2016 Virginia Academy of Elder Law Attorneys

8/20/2019 2016 Virginia Academy of Elder Law Attorneys

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VIRGINIA ACADEMYOF ELDER LAW ATTORNEYS

Virginia Chapter of NAELA TM

National Academy of Elder Law Attorneys

A supplement to Virginia Lawyers Weekly

ELDERLAW


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Page B-2 | © Virginia Lawyers Media, February 22, 2016 valawyersweekly.com

VAELA President’s MessageFrom Loretta Morris Williams

The Virginia Academy of Elder Law Attorneys – VAELA – is a chapter ofthe National Academy of Elder Law Attorneys. VAELA is leading the way

in elder law and special needs planning in Virginia! Founded in 2002, VAE-LA has more than 160 members throughout the Commonwealth. VAELA’smission is to educate, inspire and empower legal representation of elderly

and disabled clients and their families, and to advocate their issues beforecourts and legislatures.

The practice of elder law is both broad and deep. Clients face a broad arrayof planning issues as they age, including health and long term care coverage,retirement planning, and housing. Elder law attorneys tend to focus their prac-tices on specific issue areas, such as estate planning, long term care planning,

guardianship/conservatorship and fiduciary litigation. The breadth and depth ofknowledge of VAELA members is evident in the articles in this section.

Clients are sometimes surprised when they are referred to an elder law

attorney for assistance with planning for children and younger adultswith special needs. While the populations are different, the laws affectingyounger and older adults are similar. The laws governing guardianship and

conservatorship are the same for adults of all ages. Financial eligibilityrules for Medicaid long term services and the framework for special needstrusts are similar, with some important distinctions. Elder law attorneyswho offer special needs planning assist families with eligibility for public

benefit programs, protecting an inheritance for their children, preparingpowers of attorney for adults with special needs, or bringing guardianship/

conservatorship actions for adults who are incapacitated. VAELA helps its members hone their skills as elder law attorneys and

increase their knowledge base on aging issues and special needs planning.We sponsor ongoing legal education, including an annual “UnProgram.”

The UnProgram provides our members with a two-day collegial forum todiscuss any issues and questions that are relevant to the practice of elderlaw, and in-depth discussions of recent changes in the law. The UnProgram

also provides an unparalleled opportunity for new elder law attorneys toparticipate in discussions with the best and brightest of the Virginia elderlaw field, to better understand such topics as Medicaid planning, special

needs trusts, nursing home admissions and discharges, estate planning,guardianship and protective proceedings, fiduciary litigation, and much,much more.

Some of our members have voluntarily earned the Certified Elder Law Attorney (CELA) designation from the National Elder Law Foundation. Attorneys with the CELA designation have practiced law for at least five

years, demonstrated focus in elder law/special needs for at least three years,

maintained a high level of CLE credits on elder law/special needs topics,undergone peer review, and passed a full-day, rigorous written examina-tion. The National Elder Law Foundation is accredited by the American

Bar Association. There is no procedure in the Commonwealth of Virginiafor approving certifying organizations.

We hope you will find the articles in this supplement interesting and in-

formative. VAELA welcomes attorneys who are entering the fields of elderlaw and special needs planning, whether as an initial area of practice or anew focus for an experienced attorney. Visit www.vaela.org to learn more

about VAELA or to find a member attorney in your area.

Sponsor of the

Viriginia Lawyers Weekly

Elder Law Issue

VAELA VIRGINIA ACADEMY

OF ELDER LAW

ATTORNEYS

Virginia Chapter of NAELA

National Academy of Elder Law Attorneys

TM

TM Protect your home romcosts o long-term care

HOOK

BY ANDREW H. HOOK , CELA, AEP®, CFP®

While many clients wish to remain

in their home as they age, with theintent to leave it to their children attheir death, there is often a concern

that should they suffer a disabilitythat requires nursing home staythat they will be unable to affordthe cost of care.

If the client is married, they are of-ten also concerns about impoverishmentof their spouse as a result of their careneeds. Statistically, two-thirds of peo-ple over age 65 will need long-term careservices. Expenses associated with long-term care are very high, averaging $16 to$20 per hour for in-home care, $40,000 to$50,000 per year for cost associated withan assisted living facility and $75,000 to$85,000 per year for care in a nursinghome. Quite often the lifetime savingsof an individual are insufficient to coverthese long-term care costs and a long-term care policy may not provide suffi-cient coverage to protect against the utili-zation of personal assets. Balancing yourfinancial independence while protectingyour assets via proper public benefitsplanning can be complex. To offset theexpensive cost of long-term care, an individual may, instead, need to rely on Med-icaid or the Aid & Attendance Benefit, atax-free pension benefit offered by theDepartment of Veteran’s Affairs. Howev-er, both of these benefits are means-test-ed, which will require disclosure of assetsduring the application process.

Most often, the equity in an individu-al’s home accounts for a large percent-age of their net worth, with the median American’s net worth consisting almost

entirely of home equity. In Virginia,home equity becomes a resource for de-termining Medicaid eligibility if the cli-ent must seek long-term care in a facil-ity, although an exception exists for thefirst six months an individual is institu-tionalized and when a spouse remainsin the home. If the client obtains carein his home, the state may seek reim-bursement from the equity in the client’shome at his or her death.

Long-term care cost can jeopardize anindividual’s estate plan, but with prop-er planning, individuals can protecttheir home from long-term care expens-es, safeguard against mismanagementduring a period of incapacity, shelter as-sets from creditors, and reduce probateexpenses at death.

A trust is an agreement between the

grantor who funds thetrust with his house,and the trustee whowill manage the trust,pursuant to the termsof the trust, for thebenefit of the bene-

ficiary(s). While theclient can neither re- voke nor amend thetrust and is unableto retain a right todistributions from thetrust, the client can retain control overthe house during his or her lifetime. Witha properly drafted trust agreement, theclient can retain the power to remove andreplace the trustee, the right to residein the home and approve any sale of thehome during their lifetime, and the rightto direct the distribution of trust assetsat the client’s death. You may also be enti-tled to the income from the trust, depend-ing on how the trust is drafted.

The transfer of the home to the trust

will be considered an uncompensatedtransfer, or gift, and result in a penaltyperiod for Medicaid eligibility purposeswithin the five years after the house wastransferred to the trust. If an individualgets through the five-year look-back peri-od without the need for Medicaid cover-age, the individual will escape the trans-fer penalty, and the home will not be aresource for the future. In the event thegrantor needs care within the five-yearlook-back period, the trust beneficiaries,or another family member, may financethe interim care. An additional benefitis that, because of the rights preservedwithin the trust agreement, the homewill remain eligible for real estate tax re-lief, the sale of the home by the trust willqualify for $250,000 tax exemption and,at the grantor’s death, the beneficiarieswill obtain a step-up in basis for incometax purposes and the transfer will occuroutside of probate.

With effective prior planning an in-dividual can “have his cake and eat ittoo,” but it is imperative that an expertexperienced in elder law draft the trustto ensure compliance with Medicaid re-quirements. To maximize your benefit,you should make sure that your trust isfunded sooner, rather than later, so as toinitiate the Medicaid imposed five-yearlook-back period in anticipation for yourfuture need of long-term care services.

Andrew H. Hook, CELA, AEP®, CFP® practices law with the Hook Law Center

in Virginia Beach.


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valawyersweekly.com © Virginia Lawyers Media, February 22, 2016 | Page B-3

A ast primer: thelawyer as fiduciary BY K ENNETH LABOWITZ

Lawyers routinely serve in duciarycapacities, both as a logical exten-

sion of a continuing representation,and as a neutral professional serv-ing in a circumstance in which no

family member is willing or able toserve. Such service for the attorneyimplicates a number of ethical is-

sues, some common to all ducia-ries and others particularly appli-cable to the attorney as duciary.

Any person serving as a conservator isdeemed a fiduciary, both by case law andby statute. See Virginia Code §§ 8.01-2(2)(g); 64.2-100; 64.2-1000; 64.2-2021(D).

There is an interesting question wheth-er the omission of the status as attor-ney-in-fact from the list of those definedas fiduciaries as a matter of law in § 8.01-2 serves to exclude agents under powersof attorney. Case law makes the leap toimpose the obligations of a fiduciary overthose in a “special” or “confidential” re-lationship, including persons serving asagents under powers of attorney.

In Virginia, a confidential relationshipsufficient to impose fiduciary obligationscan arise from a family relationship andcertainly from an attorney-client rela-tionship. Nicholson v. Shockey, 192 Va.270, 64 S.E.2d 813, 817 (1951). In Creasyv. Henderson, 210 Va. 744, 173 S.E.2d823, 828 (1970), the Supreme Court spe-cifically found that fiduciary obligations

arise from the principal-agent relation-ship created under a power of attorney.See also Oden v. Salch, 237 Va. 525, 379S.E.2d 346, 351-352 (1989) and Koury v. Rossi, 33 Va.Cir. 460 (Richmond Cir. Ct.1994), to the same effect.

A brief review of these opinions ought toconvince any prospective fiduciary of theneed for extreme care in self-dealing withthe principal’s assets. The actions of the fi-duciary in conducting business and finan-cial affairs for the principal are scrutinizedwith what can be gently termed a criticaleye. The need for strict accounting andrecords of all funds passing through thefiduciary’s hands is a paramount concernfor the courts reporting decisions in whichclaims have been raised against a fiduciary.

