Category Archives: Geriatrics
An estimated 5.4 million people in the United States have Alzheimer’s disease and other types of dementia, and 70% are cared for in the community by family members and friends. Unfortunately, most people with dementia who live at home have multiple unmet health needs, any number of which could jeopardize their ability to remain home for as long as they desire.
A recent Johns Hopkins School of Medicine study published in the Journal of the American Geriatrics Society examined the unmet needs of people with dementia living at home. The study included in-home assessments and surveys of 254 people with dementia living at home in Baltimore and also interviewed 246 of their informal, non-professional caregivers. Researchers found that nearly all of the patients and caregivers had one or more unmet needs, involving safety, health, meaningful activities, legal issues and estate planning, assistance with activities of daily living, and medication management. Significant findings include:
- 99% had at least one unmet need for care, services or support;
- 90% had personal or home safety issues that could be met with simple fixes, including grab bars in the bathroom, carpets safely tacked down to prevent falls, guns locked away etc. Please read our blog post entitled, “Making Home Safe for Dad” for more details.
- More than 60% had unmet needs for medical care, including the need to see a primary care doctor, specialist, dentist or audiologist;
- More than half of the patients had inadequate meaningful daily activities at a senior center or at home;
- One-third still needed a dementia evaluation or diagnosis;
- Unmet needs were significantly greater in those with higher cognitive function, most likely because many of them did not realize they had dementia and were not yet being closely cared for or monitored.
The study also found that most caregivers have multiple unmet needs, including lack of access to resources and referrals to support services and education about how to best care for their loved one. Please read our recent article on caregiver training for some helpful resources.
Insufficient care, supports, or services can often lead to poor health outcomes, hospitalization, and early placement in a nursing home. Therefore, it is always a good idea to plan for the future, just in case your loved one needs more adaptations and assistance than you can provide. Nursing homes in Northern Virginia cost $9,000 – $12,000 per month. Life Care Planning and Medicaid Asset Protection is the process of protecting your loved one from having to go broke paying for nursing home care, while also helping ensure that he or she gets the best possible care and maintains the highest possible quality of life, whether at home or, in the future, in an assisted living facility or nursing home. 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.
The Medicaid program is our country’s largest health and long-term care insurer, covering one in six Americans, including two-thirds of nursing home residents and one in five persons under 65 with chronic disabilities. A look at the facts about Medicaid uncovers many common misconceptions about the program that are simply myths. Today, we will take a look at and dispel some of myths about exactly who qualifies for Medicaid, what coverage it provides, and how you can plan for long-term care for yourself or for a loved one.
- Myth #1: “Medicare will cover my nursing home expenses.” It is important to understand that Medicare, the public health insurance system for seniors over 65 and disabled adults, does not pay one penny for long-term care. Medicare only pays for medical care delivered by doctors and hospitals, and in certain cases short-term rehabilitation which might take place in a nursing home. Medicare covers, at most, 100 days of short-term rehabilitation, and does not cover help with activities of daily life, such as eating and bathing, that the aged can need for years. Please read our blog post, “Ask the Expert: Medicare’s 100-Day Rule vs. Long-Term Care” for more details.
- Myth #2: “Medicaid is for poor people.” Medicaid does serve as a program for millions of low-income Americans, but it also benefits many middle class seniors, primarily by covering the catastrophic costs of nursing-homes so families don’t have to deplete the assets it took a lifetime for them to earn. Please read our blog post, “Medicaid is NOT just for Poor People” for more details.
- Myth #3: “Medicaid Planning is Not Ethical” If you or a loved one become a client of the Farr Law Firm, you may rest assured that everything that we do is absolutely, unquestionably, 100% legal and ethical. Attorneys in general have the highest ethical rules of any profession, and as a member of NAELA and a Certified Elder Law Attorney, we and our Elder Law colleagues subscribe to the NAELA Aspirational Standards for the Practice of Elder Law, which articulate ethical standards that raise the level of practice above the floor established by the basic rules of professional conduct. See http://www.naela.org/pdffiles/AspirationalStandards.pdf. Read more on our website about Why Medicaid Planning is Ethical.
- Myth #4: “I have to dispose of all my resources to get Medicaid.” While in general a Medicaid applicant can have no more than $2,000 in assets to in order to qualify, there are many assets that don’t count toward this limit, and with good legal representation you do NOT have to go broke in order to get Medicaid — a married couple can legally and ethically protect all of their assets and a single person can legally and ethically protect 40% to 70% of their assets and still get Medicaid.
- Myth #5: To qualify for Medicaid, you should transfer your money to your children. By transferring assets within five years of needing benefits, you may disqualify yourself from receiving Medicaid benefits. For example, if you give your house worth $450,000 to your children, this gift will result in a 58 month penalty (period of ineligibility for Medicaid) in Fairfax, Virginia and the rest of Northern Virginia and an almost 76 month penalty in the Fredericksburg, Virginia and the Rest of the State. Please read our blog post, “Should I Give My Home to My Children” for more details.
