Category Archives: Estate Planning
Last October, the President signed HR 2167 – “The Reverse Mortgage Stabilization Act of 2013”. As a result, changes have been made to make it harder to qualify for a reverse mortgage.
To be eligible for a reverse mortgage you must be at least 62 years old, own your own home (or owe a relatively small balance) and currently be living there. You also need to undergo a financial assessment to determine whether you can afford to make all the necessary tax and insurance payments over the projected life of the loan. Below are some of the changes that have recently occurred:
- Increased Lender Scrutiny: Now, lenders will look at your sources of income, assets, and credit history. Depending on your financial situation, you may be required to put part of your loan into an escrow account to pay future bills. If the financial assessment finds that you cannot pay your insurance and taxes and still have enough cash left to live on, you will be denied.
- Only HECM Reverse Mortgages Are Insured: Currently, the only reverse mortgage insured by the U.S. Federal Government is called a Home Equity Conversion Mortgage or HECM, and is only available through an FHA approved lender.
- Enhanced Qualification Criteria: The amount you can get through a reverse mortgage depends on your age, your home’s value, and the prevailing interest rates. Generally, the older you are, the more your house is worth, and the lower the interest rates are, the more you can borrow. To calculate how much you can borrow, visit reversemortgage.org.
- Additional Fees: Reverse mortgages currently have a number of up-front fees including a 2% lender origination fee for the first $200,000 of the home’s value and 1% of the remaining value, with a cap of $6,000; a 0.5% initial mortgage insurance premium fee; along with an appraisal fee, closing costs and other miscellaneous expenses. In addition, you’ll also have to pay an annual mortgage insurance premium of 1.25% of the loan amount. Most fees can be deducted for the loan amount to reduce your out-of-pocket costs at closing.
- More Ways to Receive Funds: You can receive the money in a lump sum, a line of credit, regular monthly checks or a combination. In most cases, however, you cannot withdraw more than 60% of the loan value during the first year. If you do, you’ll pay a 2.5% upfront insurance premium fee.
- Counseling Requirement: All borrowers are required to get face-to-face or telephone counseling through a HUD approved independent counseling agency before taking out a reverse mortgage. For more details, visit hud.gov or call 800-569-4287.
For additional details on why new rules have gone into effect, please read our blog post on the subject. Keep in mind that keeping money in a reverse mortgage line of credit in Virginia, and in most other states, will not count as a resource for Medicaid eligibility purposes so long as the house itself is an exempt resource. (For Medicaid payment of long-term care, the applicant’s principal residence is excluded from countable resources for the six months of continuous institutionalization provided the applicant intends to return home and provided the equity in the home property does not exceed $536,000. Regardless of the amount of home equity, after six months of continuous institutionalization the nursing home resident’s home will become a countable resource, unless the home is occupied by a spouse, dependent child under age 21, or a blind or disabled child.)
However, transferring the money from the reverse mortgage line of credit to a bank account and leaving it there past the end of the month would convert the exempt home equity into a countable resource and therefore would affect Medicaid eligibility. This important distinction between countable resources and exempt assets is not a simple black and white issue — if you or your loved one is facing the possible need for long-term care, you should get an opinion from a Certified Elder Law Attorney, such as Evan H. Farr. To make an appointment for an introductory consultation, please call the Fairfax Medicaid Asset Protection Law Firm of Evan H. Farr, P.C.
Q. This year, Grandma Pearl will be joining us for Easter dinner. She has Alzheimer’s and her caregiver will be joining us, as well. We are concerned that the dinner could present challenges for her, since she is on a regimented meal time schedule each day. Can you suggest any tips to make the meal a success?
A. Many of our favorite experiences and memories include preparing and sharing holiday dinners with family members. However, when a person has Alzheimer’s disease or another type of dementia, the ability to eat independently may diminish, and mealtimes can become challenging. Often, too, the person with dementia may be experiencing changes, such as decreased appetite, that are part of normal aging. To make your Easter dinner with grandma a success, familiar routines, rituals, and food choices may need to be adapted to meet her day-to-day needs and to address changes that occur as the disease progresses. Below are a few tips to help things go smoothly:
- Reduce Noise: Lots of noise and activity at mealtimes can be very distracting, causing the person with memory loss to lose interest in eating their meal. Therefore, keep extraneous noise to a minimum. While it’s nice to play music in the background, be sure it is Grandma’s favorite music, not yours, and that it’s not too loud or too fast.