Mention has to be made of the UniformPower of Attorney Act, Virginia Code §§64.2-1600 through -1642, adopted in Vir-ginia in 2012. The Act does not definethe agent under a power of attorney asa fiduciary. However, there are specificprovisions delineating the obligationsimposed on the agent under a power ofattorney, and imposing on the agent per-sonal liability for breach of these obliga-tions. § 64.2-1615.

One duty imposed on the agent is theduty to maintain a record of all transac-tions conducted on behalf of the princi-pal, § 64.2-1612(B)(4), which is consistentwith the imposition of a requirement foraccounting in other fiduciary matters.

Three separate Code provisions imposethe duty for accounting on a fiduciary be-

yond the statutory duty for an agent un-der a power of attorney:· § 8.01 - 31;· § 11 - 9.6; and· § 64.2 - 1204.There are no reported decisions describ-

ing the interplay among these provisions,but the point is clear that a fiduciary mustbe prepared to report in detail as to the fi-nancial transactions made on behalf of theprincipal or ward.

The reported decisions from the pastseem quaint as to the modest amountsof money involved in serious litigationagainst a fiduciary, litigation extendingto the Supreme Court of Virginia. In to-day’s dollars, the sale of a typical housein Northern Virginia may produce pro-ceeds that dwarf all of the funds at issue

in the reported cases from the past. As

the stakes increase,

the possibility ofclaims and litigationover fiduciaries’ ac-tions must also in-crease. The burden isentirely on the fidu-ciary in any claim foran accounting. “In anaction for an account-ing, the agent hasthe burden of prov-ing that he paid tothe principal or otherwise properly dis-posed of the money or other thing whichhe is proved to have received from theprincipal.” Bain v. Pulley, 201 Va. 398,111 S.E.2d 287, 291 (1959), quotingRestatement (2d) of the Law of Agen-cy, Vol. 2, § 399, at 233. “In Virginia,

self-dealing by a fiduciary results in apresumption of fraud.” Al-Abood ex rel. Al-Abood v. El-Shamari, 217 F.3d 225,235 (4th Cir.2000), citing Econompou-los v. Kolatis, 528 S.E.2d 714, 718 (Va.2000) and Oden v. Salch, supra. To saythe least, these presumptions would bethat much more powerful where the fi-duciary is a lawyer.

In McClung v. Smith, 870 F.Supp. 1384(E.D.Va. 1994), Judge Robert E. Payneprovides an instructive opinion on the ob-ligations imposed on a fiduciary, in thiscase a lawyer who handled the family fi-nances for his wife. In a situation compli-cated by an intervening divorce and mal-practice committed by the wife’s divorcelawyer, Payne examines the burdens ofproof and the establishment of damages

for the husband’s breach of his fiduciaryduty to his wife. Note that the husband’sfiduciary duty arose from his role as a fi-nancial manager, not as an attorney.

Lawyers serving as fiduciaries have adifficult time separating the role of at-torney from that of conservator or attor-ney-in-fact. Strictly speaking, is the at-torney representing the principal or theward as a lawyer, or is the individual whohappens to be an attorney serving in afiduciary capacity? This may be a distinc-tion without a difference in most instanc-es, but some interesting problems mayarise: is the lawyer/fiduciary in a confi-dential relationship with the principal/ ward, such that whatever is said to thelawyer is privileged? Is a creditor dealingwith the lawyer/fiduciary restricted incalling the principal/ward/debtor as thecreditor would be if the debtor was repre-sented by the lawyer?

Note that there is a specific provision,Rule 1.14(b) of the Virginia Rules of Pro-fessional Conduct, that authorizes thelawyer in a representational relationshipwith a client to use information obtainedfrom that relationship to seek a guard-ianship or conservatorship for the client.While there is explicit ethical authorityto so act, this is a situation that may notleave the client happy with the lawyer.

The potential for personal civil lia-bility for breach of fiduciary duty by alawyer acting as attorney-in-fact or con-servator is matched by the prospect fordisciplinary action under the Rules of

Professional Conduct. In addition to theprovisions of the Rules previously not-ed, and the statutory and common lawobligations for accounting, any attorneyserving as a fiduciary has to be conver-sant with the obligations imposed byRule 1.15. Explicitly applicable to sit-uations in which lawyers serve as fidu-ciaries (although the Rule assumes thatthe term “guardian” means a fiduciarywith control over assets), the Rule setsout in great detail the requirements foraccounting for funds and for safeguard-ing of property belonging to others withwhom the attorney serves in a fiduciaryrelationship. The provisions of the Ruleare well worth study before an attorneyembarks on service as a fiduciary, partic-

LABOWITZ

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See

FIDUCIARY

on PAGE B-8


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BY ELIZABETH MCMASTER

Medicaid is a needs-based healthand medical services program withoversight provided by the federalgovernment; however, each state

administers its own program andeligibility standards.

In Virginia, Medicaid rules and regula-tions (as are discussed in this article) arefound in the Virginia Medicaid Manual,containing over two thousand pages andupdated twice a year. Eligibility is deter-mined by the local Department of SocialServices. This article will focus on Med-icaid for folks who are over the age of 65who may need long-term care.

In Virginia, in order to be eligible forMedicaid long-term care assistance, sixtests must be met. First, the individualapplying must be a Virginia resident atthe time the application is filed; howev-er, there is no specific length of time re-quired as a Virginia resident. Next, the

applicant must be part of a covered group(i.e., aged, blind, disabled or otherwisein need medically). Third, the applicantmust meet certain criteria known asaverage daily living skills. Fourth, theapplicant must meet income standardswhich are currently set at three timesthe maximum Supplemental SecurityIncome rate per month. If the applicant’sincome is more than this amount, he orshe may still be eligible if his or her med-ical expenses exceed this income amounton a monthly basis. The fifth test is theresource eligibility amount which is cur-rently set at a $2,000 maximum in count-able resources for the applicant. Severalexclusions apply such as a personal ve-hicle, pre-paid burial arrangements, lifeestate interest in real property, and the

applicant’s personal residence if marriedor otherwise excluded, among severalother exclusions. The sixth and final testis the asset-transfer evaluation and thisis where otherwise eligible people fre-quently get in trouble. Most applicantswho apply for Medicaid meet the firstfour tests without a problem. Tests num-ber five and six above; however, are trickyif you do not know the rules.

A Virginia applicant for Medicaid as-sistance cannot have more than $2,000in countable assets in her or her name.When the applicant applies for Medic-aid assistance, he or she must reportall money on hand, stocks, bonds, annu-ities, life insurance policies, trusts, andreal property among other assets ownedby the applicant.

All assets are considered countableassets except for those that fall underone of the exclusion rules. Excluded as-sets include personal items such as jew-elry, household furnishings and collect-ibles, one automobile, the applicant’s

personal residence (with limitations),some commercial property, prepaidburial arrangements or a burial sav-ings account, term life insurance poli-cies, life estate in real property, SpecialNeeds Trusts, and any assets that areconsidered excluded for another reason.

If an applicant ownshis or her home andapplies for Medicaidlong-term assistance,the home will not beconsidered a count-able resource until theapplicant has beenin a hospital and/ornursing home contin-

uously for six months. After the six monthslapses, the home mayat that time become a countable resource,unless the resident’s spouse or other de-pendent relatives such as a disabled childlive in the residence as well. If the homebecomes a countable asset, the eligibilityrules require that the home be put on thereal estate market for sale at the tax-as-sessed value. This is generally the casewhere a single applicant has no (or few)liquid assets and would need to sell thehome in order to pay for long-term nurs-ing home care. If the liquid assets are fewto none, the applicant will usually be ap-proved for Medicaid pending the sale ofthe home.

A married applicant (where the spouseresides in the home) or applicant who hasa dependent adult in the home will havethe home excluded as a countable asseteven after the six months run. For ourpurposes, I am going to focus on the sce-nario where the Medicaid applicant has

a spouse who remains in the residence.The spouse is referred to in Medicaidlingo as the “community spouse.” Thespouse of a married applicant is permit-ted to keep one-half of the couple’s com-bined assets up to $119,220 (currently)which is referred to as the CommunitySpouse Resource Allowance. The currentminimum CSRA is $23,844. These figuresare calculated using the “snapshot date.”The snapshot date is the first day of themonth of institutionalization of the nurs-ing home spouse: Mediciad will determinethe value of all assets held by either orboth spouses on that date, and divide that value by two. The “community spouse”may keep one-half of the assets, up to a

maximum of $119,220, and the Medicaidapplicant may keep $2,000. If the assetsexceed these numbers, the applicant willnot qualify for Medicaid until the assetsare reduced. Once the institutionalizedspouse qualifies for Medicaid, however,the community spouse’s resources will nolonger considered available to the institu-tionalized spouse.

In some circumstances the communi-ty spouse may also be entitled to some ofthe income received by the institution-alized spouse. The Department of So-cial Services will compute this amountwhich is known as the Minimum Month-ly Maintenance Needs Allowance. Thiscurrent allowance amount ranges froma minimum of $1,991.25 per month to amaximum of $2,950.50 per month.