- Myth #6: “Once I am in a nursing home it is too late to start Medicaid Planning.” Medicaid planning can be started while you are still able to make legal and financial decisions, or can be initiated by an adult child acting as agent under a properly-drafted Power of Attorney, even if you are already in a nursing home or receiving other long-term care assistance. In fact, the majority of our Life Care Planning and Medicaid Asset Protection clients come to us when nursing home care is already in place or is imminent.
- Myth # 7: “If my assets are owned by a Revocable Living Trust, they are protected from nursing homes.” A Revocable Living Trust (RLT) generally provides for the creator of the trust (and, if applicable, the creator’s spouse) to have full use of the trust income and principal for life. On the death of the creator, the assets may continue to be held in trust (or may be distributed) for the benefit of the named beneficiaries, such as the grantor’s children. The major benefits of the RLT are protection from probate and incapacity. Although an RLT does a terrific job of avoiding probate, what most people don’t realize is that an RLT does not protect your assets from creditors or from the expenses of long-term care. The Living Trust PlusTM maintains much of the flexibility of a revocable living trust, but protects your assets from the expenses and difficulties of probate PLUS the expenses of long-term care while you’re alive, PLUS lawsuits and a multitude of other financial risks during your lifetime. If you’re a client or potential client who would like more information about the Living Trust PlusTM, visit http://www.farrlawfirm.com/seminars.html to register for one of our upcoming Living Trust PlusTM informational seminars.
- Myth # 8: “I will get better care if I private pay.” It is illegal to treat Medicaid patients differently than private pay patients and it is illegal to discriminate against Medicaid patients. There may be no “Medicaid wing” and no public identification of a “Medicaid bed.” Typically, the staff does not know which patient is a Medicaid recipient. In actuality, the nursing home residents who get the best care are those who have done Medicaid Asset Protection, because a loving family member can then use those protected assets to provide a higher level of care for the nursing home resident. In fact, Elder Law, including Medicaid Planning and Medicaid Asset Protection, is all about preserving dignity and quality of life for Elders.
- Myth #9: “The rules that applied to my friend will also apply to me.” Medicaid rules change frequently, and the rules also vary from state to state. There may also be facts about the friend’s situation that the client does not know, and these facts may result in implementing different strategies than those that apply to the client’s situation.
- Myth #10: “I don’t need any help.” Medicaid laws are the most complex and confusing laws in existence, and impossible to understand without highly experienced legal assistance. Without proper planning and legal advice from an experienced elder law attorney, many people spend much more than they should on long-term care, and unnecessarily jeopardize their future care and well-being, as well as the security of their family. Please read the Medicaid Complexity page on our Website for more details.
Nursing homes in Northern Virginia cost $9,000-$12,000 a month, which can be catastrophic for most families. 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 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.
As tax time draws near, you want to make sure you file all the proper forms and take all deductions you’re entitled to. The following are some helpful but often overlooked deductions to keep in mind as you prepare your 2013 taxes:
Estate Planning Attorney Fees: 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.
Medical Expenses: To take advantage of the medical expenses tax deduction, you have to itemize and deduct medical expenses, and for 2013 you can write off only the amount of those expenses that exceeds 7.5% of your adjusted gross income. For retirees with low incomes, this threshold can be easy to cross. See IRS Publication 502 Medical and Dental Expenses for more details. Please also read Part 3 of our Tax Time Series.
Caregiver Deductions: As a caregiver, you likely pay for some care costs out-of-pocket. Did you know that if you are caring for a relative, you might be able to claim tax deductions and credits for certain medical expenses? These can include dental treatments, transportation to medical appointments, health insurance premiums, and long-term care costs. The rules below apply to caregivers for the 2013 tax year (filed in 2014). See IRS Publication 502 for more details. Please also read Part 1 of our Tax Time Series.
Parental Deduction: If you are caring for your mother or father, you may be able to claim your parent as a dependent on your income taxes. This would allow you to get an exemption $3,950 (in 2014) for him or her. Please read Part 2 of our Tax Time Series for more details.
Long-Term Care Insurance Premiums: Premiums for “qualified” long-term care insurance policies are treated as an unreimbursed medical expense. Long-term care insurance premiums are deductible for the taxpayer, his or her spouse, and other dependents.
Social Security Benefits: If you file a federal tax return as an individual and your combined income, including half of your Social Security benefits and nontaxable interest income is between $25,000 and $34,000, 50% of your Social Security benefits will be considered taxable. If your combined income is above $34,000, 85% of your Social Security benefits is subject to income tax.
Real Estate Taxes: If you don’t have enough deductions to itemize, you can still increase the amount of your standard deduction by the amount of your real estate taxes up to $500 ($1,000 if filing jointly).
