Category Archives: Elder Law Blogs & News
Our lives and technology are changing faster than ever and our estate plans need to keep up with these changes. This series will look at things that may not have been addressed or asked about in the estate planning process 5-10 years ago, but are important to many families today.
In the first part of the series, we looked at firearms. Firearms are valuable personal property that can be very important to some people. We explored how firearms cannot be left to others in the same way that you would leave other property, as they are subject to strict government and state regulations and transfer rules. Click here to read Part 1.
There are trusts and other strategies available for things like firearms, digital assets, planning for pets, and life planning, but what are the advantages and disadvantages of including them as part of your estate plan? Part 2 of this series will look at digital assets and how you can include them in your estate planning.
Part 2: Estate Planning for Digital Assets
So much of our lives are spent online — banking, shopping, social networking — that a new category of personal property, known as “digital assets” has emerged.
Digital assets include any work, passwords, documents, or possessions stored on a computer and the Internet. They can include photos, videos, emails and playlists, or even medical records and tax documents. As more financial institutions encourage account owners to sign up for paperless statements, the list continues to grow.
Why is planning for digital assets so important? Digital accounts and assets are a significant part of the financial lives of many people, and they would have an incomplete estate plan if those assets and accounts were not considered as part of the planning process. In addition, if you don’t carefully consider all accounts and communicate details to permit access to your executor, it can create tremendous headaches for those responsible for dealing with your assets after death.
These are some other reasons why you should plan for digital assets:
- Many people have extensive arrangements to pay regular bills online or they may have assets online tied to PayPal, e-Bay or Amazon.com. If no one knows about this, bills are likely to go unpaid.
- People running their own business are likely to store important information on computers. A domain name or a blog also could be valuable, yet it may only be possible to access it via password or email. If that password is unavailable when someone dies, what happens to all those things?
- Some members of airline frequent-flier programs might even accumulate a staggering amount of points or miles and die without having spent them. As long as a beneficiary knows the online log-in information of the deceased member, it may be possible for the remaining benefits to be transferred or redeemed. It would be a shame to forgo the points a loved one has taken many pricey trips to earn.
A recent study showed people in the U.S. value their digital assets at nearly $55,000 (Source: McAfee). And some of those digital assets are almost certain to be lost if the owners do not take time to list them in their estate planning documents.
What makes planning for digital assets so challenging? These days, even when there are clear instructions in estate planning documents, many social media websites have contracts that protect the privacy of users. This may change, as the House of Delegates in Virginia passed a bill earlier this year that would provide the personal representative of the estate with access to a testator’s personal electronic accounts . Other states, including Maryland and North Dakota have followed suit and have introduced similar legislation. In addition, popular sites and services like Facebook, Gmail, LinkedIn and Twitter have deceased-user policies to provide the family or executor with information needed to access accounts. Read our recent article about protecting your online belongings.
What happens to digital assets if someone dies without a trust or at least a Will clearly disposing of these assets? State law decides what happens, which may or may not be what you want. But digital assets such as email, Twitter and Facebook accounts are so new that most courts have not developed rules for how to distribute them when there are no instructions in the will. In these cases, who knows what will happen to your valuable digital assets?
To protect digital assets, we recommend specifying them in your estate planning documents and specifically giving control over these digital assets to your executor or trustee, who could then take over upon your death. An easier way is to store all of your digital user names and passwords in a secure password safe, such as keepass or lastpass and give your executor/trustee the password and location of the password safe or the means to locate your master password, such as by writing down your master password and putting it in an envelope in your safe deposit box.
Take time today to start planning for your digital assets AND your traditional assets. Now it is a good time to start or possibly update your estate planning. Call us today at 703-691-1888 to set up an appointment for a no-cost consultation.
Q. I am considering whether to prepay for my funeral to save my family the expense and burden during what will be a tough time, but had a few concerns about it first. I am interested in learning more about prepaid funeral contracts and whether Medicaid pays for funerals, at all. If not, is it possible to set aside money for this in a funeral trust and be exempt?
Based on question that was asked on Avvo by a resident of Clarksville, VA
- A. Medicaid itself does not pay for funerals, but it does have rules that allow you to set aside money for your own funeral, burial, or cremation without having that money “count” as part of your assets when Medicaid determines your eligibility for long-term care coverage. Medicaid Regulations permit the ownership of prepaid funeral arrangements if funded totally by an irrevocably-assigned life insurance policy and/or by an irrevocable trust that is properly established by a funeral home. The amount of money you spend on properly-established prepaid funeral arrangements will be an exempt asset in connection with Medicaid. Medicaid regulations permit the Medicaid applicant to purchase prepaid funeral plans not only for the Medicaid applicant but also for his spouse (and his or her children, if desired), but again it is critical that these pre-paid arrangements are set up properly using either an irrevocable life insurance policy, a special type of irrevocable trust, or both.
