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

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.

Back to School – Three Documents Every College Student Should Have

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

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

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

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

Earlier articles have talked about how you can control your final moments and also how you want to be rememberedThis 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

Five New Year’s Resolutions for Your Estate Plan

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.

  1. Is it time to update your plan?  If a plan is in place, when was the last time you reviewed it? Is it simply a binder of documents you received several year ago when you finished the estate planning process and you haven’t looked at since?  Have circumstances changed that are not captured in the documents?  Who are the fiduciaries (i.e., executor, trustee, healthcare power of attorney, financial power of attorney, guardian, etc.) listed?  Are the fiduciaries still capable of serving?  Does the plan do what you want it to do?  There have been a lot of changes to estate tax laws in recent years, is your plan from before 2013?  In some cases, does ‘updating’ your plan, actually mean finishing the process?  Or does it mean starting the process so that your theoretical plan is memorialized? 
  2.  Are there beneficiary designations?  When was the last time you checked beneficiary designations on life insurance, retirement accounts (i.e., 401(k), IRAs, 403(b), 457, etc.) and annuities?  What about any payable on death (POD) or transfer on death (TOD) designations you have on bank accounts or brokerage accounts…do those designations reflect your wishes?  For government employees, are beneficiary designations up-to-date on your Federal, state or local benefits? 
  3. Families come in all shapes and sizes -Family Fiduciaries.  Are you named as a fiduciary in any family member’s or friend’s plan?  Have you touched base with that person recently to see how they are doing both health-wise and financially?  Do you understand what your role is as the fiduciary?  Do you know the family member’s or friend’s goals and objectives?  Are you able to still serve, that is, are you distracted by a health event or financial crisis and perhaps you should not take the role?  Have you considered options for a care manager if you are caring for an elderly family member or friend? How about looking at assisted living or skilled nursing or home health aides, if the circumstances warrant such considerations? 
  4. Are you charitably inclined?  Do you have a charitable giving plan for this year? For future years? For at your death?  Have you researched your options including direct giving, donor advised funds, private foundations and/or charitable trusts?  Is there a planned gift that you would like to consider?  Is now the time to investigate annual giving? 
  5. Succession planning occurs at many levels.  Who will be in charge of any business whether it is a limited liability company, partnership or corporation?  Are shareholders’ agreements and operating agreements up-to-date?  And beyond a business interest, who will be in charge of your pets?  Are there monies set aside for their care?  What about digital assets?  Have you ensured a smooth transition of online accounts to a successor?  What about your tangible personal property?  Is there an inventory? Appraisals? Designated recipients?

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

Notice of Observation Status – Update on Implementation

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.

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

law-booksAn 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

flowers-3The 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

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