If the applicant’s income and assets arewithin the requirements of the Medicaideligibility rules, then the inquiry turns tothe sixth and final rule for Medicaid eli-gibility: whether the applicant or spousehas transferred any assets for less than

fair market value within the five yearsimmediately before applying for Med-icaid benefits. This is referred to as the‘Look- Back’ period. The rule is simple: ifan applicant has applied for and is oth-erwise eligible for Medicaid benefits, buthas made a gift or uncompensated trans-fer within the five years (60 months)immediately preceding the date of appli-cation, the applicant will be disqualifiedfrom receiving benefits for a specifiedlength of time referred to as the “penal-ty period.” The penalty period beginswhen an applicant is otherwise eligiblefor Medicaid but for the penalty period.This period of ineligibility is expressed inmonths by dividing the value of the gifts

or asset(s) transferred by the averagemonthly nursing home cost in Virginia asset by the Department of Social Services.For purposes of this calculation, the De-partment of Social Services uses an aver-age monthly nursing home cost of $8,367in Northern Virginia and $5,933 in therest of the state. In essence, the rulesprovide that the applicant will be dis-qualified from receiving benefits for theperiod of time that represents the num-ber of months that the transferred assetswould have paid for, if the assets had notbeen transferred. As with any rules, thereare exceptions that can be found in the Virginia Medicaid Manual.

An elder law attorney can assist poten-tial Medicaid applicants in determiningwhether there are likely to be any imped-iments to eligibility, and in determiningthe best options and strategies to addressthose potential impediments.

Elizabeth McMaster practices law in Fredericksburg.

Medicaid basics or the senior citizen

McMASTER

Virginia leads nation afer passing ABLE ActBY ANN MCGEE GREEN

In December 2014, after years of

advocacy by disability organiza-tions, The Achieving a Better Life

Experience Act of 2014 (commonly

referred to as the “ABLE Act”) was

signed into law. In March 2015, Vir-

ginia became the rst state to en-

act the ABLE Act. This legislation

will provide a new tool for those

with special needs to save assets

while preserving eligibility for gov-

ernment benets.

The Act was first introduced in Con-gress in 2008. The original bill paralleledthe Internal Revenue Code Section 529provisions that provide a way to save

money for education in a tax-favored

manner. Many advo-cates for those withdisabilities wanted

a similar vehicle forpersons with specialneeds to be able tosave resources, butin a way that wouldnot endanger eligibil-ity for public benefits.Over the years, the billwas amended and waseventually passed latein 2014. The final version does not createa sweeping change as was hoped by theoriginal supporters. It does, however, provide a vehicle to save limited assets forthose receiving public benefits without jeopardizing their eligibility for Supple-mental Security Income, Medicaid, foodstamps, Section 8 housing or other meanstested public assistance programs.

Under the terms of the law, a person of

any age may establish an ABLE accountif the onset of their disability was priorto age 26. Only one account per person

is allowed. Each calendar year the fed-eral annual gift tax exclusion amount,currently $14,000, may be placed in an ABLE account. The deposits, like their529 counterparts, are not tax deductible. Amounts up to $100,000 will not affectSSI eligibility. The maximum that can beheld in an ABLE account is the same as Virginia’s maximum for college savingsplans, namely 529 accounts.

The accounts will be permitted to growincome tax-free if used for approveddisability related expenses. “Qualifieddisability expenses” include: education,housing, transportation, employmenttraining and support, assistive technol-ogy, personal support services, health,prevention and wellness services, finan-cial management and administrative ser-

vices, legal fees, expenses for oversight

and monitoring and funeral and burialexpenses. Ironically, 529 accounts estab-lished for a beneficiary cannot be rolled

into an ABLE account under the pro-posed regulations without penalties andnegative tax implications.

Another drawback of these accounts isthat there must be a Medicaid paybackto the Commonwealth at the death of thebeneficiary, no matter the source of thecontribution. This is not true of ThirdParty Special Needs Trusts. These typesof trusts are used regularly by attorneysin estate planning to provide supplemen-tal resources for a disabled person thatwill not affect public benefit eligibility.Third Party Special Needs Trusts havebroader distribution allowances, andcan leave the residuary assets to otherbeneficiaries when the disabled love onedies. In addition, there are no limits to

n

See

ABLE

on PAGE B-8

GREEN


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BY K ATHY PRYOR

What do you do if a distraught fam-ily member contacts you because

the nursing home where Mom livesis threatening to discharge her?Are there laws to protect Mom, andif so, what recourse does the familyhave if they want to challenge thethreatened discharge?

The Nursing Home Reform Law, or“OBRA ’87,” 42 U.S.C. § 1396r(c)(2) andthe supporting regulations at 42 C.F.R. §483.12(a), offer significant federal protec-tions from eviction for vulnerable nurs-ing home residents. First and perhapsmost importantly, a nursing home mustpermit a resident to remain in the facil-ity and can only involuntarily transferor discharge a resident for six reasons:(1) transfer or discharge is necessary for

the resident’s welfare and the resident’s

needs cannot be metby the facility; (2) theresident’s health hasimproved significant-

ly such that she nolonger needs nursinghome services; (3)the safety of individ-uals in the facility isendangered; (4) thehealth of individualsin the facility wouldotherwise be endan-gered; (5) the resident has failed afterreasonable and appropriate notice topay; or (6) the facility ceases to operate.This is the resident’s home and he or sheshould be allowed to stay unless one ofthese specific reasons exists.

In addition to limiting the allowablegrounds for discharge, federal law alsorequires the facility to take certain stepsbefore it can discharge a resident against

his will. The reasons for the discharge

must be documented in the resident’sclinical record. A written notice—usuallygiving 30 days’ advance notice—must begiven to the resident and a family mem-

ber or legal representative, if known. Thenotice must contain certain information,including the reason for the discharge,the date of the discharge, the location towhich the resident will be sent, contactinformation for the State Long Term CareOmbudsman, and the right to appeal theaction to the Department of Medical Assistance Services. The facility mustalso provide sufficient preparation andorientation to residents to ensure theirsafe and orderly transfer or discharge—asafe discharge plan. In addition to thesefederal requirements, Virginia law alsorequires that the attending physician ormedical director of the facility make awritten notation in the patient’s recordapproving the discharge “after consider-ation of the effects of the transfer or dis-

charge, appropriate actions to minimize

the effects of the transfer or discharge,and the care and kind of service the pa-tient needs upon transfer or discharge.” Va. Code § 32.1-138.1.

Any nursing home resident-- regard-less of her source of payment--can appealan involuntary transfer or discharge tothe Department of Medical AssistanceServices (“DMAS”) as long as the nursingfacility itself is certified by Medicare and/ or Medicaid-- as most facilities are. Anappeal should be filed with the DMASappeal unit prior to the proposed dateof discharge; it’s wise to send a copy ofthe appeal to the facility administrator.DMAS will notify the facility that it mustkeep the resident in the facility pendingthe appeal and issuance of the hearing of-ficer’s decision.

There are a number of argumentswhich can be made on appeal. Failure toissue a compliant discharge notice may be

n

See

DISCHARGE

on PAGE B-9

When a nursing home threatens to discharge amily member

PRYOR

BY JULIANNE M. BLAKE

A trending theme in Virginia, and

all states for that matter, is the needto address digital assets during theestate planning process and after

death. It is critical for estate plan-ning attorneys to stay up to date

on legislation and online provid-ers’ terms and policies that affecttheir clients’ digital assets. Many

states have now adopted laws thatallow personal representatives orduciaries (i.e. executors, trustees,

administrators) to access, modi-fy, and close digital assets of thedecedent’s estate, while still main-

taining privacy and protection.

What exactly is a “digital asset?” Whilethere is no uniform definition, a few gener-ally accepted examples are digital photos,books, videos and music, software, online fi-

nancial accounts, digital currency (i.e., Bit-coin), e-commerce accounts, social mediaaccounts (i.e. Facebook, Instagram, Linke-dIn), emails, and even text messages.

Over time, people have become relianton technology in their everyday lives. Astheir “digital footprint” has grown withonline banking, social media, and e-com-merce, so has the quandary of minimiz-ing their digital footprint after death. The vulnerability of e-commerce and otheronline accounts exposes the contents topotential hackers. A hacker may easilybreach a decedent’s account to steal per-sonal information or make purchases,thus creating a huge headache for thepersonal representative, or even worse,liabilities for the estate.

State and provider responses

Until recently, personal representativeshave found themselves shut out of a dece-dent’s estate even if they provided Lettersof Testamentary or trust documents certify-ing their position. The General Assembly of Virginia enacted The Privacy Expectation Afterlife and Choices Act (Virginia Code §64.2-109 et seq.) to combat this issue. The Act became effective on July 1, 2015, andallows a personal representative to gain ac-cess to a decedent’s digital assets. The Actstems from an earlier law which addressed

access to a deceasedminor’s digital assets.The General Assemblysaw the need to expandthe existing legislationto adults, as they un-doubtedly hold digitalassets as well.

Under the Act, thenamed personal rep-resentative can obtain

access to such accounts

via judicial order, which generally providesthem with the last 18 months, or more ifnecessary, of a decedent’s digital assets.While gaining access to such accounts is

helpful, actually acquiring the contents ofthe digital assets requires more. A decedentmust grant the personal representative thepowers authorizing access to their digitalassets and their contents in either their lastwill and testament or other estate planningdocuments. Another option is by maintain-ing accessibility with the online account.This means that the decedent must providetheir personal representative with all theinformation needed to access their digitalassets (i.e. username, password) thereforemaking a judicial order unnecessary. With-out the affirmative language or account set-tings, the online provider may deny access.

Online providers, such as Facebook,Google, Twitter, LinkedIn, and Pinterest,are also recognizing the need to addressdigital assets upon death. They provideinstructions in their terms of service asto how a personal representative maymanage and close the decedent’s account.Such policies have morphed over time toprovide more options, (i.e. completely clos-

ing the account or converting the accountto a memorial page). Providers’ responsesmake for easier administration and helploved ones through the grieving process.