- One Person at a time: When assisting the person with memory loss during mealtime, only one person at a time should be talking to them. More than one voice can be distracting, and might even cause them to become more confused or agitated.
- Place fewer items on the plate: Placing too much food on a plate can be overwhelming to some, which can cause them to either play with it or ignore it. If grandma becomes easily confused, place fewer items of food on her plate or simply serve one food item at a time.
- Allow her as much independence as possible: If grandma can still manage their utensils, allow her to do so. If she can still cut their food, don’t cut it for her. You might be surprised to see that she will sometimes still take a few bites independently if she is just provided the opportunity! If you notice that grandma can no longer manage utensils, don’t immediately begin to feed her. First try some hand-over-hand assistance by gently placing your hand over their hand which guides them to complete the activity.
- Provide verbal and visual encouragement: As you raise the fork to your mouth with a pleasant tone of voice you might say to grandma, “The ham is delicious, you should try some, too.” Your encouragement might prompt her to take a bite.
- Allow her to walk and eat: If grandma no longer likes to sit during her meal, place finger foods in a bowl with non-spill edges or in a wide-mouthed cup, which will enable her to carry her food and eat as she walks. If she doesn’t have the urge to drink liquids, you’ll also want to be sure that you are providing her with adequate hydration by offering drinks, popsicles, or gelatin.
Despite ongoing challenges, a successful family meal is possible, and can be yet another opportunity for grandma, her caregiver, and her loved ones to bond and succeed together.
Persons with Alzheimer’s and their families face special legal and financial needs. At The Fairfax and Fredericksburg Alzheimer’s Planning Law Firm of Evan H. Farr, P.C., we are dedicated to easing the financial and emotional burden on those suffering from Alzheimer’s or other dementias. If you have a loved one who is suffering from Alzheimer’s, or a family member who is nearing the need for long-term care or already receiving long-term care, call us at 703-691-1888 in Fairfax or 540-479-1435 in Fredericksburg to make an appointment for an introductory consultation.
If you are one of those people who waited until the very last minute to complete and send in your taxes, you want to make sure you take all of the deductions you’re entitled to. Last month, I wrote a blog post with some often overlooked deductions. Today, I will share some of the wackiest deductions you can take this year:
- Bingo: Bingo-playing taxpayers can deduct the amount lost in a given year, up to the amount that was won. The Internal Revenue Service (IRS) allows taxpayers to deduct losses for other types of wagering, too. To do so, they must keep a detailed diary of the kind of wager, where they placed it, who they were with, and how much they won or lost.
- Pet Moving: If you are moving and you’d prefer to hire a service to move your pet, rather than bring your pup along for the moving ride, you can deduct that expense from your taxes.
- Clarinet Lessons: A clarinet and lessons can be considered tax deductible if a doctor has recommended playing the instrument as a method of correcting an overbite.
- Uniforms: Work clothing must meet two conditions to qualify as deductible: It must be worn as a condition of employment, and it must not be a suitable substitute for everyday clothing. Examples cited by the IRS include the garb of delivery workers, firefighters, health care workers, police, transportation workers, letter carriers, and professional athletes.
- Business gifts (under $25): You’re allowed to deduct up to $25 in costs spent on business gifts for any individual person. You can also widely distribute gifts under $4 that have your name on them. Examples can include pens, desk sets, and bags. In this case, the sum total can be deducted, even if it’s over the $25 limit.
- Wigs: The IRS allows patients with hair loss traced to a disease to write off the cost of a wig, if a doctor recommends buying one. However, deductions for hair transplants are a lot harder to get. Regardless of the reason for the hair loss – age, illness. etc. – the IRS categorizes hair transplants as cosmetic surgery, which is usually nondeductible.
- Weight Loss Programs: Some people who enrolled in weight-loss programs last year can deduct the money they paid in fees, according to the IRS. To be eligible, taxpayers must have enrolled to treat specific conditions diagnosed by doctors. Even when recommended by a health care professional, the cost of dance lessons, swim lessons, and health-club dues are not deductible.
These aren’t the only strange medical write-offs; others include support stockings and many more, according to IRS publication 502.
Don’t forget that if you met with an estate planning attorney within the past year, some of your legal fees may be tax deductible. We suggest that 20% of the total fees that you paid to our firm can appropriately be considered deductible tax advice. Please read Part 4 of our Tax Time Series for more details.