Q: My second question is whether Medicaid imposes a limit on how much you can spend for prepaid funeral arrangements.
- No. There is no limit on the amount of money that can be spent on properly-established Medicaid-exempt prepaid funeral arrangements, but in reality, prepaid burial arrangements typically cost between $8,000 and $12,000 per person. Prepaid cremation arrangements typically cost between $3,000 and $5,000 per person. When the proper funding vehicles are used to prepay a funeral, the value of the prearranged funeral contract and the funding vehicle are excluded as a countable resource in determining SSI & Medicaid eligibility.
Most funeral homes will tell you that they have an appropriate funding system in place, but in actuality many funeral homes do not use appropriate funding system, which you only find out when you apply for Medicaid and are denied. The Fairfax Medicaid Law Firm of Evan H. Farr, P.C. has certain funeral homes that we work with that do use an appropriate funding system, and we therefore refer our clients to these funeral homes. However, even if you use a funeral home that uses an appropriate funding system, the funeral director must still fill out the forms properly, and there is significant opportunity for error in completing the forms. Accordingly, for our clients, we ensure that our office reviews the completed forms before our client signs them.
Prepaying for a funeral has many benefits, including locking in prices, relieving the burden of family members during a time of emotional stress, and ensuring that your personal desires are carried out according to your wishes. Additionally, purchasing prepaid funeral arrangements is just one of dozens of different Medicaid Asset Protection strategies that someone applying for Medicaid can use to legally and ethically protect assets from having to be spent down in connection with nursing home care. With proper planning, families can protect most or all of their assets and obtain Medicaid assistance without having to deplete their life savings. Always contact an experienced Elder Law Attorney, such as Certified Elder Law Attorney Evan H. Farr, before you make any prepaid funeral arrangements or take any other steps towards filing for Medicaid. Medicaid is the most complex area of law in existence, and one mistake can have tragic consequences for you or your loved one. Our firm serves clients throughout Virginia, Maryland, and DC, and would be happy to assist you.
Click here to view a short video and read more about Medicaid Asset Protection. Call 703-691-1888 to make an appointment for a free consultation with Evan H. Farr, CELA to talk more about your specific situation.
Our lives and technology are changing faster than ever and our estate plans need to keep up with these changes. This series will look at things that may not have been addressed or asked about in the estate planning process 5-10 years ago, but are important to many families today.
These things include firearms, digital assets, planning for pets, and life planning. There are trusts and other strategies available for these things, but what are the advantages and disadvantages of including them as part of your estate plan?
Certain items, such as firearms, cannot simply be left to others in the same way that you would leave other property. They are subject to strict regulations that you may not have accounted for in your Will or Trust. Part I will focus on “Estate Planning for Firearms Owners”, and whether or not firearms owners should include their guns as part of their estate plans and how to do so.
Part 1: Estate Planning for Firearms Owners
Passing firearms in an estate is much different from passing on other personal property. The National Firearms Act (NFA) very strictly regulates the possession and transfer of firearms. In addition, states and even local jurisdictions have an array of firearms transfer rules that must be followed.
Under the NFA, there are some commonly-known restrictions. For example, people convicted of felonies, domestic violence, or drug trafficking and those who are mentally ill are not allowed to own firearms. Less commonly known is that dishonorably discharged veterans and persons who have renounced their U.S. citizenship are also not allowed to own firearms. If an executor follows instructions in a Will that directs the distribution of firearms to people in the categories above, the executor is violating the NFA and may be subject to criminal and civil penalties. Even more nerve-wracking is that merely having a firearms appraised can cause its seizure. Because of this, bequeathing firearms in a Will is not a prudent way to plan.
A better choice for transferring firearms is to use a Revocable Living Trust (RLT) designed specifically for the transfer, ownership, and possession of guns. Many estate planning attorneys call these “NFA” trusts or “Gun Trusts.” Using a “Gun Trust” can avoid or minimize many of the challenges of passing on firearms. It is essential that you meet with an Attorney experienced in these matters, such as Evan H. Farr, CELA, to set up a “Gun Trust” or any of the trusts described in this series.
