Richmond Virginia Estate Planning, Elder Law, And Asset Protection

C19 UPDATE: How Nursing Homes Can Do Better at Protecting Residents from COVID19

It’s no secret that nursing homes across the country have been hard-hit in this pandemic and residents and their families are rightly concerned about safety.

Here are two developments you will want to watch.

  1. Commission on Medicare and Medicaid Services (CMS) on April 30 announced a new independent commission, Coronavirus Commission for Safety and Quality in Nursing Homes, to conduct a comprehensive assessment of the nursing home response to the 2019 Novel Coronavirus (COVID-19) pandemic. The Commission will provide independent recommendations and report to CMS to help inform immediate and future responses to COVID-19 in nursing homes.
  2. Centers for Disease Control and Prevention’s (CDC) updated guidelines for nursing homes and long-term care facilities in regard to preparing for COVID-19. You can review the guidelines and additional resources on the CDC website at https://www.cdc.gov/coronavirus/2019-ncov/hcp/long-term-care.html. You also can watch a 30-minute pre-recorded CDC webinar, Preparing Nursing Homes and Long-Term Care Facilities for COVID-19 on YouTube.

Resources: CMS.gov, CMS Announces Independent Commission to Address Safety and Quality in Nursing Homes, April 30, 2020; NPR, Trump Announces Panel to Look at Nursing Home Responses to Coronavirus Outbreak, April 30, 2020; Centers for Disease Control and Prevention, Preparing for COVID-19: Long-term Care Facilities, Nursing Homes

Suggested keywords: Coronavirus Outbreak in Nursing Homes, COVID19 in Nursing Homes

How to use Telemedicine during the Pandemic..and After

On Friday I spoke with a friend who lives in a Richmond retirement community now on total lockdown. Several residents of her building have died from COVID-19. She’s coping well, but she is very careful. I’m very concerned for her. As you know, the COVID-19 pandemic is taking lives not just here, but all over the country. State and local leaders have issued stay-at-home orders to try to thwart the spread of the disease. COVID-19 can cause serious complications in the elderly and in those, like my friend, with underlying health conditions.

A Midwestern friend recently sent me an article from Missouri’s News Tribune  titled “Telemedicine helps elderly patients stay home during pandemic,” which explains that, for some services, health care providers have found telehealth can assist many patients, including some of the most vulnerable, who can stay in the comfort of their own homes. (It is ironic that she sent me this article. I’ve got my first “telemedicine” appointment myself this week!)

Many healthcare providers are launching telemedicine or video visits. Those patients who want to participate in video visits with their physicians, should contact their physicians’ offices for more information about the availability.  In my own case, I had a routine check-in scheduled for over a year, and my doctor’s office called to say the doctor wanted to do the appoint by “Zoom”.

This is a trend. The federal government announced an expanded use and relaxed rules for Medicare telemedicine in response to the coronavirus pandemic, effective March 6, 2020. Rural and site limitations have been removed, and telehealth services can now be provided, regardless of where the Medicare patient is located geographically and by type of site. This allows a patient to be at home and communicate with their doctor.

Medicare also expanded the list of eligible services provided via telehealth. Medicare patients can now get a wider range of healthcare services from their doctors without having to travel to a doctor’s office, and these telehealth services are not limited to health issues related to patients with COVID-19.

It’s a win-win. Healthcare professionals are able to take care of patients and keep staff on-site. Staff are getting more hours.

At some facilities, the need for patients to see their doctors, while not exposing them to the COVID-19 virus, is a motivating factor for the expansion of telehealth offerings.

The use of online resources allows patients to meet with their providers remotely from their homes.  It includes care for many common illnesses and injuries, preventive care, mental health conditions and a range of other medical needs.

Poeple seeking to avoid medical office right now should contact their doctor’s office to see if telehealth is an option for them.

Reference: News Tribune (April 12, 2020) “Telemedicine helps elderly patients stay home during pandemic”

Do You Have an Estate Planning Blueprint?

That warning is applicable to people of all ages. Your assets can go to one of four spots:

  • Your family
  • Your friends
  • Charitable organizations or
  • The government.

Therefore, to avoid the last choice, sit down with an estate planning attorney and ensure that your assets are being allocated how you want them to be.

Forbes recent article entitled “How To Create An Estate Planning Blueprint” reminds you to make sure your plan is optimized, so your beneficiaries can avoid probate and make the most of the gifts you plan to leave them.