Home Sale Exclusion: If you sold your home in 2013, you might be able to exclude up to $500,000 (if you are married) or $250,000 (if you are single) from your income. If a surviving spouse sells the home, he or she can still claim the exclusion as long as the house was sold no more than two years after the spouse’s death.
Elderly or Disabled Tax Credit: Some low-income elderly or disabled individuals are entitled to a special tax credit. To be eligible, you must meet income limits. For more information, click here.
Gifts: If you gave away more than $14,000 in 2013, you are required to file IRS Form 709, the gift tax return. Please read our blog post Gifting and the New Gift and Estate Tax Exclusion Numbers for more details about gifting and taxes.
For more details, please see the IRS Tax Guide For Seniors.
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.
Joyce Griffen, a retired anthropology professor at Dartmouth University, spends many hours a week rehearsing and playing different roles. She’s not involved in theater and hasn’t been since college. However, in a week’s time, she can assume the role of someone with dementia, Parkinson’s, chronic pain, and other age-related disorders.
According to the Center for Disease Control (CDC), 90% of Americans who need long term care get it from unpaid family members. That puts a strain on a lot of relatives who have neither enough time nor the training to care for loved ones with brain disorders such as dementia.
“Family caregivers are often thrust into this role of providing medical care without medical training,” says Justin Montgomery, a clinical nurse and nurse practitioner at Dartmouth-Hitchcock’s Aging Resource Center. The Center had answered the need for training by offering classes featuring role play opportunities for participants. The training program, paid for by a federal grant through the Health Resources and Services Administration, is one of the oldest simulation training programs of its kind, and it employs 15 actors, including Ms. Griffen, between 68-93 years old.
Last month, 16 caregiver spouses gathered at the hospital’s simulation center in an attempt to boost their caregiving skills. Those who attended learned how to deal with challenging behaviors and how to solve real-life issues. In the process, the group also learned, through role-play, how to deal with someone who is impaired and difficult.
As part of the training, each participant was videotaped in a pretend scenario with an actor who refused to get dressed, or was exceptionally argumentative, difficult, or negative. To make the portrayal seem authentic, one of the actors, Mark Cookson, was made up to look 30 years older. Fake bags were placed under his eyes, adhesive creases etched his forehead, and flesh-colored spray drained the natural color from his face. He portrayed a crotchety old man with advanced Parkinson’s disease. In character, wearing a bathrobe and a frown, he slumped in a chair in a simulated hospital room. He acted as if he had trouble speaking and stiffened as his caregiver (a class participant) tried to steer him into bed.
After the role-playing, the actors and fellow caregivers offered feedback on the caregiver’s body language and interaction about what worked and what didn’t, including how well caregivers picked up on non-verbal cues.
Reading body language is a big topic in the three-hour seminar, which also includes information about how the brain changes at the onset of Alzheimer’s and other dementias and how to respond safely to challenging or dangerous behavior. The advantage of stimulated training is that participants can watch and see what the body language is telling them and learn how they should interact with someone based on posture and stance and all the ways other we communicate without saying any words.
Dartmouth-Hitchcock’s Aging Resource Center is the only geriatrics center in the U.S. that makes such heavy use of role-playing with actors as patients. However, training for caregivers, including various online options, does exist. These are some available caregiver training options:
- The Alzheimer’s Association has several free, online tools to help caregivers find answers, local resources and support.
- The National Parkinson’s Foundation has a list of caregiver resources and a free manual called Caring and Coping.
- AARP has several free on-line seminars on family caregiving topics such as housing options, the basics of handling caregiving, providing the care, and planning for the care of aging parents.
- AARP has also prepared comprehensive materials for caregivers called “Next Step in Care.” Although the focus isn’t on nursing-style caregiving tasks, three might be useful: a self-assessment tool for family caregivers, a medication management guide, and a guide to hospice and palliative care.
- Many home health-care companies, such as Five Star Home Health care in Fairfax, offer a 40-hour Caregiver class, where you can learn personal care assistance; home management; safety and accident prevention; infection control; and food, nutrition, meal preparation and how to help a loved one with activities of daily living such as bathing and toileting.
- The American Red Cross offers a training manual for caregivers that has a DVD explaining the mechanics of transferring another person from bed to chair and back, and a few other complicated tasks.
- Also, some videos are available for free at www.mmlearn.org, a Web site that says its mission is to provide caregivers with online training and education.
In addition, the best way for caregivers to learn caregiving techniques is to ask a professional for help. If your loved one is in the hospital, make sure care instructions are clearly explained to you before discharge. If you don’t get them to your satisfaction, don’t sign the form that says you have been given instructions on what to do. The hospital is legally obligated to ensure that discharges are safe, and this operates in a caregiver’s favor. The same goes for the pharmacy: don’t sign that sheet that the pharmacist hands you indicating that you have been adequately informed about the medications you are purchasing if you haven’t been.