The following are things to keep in mind when it comes to setting up a “Gun Trust”:
• It’s very important to put thought into the name of the trust, as it should not be changed once the firearms are transferred into the trust. If the name is changed, then the firearms have to be registered again in the name of the new trust, and can cause another transfer tax.
• Once the trust owns the firearms, any of the beneficiaries of the trust are allowed to use the firearm, including minors. The Trustee is given the responsibility for insuring that the person using firearms has the capacity to use it.
• There are serious penalties for individuals possessing NFA Firearms without proper authorization and approval from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). If an individual is the registered owner of the gun, then that individual is the only person permitted to use or possess the weapon. It is a common misunderstanding that it is permissible to let others use or possess a gun as long as the owner is present. Such use or possession is an unapproved transfer in violation of the law. Unfortunately, the flexibility inherent in most standard revocable trusts could result in such a violation.
Firearms trusts are different than regular Revocable Living Trusts, as the revocation of the trust has to be approved by ATF, which must also approve the distribution of the firearms to beneficiaries. The fact that the trust is revocable means that the creator of the trust could revoke the trust, which would automatically result in unauthorized possession of a weapon registered to the trust. Or maybe the creator signed a Financial Power of Attorney (which usually accompanies a revocable trust in most estate plans) giving an agent broad powers, including the ability to revoke the revocable trust, also resulting in unauthorized possession.
There are many other potentially serious unintended consequences to transferring firearms to a revocable trust, including the additional liability the successor trustee takes on when attempting to follow the required legal procedures for seeking ATF approval for distributing the gun to the trust beneficiaries. Again, it is important to obtain competent legal representation in order to avoid these unforeseen hazards.
Firearms are unique assets that require an estate plan to be uniquely tailored to deal with them. If you already have an estate plan and long-term care plan, call the Fairfax Elder Law Firm of Evan H. Farr to review and update your plan accordingly. Ask about The Farr Law Firm’s Lifetime Protection Program, which ensures that your documents are properly reviewed and updated as needed, so that they will have maximum effect at law. If you don’t have an estate plan or long-term care plan, now is the time to get started. Call us today at 703-691-1888 to set up an appointment for a no-cost consultation.
Bill, Glenda, and Theresa are siblings. Glenda runs the family business and is married to a doctor. They have chosen not to have children. Bill is a teacher and his wife Sheila is a stay-at-home mom and they have two children. Theresa is the youngest of the three and is a caregiver for their father, Don, who has Parkinson’s and helps their mother, Elise, who has physical disabilities.
Most parents want to treat their children fairly in their estate planning, and many assume that means having their children inherit equally. But there may be special circumstances to consider before the family pie is divided into equal parts.
To demonstrate how fair doesn’t always mean equal, take our example above. Don and Elise may want to leave more to Bill who struggles to support his family on a modest teacher’s salary than to Glenda who married well and has chosen not to have children. Or, they may want to compensate Theresa who has given up part of her own life to care for them. Lastly, since Glenda runs the family business, they may want to leave the business to her and compensate the others with other assets and/or life insurance.
If you have children, when considering how to distribute your estate, not only do you need to decide what share each child should receive, but also when each child will receive full use of his or her share of your estate. Good estate planning means that the inheritance you leave to each child will stay in an asset protection trust for that child for the rest of his or her lifetime. If the child is fiscally responsible, the child can act as his or her own trustee and can make distributions to himself based on guidelines you provide, but assets that stay in the trust are protected from disability, creditors (such as bankruptcy and divorce), predators (those with undue influence on your child), and even long-term care expenses down the road. If the child is not yet fiscally responsible, then someone else would typically act as trustee until the child reached a suitable age of maturity.
If you are quite wealthy, you may want to leave your children enough that they can do anything they want, but not so much that they will do nothing at all. You don’t have to leave everything to your children. If you have sizeable assets, you can set up trusts for your grandchildren and future generations. You can also make contributions to charitable, educational and religious organizations.
While more than 50% of Americans feel it is important to leave an inheritance to their children and other beneficiaries, the majority (more than 120 million Americans) have not yet made any plans for their estate. Overlooking estate planning results in many wasted dollars and hours of frustration and emotional hardship each year that can be minimized with advanced planning and action.
If you do not have a properly-drafted trust-based estate plan when you die, the law will step in and force your estate through the nightmare of probate, a complex, time-consuming, expensive and emotionally draining process that most people would not wish on a beloved family member. A trust-based estate plan should be an essential part of your lifetime planning. For peace of mind, the time to address or update your estate plan is now. Call the Fairfax Elder Law Firm of Evan H. Farr, P.C. today at 703-691-1888 to set up a no-cost consultation.