Fitting into an estate planWhile the Act provides the avenue for a

personal representative to access and closeout digital assets, there are steps clientsand their attorneys can take in advance tomake this process easier. First, one mustchoose a trustworthy and knowledgeablepersonal representative. A personal repre-sentative can be a family member, friend,third party (for example, an attorney or lawfirm), or corporate fiduciary, such as a bank.

Next, it is important to analyze andinventory all online financial accounts,e-commerce accounts, social media ac-counts, email, etc. Keeping the list updat-ed and in a safe location that is accessibleto the appointed representative is essen-tial. One should also notify the personalrepresentative where the digital assetsare stored (for example, laptop, smartphone, iCloud, etc.). Many people opt tokeep a password manager installed ontheir computer. The manager stores andupdates each password as they change.

Additionally, it is important to reviewprivacy settings. Finally, an attorney canadd language to estate planning docu-ments to reference digital assets. For

example, language that explicitly statesthe appointed representative has accessto control, modify, and delete all digitalassets should be included.

An ever-changing process Although the advent of digital assets

has further complicated the estate plan-ning process and the administration of adecedent’s estate, attorneys, the states,and providers alike have all respondedaccordingly to minimize the potential ad- verse effects of the digital footprint postmortem. Such responses have aimed tocarry out the decedent’s wishes, whilestill maintaining privacy and protection.The process will continue to evolve astechnology advances and as the perceivedconvenience of digital assets triggers in-

creased dependency and use.

Julianne M. Blake practices law with

Anderson, Desimone & Green PC in

Roanoke.

Minimizing your digital ootprint afer death: planning techniques

BLAKE


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Medicaid and lesser-known non-penalized asset transersBY ELIZABETH E. BIRCHER

Many people rely on long-term

care Medicaid benets to assist inpaying the high costs of nursinghome-level care. Generally speak-

ing, individuals can’t give awaytheir assets on Monday and qualifyfor LTC Medicaid on Tuesday. In-

deed, with only limited exceptions,the LTC Medicaid program impos-es a penalty period based on theaggregate value of uncompensated

transfers the applicant (or his or herspouse) made in the sixty monthperiod immediately before the ap-

plication for LTC Medicaid bene-ts. During the penalty period, LTCMedicaid will not pay for the cost ofnursing home-level care even if the

individual is “otherwise eligible” for

Medicaid LTC coverage. Although this transfer penalty is com-

monly called a “gift penalty,” the penaltyapplies to transfers when the transferorreceives less than fair market value inreturn. Thus, under LTC Medicaid rules,financial transactions that one mightnot think of as gifts--such as the arm’slength sale of one’s home for less than itstax-assessed value (through gritted teethat that), paying for a child’s wedding, orassisting with the costs of a relative’s fu-neral--can result in the imposition of atransfer of assets penalty period.

In addition to assisting our clients inidentifying means to cover the cost ofcare during penalty periods imposed forpast gifts, elder law attorneys assist ourclients in identifying transfers that will

not result in the imposition of a penaltyperiod. Two well-known non-penalizedtransfers are transfers to a non-institu-tionalized spouse and the transfer of thehome to a child who satisfies the strin-gent caretaker child criteria. The rest ofthis article discusses three lesser-knowntransfer scenarios that do not result inthe imposition of an uncompensatedtransfer penalty period as well as factorsto consider when contemplating a trans-fer plan. In addition to these outrighttransfers, certain transfers to qualifyingtrusts do not incur transfer of assets pen-alties; qualified trust-based transfers arenot discussed in this article.

The transfer of the house to a

sibling with an equity interest In the classic “maiden aunt” situation,

two spinster sisters live together. If one ofthe sisters needs LTC Medicaid assistanceand each sister has an equity interest inthe house and they have been living to-gether for at least one year, then the sisterwho is applying for LTC Medicaid assis-tance can transfer her ownership interestin the home to the other sister without atransfer penalty being imposed. This trans-

fer opportunity is notlimited to sisters, butapplies equally well toany siblings who livetogether. Note that theequity interests do nothave to be equal, nor

do the rules state howlong the recipient sib-ling needed to have anequity interest beforethe transfer occurs.(12VAC30-40-300(D)(2)(3); the Virginia Medicaid Manual(VMM) M1450.400(C)(2)).

Transfers to a child

under the age of 21 Although a parental duty of support

generally ends after a child turns 18years old, LTC Medicaid transfer of as-set penalties nonetheless do not applyfor transfers to a child who is under age21. (12VAC30-40-300(D)(2)(a)(2) and (b); VMM M1450.400(C)(1) and (D)). Thesetransfer exemptions will generally only

be used by the “younger old” who mayhave had children late in life or who mayhave suffered from an unexpected med-ical event or rapidly progressing condi-tion, such as a stroke, accident, or a pro-gressive neurodegenerative disease. Inthese circumstances, the ability to trans-fer a house or other assets to a responsi-ble young adult or to not suffer from theimposition of a transfer penalty becausethe parent or parents paid for college tu-ition or other “starting young adulthood”expenses for a child under 21 can make asignificant difference to the family’s eco-nomic security.

Transfers to a child who is blind

or disabled as defned by Social

Security.

No transfer of assets penalty period isimposed if an outright transfer is made tothe applicant’s child who is blind or dis-abled as defined in § 1614 of the SocialSecurity Act. (12VAC30-40-300(D)(2)(a)(2) and (b); VMM M1450.400(C)(1) and(D)). Note that individuals found to betotally (but not occupationally) disabledunder the provisions of the RailroadRetirement Board (RRB) satisfy this re-quirement because the RRB and SocialSecurity use the same definition of totaldisability. Individuals found disabled un-der private, longshoreman’s, or workers’compensation disability insurance pro-grams do not automatically qualify asdisabled under the Social Security defi-nition and will need additional screeningto determine if transfers can be made tothem without the imposition of a transferof assets penalty.

Additional considerations Among the additional considerations

in determining whether or how to im-plement a transfer of assets plan are theimpact of taxes, family dynamics, and theexistence of the legal authority to gift.

When an individual receives a gift, the

basis against which future potential cap-ital gains are measured is the gift giver’sbasis. Thus gifts of highly appreciatedassets may result in substantial capitalgains and related taxes to the recipientupon the sale of the asset by the recip-ient. If the gift giver is able to excludesome capital gains (say from the sale ofa home because it was the primary resi-dence), it may make more financial sensefor the applicant to sell or liquidate theasset and then gift the proceeds.

When a non-penalized transfer is possi-ble only if the gift is made to fewer than allof the applicant’s children (perhaps onlyone is under twenty-one or only one meetsthe Social Security definition of disabled),then family dynamics should be consid-ered and discussed. The child who receivesthe “windfall” does not have to share withhis or her siblings and the unequal giftmay cause familial estrangement.

Before gifts can be made, the legal au-thority to gift has to be present. Compe-tent individuals can make the gifts them-selves. If the individual is not competent,then the Agent under the Power of At-torney may be authorized to make gifts.Under Virginia’s version of the UniformPower of Attorney Act, “[u]nless the power

of attorney otherwise provides, languagein a power of attorney granting generalauthority with respect to gifts authorizesthe agent only to…” make gifts that arelimited in value to the federal gift tax an-nual exclusion amount unless the spouseagrees to gift splitting, or agree to giftsplitting when a spouse makes the gift.(Va. Code § 64.2-1638(B)). With a currentannual exclusion limit of $14,000, a gener-al grant of gifting authority is insufficient

to transfer a house or higher value assets.If the individual is not competent and

insufficient authority exists to make thecontemplated gifts, then Court permis-sion will be necessary before the gifts canbe made. If the individual has a Powerof Attorney, then the appropriate CircuitCourt may be petitioned under Va. Code§ 64.2-1614(C) to expand the Power of Attorney to make the contemplated gifts.When no Power of Attorney exists or if itis insufficient, then an alternative is to

petition the appropriate Circuit Courtto appoint a full or limited conservatorpursuant to Va. Code §§ 64.2-2000 et seq.,with a specific request that the conserva-tor be authorized to make gifts pursuantto Va. Code § 64.2-2023.

In summary, transfer of assets penal-ties can result in hardship for the un-wary LTC Medicaid applicant. Sometransfers, however, are not penalized.Identification of potential transfers is just the beginning of LTC Medicaid plan-ning because additional factors must beconsidered before a transfer program canbe implemented. An experienced elderlaw attorney can identify transfer possi-bilities that do not result in a period ofineligibility as well as counsel clients on

how to accommodate penalty periods theapplicant may have unwittingly createdbefore seeking counsel. Using LTC Medic-aid rules to the applicant’s advantage canprovide for enhanced financial securityfor the applicant’s family while protect-ing and preserving the applicant’s abilityto secure necessary care.

Elizabeth E. Bircher practices law withOast & Taylor PLC in Portsmouth.

BIRCHER

BY AMY E. MCCULLOUGH

When clients approach their attor-

neys about estate planning, many

come in with some denite ideas.

Those denite ideas tend to focus

on how to distribute property after

death, and how to minimize taxes

and fees. However, comprehensive

estate planning encompasses not

only planning for death but plan-

ning for incapacity. As a guardian

ad litem for incapacitated adults,

I have served on far too many cas-

es where my ward had a will but no

other planning documents in place.