Caregiving can be rewarding, but it is also physically and emotionally demanding. The Fairfax and Fredericksburg Elder Law Firm of Evan H. Farr advises that if you are a caregiver, don’t let your own needs or health take a back seat. Many caregivers are at the age when they are developing their own chronic medical issues. Be sure to take good care of the person you are caring for and yourself too! Part of doing so is planning for your future and for your loved one’s future. Call us today at 703-691-1888 in Fairfax or 540-479- 1435 in Fredericksburg, to make an appointment for an introductory consultation.
Q. My mother, Bunny, was told she is being discharged from the nursing home in which she resides. She and I are completely against this. For what reasons may a nursing home discharge a resident and what recourse do we have?
A. Nursing homes are required to follow certain procedures before discharging a resident, but a facility may occasionally attempt to discharge an undesirable resident by transferring the resident to a hospital and then refusing to let him or her back in. This practice is called “patient dumping” and, in most cases, is illegal.
The Nursing Home Reform Act of 1987, however, prohibits transfer or discharge of a resident by a skilled nursing facility, except for the following reasons:
- Resident has improved: Sometimes a resident’s health has improved enough so that he or she no longer needs the services provided by the facility.
- Needs cannot be met by the facility: Sometimes, a patient’s transfer or discharge is necessary to meet the resident’s welfare when the resident’s needs cannot be met in the facility. This reason is very rarely legitimate, but in some cases is legitimate, for instance if a resident needs ventilator care but the facility does not offer such care.
- Failure to pay after given notice: A nursing home can discharge a resident if the bill isn’t paid after reasonable and appropriate notice. However, if the resident is eligible for benefits – such as Medicaid – that would pay for the resident’s stay, and the resident has filed all necessary paperwork to apply for benefits, the nursing home must wait until the application process has been completed.
- Endangers the health or safety of others: If the resident’s stay endangers the health or safety of other individuals in the facility, then he or she may be discharged. A physician must document the endangerment in the resident’s clinical record.
- Closing its doors: If the facility ceases to operate, it will obviously need to transfer or discharge its residents.
Prior to transfer or discharge, the facility must notify the resident and, if known, a family member or legal representative of the resident. If the nursing home transfers a resident to a hospital, state law may require that the nursing home hold the resident’s bed for a certain number of days (usually about a week).
Before transferring a resident, the facility must inform the resident about its bed-hold policy, and the resident (or someone on behalf of the resident) must typically pay privately to hold the bed. If the resident is a Medicaid recipient, the nursing home must readmit the resident to the first available bed if the bed-hold period has passed.
Residents or their families or the attorney for the resident (such as our firm) can appeal or file a complaint with the state if a nursing home refuses to readmit them.
Also, please read 20 Common Nursing Home Problems—and How to Resolve, a helpful publication from the National Senior Citizen’s Law Center.
Q. My father, Jim, has been a big help to our family. He picks up our daughter, Sophie, from preschool every day and watches her while my husband and I are working, which we are very grateful for. Lately, however, he has been forgetting a lot of important things. Last week, he forgot to take Sophie’s lunch from the refrigerator and she ended up not having a lunch to eat at school after I reminded him three times. A couple of days ago, he went to pick Sophie up at school when I was supposed to do so, and I was upset when I saw my daughter wasn’t there at pick-up and ready for her doctor’s appointment. He even once sent her to school with tights and a top and forgot to put on her skirt. I was mortified when the teacher called me at work.
I have also noticed things have changed when I talk to him. He forgets a lot of names of things and important details. I once brought it up with him and he insisted that he was okay, and changed the subject. My mother, Joan, acknowledges that he also has been forgetting to pay bills lately, but is convinced that forgetting things is a normal part of aging and that maybe he isn’t getting enough sleep. I wish that I could get them both on board with my concerns about dad, if they are indeed valid.
Again, we are so appreciative for all the help, and I know that he loves his granddaughter, but I am concerned for my father and for Sophie in his care. Am I right to be concerned? If so, how do I broach this difficult topic with him and my mother again without hurting his feelings or facing his denial and refusal to get checked out by a doctor? Also, from a legal perspective, what do we do if we find out that he is in the early stages of Alzheimer’s or another form of dementia?
A. Five million Americans have Alzheimer’s disease, with a new diagnosis being made every seventy-two seconds, with millions more at risk. Although experts agree that early diagnosis and treatment are essential, some people with memory loss, such as your father, often don’t think that there is a problem and are unwilling to get screened.
One of the hardest conversations an adult child can have with an aging parent is about their concerns regarding their aging parents’ health, safety and/or finances. Because of the difficulty of such topics, many families don’t have the conversation until it is too late.