Q: My parents are in an independent living home in Virginia. I recently read a story about a nurse who refused to give CPR to a dying woman at a California independent living home. Was she legally right to refuse giving CPR and could this happen in Virginia?
A: The unfortunate story that occurred at Glenwood Gardens in California is disturbing on many levels and raises important legal and ethical questions for debate and review.
Starting with the issue of the facility type first, Glenwood Gardens and the place where your parents are staying are Independent Living facilities. Independent living facilities may consist of fully contained apartments or even stand-alone residences and are sometimes called retirement communities. Some facilities have communal dining rooms and provide housekeeping and laundry services, and while many have emergency call buttons in the apartments, typically there are no nurses or medical professionals on staff. The residents are presumed to be able to fully care for themselves.
In Virginia, Independent Living facilities are not licensed and not subject to any of the licensing regulations that apply to assisted living facilities. The facilities are therefore free to create their own policies regarding handling of emergencies.
In the Glenwood Gardens situation, there is conflicting information regarding whether the facility employee is a licensed nurse or not. If she is a licensed nurse her duties and obligations may be different than if she is not. In addition, her obligations may also depend on whether her position with the company was specifically as a nurse who was expected to render medical care to residents. Since this is an Independent Living facility it is unlikely that the course and scope of her position, even if she was a nurse, would include rendering emergency medical assistance.
Virginia, like many states, does have “Good Samaritan” laws (Code of Virginia – Section 8.01-225) to protect those who render emergency medical or nonmedical care at the scene of an emergency from civil liability resulting from any act or omission. However, these laws do not compel medical personnel to act in such situations, but simply provide encouragement to act.
This sad incident brings to light many ethical and legal issues. Choosing the best senior living situation can be tricky. Understanding the different types of facilities, their licensing, and the services provided is paramount to meeting the resident’s and family’s expectations. When choosing a facility it is important to understand the facility’s policies on emergency management. Also, before you decide on the best living situation for yourself or a loved one, make sure your Advance Medical Directives are complete and available when needed. This will ensure, in most cases, that your loved ones desires are communicated to physicians and loved ones, and that they take your preferred course of action regarding all forms of medical treatment.
An Advance Medical Directive (also called a Medical Power of Attorney or a Health Care Power of Attorney) authorizes another person (called your “Medical Agent”), to make decisions with respect to your medical care in the event that you are physically or mentally unable to do so. This document includes provisions that used allow you to indicate your wishes concerning the use of artificial or extraordinary measures to prolong your life artificially in the event of a terminal illness or injury. You will also use this document to indicate your wishes with regard to organ donation, disposition of bodily remains, and funeral arrangements. Your Advance Medical Directive should also set forth your preferences with regard to organ donation, funeral arrangements, and disposition of remains. Our proprietary Four Needs Advance Medical Directive(TM) contains all of these elements plus our proprietary Long-Term Care Directive, which addresses a host of issues that might arise if you wind up needing Long-Term Care.
In order to be easily accessible when needed, your Advance Medical Directive should be registered with an electronic archive service that can immediately fax the document to any desired destination. This firm will provide such registration service to you at no charge unless you would prefer that the document not be registered. Don’t have a Advance Medical Directive or planning in place? Call The Fairfax Elder Law Firm of Evan H. Farr, P.C. at 703-691-1888 to make an appointment for a no-cost consultation.
There are treatments available now that most families coping with Alzheimer’s or other dementia never hear about that can significantly improve their quality of life.
Called non-pharmacologic therapies (NPTs), these treatments do not come in a pill. Instead, NPTs such as personal counseling and occupational therapy-based strategies are proven to improve the quality of life for people with dementia and their families. NPTs support families and teach them the skills they need to protect their own health and cope with the intense demands of caregiving and help people with dementia stay independent and safe for as long as possible. Some of the NPTs currently used are proven programs that are actually more effective than any known drugs for Alzheimer’s disease.
One example of an NPT, developed at NYU, includes individual and family counseling to reduce conflict and improve communication among family members. Those caring for a spouse with dementia who received the NYU Caregiver Intervention were more satisfied with social support and less depressed, less bothered by difficult behaviors, had better physical health and were able to keep their ill spouses at home longer than those receiving usual care.
Another model developed at Thomas Jefferson University in Philadelphia, employs occupational therapists to assess the patient with dementia and identify preserved capabilities as well as the caregiver’s needs. Families are then provided with strategies to manage day to day care, such as communication techniques, safe-proofing the home, establishing daily routines and engaging the individual with dementia in meaningful activities. Families who participated have reported feeling more confident and less upset, and found that their ill family member functions better and exhibits fewer challenging behaviors.
