult your professional advisor.  #estateplanning #taxplanning #elderlaw @bgnthebgn

Notice of Observation Status – Update on Implementation

December 8, 2016

money-2In 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.

Special Needs Trust Fairness Act – Update

December 1, 2016

open-bookAn update for those interacting with seniors and disabled individuals as it relates to the creation of special needs trusts.  In September, the House of Representatives passed the Special Needs Trust Fairness and Medicaid Improvement Act (the “SNT Fairness Act“), which the Senate had passed last year.  The SNT Fairness Act fixes an omission in Section 1917(d)(4)(A) of the Social Security Act where the disabled individual was not listed as someone who could create a first-party or self-settled special needs trust.  Under the SNT Fairness Act, the disabled individual will have the authority to create such a special needs trust thereby eliminating the need, in certain circumstances, for court intervention.  Unfortunately, the earlier House and Senate bills had some differing provisions and the bills could not be signed into law.  Recently the House passed a major health care package known as the 21st Century Cures Act that includes the SNT Fairness Act (buried at Sec. 5007 of the close to 1000 page bill).  The SNT Fairness Act will apply to trusts created on or after enactment.  Provided the Senate passes this health care package, it is expected that the SNT Fairness Act will be signed into law giving disabled individuals more control in managing their assets and benefits.   #SNTFairnessAct #SpecialNeeds #estateplanning

FLASH UPDATE: Senate has passed H.R. 34 in which the SNT Fairness Act was included. The President signed the bill on December 13th.