The possibility of suffering from demen-tia, or of having a stroke or other medicalcondition that may rob one of the ability tomake decisions is not something many of us– or our clients – like to ponder, but planningfor such situations is of critical importance.Planning for incapacity lets our clients makewishes known while they have the ability todo so and lets them put in place the docu-ments which will allow for their wishes tobe carried out when they are no longer ableto direct their affairs. When prepared well,these documents allow for clients’ health-care and financial affairs to be managedwith a minimum of disruption once a clientbecomes incapacitated. Advance planning

can also save clients and their families from

the expense, time delays, and court hearingsassociated with guardianship and conserva-torship proceedings under Virginia Code §§64.2-2000 et seq.

When planning for incapacity, clientsneed to plan for their personal/healthcareneeds as well as for the maintenance oftheir estates during periods of incapacity.In Virginia, advance directives, drafted inaccordance with Virginia Code § 54.1-2983(suggested form can be found at VirginiaCode § 54.1-2984), allow clients to appointan agent to make healthcare decisions andclients can also use the document to givethat agent specific instructions.

Agents authorized under an advancedirective will often have access to a cli-ent’s most sensitive information and

will be making very important decisions.

For that reason, I of-ten counsel clients tothink carefully aboutwhom to appoint andto choose someonethey believe will havehis or her best inter-ests at heart, and whowill respect the valuesof the principal.

When discussing advance directives, clientswill often use termssuch as “healthcare power of attorney” or“living will” interchangeably. It can be veryhelpful to walk through forms with clients,particularly with regard to these documents.

Comprehensive planning includes preparation or incapacity

MCCULLOUGH

n

See

INCAPACITY

on PAGE B-9


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BY VERONICA E. WILLIAMS

Many hospital-sponsored adult in-

capacitated guardianship petitionshave a proper basis in that there

are no available family members toserve as surrogate decision-mak-ers for incapacitated adults. Thisarticle contemplates that, absent

this situation, hospital-sponsoredadult incapacitated guardianshippetitions are led without the co-operation and agreement of the re-spondents’ family members. In thisregard, such petitions are extreme-

ly adversarial and, if favorably con-sidered, could have far reachingconsequences for both the pa-tients involved and their families.

The lives of adult incapacitated respon-

dents may be at risk in those unenviablecases in which hospital-sponsored guard-ianship petitions are filed despite the ex-istence of devoted, attentive, and capablefamily members. It is, therefore, importantfor the families of these extremely vulnera-ble hospital patients, to seek legal represen-tation immediately, as hospital sponsoredguardianship petitions have the ability,pursuant to Virginia Code § 64.2-2004.C.,to move very rapidly. As a result, the pa-tient’s families may not have sufficienttime to obtain counsel and to prepare fora hearing that could result in the hospitalpatients possibly being involuntarily dis-charged and transferred to skilled nursingfacilities in geographically remote locationsseveral hundred miles away, and even out-side of the commonwealth to other states.

In cases where hospital sponsoredguardianship petitions have been fileddespite the presence of devoted, attentive,and willing family members, prompt andeffective advocacy is critical. It is import-ant for attorneys and caregiving familymembers, who find themselves in the posi-tion of having to oppose hospital filed peti-tions, to understand the potential conflictsof interest inherent in such cases.

The healthcare payor systems have de- veloped incentives which place hospitalsin a position of having a strong conflictof interest with hospital patients. It isimportant for courts to be aware of theseconflicts of interest when presented withhospital sponsored guardianship peti-tions. Hospitals are incented to performfew procedures, discharge the patient asearly as possible, and make sure the pa-tient does not return. Patients want to becared for until they are well or have sys-tems outside the hospital to support them.Patients want the necessary diagnostictesting performed. Patients need to returnto the hospital if they get sick again. Whilethere are some programs to train familymembers and manage patients outsidethe hospital, these programs are limited.With these conflicts of interests, is it ap-propriate to view the hospital system as a“patient advocate in the context of a hospi-tal sponsored guardianship petition ?”

Following are a few of the issues that fur-ther demonstrate the conflicts of interests,and as a result, should be carefully con-sidered by families, attorneys, and courts

when faced with a hospital-sponsored adultincapacitated guardianship petition:1. A hospital’s desire to move a pa-

tient out of a hospital, because thepatient has been in the hospital for aprolonged period of time, could leadto the deterioration of the relation-ship between a hospital and a patient’sfamily. With respect to Medicare, Medicaid,and most commercial insurances, hospitalsare paid based on diagnosis irrespective ofthe length of in-hospital stay. Therefore, themore days a patient stays in the hospital,the more likely the hospital is to lose money.

2. A hospital’s failure to obtainthe family’s consent with regard toa proposed discharge plan that afamily believes is inappropriate and/ or that leads to a geographically re-

mote placement in a skilled or long

term care nursing facility, may bethe basis for the deterioration of therelationship between a hospital anda patient’s family.The hospital needs tomove the patient out and may seek to ex-pedite the movement to a nursing facilitythat has an available skilled care or longterm care bed, but that is also geographi-cally remote to hospital and, more impor-tantly, geographically remote to the pa-tient’s home and family. There is a great

volume of data that demonstrates qualityof long term care is directly impacted byfamily visits and family advocacy.

3. A hospital may have concernsabout its readmission rate as it relatesto the frequency with which a particu-lar patient returns to the hospital fromthe same episode of care. This concerncould, in turn, lead to a conflict between thefacility and the family regarding the fami-ly’s election of home based long term care,as opposed to facility based long term care.In such a case, there is a potential conflictbetween the hospital trying to avoid read-missions and the family electing to providesafe “in-home” care for the patient.

a. In this regard, it is important to notethat a facility’s readmission rate is, techni-cally speaking, the government’s measure

of the facility’s effectiveness with regardto discharge planning. Consequently, hos-pitals face financial penalties from theCenters for Medicare and Medicaid if theirreadmission rates are too high.

b. In many cases, elderly and /or infirmpatients cannot age in place safely with-out the sacrificial presence and servicesof an adult child residing with them.

c. The surrogate decision maker’s de-termination to provide “in-home” care forthe patient (perhaps an aging parent),could well be motivated by a family’score value system of “taking care of theirown”, or the surrogate decision maker’sknowledge that the patient would prefer“in-home” long term care services to facil-ity based long term care.

d. Some patients, based upon the com-plexity of their conditions, may have a his-tory of frequent hospital visits via the emer-gency room. It would be inappropriate for ahospital, based merely upon the frequencyof visits, to assume that a caregiver is some-how deficient, responsible for the frequenthospital visits, and ripe to be replaced by aCourt appointed guardian who will be bet-ter able to make medical decisions for thepatient. The practical likelihood is that acourt appointed guardian will utilize a casemanager who will rely heavily upon the fa-cility’s recommendations, for the patient’scare and treatment, as opposed to maintain-ing a presence at the patient’s bedside aswould a family member or close friend.

e. From a public policy perspective, “in-home” caregivers should not be given the

impression that taking a patient to the

emergency room, as needed, and on a fre-quent basis, means that they are somehowunsuitable to serve as surrogate decisionmakers because of the frequency of the visits. They should also not experiencea genuine concern that if they elect tocontinue safe “in-home” care, as opposedto admitting the patient into a nursinghome, after repeated frequent visits to thehospital, they are in danger of being re-placed by a Court appointed guardian. To

the contrary, it is arguably neglectful fora family caregiver not to seek emergencymedical attention when a need arises.

4. A hospital’s presumptions re-garding the family’s ability to man-age the complexities of a patient’scare, to include the coordination oflong term care benefits, may be thebasis of a deteriorating relationshipbetween a hospital and a patient’sfamily. Medical professionals are taught,in academic settings, that paternalismis inappropriate. However, some medicalprofessionals may still believe that a pro-fessional caregiver is better equipped tomake decisions about care and the familydoes not know enough to understand.

a. Allegations that a patient’s fami-ly is not sophisticated enough to handle

the rigors of managing a patient’s carecoordination, to include the coordinationof medical benefits, or allegedly will notcooperate with the process, is a poor jus-tification for filing a hospital sponsoredguardianship petition.

b. A less restrictive alternative, in cas-es where the hospital sincerely feels thatthe family needs more guidance than theyhave been able to provide, would be for thehospital to recommend that the family seekindependent case management, and/orcompetent advice and counsel with regardto the coordination of benefits, especiallyif the relationship with the hospital hasdeteriorated to the point where the familywould not be comfortable sharing confiden-tial information with the hospital’s agents.

5. Regretfully, a lack of agreementbetween a hospital and a patient’ssurrogate decision maker, regardingwhether continued care is futile (end-of-life issues), and/or whether a Do NotResuscitate Order (DNR) is appropri-ate, may be the underlying reason forthe deterioration of the relationshipbetween a hospital and a patient’sfamily. As noted previously, paternalism isfrowned upon from a text book perspective.However, it is not unheard of for a medicalprovider to become offended when a fam-ily member, who is serving as a hospitalpatient’s surrogate decision maker, electsagainst the use of a DNR Order.

When an adult incapacitated respondenthas devoted, attentive, and capable familymembers, a hospital-sponsored guardian-

ship petition, seeking the appointment

of a non-family mem-ber or entity, cannotusually prevail with-out characterizing, ormore appropriatelymischaracterizing, theexisting caregivers/ family members asimproper, unsuitable,and/or uncooperative.

Virginia Code § 64.10-2010 and/or VirginiaCode § 64.10-2007.C.