Another NPT that is now being used is a stimulator device surgically implanted into the brain of a patient in the early stages of Alzheimer’s disease. The implanted device is seen as a possible means of boosting memory and reversing cognitive decline, and has already been used in thousands of people with Parkinson’s. The surgery involves drilling holes into the skull to implant wires into the fornix on either side of the brain. The wires are attached to a pacemaker-like device, which stimulates the brain with tiny electrical impulses generated 130 times a second. The patients don’t feel the current.
Lastly, another effective non-drug Alzheimer’s treatment used to jog memory is music. In nursing homes that use music, the personalized playlists are often meaningful songs chosen by loved ones. According to Alzheimer’s experts, music helps patients become more alert, more cooperative, more attentive, and more engaged. In many cases, even if they can’t recognize loved ones and they’ve stopped speaking, when the patients hear music, they “come alive”.
Geri Hall, a clinical nurse specialist at the Banner Alzheimer’s Institute, explains how music activates a part of the brain that stays active despite the dementia. “There is something about music that gets through to Alzheimer’s patients right up until the very end of the disease,” she said, adding that “familiar music from the past can help people with dementia feel at home. It calms them, increases socialization, and even decreases the need for mood controlling medications.” Read our blog post about Alzheimer’s and Music.
Alzheimer’s slowly robs its victims of a lifetime of memories and the ability to perform simple daily tasks. Instead of focusing on drug treatments, many of which have failed in clinical trials, it may be a good idea to try non-drug treatment options. These programs have been proven effective in randomized controlled trials. And, unlike drug therapy, there are no adverse side effects. There is also an economic argument to be made for better caregiver support. Nearly 11 million family and other unpaid caregivers provided an estimated 12.5 billion hours of care to people with dementia. This care is valued at nearly $144 billion. The country can’t afford the consequences of these caregivers becoming too burned out or sick to carry on. See our recent blog post about the rising cost of dementia.
Moving a person with dementia to a nursing home, while sometimes unavoidable, is expensive. The NPTs described have helped to delay nursing home placement for more than a year. Unfortunately, you cannot delay the inevitable forever, but what you can do is plan ahead for you and your loved ones. Do you or a loved one need nursing home care in the near future or are you looking to plan ahead? Call 703-691-1888 to make an appointment for a no-cost consultation at The Fairfax Elder Law Firm of Evan H. Farr, P.C. We can meet with you, access your situation and determine strategies for your long-term care plan.
Q. My ten year old son, Cole, was diagnosed with an Autism Spectrum Disorder (ASD) when he was six. He is in a class of 20 children and there are two other boys and a girl who also have an ASD, all ranging in severity. These children spend half the time in the typical class and half the time in special education. When I was growing up, the only person I knew with autism was my friend’s brother, who didn’t talk and was very anxious about being around others. Why is ASD so common now, as opposed to 30 years ago, and what can I and other parents do to plan for our special needs children?
A. Autism spectrum disorder, or ASD, is a group of developmental disabilities that can cause significant social, communication and behavioral challenges. ASD affects each person in different ways, thus their impairment can range from mild to severe, but all those afflicted with autism share problems with social interaction.
What we know now is that there is no one cause of autism just as there is no one type. Different genes increase the probability of a child developing autism. We know that children who have a sibling or parent with autism are at a much higher risk of also having the condition or another developmental disorder. Genes may be affected by advanced parental age at time of conception.
But why is autism’s prevalence increasing? Thirty years ago, the rate of autism was typically quoted as 4 in 10,000. The most recent rate reported is 1 in 50. This is an alarming increase from one in every 88 children reported by the Centers for Disease Control and Prevention just four years ago. Factors that have brought the startling levels of autism to our attention include:
- Better Understanding: Thirty years ago, autism was first introduced as a separate diagnostic category in the Diagnostic and Statistical Manual of Mental Disorders III (DSM-3). Prior to that time, clinicians using the DSM applied other categories such as childhood schizophrenia.
- More Awareness: Since the early ‘80’s, there has been extraordinary growth in awareness – both for professionals and parents. Pediatricians now screen for early warning signs, as do parents. These actions have all led to a much greater awareness of the symptoms of autism which has translated to more diagnoses being made. In addition, the increased awareness has permitted older kids to be diagnosed when the signs earlier in life were not recognized as autism.