Please note that getting a tax refund might affect your Medicaid or Social Security benefits. However, since everyone’s situation is different, it is wise to contact a Certified Elder Law Attorney such as myself to walk you through this process and ensure that you are not doing anything to affect Medicaid eligibility. Call us today at the Fairfax and Fredericksburg Elder Law Firm of Evan H. Farr, P.C.at 703-691-1888 in Fairfax or 540-479-1435 in Fredericksburg to make an appointment for an introductory consultation.
Q. My next door neighbor is a retired financial planner. We walk every morning to stay in shape and maintain good health. This morning, I brought up the topic of whether my father’s IRA would be countable if he applies for Medicaid. Due to the complexity of Medicaid, she suggested that I ask an experienced Elder Law attorney, so I thought my best first course of action should be to send this question to you. If my father has assets in an IRA, will they be taken into consideration when it comes to Medicaid Planning? If so, how can they be protected?
A. With the possible exception of a primary residence, IRA’s and other retirement assets such as 401(k)’s are often the single largest asset for many seniors. To be eligible to receive Medicaid benefits, applicants can have only a small amount of assets ($2,000 in most states). If your father does not plan properly, his IRAs will count as available assets under the Medicaid rules of most states and will therefore affect his Medicaid eligibility.
If your father is age 70 ½ or older, he must take a required minimum distribution each year. If he is taking at least the required distribution out of his plan on a monthly basis, this is referred to in some states as his IRA being in “payout status.” If the account is in this so-called “payout status”, in a few states (but NOT in Virginia or Maryland) the retirement assets would not be counted by Medicaid, but the monthly payments that he receives would be counted as income. In DC, all money in retirement accounts are exempt from being counted for Medicaid.
In most states, including Virginia and Maryland, IRAs and all other retirement accounts with cash value are countable assets, which means the total amount in the account will be counted as an asset affecting Medicaid eligibility. In order to protect retirement accounts in connection with Medicaid, one option is to cash out the retirement account and pay the income tax on it, and then transfer the proceeds to a Living Trust Plus™ Asset Protection Trust. After 5 years the funds would not be counted as a resource that he will have to “spend down” under Medicaid eligibility rules. Instead, his money will be protected and can be used for his benefit during his lifetime, and whatever is left can be passed on to his beneficiaries through the trust.
The rules regarding IRAs and Medicaid are complicated and vary from state to state. As you can see, finding the best solution for retirement assets demands careful analysis from an experienced Elder Law attorney, preferably a Certified Elder Law Attorney. If your father is nearing the need for nursing home care, or may need nursing home care in the next 5 to ten years, the time for him to plan is now. Call Virginia Elder Law Firm of Evan H. Farr, P.C. today at 703-691-1888 in Fairfax or 540-479-1435 in Fredericksburg to make an appointment for an introductory consultation.
Q. My sister, Peggy, recently became a full-time caregiver for our 72-year old father, Joe. Since he served during the Vietnam War, he has had flashbacks that still affect him and keep him up at night. He suffered at least one stroke in the last 5 years, has trouble walking, seeing, and hearing. My sister is having a hard time shouldering the responsibility, and needs any assistance that she can get because I think it is affecting her health. I would love to help her, but my job keeps my family from moving, so I do my best to visit often and contribute as much as I can financially. Are there any support programs for caregivers of veterans that my sister can turn to? Thanks for your help!
A. Taking care of a veteran, or any loved one in need, requires real strength, endurance, commitment, and patience. Without assistance in managing the responsibilities of being a caregiver for your father, your sister may experience stress, burnout, anxiety, depression, financial challenges, or effects on her personal health (as you mentioned). She is not alone, and luckily there are resources to help.
On May 5, 2010, the Caregivers and Veterans Omnibus Health Services Act of 2010 was signed into law. Title I of the Act allows the VA to provide benefits to eligible caregivers (a parent, spouse, child, step-family member, extended family member, or an individual who lives with the veteran, but is not a family member). As a result of the Act, the following services are now available to help qualifying caregivers of veterans:
- National Caregiver Support Line: The VA established a National Caregiver Support Line to answer questions and provide resources. Talking to someone who understands what life is like as a caregiver can provide your sister with the emotional support to stay strong and attend to her own daily needs. The support line is open during the week (8am- 11 pm) and on Saturdays (10:30am- 6pm) and can be reached at 1-855-260-3274. All calls are answered by VA employees who are also licensed clinical social workers and health technicians.