A guardianship appointment, obtainedagainst the wishes of a patient’s familycould easily result in a situation wheretreating medical professionals will not bepermitted to communicate with devotedfamily members about a patient’s care,condition, and treatment. This could ef-fectively result in medical professionalslosing access to a wealth of knowledge re-garding the patient’s care and treatmenthistory. In this regard, a patient wouldlose the benefit of having family membersserve as valuable lay members of theircare and treatment teams.

Family members and other appointedsurrogate health care decision makersshould be regarded as valuable lay mem-bers of a patient’s medical care and treat-ment team. It is commonly understood thata patient’s medical care and treatment de-cisions, and discharge planning should beaddressed in the context of patient autono-my and person centered planning.

Consequently, when a patient is unableto make an informed decision, a familymember is typically best suited to exer-cise patient autonomy, on behalf of thepatient, based upon an emotionally inti-mate relationship with the patient thathas spanned many years.

To be sure, the best patient outcomes

are the result of effective communica-tion and collaboration between the teamcomprised of: (i) the vocational medicalproviders and (ii) the patient’s family orappointed surrogate decision maker(s).To this end, a hospital sponsored guard-ianship petition is always an indicationthat the relationships necessary to holdthis powerful and beneficial team togeth-er have deteriorated to the detriment ofan extremely vulnerable patient. It wouldbe especially regretful if one of the afore-mentioned conflicts of interest served asthe catalyst for filing such a petition.

Veronica E. Williams practices law

with The Center for Elder Law & Estate

Planning in Newport News.

Hospital-sponsored guardianships

WILLIAMS


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ularly in light of the restrictions imposedfor record keeping for the funds of others.Reference to this Rule is valuable beforebuying that software package for themanagement of money.

There is also an LEO that holds thatthe ethical rules for lawyers are appli-cable in situations in which the lawyerserves in another capacity. The specific(and limited) language in LEO #1634(1995) arises from a situation in which alicensed attorney was also an accountant;

the issue presented there was whetherthe attorney-as-accountant could avoidthe application of the Rules because hewas not serving as a lawyer in the situa-tion. The LEO makes the point that law-yers are lawyers and therefore subject tothe Rules of Professional Conduct evenwhen the circumstances are not neces-sarily arising from legal representation.This suggests (although it is not explicit-ly stated) that a lawyer-as-fiduciary can-not escape sanctions for breaches of the

Rules because the lawyer’s role is not spe-cifically one of representation as a lawyer.

Suffice to say that no lawyer wantsto be the subject of the disciplinary ac-tion in which this point is establishedbeyond doubt.

ConclusionLawyers are appropriate candidates to

serve in fiduciary roles. Indeed, there areno professionals better suited for thoseroles. Such service has to be undertakenwith awareness of the existing and po-tential obligations imposed on the lawyerserving as a fiduciary, and the existing

structure for oversight for the actionstaken as the fiduciary.

There is no more obvious magnet forclaims than a lawyer as fiduciary. No oneserving in a fiduciary capacity shouldwant to see his or her actions questioned,by way of civil claims, criminal prosecu-tion, or Bar complaint. Only by strictly ad-hering to the ethical rules and establishedstandards for practice, and by anticipatingand avoiding potential conflicts and other

problems, can the lawyer as fiduciary suc-cessful navigate these difficult waters.

Kenneth Labowitz practices law with Dingman Labowitz in Alexandria.

Fiduciary | n continued from page B-3

the number of Special Needs Trusts thatcan be established for one person, nor arethere contribution restrictions. Therefore, ABLE accounts are not a substitute forSpecial Needs Trusts in many planningsituations. It would be wise to consult anElder Law attorney to discuss the varietyof options available for planning if a dis-abled beneficiary receives an inheritance,a personal injury settlement, or if lovedone wants to leave resources for a dis-abled beneficiary. One size certainly doesnot fit all. Many options are available tomeet specific needs.

ABLE accounts will allow for a way tosave small amounts of money withoutthe cost of court, or legal fees, but wouldnot be the best option for parents or oth-er loved ones to place their money for aloved one with a disability.

What will be good uses for an ABLEaccount?

• May be a suitable place for excessmoney earned by the disabled personthat may affect public benefits eligibilityif they would otherwise accumulate morethan $2,000 in a month.

• May be used for small inheritances

• Small personal injury settlementsmay be structured to meet the require-ments of an ABLE account

• May be a good place to save for a vehicle

• May be a good place for an over 65 in-dividual with a lifetime disability to storesome savings

When will the accounts be available?Hopefully these accounts will be avail-

able later in 2016. The IRS issued draftregulations in the summer of 2015. The

comment period ended in September andthe IRS received some needed pushbackon some of the burdensome reporting re-quirements. These types of accounts willgrow slowly and with the limited contri-bution amounts possible, it will be diffi-

cult to find custodians willing to admin-ister them if they are onerous reportingrequirements falling on the custodians.The IRS recently issued a notice that thefinal regulations will have less stringentreporting requirements. The burden ofestablishing eligibility for the Accountswill most likely fall on the person openingthe account as will the responsibility forinsuring that the withdrawals are usedfor qualified disability expenses. The ac-counts most likely will be administeredsimilarly to 529 accounts. Look for themin late 2016 or early 2017.

Ann McGee Green practices law with An-

derson, Desimone and Green PC in Roanoke.

Able | n continued from page B-4

Our Estate Team

BARNES & DIEHL, P.C.

BarnesFamilyLaw.com

RICHMOND \ CHESTERFIELDBoulders VI, 7401 Beaufont Springs Drive,Suite 200Richmond, VA 23225-5504

PH: (804) 796-1000 | FX: (804) 796-1730

HENRICO

Three Paragon, 6806 Paragon Place, Suite 110, Richmond, VA 23230PH: (804) 762-9500 | FX: (804) 762-9654

HANOVERLockwood Business Center, 9097 Atlee Station Road, Suite 319Mechanicsville, VA 23116

PH: (804) 569-5515 | FX: (804) 569-5501

From left to right: ErikBaines, Ann BrakkeCampfield, EdwardBarnes, Irene Delcamp

| Estate Planning

| Advanced MedicalDirectives

| Powers of Attorney

| Living Wills

| Related Services

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9/16


grounds for a remand—e.g., if the writtennotice did not provide sufficient advancenotice, failed to provide appeal rights, orfailed to provide the location to which theresident was to be transferred. Failureto get approval of the discharge from thetreating physician or to properly docu-ment the resident’s chart can also result

in remand or reversal. One of the mostcompelling arguments is whether thereis a safe discharge plan in place. For ex-ample, if the resident is to be sent to thehome of her daughter, is the daughterhome during the day and is she capableof providing the level of care the residentrequires? If the resident is to be sent toanother facility, why is that facility betterequipped to care for this resident thanthe current facility, and if it isn’t, whyshould a vulnerable resident endure aforced move? While many facilities actresponsibly in planning for a resident’ssafe discharge, Virginia facilities haveplanned to send residents to a sister fa-cility in Florida even though the residenthad no connection to Florida; to a Salva-tion Army shelter where people were not

even allowed to stay during the day andwhere there was no provision for medicalcare; or to the home of adult children whowere physically or mentally incapable ofproviding the necessary care. The lackof a safe discharge plan often provides astrong argument for a remand if not a reversal of the facility’s proposed discharge.

Of course the other primary argumenton appeal is whether, in fact, the facilityhad adequate grounds to involuntarilydischarge the resident in the first place.Simply stating that one of the six allow-able grounds for discharge exists does notmake it factually justified. For example,a facility may claim that it cannot meet aresident’s needs and that it is in the res-ident’s best interests to go to another fa-cility. But “cannot meet resident’s needs”often means that a particular residenthas more care needs and requires morestaff time than some other residents.Each facility is required by federal law to“provide the necessary care and servicesto attain or maintain the highest practi-cable physical, mental, and psychosocialwell-being” of each resident. Simply be-cause one resident requires more careand more staff time than another doesnot mean that the facility cannot meet

that resident’s needs.Similarly, simply claiming that a resi-

dent is a danger to the safety of othersdoes not mean that he truly is. A residentwith dementia who curses staff whenthey try to provide care may be difficultand unpleasant to deal with, but is hetruly a danger to the safety of others? If

a wheelchair-bound resident with demen-tia flails at staff when they are trying tobathe him, is he a danger to the safety ofothers—or do staff simply need to learnanother way to approach him?

Even non-payment is not as clear agrounds for discharge as it might initiallyseem. Facilities sometimes try to “evict”residents when their Medicare coverageends even though they are also coveredby Medicaid and continue to need nurs-ing home level of care. Conversion fromthe higher Medicare or private pay rateto the lower Medicaid rate is not non-pay-ment and is not grounds for discharge. Ifa resident is currently covered by Medic-aid but has an unpaid balance from be-fore he became eligible for Medicaid, itmay be possible to resolve the non-pay-

ment by adjusting the patient pay obli-gation in order to pay the unpaid medicalbill. See Medicaid Manual M1470.230. Assisting a resident to qualify for Medic-aid may resolve the non-payment and theinvoluntary discharge.

Remember that all residents in Medi-care- or Medicaid-certified facilities areentitled to appeal an involuntary dis-charge to DMAS. If the hearing deci-sion is unfavorable, an appeal to circuitcourt under the Virginia AdministrativeProcess Act, Va. Code § 2.2-4025 et. seq.,should be considered. If you believe thefacility’s actions were unwarranted, youmay also want to file a complaint withthe Office of Licensure and Certificationat the Department of Health.