- Expansion of the Symptoms: Diagnostic changes that recognized autism as a spectrum, now referred to as Autism Spectrum Disorder (ASD), have helped capture the wide range of symptoms that go beyond “classic” autism. These symptoms can include social, communicative, and repetitive/stereotyped behaviors. Since autism became a spectrum disorder, many youth were diagnosed who would not have been in past years.
- Changes in Etiological Factors: Less understood is the role of new causative factors that increase the risk for ASD. Much attention is being given to environmental factors and there is the suggestion that specific genetic mutations may be linked to autism.
Autism has come a long way in the past 30 years. We know now that autism is very common and that it may be influenced by genetic and environmental risk factors that are not well understood at this time. For these reasons, it is important for doctors, scientists, and awareness groups to keep researching the causes of autism, and to continue to promote awareness of the early signs and symptoms in order to support early diagnosis and intervention.
How can you plan for your son? More than $13 billion a year is spent to care for individuals with autism. For the average affected family, this translates to $30K per year. Many parents believe that needs-based programs such as Supplemental Security Income (SSI) and Medicaid will be enough to take care of their family members with special needs when they are gone. This is a common misconception.
SSI is the federal needs based program that many special needs children and adults may be eligible for if they meet certain income limits. Many special needs children and adults may also get Medicaid to pay for hospital stays, doctor bills, prescription drugs, and other health costs. However, once a person with special needs exceeds the $2,000 a year resource limit, he or she is no longer eligible for SSI or Medicaid.
Twenty million American families have at least one member with special needs, such as ASD, cerebral palsy, mental illness, blindness, and others. Parents of those with special needs are tasked with planning for their children throughout their lifetime, as many of them will outlive their parents but might not be able to support themselves and live independently.
We here at The Fairfax Elder Law Firm of Evan H. Farr, P.C., know that the majority of American families who have a loved one with special needs require a Special Needs Trust. These families typically have very little in tangible assets, second mortgages on their homes, and little to no savings (likely due to paying for the costly therapies). As a parent or guardian, you want to ensure that your child with special needs will remain financially secure even when you are no longer there to provide support. A Special Needs Trust is a vehicle that provides assets from which a disabled person can maintain his or her quality of life, while still remaining eligible for needs-based programs that will cover basic health and living expenses.
In your situation, you can create a Special Needs Trust to benefit Cole that provides instructions as to the level of care you want for him. After you are gone, the people you have chosen to manage the trust (trustees) can spend money on certain defined expenses for Cole’s benefit without compromising his eligibility for needs based programs.
We invite you to call 703-691-1888 to make an appointment for a no-cost consultation with The Fairfax Elder Law Firm of Evan H. Farr P.C. to learn more about special needs planning.
Nancy and Nick have three children — Emmitt, Nicole, and Alexa. Very warm and loving parents, Nancy and Nick make education a top priority, and hope to instill their deep-rooted culture and values in their children. Neither Nancy nor Nick want to think about not being there to raise their children. If Nancy and Nick choose not to make a decision and take no action, who will care for their children should the unthinkable happen to them?
Various scenarios, none of them ideal, could happen should Nancy and Nick not choose a guardian for their children. Their relatives could end up arguing in court over who gets the children — or their relatives could agree but not on the people that Nancy and Nick would have chosen. Even worse, a court could end up choosing their guardian for them. That’s why it’s important for Nancy and Nick and for your family to nominate a guardian while it’s still up to you. Here are some actions to take to help you make your best choice:
- Make a list of all the people you know who you would trust to take care of your children, including family members, extended family, close friends, people you know from your place of worship, or even child care providers with whom you and your children have a special relationship.
- Consider values and philosophies. Ask yourself which people on your list most closely share your values and philosophies with respect to your religious/spiritual beliefs, moral values, child-rearing philosophy, educational values, and social values.
- Consider whether each couple or person on your list is a good fit. Would they truly love your children, be good role models, have patience parenting your children, show affection, and are they mature enough to take on the guardian role?
- Think about how raising your children would fit into their lifestyle.
- If they’re older, do they have the necessary health and stamina? Would they really want to be parents of a young child at their stage in life?
- Do they have other children? How would your children get along with theirs?
- How close do they live to other important people in your children’s lives?
- If a married couple divorced or one spouse died, would you be comfortable with either of them acting as the sole guardian, or would want an alternate married couple to become guardian instead.
- Trust your instincts. If one couple or person meets all of your criteria, but doesn’t feel right, don’t choose them. By the same token, if someone feels much more right than any of the others on your list, there’s probably a good reason for it and you probably want to trust your gut instinct. Make your primary choice, then some backup choices. Ideally, both you and your spouse agree on your choices.