- Caregiver Coordinators: Callers to the National Caregiver Support Line often receive referrals to a caregiver support coordinator in their community. These coordinators can provide information on new benefits available to veterans and caregivers. Caregiver Support Coordinators are also available at every VA Medical Center, and you can also find their contact information online using your zip code.
- Caregiver Website: The VA caregiver support website offers valuable information on services for caregivers, as well as advice on resilience and support to deal with caregiver responsibilities.
- Easter Seals Caregiver Training: Easter Seals and the VA provide caregiver training via face-to-face classes throughout the country, a workbook/DVD approach, and on-demand web access. Eligible caregivers are certified by their local VA Caregiver Support Coordinators to receive this training. Those certified and completing the training become eligible for Veteran Caregiver benefits.
- Caregiver Workshop: The VA offers a six-week online workshop at no-cost, called Building Better Caregivers™, for family caregivers of veterans. This comprehensive online workshop is highly-interactive and typically involves 20-25 family caregivers completing the online workshop together. Interested caregivers should contact a local Caregiver Support Coordinator, who can provide additional information and referral to the program.
- Monthly stipend (for the caregiver only) based on the personal care needs of the veteran: A monthly stipend amount, based on what a commercial home health care provider would pay for equivalent services, may be available. You can access an online compensation calculator or find out more at www.caregiver.va.gov. Caregivers can receive an average $1,600 in monthly stipend payments.
- Respite Care is designed to relieve the family caregiver from the constant burden of caring for a chronically ill or disabled veteran at home. Services can include in-home care, a short stay in an institutional setting, or adult day health care.
- Other Benefits: VA provides durable medical equipment and prosthetic and sensory aides to improve function, financial assistance with home modification to improve access and mobility, and transportation assistance for some veterans to and from medical appointments.
We hope that your sister will take advantage of the caregiver resources available to her, and various benefits available through the Department of Veterans Affairs (VA) It is also important to ensure that she is taking care of herself, by maintaining healthy eating and sleeping habits, avoiding isolation, and sharing her experience with others, while working hard to care for your father.
I am an Accredited Attorney with the U.S. Dept. of Veterans Affairs who understands the Veterans Aid and Attendance Pension Benefit (for qualifying veterans or their single surviving spouse), and the Medicaid program and the interaction between both benefit programs (please note that I do not work with clients seeking service-connected compensation). I work with clients to obtain the financial assistance to which they are entitled and enable veterans and their families to afford the type of long-term care that they need, whether home care, adult day care, assisted living care, or nursing home care.
If your father has served 90 days active duty, and at least one day during a period of wartime, and you need physical assistance with your activities of daily living, be sure to make an appointment ASAP for an introductory consultation at the Fairfax and Fredericksburg Elder Law Firm of Evan H. Farr, P.C. We can work with your family to evaluate if he qualifies for the Veterans Aid and Attendance Pension Benefit and/or Medicaid (or if we can get him qualified) and we will handle the filing of all the tedious and technical paperwork. Call us at our Fairfax Virginia Elder Law office at 703-691-1888 or at our Fredericksburg Virginia Elder Law office at 540-479-1435 to make an appointment today.
Over the past several weeks, hundreds of Fairfax County residents have received phone calls from scammers who tell them “Your driver’s license has been suspended. You will be arrested. You will be deported. We are on our way to your home right now.” These are just a few of the many threats that scammers are making, and Fairfax County police are warning the public NOT to fall prey to these scammers and to notify the police of these criminal incidents.
According to a recent news release, these telephone scammers are described as “demanding, aggressive, threatening, and easily angered when callers don’t immediately agree to their demands of “overdue tax balances.” Some complainants have described the suspects as having a heavy accent. Typically, callers demand between $4,000-$6,000 in immediate payment of unpaid tax bills. These scams are sophisticated and involve false names, numbers and “IRS” badge numbers. Suspects often continue to call and harass the recipient.
Police urge residents to:
- Contact IRS if you feel there is any discrepancy with your tax bills.
- Use these numbers to contact IRS if you feel you are being scammed: http://www.irs.gov/uac/Telephone-Assistance
- Be skeptical if someone asks/demands you owe taxes and must pay with a Green Dot Moneypak.
- Report suspicious or harassing calls to police online at http://www.fairfaxcounty.gov/police/120413citizenreportingsystem.htm
- Remember, once money has been wired/sent, it is typically impossible to recover.