Vulnerable nursing home residentsare often frail and unable to advocatefor themselves when faced with an involuntary discharge. Federal and statelaw protections are meaningless unlessthere is someone to assert them. You canmake the difference in helping a residentassert her rights and avoid eviction fromher home!

Kathy Pryor practices law with theVirginia Poverty Law Center in Richmond.

Discharge | n continued from page B-5This helps the principal understand exactlywhat he or she will be signing, and the scopeof the decision-making powers given to hisor her appointed agent. It also helps ensurethat the client’s wishes with regard to end-of-life decisions and organ donation havebeen expressed correctly.

When drafting it is also important to

ensure that medical planning documentsinclude a HIPAA release. These are notoften included in older advance direc-tives, but they can be necessary for theagent to have in order to access the prin-cipal’s medical information.

Clients can allow for the managementof their property and financial affairs in a variety of ways. The most common is prob-ably the durable power of attorney. A du-rable power of attorney, drafted in accor-dance with Virginia Code §§ 64.2-1600 etseq. will survive incapacity and allows cli-ents to appoint an agent to manage theirproperty during periods of incapacity.

Given the broad range of powers avail-able to agents under powers of attorney,one must advise clients to take care whenselecting an agent. An agent under a du-

rable power of attorney should be someonetrustworthy who is capable of keeping orga-nized records and who will be able to com-petently manage the estate for the benefitof the principal. In addition, clients need tobe aware of just how much power is beinggiven to their agent. The document needsto be tailored to make sure that the agent’sauthority under it matches the client’swishes for how his or her affairs shouldbe managed during incapacity. There aremany issues to consider, so a lengthy dis-cussion could be in order. For instance, doesthe client want the durable power of attor-ney to be effective right away or only uponincapacity? Does the client want the agentto have control over some portions of his orher estate but not others?

While advance medical directives anddurable powers of attorney are perhaps

the most common methods by which peo-ple plan for incapacity, there are othertools to consider as well. For those clientsfor whom trust-based estate planning isadvisable, incorporating incapacity plan-ning into living trusts is very important.This is generally done by having the cli-ent designate an incapacity trustee or

trustees, who will step in once certainconditions, defined by the trust docu-ment, are met. An attorney experiencedin estate planning can incorporate thesetypes of provisions into a trust and tailorthem so that they meet a client’s partic-ular needs. However, care should still betaken to ensure that clients also have anadvance directive in place as well as a du-rable power of attorney to handle thosematters that lie outside of the trust.

With all incapacity planning documents,it is important to remember that they areonly useful if they are in a position to be used.Once advance directives and durable powersof attorney are drafted, one should remindclients that their named agents either needcopies of the documents or need to know howto get easy access to the documents in case of

emergency. Clients should also provide cop-ies of advance directives to their doctors, andmany hospitals now routinely request copiesfrom patients upon admission.

Outside the estate planning and elderlaw specialties, it is important for all attor-neys to remember that clients need to planfor future incapacity. This issue comes upmost often in the estate planning context,but the discussion also arises in the con-text of business planning, personal injury,or family law, just to name a few. Attorneysshould be attuned to the issue, so that theproblems which arise from a lack of ade-quate incapacity planning can be headedoff before they occur.

Amy E. McCullough practices law withCarrell Blanton Ferris & Associates PLCin Fredericksburg.

Incapacity | n continued from page B-6

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Please stop by our booth

or a chance to win a

$50 American Express Gif Card!

R

Tom Auth, Esq.

email: [email protected]

Phone: 410-798-6229

Kay G. Kenny

email: [email protected]

Phone: 443-955-4829

For a quote in Virginia contact:

800.422.1370 www.mlmins.com

• Financial stablity- Current surplus in excess of 200% ofwritten premium and A.M. Best rating of “A-” (excellent).

• Mutual company- MLM has returned a dividend topolicyholders for 28 consecutive years totaling over $49 Million,including $1,455,465 to Virginia firms the last three years alone.

• Five free hours of CLE - Tree live webcast and twoon-demand videos for each attorney in an MLM insured firm, eachyear - a $325 value.

• Virgina team - Regional Sales Directors, Account Manager,Underwriters and Claim Attorneys all located near Richmond, VA.


10/16


Sheri R. AbramsSheri R. Abrams, PLLC10467 White Granite Drive, Suite 306Oakton, VA 22124

[email protected](571) 328-5795www.sheriabrams.com

Scott N. AlperinAlperin Law, PLLC500 Viking Drive, Suite 202Virginia Beach, VA [email protected](757) 490-3500www.alperinlaw.com

Barbara S. AndersonLife & Estate Planning Law Center, PLLC

1225 Martha Custis Drive, Suite 103Alexandria, VA [email protected](703) 820-3600www.lifeandestateplanninglaw.com

Courtney ArmstrongArmstrong & Armstrong, Attorneys-at-LawP.O. Box 1431Martinsville, VA [email protected](276) 632-7022

Jennifer AtkinsonHoggeLaw500 E. Plume Street, Suite 800Norfolk, VA [email protected](757) 961-5400

Sarah C. AvilesFerguson Walton & Shansab, PLLC12007 Sunrise Valley Drive, Suite 140Reston, VA [email protected](703) 860-8520www.fergusonwalton.com

Rachel Baer

Law Office of Rachel Baer1908 Mt. Vernon Avenue, #2915Alexandria, VA [email protected](703) 405-8567www.RBaerLaw.com

Jean Galloway Ball, CELA, CAP, FellowHale Ball Carlson Baumgartner Murphy, PLC10511 Judicial DriveFairfax, VA [email protected](703) 591-4900www.uselderlaw.com

Paul W. BarnettManning & Murray, PC6045 Wilson Boulevard, Suite 300Arlington, VA [email protected](703) 532-5400www.manning-murray.com

Harold H. Barton Jr.Mulkey, Forbes, Reid & Barton, PLC11711 Jefferson Avenue, Suite ANewport News, VA [email protected](757) 595-9500

Kristina BeaversKristina Beavers, Attorney at LawP.O. Box 2501Yorktown, VA 23692-5501

[email protected](757) 234-4650

Elizabeth E. BircherOast & Taylor, PLC355 Crawford Street, Suite 720Portsmouth, VA [email protected](757) 452-6200www.oasttaylor.com

L. Ashley BrooksL. Ashley Brooks, PLC1545 Crossways Boulevard, Suite 250

Chesapeake, VA [email protected](757) 777-3930

Robert S. Bullock, CELA, CAPThe Elder & Disability Law Center1020 19th Street NW, Suite 510Washington, DC [email protected](202) 452-0000www.edlc.com

Stephen David BurnsThompson Wildhack, PLC6045 Wilson Boulevard, Suite 101Arlington, VA [email protected](703) 237-0027www.twplc.com

John S. BurtonJ.S. Burton, PLC575 Lynnhaven Parkway, Suite 278Virginia Beach, VA [email protected](757) 301-9500www.jsburton.org

Joshua E. Bushman

Bushman Law Group2800 Shirlington Road, Suite 503Arlington, VA [email protected](703) 845-9070www.bushmanlawgroup.com

Joseph T. Buxton III, CELATrustbuilders Law Group110 Grace AvenueUrbanna, VA [email protected](804) 758-2244www.trustbuilders.net

Daniel E. CassidyDaniel Edward Cassidy PLC9411 Ulysses CourtBurke, VA [email protected] www.cassidy-law.com

Katherine S. CharapichKatherine S. Charapich, Esq., PLLC219 E. Davis Street, Suite 320Culpeper, VA [email protected](540) 812-2046

A. Mark ChristopherYates, Campbell & Hoeg, LLP4165 Chain Bridge RoadFairfax, VA 22030

[email protected](703) 273-4230www.ychlaw.com

Jane Champion ClarkeMcCallum & Kudravetz, PC250 E High StreetCharlottesville, VA [email protected](434) 293-8191www.mkpc.com

Justin A. CoheeLaw Firm of Evan H. Farr, PC

10640 Main Street, Suite 200Fairfax, VA [email protected](703) 691-1888www.virginiaestateplanning.com

Stephanie Pitsenberger CookStephanie Pitsenberger Cook, PC30 W. Franklin Road SW, Suite 301P.O. Box 311Roanoke, VA [email protected](540) 266-7575

Sheila M. CostinHolmes Costin & Marcus, PLLC5203 Lyngate Court, Suite BBurke, VA [email protected](703) 260-6401

Cary Z. CucinelliCucinelli Law PLC10555 Main Street, Suite 300Fairfax, VA [email protected](703) 862-3079www.cucinellilaw.com

Lawrence G. CummingKaufman & Canoles, PC2236 Cunningham DriveHampton, VA [email protected](757) 224-2900www.kaufmanandcanoles.com

Julianne R. CyrMiller, Walsh, Kutz & Laster, PLLC12610 Patrick Henry Drive, Suite DNewport News, VA [email protected](757) 595-0123

www.mwklawva.com

Julianne DaltonAnderson, Desimone & Green, PC4923 Colonial AvenueRoanoke, VA [email protected](540) 776-6434

Mark W. DellingerRhodes, Butler & Dellinger, PC318 Washington AvenueRoanoke, VA 24016

(540) [email protected](540) 342-0888www.rhodesbutler.com

Sherri DennisThe Clark Law Firm108-E South Street SELeesburg, VA [email protected](703) 443-0001www.theclarkfirm.com

George W. Dodge

Attorney at Law2300 Clarendon Boulevard, Suite 700Arlington, VA [email protected](703) 524-9700

Diane L. DonleyDiane L Donley PLC3508 Riverwood RoadAlexandria, VA [email protected](703) 780-2804

John D. Dutton Jr.Carrell Blanton Ferris & Associates, PLLC11800 Chester Village Drive, Suite CChester, VA [email protected](804) 681-2060www.carrellblanton.com

V. Anne EdenfieldLaw Office of V. Anne Edenfield2762 Electric Road SW, Suite CRoanoke, VA [email protected](540) 342-1527

Robyn Smith Ellis

Robyn Smith Ellis, PLC300 E. 2nd StreetSalem, VA [email protected](540) 389-6060www.ellisoffice.com

Virginia Academy of Elder Law Attorneys Directory


11/16


FARR

Evan H. Farr, CELA, CAPThe Law Firm of Evan H. Farr PC

511 Westwood Office ParkFredericksburg, VA 22401(540) 479-1435

10640 Main Street, Suite 200Fairfax, VA 22030(703) 691-1888

[email protected]

Message from the attorney:Our firm is dedicated to helping protect seniorsand their families by preser ving dignity, quality oflife, and financial security.