Here are some ideas on how to make sure your estate is as planned as possible.

Set Regular Check-Ins. Estate planning isn’t a “set it and forget it’ task.” It needs regular reviews. Your estate is constantly evolving because of life events, changing laws and your financial circumstances. You need to talk to your attorney to make certain that all your assets, as well as circumstances, such as the birth or adoption of a grandchild, are recognized in your will. These meetings should be held every few years—but may be more frequent due to occurrences, such as a births, deaths, or divorces.

Think of the Future. Forecasting into the future can give you peace of mind now and make things easier for your beneficiaries. Failing to plan can create future problems for your heirs.

Look at Your Options. If you decide to create a trust, know your options and discuss different setups—and their tax implications—with an experienced estate planning attorney. Working through the pros and cons of options, can help you to determine the best options for you and your situation.

Tell Your Beneficiaries about Your Wishes. Let your beneficiaries know what you’re planning, so there are no surprises or hurt feelings. There’s no need to detail all of the financial details. Just give a summary of what you anticipate, as well as details about who will be the trustees and executors of your estate.

When it comes to your estate, paying for the professional services of a qualified estate planning attorney now, can help you and your family avoid issues in the future.

Reference: Forbes (April 1, 2020) “How To Create An Estate Planning Blueprint”

 

C19 UPDATE: Keeping the Most Vulnerable Safe as the Economy Slowly Reopens

A lot of communities are easing social-distancing restrictions originally put in place to fight the spread of coronavirus. Virginia is looking at addressing restrictions one community at a time. Even as stay-at-home orders begin to expire, it’s especially important for people at higher risk to remain vigilant.

High-risk groups include:

  • People who are 65 or older
  • People of any age who
    • Live in a nursing home or long-term care facility
    • Have chronic lung disease or moderate-to-severe asthma
    • Have serious heart conditions
    • Are severely obese (body mass index >40)
    • Have diabetes
    • Are undergoing dialysis for chronic kidney disease
    • Have liver disease
    • Are otherwise immunocompromised

In addition to reducing exposure, one of the best ways to keep yourself and at-risk loved ones safer is recognizing the symptoms of COVID-19 and getting appropriate medical help.

COVID-19 symptoms include fever, cough, and shortness of breath.

Emergency warning signs for COVID-19 requiring immediate medical attention include:

  • Difficulty breathing or shortness of breath
  • Persistent pain or pressure in the chest
  • New confusion or inability to arouse
  • Bluish lips or face

Kaiser Health News also warns that doctors also are reporting instances of unusual symptoms in seniors “who present without the typical cough, fever and shortness of breath. Instead, these elders may simply appear off; sleeping more, losing appetite and becoming confused and apathetic. Sometimes they are dizzy, stop speaking or simply collapse.”

Recognizing possible early symptoms of COVID-19 can help seniors get needed help quickly and prevent further spread of the virus.

Resources: Kaiser Health News, Seniors with Covid-19 show unusual symptoms, doctors say, April 23, 2020; Administration for Community Living, What do Older Adults and People with Disabilities Need to Know?

Giving your home away

Handing Kids Keys to Your Home Is Never Good Estate Planning

Giving your home away to an adult child may seem like a simple approach for avoiding having the house go through probate, or even qualifying easily for Medicaid. But this seemingly simple solution comes with a lot of problems, including extra taxes, and possibly for years of delay for qualifying for Medicaid or VA benefits. That’s the advice from the article “Don’t Give Your Adult Kids Your House” from Nerd Wallet.

There are a lot of other ways to transfer a house to family members. AS the saying goes, “Do not attempt this at home!” Estate planning and elder law attorneys will be able to help you accomplish this, without creating extra problems for your family.

First, if you leave the house to your children in your will, which means they don’t get it until you die, they receive something called a “step-up in basis.” This means that all of the appreciation of the house that occurred during the time that you owned the house until your death is not taxed.

Here’s an example. A financial planner advises his client not to let his mother gift him the family home. She paid $16,000 for it back in 1976, and the current market value of the house was close to $200,000. None of that increase in value would be taxable if the son inherited the house. However, she signed a quitclaim to give her son the house while she was living and died shortly afterwards. The estimated tax bill was about $32,000.

Some families who realize the impact of this when it’s almost too late, scramble to give the house back to the parents. They do a last-minute deed change, before it’s too late. There isn’t always time for this.

