The ABLE Act and Nursing Home Arbitration Provisions – Update

A photo by Jonathan Simcoe. earlier article discussed the ABLE Act that was signed into law in 2014, which permits disabled individuals to create savings accounts and set aside monies for their needs without disqualifying them from public benefits.  Three different pieces of legislation were then proposed in the House to modify some of the provisions of the ABLE Act.  Corresponding legislation was introduced in the Senate and referred to the U.S. Senate Committee on Finance.  The Senate Finance Committee has approved two of the bills, but the third bill, which would raise the age of eligibility to 46 from 26, was not discussed.  Many groups are upset that the ABLE Age Adjustment Act was omitted and may oppose all of the bills in an effort to have the age limitation bill revisited.  The bills still need to wind their way through the procedural process, but certainly there are various negotiations occurring behind the scenes and hopefully resolution is on the horizon.  In the meantime, implementation of the ABLE Act is in full force around the country.  #specialneeds #ABLEact #estateplanning @bgnthebgn

In addition, as was predicted, a battle has erupted between the nursing home industry and the Centers for Medicare and Medicaid Services (“CMS”) over the final rule issued by CMS that bans the use of binding pre-dispute arbitration agreements by nursing homes that accept Medicare and Medicaid patients.  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.  They are seeking declaratory and injunctive relief to prevent the rule from going into effect on November 28th.  Many will follow this case closely as the final rule, as issued, will have quite the impact on the nursing home industry, the patients and their families if it takes effect.  Thus, stay tuned for further updates as the lawsuit moves forward.   #elderlaw #elderabuse #nursinghome #arbitrationbanned @bgnthebgn

October is National Special Needs Law Month

children-hugThe 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

Changes to Maryland Laws Impacting Estate Planning and Elder Law

courthouseOn 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

The ABLE Act – Proposed Legislation Will Modify Certain Provisions

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.

  1.  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.
  2. H.R. 4794 would allow for rollovers between 529 accounts and ABLE accounts.
  3. 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

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