At the Fairfax and Fredericksburg Elder Law Firm of Evan H. Farr, P.C., we encourage you to stay informed about this and other scams. More information on common scams may be found at http://www.fairfaxcounty.gov/police/financialcrimes/commonscams.htm. Please also read our recent article, “Beware of Deed Scam” for another scam affecting Virginia residents.
Keeping up with scams that are affecting consumers is important. It is also very important to keep up with your planning. If you have not done Incapacity Planning, Estate Planning, or Long-Term Care Planning, or if you have a loved one who is nearing the need for long-term care or already receiving long-term care, please contact The Law Firm of Evan H. Farr, P.C. as soon as possible at our Virginia Elder Law Fairfax office at 703-691-1888 or at our Virginia Elder Law Fredericksburg office at 540-479-1435 to schedule your appointment for our introductory consultation.
John’s mother, Elizabeth, was always close with John’s 10-year old daughter, Anna. Before she Elizabeth diagnosed with Alzheimer’s, she lived in John’s home and watched Anna for years while John was at work. As Elizabeth’s disease progressed, spending time with her became difficult for Anna. There was no easy way to explain to Anna how and why her grandmother was acting so differently. Anna once told John that what hurt the most is that she doesn’t know if her grandmother remembers her, thinks about her, or still loves her.
Having a grandparent with Alzheimer’s can be a difficult time for a child. Since Elizabeth and Anna had such a close relationship, it is understandable that Anna may feel saddened and may even feel a sense of loss or grief over seeing her grandmother with such a devastating illness. What if there were a way to read Elizabeth’s mind and reassure Anna that she is still in her grandmother’s thoughts? An astounding new study shows that reading a person’s mind may be possible. This could be a huge breakthrough for those with Alzheimer’s, non-verbal autism spectrum disorder, and others with mental illnesses.
The study, “Neural Portraits of Perception: Reconstructing Face Images From Evoked Brain Activity,” was published in NeuroImage, and was led by Marvin Chun, a professor of psychology, cognitive science, and neurobiology at Yale University, postdoctoral researcher Brice Kuhl, and Alan S. Cowen, who is pursuing an advanced psychology degree at UC Berkeley. They gathered 30 participants, whose brains were scanned while shown one of 300 photos of various faces of different ethnicities, skin colors, and facial expressions. It was not noted if any of the participants suffered from Alzheimer’s, autism, or any other mental disorders or illnesses.
Using functional magnetic resonance imaging (fMRI) technology, the scientists recorded the participant’s brain-activation patterns of neural activity. Using these patterns, the scientists were able to generate successful reconstructions of the faces in sketch-like images. Of the 30 readings, the subject’s skin color was right every time while 24 of the readings correctly detected the presence or absence of a smile, and about half selected the correct hair color.”There’s definitely room for improvement,” researcher Alan S. Cowen told Fox News.
This study is the first to attempt facial reconstruction through thoughts. It is hoped that the process could one day assist in solving crimes, better understand mental disorders, and even recording dreams. “You can see how people perceive faces depending on different disorders, like autism — and use that to help diagnose therapies,” said Cowen.
As for the likelihood it could be used to extract memories, Cowen assures they’re still ways away from that. “This sort of technology can only read active parts of the brain. So you couldn’t read passive memories — you would have to get the person to imagine the memory to read it,” Cowen said.
Marvin Chun called the result “a form of mind-reading that captures and reflects the sophistication with which we visually process the human face. And because the program uses patterns of brain signals from regions quite separate from the visual cortex, it could probably reconstruct a face that is not actually seen but is instead remembered or dreamed.”
At the Fairfax and Fredericksburg Elder Law Firm of Evan H. Farr, P.C. (www.VirginiaElderLaw.com), we are always intrigued by new and helpful research and hope this research can prove to be a breakthrough for those with autism and others with Alzheimer’s. For the family in our example, what we do know is that those with Alzheimer’s can feel for loved ones, even if they don’t recognize them. Please read our blog post about this topic. Please also read our post that offers helpful tips on how to talk to a child about Alzheimer’s.
Our firm is dedicated to helping protect seniors and individuals with Alzheimer’s and other types of dementia by preserving dignity, quality of life, and financial security. If you have not done Long-Term Care Planning, Estate Planning, or Incapacity Planning (or had your Planning documents reviewed in the past several years), or if you have a loved one who is nearing the need for long-term care or already receiving long-term care, call us at our Virginia Elder Law Fairfax office at 703-691-1888 or at our Virginia Elder Law Fredericksburg office at 540-479-1435 to make an appointment for an introductory consultation.