When it comes to transferring the house, so a parent can qualify for Medicaid, there’s a five-year look back that prohibits any transfer of assets, especially of a house. That can lead to a penalty period, so the senior who needs long-term care will not be eligible for Medicaid.

Transferring a home to an adult child with financial or marital problems is asking for trouble. If the house becomes the child’s asset, then it can be attached by creditors. If a divorce occurs, the home could be an asset to be divided by the couple—or lost completely.

As for the family in the example above, the man was almost stuck paying taxes on a $184,000 gain. A tax research firm he engaged learned of a workaround, Section 2036 of the Internal Revenue Code. If the mother retained a life interest in the property, which includes the right to continue living there, then the home would remain in her estate, rather than be treated as a completed gift. The son, as executor of the estate, filed a gift tax return on her behalf to show that he was given a “remainder interest” or the right to inherit, when his mother’s life interest expired at her death.

There are less stressful and less costly ways to avoid the family home being part of the probated estate. Let an experienced estate planning attorney help your family before costly, time-consuming and stressful mistakes are made.

Reference: Nerd Wallet (April 3, 2020) “Don’t Give Your Adult Kids Your House”

man thinks about how to take care of father with Alzheimer

What are the Alzheimer’s Signs?

Considerable’s recent article entitled “These are the 10 Alzheimer’s signs to watch out for, provides a list of symptoms but cautions that it’s important to note that every one of these 10 symptoms can be applied to other problems. The Alzheimer’s Association explains that there are 10 warning signs and symptoms of Alzheimer’s disease of which older adults should be aware. However, it’s also important to remember that for every one of these 10 symptoms of Alzheimer’s, there is also a typical age-related change that is not indicative of Alzheimer’s disease.

If you see any of these warning signs, don’t ignore them, especially if they’re impacting your life dramatically. See your doctor. (And, of course, an elder law attorney!)

  1. Memory loss that upsets daily life. If you’re experiencing significant memory loss that’s interrupting your daily life, it could indicate Alzheimer’s disease. However, the typical age-related change is that sometimes you forget names or appointments, but you remember them later on.
  2. Trouble planning or solving problems. You have changes in your ability to develop and follow a plan or work with numbers, but it’s not a sign if you make a few errors when managing finances or household bills.
  3. Difficulty finishing regular tasks. Those with Alzheimer’s can begin having issues completing familiar tasks like driving to church, recalling the rules of a favorite game, or organizing a grocery list. However, it’s a typical age-related change to occasionally require assistance using a microwave or figuring out how to record a TV show.
  4. Confusion with time or location. If you’re always losing track of dates, seasons, and the passage of time, you should see your physician and have an Alzheimer’s test. You can, however, get confused about the day of the week and later recall.
  5. Trouble understanding visual images and spatial relationships. Some people will have visual issues that indicate Alzheimer’s, which is different than the typical age-related change of your sight related to cataracts.
  6. Recent issues with words in speaking or writing. If you stop in the middle of a conversation and have no clue how to continue, it can be a sign of Alzheimer’s. The same is true if you have trouble remembering the name of a common object and frequently repeat yourself. However, it’s a typical age-related change to occasionally have difficulty finding the right word.
  7. Misplacing things and losing the ability to retrace steps. If you put things in unusual places and can’t retrace your steps to find them, or if you accuse people of stealing from you, this may indicate Alzheimer’s disease. It is, however, a typical age-related change to misplace things from time to time and retrace your steps to find them.
  8. A lack of sound judgment. If you’re often experiencing difficulty with decision making and using poor judgment, see your doctor to be tested for Alzheimer’s. However, making an occasional bad decision or mistake is normal.
  9. No interest in work or social activities. Those with Alzheimer’s might feel unable to hold or follow a conversation and as a result withdraw from work or social activities. It is, however, a typical age-related change to occasionally feel uninterested in family or social obligations.
  10. Change in mood and personality. If you think your mood and personality are shifting, it may be a sign of Alzheimer’s. This could include confusion, suspicion, depression, fear/anxiety and becoming easily upset. However, it is a typical age-related change to develop specific ways of doing things and to get upset, when your routine is disrupted.

Reference:  Considerable (March 4, 2020) “These are the 10 Alzheimer’s signs to watch out for”

 

Care_for_mom_and_dad_in_Richmond_Virginia

How Can I Be a Good Caregiver?

As an elder law attorney, I get a lot of questions about being a caregiver. And I have several close friends who have stepped up to be the most wonderful caregivers for aging family members. (You know who you are!) If you find yourself suddenly in a caregiving role, you may not know where to begin, CaringBridge’s recent article entitled “5 Tips to Be a Good Caregiver” provides some great advice. I salute you, and hope this helps.