- Use a Child Protection Plan to select a temporary custodian as well as your Last Will and Testament to nominate your permanent Guardian. Temporary custodians may be appointed if both parents become temporarily unable to care for their children – for example, as the result of a car accident. Depending on your choice for permanent guardians (for example, if your permanent guardians work and live in another state or another country and will have to take leave and make travel arrangements to come and care for your children), you may want to designate different people to act as temporary custodians. Temporary custodians are designated via a Child Protection Plan rather than via your Last Will and Testament.
- Consider a guardianship panel. Because it’s difficult to predict what your children’s needs will be as they grow older, consider appointing a “guardianship panel” to decide who would be the best guardian when and if it becomes necessary. Choose trusted relatives and friends to make up the panel. The panel can consult with your children and assess their needs and desires to make the most appropriate choice based on the current situation.
Once you’ve narrowed down your choices, talk to everyone involved. Be sure to confer with the people you’d like to choose to ensure they’re willing to be chosen and would feel comfortable acting as guardians. If your children are old enough, you may even want to talk with them to get their input. Create a Letter of Intent to convey information about your children, your parenting values and your hopes and dreams for your children. Set up an appointment with a Certified Elder Law Attorney, such as Evan H. Farr, to prepare the legal documents that are required to put your wishes into action.
If you’ve chosen friends over relatives or a more distant relative over a closer one, be sure to explain your decision in writing. That way – in the unlikely event your choice is challenged by people who feel they should have been chosen – a court should readily uphold your decision, knowing you’ve made your choice for good, solid reasons.
Set up a trust that will hold the assets you pass to your children, and instruct the trustee to provide necessary financial assistance to the guardians. Create specific instructions about special things you’d like the trust funds used for (for example, a particular summer camp, piano lessons etc.).
Having children means always planning ahead and thinking about the future, even as you try to enjoy the present and watch your children grow and thrive. Nominating a guardian (and, if necessary, a temporary custodian) for your children gives you the peace of mind that your children will be protected if something happens to you. Call 703-691-1888 and make an appointment for a no-cost consultation at The Fairfax Elder Law Firm of Evan H. Farr, P.C.
Q. I am pretty technologically savvy and I have photos of my grandchildren on Picasa, my own Google blog, documents saved on Google Docs, and a Facebook account. Is there a way to plan for what will happen to my online documents and virtual belongings if I become incapacitated or pass away?
A. Deciding what happens to your online data is easy-to-do and will bring peace of mind to you and your loved ones, should you become incapacitated or pass away. Google and Facebook have made it a simple process by launching tools that let you decide what happens with your accounts should the unthinkable happen.
Should something happen to you, you may want your photos, emails, and documents to be shared with a trusted friend or family member, or you might want your account to be deleted entirely. Whatever the reason, you can decide what happens after your account becomes inactive for a certain period of time (3 months- a year) by using the Google “Inactive Account Manager” tool to manage your “digital afterlife”. By changing your settings, you can direct Google to pass on data from online venues such as Google Drive, Gmail, Picasa, YouTube, or social network Google+ to particular people or be deleted after being dormant for too long.
The feature was added as people increasingly trust their data and memories to online social networks, data storage facilities, and other services hosted in the Internet “cloud.” Google says planning for your “digital afterlife” is important to the people we leave behind and it helps protect a person’s privacy and security. To configure your settings on Google click here.
For your Facebook account, the family of a deceased loved one can “memorialize” the account to protect your privacy. Here are some of the key features of memorialized accounts:
- No one can log into a memorialized account and no new friends can be accepted;
- Depending on the privacy settings of the deceased person’s account, friends can share memories on the memorialized timeline;
- Anyone can send private messages to the deceased person;
- Content the deceased person shared (ex: photos, posts) remains on Facebook and is visible to the audience it was shared with;
- Memorialized timelines don’t appear in People You May Know and other suggestions.
Creating a timeline in remembrance of an already deceased person is not allowed. Facebook encourages users to create a Page to memorialize an account. Learn how to request the memorialization of a deceased person’s account.
Laws in the United States and elsewhere are vague on the fate of digital rights to online accounts after death, leading to complications for survivors who want access to the online services of the deceased. In one case that drew considerable attention, the family of a U.S. Marine killed in Iraq went to court in 2005 after being blocked from getting access to his Yahoo email account, with the company arguing that it could not release “private” information and that the account was “non-transferable” under terms of service.