Whether it’s caring for your daughter or forgetting to pay the bills, making mistakes while doing something one has done for many years is alarming, and you have a right to be concerned. However, it sounds like getting your father to the doctor might be tricky, and getting your mother on board may be a challenge, as well. Below are some suggestions for when you do attempt to have the conversation once again with your family:
- Be direct with your parents about the issues you observe with your father. It is possible to be direct, yet respectful.
- Approach your parents with your concerns about your father, stressing your intent to help, not to criticize.
- Avoid ganging up on them or pushing them into a corner. Be casual, open-minded, but not too invested or persistent.
- If your father currently trusts a relative, friend, or clergy person as someone who has all the right answers, ask this person to casually support your idea.
- Don’t focus on your father’s deficits, but rather on what can be gained by early treatment.
- Make it your issue rather than your parents. Tell them that you would rest easier knowing that your father has the most up-to-date information about how to retain his memory, function and quality of life.
- If your parents react negatively, drop it and try again. If they still refuse, just tell them it’s so hard to get an appointment with the doctor, and that you scheduled an appointment far in advance just in case.
- If they react with anger, just say “I’m sorry – I mean well.” Suggest you go with them to the doctor and then go out to lunch or to some activity they really enjoy.
Once your family is agreeable, a good evaluation from a trusted doctor will give your family some answers about your father. Please read our blog post about the SAGE Test, a test that your father can complete at home and bring to his primary care doctor, who will determine if further evaluation is needed.
Once you are at the physician’s office, be sure to stay with your dad (and mom, if she comes too) for the examination. That way you can hear the doctor’s recommendations and get a first-hand report. If you stay in the waiting room, your dad may come out and report that all is well! He may not have understood the doctor’s message or have forgotten key parts of the conversation. Hopefully the physician will discover a reversible issue, such as a B-12 deficiency, a medication issue, or depression, and not dementia!
The Alzheimer’s Association has many suggestions about how to prepare for the evaluation and how to get the most out of your time with the doctor or evaluation team. You’ll be surprised by the number of successful but quite different approaches families use to insure timely evaluation of changes in memory and thinking.
When it comes to legal planning, if your father is diagnosed with Alzheimer’s or another dementia, creating a plan for your father’s future in the early stage of the disease can be empowering and can ensure that his wishes are met. The sooner he establishes his legal plans, the better prepared your family will be.
Our firm, the Fairfax and Fredericksburg Elder Law Firm of Evan H. Farr, P.C. (www.VirginiaElderLaw.com) 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. With proper planning, when the time comes for your father to enter a nursing home, your family can retain all of the assets and most or all of the income while Medicaid takes care of the nursing home. Proper planning also helps to ensure that your mother will be able to maintain her dignity and standard of living. Read more about the services we offer to help families in similar situations, then call us at 703-691-1888 in Fairfax or 540-479-1435 in Fredericksburg to make an appointment for an introductory consultation.
In the past, our newsletter featured a series of articles entitled “Lessons Learned from Estate Planning Mistakes of Celebrities,” demonstrating why probate is such a nightmare and lessons that can be learned from the costly mistakes of celebrities. Celebrities, including James Gandolfini, Whitney Houston, Amy Winehouse, Etta James, and Michael Crichton, who made estate planning mistakes, were explored. We will now continue this series with Phillip Seymour Hoffman, who passed away earlier this month and hadn’t updated his estate plan in 10 years, leaving his companion $35 million and a hefty tax bill, and his young daughters empty-handed.
For the last 14 years of his life, Hoffman was in a relationship with costume designer Marianne (Mimi) O’Donnell, whom he had met when they were both working on the play In Arabia We’d All Be Kings in 1999. They lived in New York City and had a son, Cooper, born in 2003, and two daughters, Tallulah, born in 2006, and Willa, in 2008. Hoffman and O’Donnell separated in the fall of 2013, just a few months before his death.
In a 2006 interview, Hoffman revealed that he had entered a drug rehabilitation program in 1989 and remained sober for 23 years until relapsing with heroin and prescription medications in 2012. He subsequently checked himself into drug rehabilitation for approximately 10 days in May 2013. On February 2, 2014, Hoffman was found dead in the bathroom of his West Village, Manhattan office apartment, and heroin and prescription drugs were found at the scene.
Hoffman’s Will was apparently drawn up in 2004 when his son, Cooper, was one-year old. Unfortunately, Hoffman apparently never updated his Will, even after the birth of his two daughters. Reports vary tremendously with regard to whom he left his estate to. The TMZ website claims to have obtained a copy of his will and claims that he left his entire estate, supposedly valued at roughly $35 million, to O’Donnell. However, TMZ does not appear to have posted a copy of the Will on their website. The only link to a copy of the Will that I can find is from the New York Post website; however, the copy of the Will that they link to is woefully incomplete, in that it skips from the first sentence of the Third Article of his Will (which is the Residuary Clause because it starts of by stating that he leaves “all the rest, residue and remainder of my estate . . .”) the to the last sentence of the Sixth Article, leaving out all of the critical provisions of the Will that state what happens to his estate. The Second Article leaves all of his tangible personal property to O’Donnell, but tangible personal property is essentially the contents of his home(s) – things like furniture, jewelry, artwork, etc. Tangible personal property does NOT include money or investments or real estate, which presumably makes up the bulk of his estate. So suffice it to say that without seeing the full copy of his Will, I can’t say for certain to whom he left his estate.