Communicate. They say that this is the most important factor, when trying to be a good caregiver. Caregivers should strive to communicate with patience, understanding and empathy.  A person being taken care of can sometimes feel like they’re a burden or a nuisance. Good communication and reassurance can help prevent that. You should also have communication between you and your other family and friends. Asking for help isn’t always easy, but those who care about you will want to support you.

Take Care of Yourself.  When you’re constantly on call caring for a person who is ill, it’s not hard to forget about your own needs. Caregivers can be so overwhelmed, that they’re unable to take time for their other family or interests. They can feel guilty being away from the person in need. However, you can’t be a good caregiver, if you aren’t also in good shape. Prioritize your own health, physical and mental—it’s vital for both you and your loved one. First, take care of yourself because you can’t take care of a loved one, if you are not taking care of yourself.

Have a Lot of Patience. This is important because it’s helpful to be patient with yourself. You’ll make mistakes, but remember that you’re trying your best, and no one’s perfect. You should also be aware that communication can sometimes be difficult, when you’re caregiving. Your loved one might say or do something that hurts your feelings. However, do your best to be patient and empathetic. Don’t take it personally. Try to look at the situation with understanding and acceptance to battle discouragement.

Create Boundaries. When spending so much time with one person, and sharing their most intimate moments, it’s still important to have some boundaries. These can include you knowing your own limitations and what you’re comfortable doing for that person. Boundaries also apply to the person receiving the care and things, such as the way in which that want to be cared for and their likes and dislikes. Boundaries allow both people to be happier.

Remind Yourself of Your Mission. Sometimes, you can become a caregiver out of necessity or a sudden crisis. Nonetheless, at the center of the situation is love and empathy. Caregivers love and want the best for the person they’re helping. You should try to harness that compassion to keep you motivated through hard times.

Remember that a good caregiver is one who cares. You’re not expected to be perfect, so make certain that you give yourself just as much love and patience as you offer your patient.

Reference: CaringBridge (Feb. 13, 2020) “5 Tips to Be a Good Caregiver”

 

C19 UPDATE: Did You Get a Paycheck Protection Program Loan? Take These Steps Now to Qualify for Forgiveness

The Small Business Administration is expected to start taking loan applications again next week through the Paycheck Protection Program for small businesses impacted by coronavirus. You may recall that the PPP was part of the $2.2 trillion CARES Act stimulus package. One of the most valuable aspects of this program is that these small business loans can be converted to grants and be fully forgiven if used to keep employees on the payroll. While there is still confusion around exactly what steps business owners must take to qualify for loan forgiveness, Forbes recently suggested loan recipients take the following three steps now.

1: Use all of the funds you receive to pay your employees. Be aware that is mathematically impossible to get the full 100% forgiveness simply by paying the same wages that your PPP application was based on. This is because the loans were calculated at 2-1/2 times your monthly payroll, and you will have only eight weeks (from the day you received funding) to disburse the loan funds.

What to do? You can use the rest of the funds on permissible expenses (business rents, mortgage interest, and utilities, with some restrictions). But it appears the safest thing to do (“safe” meaning likelihood of achieving full loan forgiveness) will be to increase your payroll, either the amount per employee or the number of employees you have on payroll, or by paying bonuses, etc.

2: But beware – any amount paid to a single employee (including yourself) over an annualized $100,000/year will not count towards forgiveness.

3: Start these payments from the very date you receive the money, or as close to that as possible, and make sure all your pay periods fall within the 8-week window. This is a tricky little point; forgiveness appears to be calculated on a cash basis, in which case, accrued payroll with a pay date after the 8-week period won’t count.

Finally, remember that managing your business through these difficult times is a balancing act. In other words, don’t put your business in danger just to be sure your loan is fully forgiven. The last thing you want to do right now is sabotage the long-term health of your business. Even if your loan is not 100 percent forgiven, the remainder will convert to a one percent loan.

The best advice? Invest your time now on business strategy, forecast different scenarios, and have a plan to grow out of these challenging times.