Q. I grew up in Northern Virginia and raised three children here. Now, they’re spread out across the world – one in Florida, one in Oregon, and one in Texas. All three children have invited me to move closer to them, but I prefer to remain in the area that has been my home for 65 years, even if it means continuing to live alone.
The only problems I foresee is the fact that I have arthritis and cannot see very well. My daughter in Florida has offered to hire a contractor to make my home more accessible for me. Still, if something comes up and I need someone, who can I call for help? Assisted living or nursing home care may be in my future, but right now I would like to live independently for as long as I can, and am exploring other options.
I heard about senior villages in Northern Virginia. Do you know anything about them? Also, how can I plan for the future in case assisted living and/or nursing home care becomes necessary for me. There is no way I can afford these options with the savings I have and I want it all to go to my grandchildren for college. Thanks for your help!
A. A generation or two ago, many Americans assumed that when they grew old and frail, they would go to a nursing home or assisted-living facility. According to an AARP study , aging looks different now, with 88% of those 65 and up choosing to stay in their residence for as long as possible. With the increasing numbers of seniors wishing to remain at home, came the grass-roots movement of senior villages, often just called “villages.”
Since the early 2000s, villages have emerged as an innovative model to help people remain in their homes and to connect with their communities throughout later life. According to the Village to Village Network, villages are defined as “self-governing, grassroots, community-based organizations that coordinate access to a variety of supportive services to promote aging in place, social integration, health, and well-being.”
Senior villages in the DC area are organized in neighborhoods that offer older residents a variety of volunteer services, including grocery delivery, lawn mowing, and transportation . As the movement matures, villages have added additional services, including social work, discounts with local merchants, trips, cultural activities and, at one area village, a program in which volunteers accompany members to doctor’s appointments to take notes. Membership fees in the DC area are usually several hundred dollars a year, and are often determined on a case-by-case basis.
The DC area is actually leading the country in the surge of these villages, going from about five in 2010 to 40 that are up and running or currently in development. Nationally, the number of villages registered with the network has increased from 50 in 2010 to 124 this year, with more in development. In a recent study, the Village to Village Network found that the Washington area is an ideal area for these types of villages because it is a more transient place than many metropolitan areas, with close relatives often living far away. The DC area also attracts many career government and nonprofit workers, who are often interested in volunteering when they retire, in order to remain physically active and involved in the community.
Many seniors who reside in these villages are in situations similar to yours. According to Barbara Sullivan, executive director at Mount Vernon at Home, “we have a lot of members who raised their children here and the children have moved away.” The village where she works, Mount Vernon at Home, is a five-year-old village of 190 members whose average age is 82. The Mount Vernon at Home village spans 14 square miles, and consists of services including driving people to medical appointments, grocery stores and social events. The village also offers technology classes and has added care management to its services, helping people find close-by rehabilitation centers and figure out which ones accept their insurance.
In many cases, the social component has become as important as the services provided, and area villages even offer activities such as architectural tours, lectures and performances, as well as happy hours. At the same time, some villages have taken a more active role in medical care. Capitol Hill Village, for example, has a care coordinator who matches trained volunteers with people with special needs. Foggy Bottom West End Village plans to start a quick-response team, training and aligning specific volunteers with members who are identified as needing more attention.
The village phenomenon has become so popular in this area, that Fairfax has designated a liaison to assist people who want to start a village and to help connect villages in the area. Libraries in Montgomery County offer a guide to starting a village, and the county is also hiring a villages coordinator.
What happens when the village model is no longer enough to meet your needs? Nursing homes in Northern Virginia cost $9,000-$12,000 a month, which can be catastrophic for most families, especially if your desire is to help pay for your grandchildren’s education. Whether or not you move to a village community in the area, in your situation, it would be prudent to plan ahead in the event that assisted living or nursing home care is needed in the future. Life Care Planning and Medicaid Asset Protection is the process of protecting your assets from 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 and Fredericksburg Elder Law Firm of Evan H. Farr, P.C. website. Call 703-691-1888 in Fairfax or 540-479-1435 in Fredericksburg to make an appointment for an introductory consultation.
Q. My mother, Sheila, and my father, Tim, always lived in the moment and steered clear of discussions about getting older, retirement, and planning for the future. They lived in a rural part of Virginia and were convinced that Social Security and Medicare would be enough for them to get by on when they retired. They never did any estate planning, incapacity planning, or long-term-care planning. Dad ended up needing nursing home care and they depleted almost all of their assets to pay for the nursing home. After mom died, what little was left of their estate went through probate, which was a real nightmare for my sister and me. I do not want to same fate for my family.