There are numerous reports that the actor set up a trust for Cooper and named O’Donnell as the trustee of the funds, but not a single report states how much or what percentage of his estate was left in trust for his son, nor is it clear, without reading the entire Will, whether he made provisions for his two daughters who were born after the writing of his Will. He may or may not have according to various contradictory news reports.
So, ignoring all of the possibly incorrect information out there, and ignoring the mistake made by whoever scanned his incomplete Will, what is the huge, drastic mistake that Hoffman made? Very simply – like thousands of people and at least dozens of celebrities, he used a Last Will and Testament to distribute his Estate instead of using a Living Trust. Because he used a Last Will and Testament instead of a Living Trust, his financial affairs – and the financial affairs of his beneficiaries — will be known to the public and will have to go though the nightmare of the New York probate system. New York has a very detailed probate system set forth in both the state law and the court rules. As it is in most states, probating an estate in New York can be time-consuming, taking up to 2 years or longer to complete. It can also be extremely expensive (especially in large estate), eating away anywhere from 3% to 8% of the assets of his estate – and taking that money away from the beneficiaries. This doesn’t include estate taxes, inheritance taxes, and income taxes that may be due and payable during the course of the probate administration.
Had Hoffman used a Living Trust, then his estate wishes would be private and not in the public eye, which is full of swirling rumors and misinformation about what he did or did not do. The cost of settling a Living Trust range anywhere from less than 1% to 3% of your assets — much less than the costs of probate, which is another huge advantage of the Living Trust.
We advise that our clients should almost always use a Living Trust as their primary Estate Planning tool, in order to protect assets at death from having to go through the nightmare of probate. A Will allows you to direct who receives your assets (i.e., who are your beneficiaries) and who manages your estate (i.e., who acts as your executor), but a Will does NOT protect your assets from becoming public knowledge and going through probate. Only a properly-funded Living Trust protects your assets from going through the nightmare of probate.
In addition, in this situation, because Hoffman and O’Donnell were not married and New York state does not recognize common law unions, there will almost certainly be a huge estate tax bill on his estate. Since Hoffman is said to have amassed a $35 million estate, the federal tax bill alone will probably be around $12 million (40% of $30 million, because the first $5.34 million goes free of Estate Tax). On top of this, the New York Daily News reports that New York is one of only 14 states still imposing its own Estate Tax, and it has only a $1 million exemption. According to an attorney writing for About.com, the New York estate tax rate is a progressive one that starts at 5.085% and rises to 16% for the amount above $10,040,000. So everything above $1 million will be subject to New York Estate Tax on top of Federal Estate Tax, and approximately $25 million of his estate will be subject to the highest New York Estate Tax of 16%. That’s another $4 million in New York Estate Tax, and that’s ignoring the New York Estate tax of $9 million of his estate.
Why all the concern about Estate Taxes? Because Hoffman could have done several things to make his Estate more tax-efficient, including marrying O’Donnell (in which case all money he left to her would have avoided Federal Estate Tax until her subsequent death). Giving monetary gifts small enough to avoid taxes during his lifetime would have been one approach, and he may have done some of that. He also could have established specialized trusts that would have sheltered some of his estate from taxes, as well.
Hoffman’s second biggest blunder was not updating his estate. You never want to go 10 years without updating your estate planning. Once you have met with an experienced Estate Planning attorney (preferably a Certified Elder Law Attorney such as myself) and created your estate planning documents, you need to make sure you update them regularly (at least every 3-5 years, but as often as yearly depending on the type of document). This is the only way to ensure that your estate plan truly reflects who you are, what you care about, and what you have.
So, when are updates needed? Have there been any changes in your family structure, financial circumstances, or health? Examples of events that could have a significant impact on your estate can include if you get married or divorced, if you have a new child or grandchild, if you or your child becomes disabled, if you retire, and others. Read our blog post about when to update your estate planning documents for more details.
Even if no changes are necessary, you should annually sign an updated Powers of Attorney. Some financial institutions won’t accept a Power of Attorney more than a year old. Similarly, the older an Advance Medical Directive is, the less likely it is that it will be honored by a doctor or hospital.