Resources: Forbes, For Up To 100% PPP Loan Forgiveness, Take These 3 Steps The Very Moment You Get Your Loan, April 23, 2020; US Chamber of Commerce, CORONAVIRUS EMERGENCY LOANS Small Business Guide and Checklist, updated April 23, 2020

 

Long Term Care Varies, State by State

What if your parents live in Oklahoma, you live in Virginia and your brothers and sisters live in New York and California? Having the important conversation with your aging parents about what the future might hold if one of them should need long-term care is going to be a challenge, to say the least.

It’s not just about whether they want to leave their home, reports the article “What is the best state for long term care” from Pennsylvania’s The Mercury newspaper. There are many more complications. Every state has different availability, levels of care and taxes, and deciding where to get long-term care is a challenge. If the family is considering a continuing care retirement community, or if the parents already live in one, what are the terms of the contract?

It is important to remember that Medicaid is a joint Federal-State program. Some things are the same across the country. But there are differences between states, and even within a state, so there can be dramatic differences, depending upon whether the facility being considered is in a metropolitan, suburban or rural area. (And perhaps not surprisingly, Virginia is one of the “stingiest” states when it comes to Medicaid.) There’s also the question of whether the facility will accept Medicaid patients, if the parents have long-term care insurance or any other resources.

Here’s what often happens: you open up a glossy brochure of a senior community in a warm climate, like Florida or Arizona. There are golf courses, swimming pools and a great looking main house where clubs and other activities take place. However, what happens when the active phase of your life ends, slowly or suddenly? The questions to ask concern levels of care and quality of care. Where is the nearest hospital, and is it a good one? What kind of care can you receive in your own apartment? Are you locked into to your purchase, regardless of your wishes to sell and move to be closer to or live with your adult children?

And what happens if you or a “well” spouse runs out of money? That’s the question no one wants to think about, but it does have to be considered.

For people who move to Florida, which has a very generous homestead exemption for property taxes and no state tax, the incentives are strong. However, what if you become sick and need to return north?

For seniors who live in Pennsylvania and receive long-term care and other services, the well spouse’s retirement funds are exempt for Medicaid regardless of the amount. However, if you move over the state’s border to New Jersey, and those accounts will need to be spent down to qualify for Medicaid. Virginia — just down I-81 from Pennsylvania — counts the resources of both spouses, but disregards the income of the healthy spouse. The difference to the well spouse could be life changing.

Delaware and New Jersey have Medicaid available for assisted living/personal care. Virginia and Pennsylvania do not. The Keystone State has strict income limitations regarding “at home” services through Medicaid, whereas California is very open in how it interprets rules about Medicaid gifting.

The answer of where to live when long-term care is in play depends on many different factors. Your best bet is to meet with an estate planning and elder care attorney who understands the pros and cons of your state, your family’s  situation and what will work best for you and your spouse, or you as an individual.

Reference: The Mercury (March 4, 2020) “What is the best state for long term care”

 

C19 UPDATE: Coronavirus Got You Thinking About a Will? That Might Not Be Enough.

As the coronavirus pandemic continues to spread across the country today, it seems more people are thinking they should probably get a will done, just in case. While this renewed attention to estate planning is great, experts at Bankrate.com warn that a will may not be enough.

In fact, many estate planning attorneys recommend will substitutes like living trusts, and paying very careful attention to the impact of joint ownership arrangements and beneficiary designations on your hopes and plans for your loved ones.

What is a Will?

A will is a legal document that directs who should receive your property at your death – specifically any property that is in your name only and without a beneficiary designation. Without a will, your property may be distributed by the courts according to your state’s laws of intestacy … regardless of what your wishes might have been.

Some Shortcomings of a Will

  • Contrary to popular belief, a will does not avoid probate – a court process that can be expensive and can take years to resolve. With courts backed up now due to coronavirus, the process of settling a will could take much longer.
  • A will can face challenges in court during probate, leading to long, messy and expensive litigation.
  • A will does not control the distribution of any assets held jointly with others, or that will pass according to beneficiary designations.
  • Your will goes into effect only after you die. It cannot help with medical or financial decisions that must be made in the event of your incapacity or serious illness.

What’s Right for You?

When it comes to estate planning, there is no one-size-fits-all solution. In some situations, a will – even with all its shortcomings – may still be a good option. Meeting with an estate planning attorney is the best way to get the planning that’s right for you. In many instances today, you won’t have to leave your home and can meet by phone or online in a video chat.

Resource: ABC News, Coronavirus leads to surge in wills: ‘Everyone is thinking about their mortality’, April 2, 2020; Bankrate.com, Revocable trust vs will: A guide to estate planning in the age of coronavirus, April 17, 2020

 

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