My husband and I are both in our mid-40’s, and both work for the government, so financially we’re a lot better off than my parents, and we’ve already started saving for college for our three children (ages 5, 7, and 10) and we both have retirement accounts with the government. As far as other planning goes, we haven’t done anything yet. When it comes to incapacity planning and estate planning, what should we be thinking about?
A. Planning for incapacity, disability, and death are things that most people never think about until they (or their loved ones) are forced to grapple with an emergency situation. However, 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. Many people think that estate plans are for someone else, not them. They may rationalize that they are too young or don’t have enough money to reap the tax benefits of a plan. But as the following list makes clear, estate planning is for everyone, regardless of age or net worth.
1. Loss of capacity. What if you become incompetent and unable to manage your own affairs? Without a plan the courts will select the person to manage your affairs. With a plan, you pick that person (through a power of attorney).
2. Minor children. Who will raise your children if you die? Without a plan, a court will make that decision. With a plan, you are able to nominate the guardian of your choice.
3. Dying without a Living Trust. Without a proper estate plan using a Living Trust, your assets will go through the nightmare of probate.
4. Blended families. What if your family is the result of multiple marriages? Without a proper estate plan using a Living Trust, children from different marriages may not be treated as you would wish. With a proper plan, you determine what goes to your current spouse and to the children from a prior marriage or marriages.
5. Children with special needs. Without a plan, a child with special needs risks being disqualified from receiving Medicaid or SSI benefits, and may have to use his or her inheritance to pay for care. With a plan, you can set up a Supplemental Needs Trust that will allow the child to remain eligible for government benefits while using the trust assets to pay for non-covered expenses.
6. Keeping assets in the family. Would you prefer that your assets stay in your own family? Without a proper plan, your child’s spouse may wind up with your money if your child passes away prematurely. If your child divorces his or her current spouse, half of your assets could go to the spouse. With a proper plan, you can set up a trust that ensures that your assets will stay in your family.
7. Financial security. Will your spouse and children be able to survive financially? Without a plan for long-term care and disability in place, your family may be unable to maintain its current living standard.
8. Retirement accounts. Do you have an IRA or similar retirement account? Without a plan, your designated beneficiary for the retirement account funds may not reflect your current wishes and may result in burdensome tax consequences for your heirs (although the rules regarding the designation of a beneficiary have been eased considerably). With a plan, you can choose the optimal beneficiary.
9. Business ownership. Do you own a business? Without a plan, you don’t name a successor, thus risking that your family could lose control of the business. With a plan, you choose who will own and control the business after you are gone.
10. Avoiding probate. Without a plan, your estate may be subject to delays and excess fees (depending on the state), and your assets will be a matter of public record. With a plan, you can structure things so that probate can be avoided entirely.
Estate Planning for Parents with Minor Children
Parents of Minor Children Need a Child Protection Plan.
If you’re a mom or dad with one or more children at home under the age of 18 (as I am), you need a Child Protection Plan. Without such a plan, if you are killed or incapacitated in an accident, the police will typically show up at your house to notify the family. If the police find your kids home alone, or with a babysitter, they will have no choice but to call in Child Protective Services and have your kids removed from your home until the system can figure out what to do, and that may take weeks or even months.
Doesn’t a Will Naming Guardians Suffice?
Having a Last Will and Testament to name permanent, long-term guardians for your minor children is vitally important, but it is not sufficient to protect your children in these situations. First of all, the police typically won’t know where to find your Will, so your kids will often wind up in the hands of strangers until everyone can figure out what to do. Even if the police did somehow obtain a copy of your Will, a Will doesn’t actually appoint guardians. A Will only nominates guardians for your children after your death; a Court must make the actual legal appointment. And a Will only works if you die, not if you become temporarily or permanently incapacitated.
A Will doesn’t even become effective until it is admitted to probate (which often occurs weeks or months after death), and then it can take additional weeks or months for the Court to officially appoint your guardians. In the meantime, who is going to take care of your children? Who is going to be authorized to obtain medical treatment if a child requires it? Unfortunately, it is typically the Child Protective Services system, through its network of Foster Care volunteers.
A Child Protection Plan addresses who is authorized to take charge of your children immediately and comfort them in those terrible first hours, days and weeks after your death or incapacity, so that you can have the peace of mind of knowing that your children will be taken care of by trusted and loving family or friends who you decide on, not random strangers that the overworked government system foists upon your children.