Don’t let too much time pass between reviews of your plan. The cost of a review is minimal; but as you can see from Mr. Hoffman’s situation, the cost to your family if you neglect your plan could be disastrous. If any of the changes described above have happened to you or if you haven’t updated your estate plan in the last few years, the time is now. Call the Fairfax and Fredericksburg Elder Law Firm of Evan H. Farr at 703-691-1888 in Fairfax or 540-479-1435 in Fredericksburg to update your estate plan! 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 the proper effect under the law. In addition, if you haven’t done your estate planning and want to get started, please call us to set up an appointment for a introductory consultation.
Cremation is quickly becoming a preferred method of memorial in the U.S., and it is projected that 40-45% of those who pass away will be cremated this year, according to the Cremation Association of North America. Projections are that nearly 60% of the U.S. population will be choosing cremation by the year 2025.
Many people request their cremated remains (or cremains) be scattered in a place that held meaning to the loved one and their family. In Virginia, there are no state laws controlling where you may keep or scatter ashes. However, there are regulations when it comes to scattering ashes on public land, federal land, at sea, or in the air. Below are some options that you have, and some things you should take into account:
- Scattering ashes in an established scattering garden: Many cemeteries provide gardens for scattering ashes. If you’re interested, ask the cemetery for more information.
- Scattering ashes on private land. You are allowed to scatter ashes on your own private property. If you want to scatter ashes on someone else’s private land, it is wise to obtain permission from the landowner. If permission is granted be sure that you get that permission in writing. Also, be clear about whether family members will later be allowed to go onto the landowner’s property to pay respects to the loved one. A landowner might well allow a one-time intrusion on their land, but not wish to have family members dropping by whenever they wish.
- Scattering ashes on public land: While many people approach scattering ashes in public places with a “don’t ask, don’t tell” policy, scattering cremated remains in a public place requires permission and may be subject to special permitting and various restrictions. Municipalities and states have rules and restrictions that restrict scatterings. To be safe, family members should check with the state or local governing authority before scattering a loved one’s remains in a park or other public place.
- Scattering ashes on federal land: Officially, you should request permission before scattering ashes on federal land. As with local or state land, however, you will probably encounter no resistance if you conduct the scattering ceremony quietly and keep the ashes well away from trails, roads, facilities, and waterways. You can find guidelines for scattering ashes on the websites for some national parks. For more information, begin your search at the website of the National Park Service.
- Scattering ashes at sea. The federal Clean Water Act requires that cremated remains be scattered at least three nautical miles from land. The U.S. Environment Protection Agency (EPA) does not permit scattering at beaches or in wading pools by the sea. Finally, you are supposed to notify the EPA within 30 days of scattering ashes at sea. The Clean Water Act also governs scattering in inland waters such as rivers or lakes. For inland water burial, you may be legally required to obtain a permit from the state agency that manages the waterway. For more information, including the contact information for the EPA representative in Virginia, see Burial of Human Remains at Sea on the EPA website.
- Scattering ashes by air: There are no state laws on the matter, but federal aviation laws prohibit dropping any objects that might harm people or property. The U.S. government does not consider cremains to be hazardous material, so all should be well so long as you remove the ashes from their container before scattering.
If you are requesting that your remains be scattered in a particular place, work with an estate planning attorney, such as myself, to find out in advance if your loved ones will be able to honor your wishes and, if they can, what will be required of them. If you’re curious about some other options for disposing of your body after death, please read our blog post about non-traditional post-mortem options.
If you have a family member that wishes to be cremated upon death, the consent for cremation is included as part of our proprietary 4-Needs Advance Medical Directive(TM), which enables you to set forth your preferences with regard to organ donation, funeral arrangements, and disposition of remains.
If you have not done Incapacity Planning (including our 4-Needs Advance Medical Directive(TM) and Financial Power of Attorney), 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.
Q. I am a caregiver for my husband of 10 years, Frank, who is 75 and has dementia. As his dementia is worsening, bills are piling up and decisions about long-term care need to be made. I am feeling alone, exhausted, and overwhelmed, and could use some help from my husband’s two adult daughters from his previous marriage. So far, asking them for assistance has been difficult, to say the least. When I call them on the phone, I get a lot of advice but no solutions and no offers of help from either one of them. I even called a family meeting to discuss how to manage things, but no one showed up. Is what I am describing common, and what do you suggest I do?
A. Every year, nearly one million people over the age of 65 marry for the second time, and many become the primary caregivers when his or her spouse develops a geriatric disease or dementia. In many instances, as in your situation, when they reach out to the spouse’s children from the previous marriage they often find little help.
In your question, you didn’t mention the relationship your stepdaughters have with their father. Maybe your husband’s children are unwilling to help because they feel anger towards their father as a result of their parent’s divorce. Maybe your husband’s children blame you for their family pain, or disagree with decisions you have made concerning his care. Alternatively, maybe his children are simply focused on raising their own families and building their careers. Even if your husband’s children want to help, they are often limited in what help they can provide.