Areas of emphasis/specialties:Elder Law: Medicaid Planning, Nursing HomePlanning, Life Care Planning, Asset ProtectionPlanning; Trusts & Estates Planning andAdministration: Living Trusts, Estate Planning,Wills & Probate, Probate Avoidance, Probate andTrust Administration; Special Needs Planning:Special Needs Trusts: Guardianships andConservatorships

Geographic areas served:Virginia, DC and Maryland

Hours/days of week available:Monday - Friday, 8:30 a.m. to 5:30 p.m.

Education:University of Pennsylvania, 1984College of William & Mary law school, 1987

Certifications:Professional Credentials: Certified Elder Law Attorney,National Elder Law Foundation (Virginia has noprocedure for approving certifying organizations);Council of Advanced Practitioners, NAELA; AV-Ratedby Martindale-Hubbell; Listed in Best Lawyers inAmerica; Virginia Super Lawyer since 2007; DCSuper Lawyer since 2008; Washingtonian MagazineTop Attorney since 2011; Northern Virginia MagazineTop Attorney since 2011; Newsweek Magazine Top

Attorney in the Country since 2011

Year the attorney entered the elderlaw field: 1987

Services available:

Elder Law: Medicaid Planning, Nursing HomePlanning, Life Care Planning, Asset ProtectionPlanning, Special Needs Planning, Guardianship,Powers of Attorney, Financial Powers of Attorney,Medical Powers of Attorney, Disability Planning;Trusts & Estates Planning and Administration:Living Trusts, Estate Planning, Wills & Probate,Probate Avoidance, Estate Administration

Total annual cases handled:200-300

Other pertinent information:Member of National Academy of Elder Law

Attorneys; Past Chair, Virginia Bar AssociationElder Law Section; Past President, VirginiaAcademy of Elder Law Attorneys; Past Co-Chair,Fairfax Bar Association (FBA) Elder Law Section;Past Co-Chair, FBA Wills, Trusts & Estates Section;Charter Member of Academy of Special NeedsPlanners; Member of National Care PlanningCouncil Writing Credentials: Three National BestSelling books in the field of Elder Law:(How to Protect Your Assets From Probate PLUSLawsuits PLUS Nursing Home Expenses withthe Living Trust Plus™; Nursing Home SurvivalGuide; and Protect & Defend, which Evanauthored along with a host of other top attorneysacross the country); The Virginia Nursing HomeSurvival Guide; Planning and Defending AssetProtection Trusts (ALI-ABA); Trusts for SeniorCitizens (ALI-ABA); CPA’s Guide to Long-Term CarePlanning; Plus Dozens of Additional ProfessionalPublications including: Fundamentals of ElderLaw (NBI, 2007); Paying for Long-Term Care(NBI, 2007); Medicaid Practice and Appeals(NBI, 2007); Virginia Medicaid Waiver (NBI,2007); Asset Protection Using Trusts (NBI,2007); Trigger Provisions Creating Special NeedsTrusts (National Academy of Elder Law Attorneys,2007); Long-Term Care Insurance: What Is It andWho Needs It? (Virginia CLE, 2008); Fundinga Special Needs Trust: How Much is Enough?

(National Academy of Elder Law Attorneys,2008); Using Income Only Trusts to Qualify forPublic Benefits (National Academy of Elder LawAttorneys, 2009)

Ron FeinmanLaw Offices of Ron Feinman801 Main Street, Suite 702Lynchburg, VA [email protected](434) 528-0696

www.va-elderlaw.com

Elaine F. FerrisLaw Office of Laurie Forbes, LLC10805 Main Street, Suite 200Fairfax, VA [email protected](703) 352-2600www.laurieforbeslaw.com

Karen L. FortierKaren L. Fortier, PC3061 Brickhouse Court, Suite 101Virginia Beach, VA 23452

[email protected] (757) 631-1900www.mylawyerkaren.com

William S. Fralin, CELAThe Estate Planning & Elder Law Firm2200 Clarendon Boulevard, Suite 1201Arlington, VA [email protected](703) 243-3200www.chroniccareadvocacy.com

Martha D. FranklinLaw Office of Martha D. Franklin, PC

413 Vanderbilt AvenueVirginia Beach, VA [email protected](757) 477-0978

Claudia FredericksFredericks & Stephens, PC10521 Judicial Drive, Suite 303Fairfax, VA [email protected](703) 691-7575

Anna FreskaLaw Office of Anna Freska1725 I Street NW, Suite 300Washington, DC [email protected](202) 733-7007

FRIEDMAN

Foster S.B. FriedmanWade, Friedman & Sutter, PC616 S. Washington Street

Alexandria, VA [email protected](703) 836-9030

EducationWashington & Lee UniversityBoston University School of Law

Other pertinent information:The Estate Planning Section of Wade, Grimes,Friedman, Sutter & Leischner, PLLC concentrateson planning and controversy matters involvingestate and trusts. The firm has extensiveexperience advising clients on the transfer ofwealth from one generation to another, including

the orderly and tax-efficient succession of familyowned businesses, through the preparation andimplementation of Wills, Trusts, Family LimitedPartnerships and Limited Liability Companies.

Mr. Friedman serves individual clients who seekto transfer assets efficiently to their chosenbeneficiaries. As a part of our estate planningservices, we also consider the impact of federalincome, estate, gift, and generation-skippingtransfer taxes on the transmission of wealth.We often help our clients achieve tax savingsby establishing trusts for the benefit of familymembers. We also advise our clients about themany forms of charitable giving that may beused to reduce taxes. Planning of this natureincludes providing for the special needs offamily members, protecting the family assets,and assuring professional management of

these assets. We advise executors and trusteesabout administration of estates and trustsand guide them in all aspects of fulfilling theirresponsibilities, including advice on incometaxation of estates and trusts as well as gift andestate taxation. We represent clients in resolvingwill disputes, interpreting wills and trusts, andrelated litigation.

David A. FurrowDavid A Furrow, PC115 East Court Street Rocky Mount, VA [email protected](540) 483-8696www.furrowdudley.com

Jeffrey L. GalstonAttorney At Law2819 N. Parham Road, Suite 110Richmond, VA [email protected](804) 346-5956

Martin J. GandersonGanderson Law, PC

409 Bank Street, Suite 200Norfolk, VA [email protected](757) 622-0505www.gandersonlaw.com

Valerie B. GeigerThe Geiger Firm, LLC297 Herndon Parkway, Suite 104Herndon, VA [email protected](703) 481-6464www.thegeigerfirm.com

Jonathan GelberLaw Offices of Jonathan Gelber, PLLC201 Park Washington Court, #1Falls Church, VA [email protected](703) 237-1200

Doris W. GelbmanGelbman Law, PLLC1350 Stone Creek Lane, #302Charlottesville, VA [email protected](434) 906-7022www.gelbmanlaw.com

Virginia Academy of Elder Law Attorneys Directory


12/16


Vera L. GolenzerNeedham Mitnick & Pollack, PLC400 S. Maple Avenue, Suite 210Falls Church, VA 22046

[email protected](703) 536-7778www.nmpattorneys.com

Robert B. GoodallGoodall, Pelt & Carper, PC1259 Courthouse Road, Suite 101Stafford, VA [email protected](540) 659-3130www.gpc-lawyers.com

Elizabeth L. Gray, CELA, CAPLaw Offices of Elizabeth L. Gray, PLLC

4000 Legato Road, Suite 1100Fairfax, VA [email protected](703) 896-7979

Ann McGee GreenAnderson, Desimone & Green, PC4923 Colonial AvenueRoanoke, VA [email protected](540) 776-6434www.andersondesimone.com

Angela GriffithLaw Office of Angela M. Griffith, PLC6718 Whittier Avenue, Suite 250McLean, VA [email protected](703)448-9600

Robert W. Haley, CELA, CAPEstate & Elder Law Center of Southside Virginia, PLLC3371 Fairystone Park HighwayBassett, VA [email protected](276) 629-5381www.vaelderlaw.com

Phoebe Hall

Hall & Hall, PLC1401 Huguenot Road, Suite100Midlothian, VA [email protected](804) 897-1515www.hallandhallfamilylaw.com

Lora F. HampAllen & Carwile109 S. Wayne AvenueP.O. Drawer 1558Waynesboro, VA [email protected]

www.a

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2016 Virginia Academy of Elder Law Attorneys

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