Another way to protect digital accounts would be specifying digital assets in your estate planning documents and specifically giving control over these digital assets to your executor or trustee, who could then take over upon your death. An easier way is to store all of your digital user names and passwords in a secure password safe, such as keepass or lastpass and give your executor/trustee the password and location of the password safe or the means to locate your master password, such as by writing down your master password and putting it in an envelope in your safe deposit box.
Now that you know how you can plan for your online documents and virtual belongings, do you have a plan in place for what will happen to you if you become incapacitated? Every adult over the age of 18 should have an Incapacity Plan that includes a Financial Power of Attorney, an Advance Medical Directive, and an Advance Care Plan. If you don’t have an Incapacity Plan in place, now is the time to get started. Call us today at 703-691-1888 to set up an appointment for a no-cost consultation.
Q. My 86 year old mother had a stroke last week, was in the hospital, and was moved to a nursing home for rehabilitation. I was wondering about Medicare coverage. Does Medicare cover nursing home stays? What if she needs more than the 100 days I read about?
A. Many people believe that Medicare covers nursing home stays. It is true that Medicare covers up to 100 days of short-term rehabilitation per illness, but there are a number of requirements that must be met before this short-term rehab stay will be covered. The result of these requirements is that Medicare recipients are often discharged from a nursing home before they are ready.
In order for a nursing home stay to be covered by Medicare:
- The patient must enter a Medicare-approved “skilled nursing facility” or nursing home within 30 days after a hospital stay that lasted at least three days.
- The short-term rehabilitation care received in the nursing home must be for the same condition as the hospital stay. In addition, you must need “skilled care.” This means a physician must order the treatment and the treatment must be provided daily by a registered nurse, physical therapist, or licensed practical nurse.
- Finally, Medicare only covers “acute” care as opposed to custodial care. This means it covers care only for people who are likely to recover from their conditions, not care for people who need ongoing help with performing everyday activities, such as bathing or dressing.
It is important to understand that Medicare does not pay one penny for long-term care. (This section is excerpted from Evan H. Farr, CELA’s book ”Nursing Home Survival Guide- Helping You Protect Your Loved Ones Who Need Nursing Home Care by Preserving Dignity, Quality of Life, anFinancial Security,” available on Amazon.com)
“If you are enrolled in a traditional Medicare plan, and you’ve been in the hospital at least three days, and you are admitted directly from the hospital into a rehab facility (which are typically skilled nursing facilities for short-term rehabilitation (i.e., therapy and treatment designed to make you better), then Medicare should pay the full cost of this short-term rehab stay for the first 20 days, and may continue to pay part of the cost of the short-term rehab stay for the next 80 days — with a per day deductible that you must pay privately (although there are Medicare supplement insurance policies that sometimes cover that deductible). There is also a Medicare Managed Care Plan, for which the 3-day hospital stay may not be required, and for which the deductible for days 21 through 100 is waived, provided certain strict qualifying rules are met But whether the plan is traditional Medicare or Medicare Managed Care (MMC), the nursing home resident must be receiving daily rehabilitative care and must be improving. Medicare does not pay for long-term care i.e., for custodial nursing home stays or in-home care. In a best case scenario, traditional Medicare or MMC will provide some coverage for the hospital stay and rehabilitation of up to 100 days for each “spell of illness” (although in our experience coverage usually falls far short of the 100-day maximum). If you recover sufficiently that you do not require a Medicare-covered care benefit for 60 consecutive days, you may be eligible for another benefit period, i.e., another 100 days of Medicare coverage, but the illness or disorder must not be a chronic degenerative condition from which you will not recover. What happens if you’ve used up the 100 days of coverage and still need more rehabilitation, or if you need to move into long-term nursing home care? You’re back to one of the alternatives outlined above: long-term care insurance, paying the bills with your own assets, or qualifying for Medicaid.”
Did you know that nursing homes in Northern Virginia cost 10-12K a month? For typical middle-class people who pay out of pocket, these costs will most likely drain all of their hard-earned assets pretty quickly. For more information, read our recent blog post “How Can I Afford a Nursing Home?”.
Do you have a loved one who is in a nursing home or nearing the need for nursing home care? Or are you simply looking to plan ahead in the event nursing home care is needed in the future? Life Care Planning and Medicaid Asset Protection is the process of protecting your assets fro having to be spent down in connection with entry into a nursing home, while also helping ensure that you or your loved one get the best possible care and maintain the highest possible quality of life, whether at home, in an assisted living facility, or in a nursing home. Learn more at The Fairfax Elder Law Firm of Evan H. Farr, P.C. website. Call 703-691-1888 to make an appointment for a no-cost consultation.
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