What is a Child Protection Plan?
A Child Protection Plan is a set of legal documents that includes an Appointment of Temporary Guardian for someone you choose to take immediate custody of your children, a Parental Consent for Medical Treatment form, and a Medical Information form containing information on your child’s medical allergies and conditions, pediatrician information, health insurance information, immunization record, and medication list. Your Child Protection Plan will also include a special wallet card. The wallet card will be registered with a national database that contains all of the above information on file for each child.
If you are in an accident, your Child Protection Plan will help ensure that your children are never turned over to Child Protective Services because the police don’t have clear instructions from you and, if the unthinkable happens, your Child Protection Plan will help ensure that your children are not turned over to Foster Care strangers chosen by a overburden social services system that doesn’t care about your wishes or who you would prefer to take custody of your children.
Elder Law doesn’t start when you are “elderly”– it is something that should start when you first become an adult and continue throughout your lifetime. Your life goes through incredible changes each decade; therefore, you should look at Elder Law and Estate Planning as gradual processes, rather than a one-time ordeal. If you haven’t done so already, now is the time to begin your process. Learn more at http://www.VirginiaElderLaw.com and call us at our Virginia Elder Law Fairfax office at 703-691-1888 or at our Virginia Elder Law Fredericksburg office at 540-479-1435 to make an appointment for an introductory consultation.
Q. My 6-year-old son, Jackson, was recently diagnosed with an autism spectrum disorder (ASD). To better his chances for a productive life, I signed him up for play therapy, occupational therapy, and speech therapy, as the developmental pediatrician suggested. However, despite all of the help and suggestions from the therapists, it is often hard to understand his perplexing and often difficult behaviors. Honestly, I wish I could know what is going on inside his head and what an ASD is really like for someone who has it. In a recent newsletter, you discussed ways to experience what it is like to have dementia. To truly understand my son and relate to him, I was wondering if there is any way to know what ASD is really like. Also, howdo you plan for someone with ASD?
A. Autism is a complex disorder, and, as you probably know, no two children with ASD are completely alike. Every person with ASD has a unique set of needs. Below are some powerful resources that present what it feels like to have some of the symptoms of ASD, including sensory processing challenges, speech/language delays and impairments, social interaction issues, and some of the other ASD symptoms.
- An interactive simulator, called Auti-Sim, aims to provide a hint at what it is like to experience the sensory overload someone with autism experiences. The simulator takes the user through a playground as an autistic child with auditory sensitivities. To try the simulator, click here.
- The video, Sensory Overload, created by Miguel Jiron, is part of the Interacting With Autism Project. The project is a government-sponsored effort to build an interactive, video-intensive website to focus on the best available treatments for autism.
- The Atlantic Magazine recently ran a story entitled, “What it’s like on the Autism Spectrum,” which features thoughtful responses from readers who have experience with the disorder in their own lives or in their families, how the diagnosis has affected them, and what the changes in the DSM-V mean to them.
- Temple Grandin, PhD, a famous author, speaker, and inventor with ASD wrote “Thinking in Pictures.” In the book, she describes how people with ASD are visual thinkers. Read a summary about the book, where she explains more about what it’s like living with ASD.
- Pulitzer Prize-winning journalist Ron Suskind will publish a memoir “Life, Animated” on April 1. Suskind’s memoir follows his 20-year journey in connecting with his son Owen, who has ASD. Learn more and watch a New York Times video about Suskind and his son on the Autism Speaks website.
We’ll never be completely able to simulate autism properly, since as I mentioned previously, the symptoms are unique for every individual with ASD. However, the hope is that projects and resources such as those described above might help create empathy and provide at the very least a small degree of insight and understanding into what it must be like to live with ASD.
You asked about planning for your son with ASD. 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.
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.
More than $13 billion a year is spent to care for individuals with ASD and other special needs. For the average affected family, this translates to $30K per year. Fortunately, there are many ways to plan for the long-term care of a disabled child. As Jackson gets older, if he will likely need care for life, it’s important to provide legal protections for your child. The Fairfax and Fredericksburg Elder Law Firm of Evan H. Farr, P.C. can guide you through this process. Be sure to check out our dedicated Special Needs Website at http://VirginiaSpecialNeeds.com. If you have a loved one with special needs, call 703-691-1888 in Fairfax or 540-479-1435 in Fredericksburg to make an appointment for an introductory consultation.