A recent study published in The Journal of Marriage and Family confirms that those who remarry later in life face some unique challenges when dealing with an ailing spouse. Researchers interviewed 61 women for the study and found cases where adult stepchildren refused to believe a diagnosis of dementia or refused to participate in decision-making about caregiving. Some women had had lawsuits filed against them by their husband’s adult stepchildren, claiming money was being misspent. Generally, these women felt that their stepfamilies created conflict or that their support was minimal or nonexistent.
Dr. Carey Wexler Sherman, one of the researchers who conducted the study, hopes that by shedding some light on the difficulties faced by these caregivers, professionals can help them come up with strategies to get the support they need. Having gained some insight into the spouse’s point of view, Dr. Sherman hopes to conduct a similar study from the stepchildren’s perspective.
The results were not completely stark, however, and there is hope for you and your stepdaughters. Fifteen women felt that their relationships with their stepfamilies were working. Some even framed the new reality with their husbands as a time of healing between their stepchildren and them, or between the father and his children. Relationships that were once strained between parent and child were often healed during this time of convalescence. The adult children are able to re-establish familial ties with their parent, while building a stronger relationship with their stepparent.
So, how can you get to a place with your stepdaughters where they are willing to step in and help?
The answer is that you need to find a way to come together and find common ground. It can be done, but sometimes it takes a great deal of effort on all sides. So, how do you reach those who are at arm’s length?
- Build the Bridge — Call on the phone and send a personal letter. As long as the topic is focused on their father, it may be possible to gain the communication and assistance of your stepdaughters, depending on the situation.
- Peaceful Discussions — Moving their father to a long-term care facility is a taxing prospect and each stepdaughter may have a varying opinion. Neutral third-parties, such as Certified Geriatric Care Managers and Certified Elder Law Attorneys can be especially effective in these cases, able to field concerns and emotional outbursts, to lay out all the details and help point to the most effective solution, both emotionally and financially. Hopefully you and your husband have already done Estate Planning so that your husband’s wishes are in place, and it’s very important to know whether you and your husband entered into a premarital contract before you got married, which is something that all people should consider when entering into a second or subsequent marriage.
An additional and equally important option for spouses experiencing these issues is to find positive emotional and practical support elsewhere: from friends, professionals, and their own loved ones. Persons with dementia and their families face special legal and financial needs. At The Fairfax and Fredericksburg Dementia Planning Law Firm of Evan H. Farr, P.C., we are dedicated to easing the financial and emotional burden on those suffering from dementia and their loved ones. If you have a loved one who is suffering from dementia, we can help you prepare for your future financial and long-term care needs. We help protect the family’s hard-earned assets while maintaining your loved one’s comfort, dignity, and quality of life by ensuring eligibility for critical government benefits. If you have a loved one, such as your husband, who is nearing the need for long-term care, and if you’re done with mediation, or if you’re a family everyone already gets along, please call The Fairfax and Fredericksburg Elder Law Firm of Evan H. Farr, P.C. at 703-691-1888 in Fairfax or 540-479-1435 to set up an appointment for a no-cost consultation.
According to the Centers for Disease Control and Prevention, only 35% of Americans over 65 are considered physically fit. Many people don’t realize the countless benefits of exercise, including how it helps: reduce the risk of many diseases; stave off depression; manage stress; and keep our minds sharp. In some instances, exercise can even lower the risk of falls and improve peace of mind, particularly for seniors with canes.
Relying on a cane was once considered a sign of an aging, weakened body. Today, some seniors are finding empowerment through their canes by using them for both exercise and self-defense, through a technique known as “Cane Fu.”
Cane Fu is a form of martial arts, that provides seniors who use canes with a way to exercise, gain better balance, and learn self-defense. At Cane Fu classes, seniors are taught to walk tall and not to look like victims. They’re taught to avoid conflict, but also to feel secure that they have a cane at their side.
Mark Shuey, who created Cane Fu, is a 65-year-old martial arts expert who is trained in all manners of fighting techniques. Ten years ago, he noticed his elderly father refusing to use his cane because of the stigma it created. Around that time, he learned that several elderly people near his brother’s house in Florida were robbed while carrying their canes. This inspired Shuey to invent his specialized martial arts program for seniors.
Today, there are more than 300 instructors around the world teaching Cane Fu. Not all Cane Fu students are senior citizens, but it’s still most popular among seniors.
According to Cane Fu veteran Barbara Fender, “This is an opportunity for us to be able to take care of ourselves. With the cane, I feel safe.”
At the Fairfax and Fredericksburg Elder Law Firm of Evan H. Farr, P.C. (www.VirginiaElderLaw.com), we are excited to share exercise techniques, such as Cane Fu, and how they promote good health, well-being, and peace of mind. Our firm is dedicated to helping protect seniors and individuals with special needs 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 a no-cost consultation.