FAQ

FAQ

Click below to read frequently asked questions regarding certain topics.

ADVANCE MEDICAL DIRECTIVES AND LIVING WILLS Q & A

What Is A Living Will?

A Living Will is a document that allows you to state your wishes concerning life prolonging treatment in the event you are terminally ill, death is imminent, and the medical procedures serve only to artificially prolong the dying process.

What Is An Advance Medical Directive?

An Advance Medical Directive is similar to a Living Will in that it allows you to state your wishes concerning life prolonging treatment in the event you are terminally ill, death is imminent, and the medical procedures serve only to artificially prolong the dying process. However, an Advance Medical Directive, unlike a Living Will, also allows you to express your wishes regarding medical treatment in situations other than a terminal illness where death is not imminent such as when you are in a vegetative state or in a coma with no likelihood of recovery, or when the quality of your life has greatly diminished .

Can An Advance Medical Directive Require That All Care Be Given?

Yes. It is your choice to explain when you do want care, not just when you do not want care.

Why Should I Prepare An Advance Medical Directive?

This document helps ensure that your doctor and family will know and respect your wishes. It also helps relieve the stress and conflicts caused when family members have to guess what you would have wanted.

When Is An Advance Medical Directive Used?

It is used when you are unable to express your wishes concerning your medical care temporarily or permanently. You may direct that the written document must be followed or you may permit your medical agent to deviate from the document.

Who May Make An Advance Medical Directive?

To make an Advance Medical Directive you must be over 18 years of age and competent. Once an individual is no longer competent, he or she cannot make an Advance Medical Directive.

How Does Needham Mitnick & Pollack Customize Advance Medical Directives?

In addition to asking about client desires concerning terminal illnesses, comas, and vegetative states, NMP elicits from the client information about what the client considers an acceptable quality of life and describes this in the Advance Medical Directive. NMP also includes information about care of secondary illnesses and directions for treatment in medical situations other than at the end of life; including treatment for pain and experimental or trial treatment.

What Does This Word Mean (A Glossary of Terms)?

COGNITIVE FUNCTIONS Intellectual activity such as thinking, reasoning, remembering, imagining, learning words.
COMA A state of deep unconsciousness caused by disease, injury or poison.
CONSCIOUSNESS The totality of sensations, perceptions, ideas, attitudes and feelings; a critical awareness of one’s own identity and situation.
DEMENTIA Loss of intellectual functions (thinking, remembering, and reasoning)
severe enough to interfere with everyday life. Please note that dementia is not a terminal illness and death is not imminent.
ENDOTRACHEAL Placed within the trachea (windpipe), such as a tube.
ENTERAL FEEDING A form of tube-feeding in which liquid and nutrients are delivered to a patient who cannot eat or drink by mouth. The tube may be inserted directly through the skin into the stomach or intestines or by a tube through the patient’s nose and esophagus (throat) into the stomach.
GASTROSTOMY The surgical opening through the abdominal wall into the stomach.
HYDRATION The introduction of additional fluid into the body.
NASOGASTRIC The insertion of a tube to the stomach by way of the nasal passages.
PARENTERAL Drug administration introduced other than through the intestine such as intravenous or intramuscular injection.
TOPICAL TREATMENT Local application on a body part.
TRACHEOTOMY Surgical operation of cutting an opening into the trachea through the skin.
VEGETATIVE STATE A state of severe mental impairment; monotonous, passive or merely physical existence.

GENERAL OR FINANCIAL POWER OF ATTORNEY Q & A

What Is A Power of Attorney?

It is a written document in which one person (called the “principal”) appoints another as his agent (also called the “attorney-in-fact”). The document gives the agent authority to act for the principal. What the agent can do will be stated in the document.

When Is A General Or Financial Power Of Attorney Used?

It is used in any situation where you desire or need someone else to handle some or all of your personal affairs now or upon the occurrence of a particular event. For example, it may be inconvenient for you to handle some personal business matter in a distant place. A power of attorney may be used to allow someone else the matter for you. Similarly, you may need someone else to handle your affairs for you because of illness.

What Is The Difference Between A General Power Of Attorney And A Specific Power Of Attorney?

If you give your agent the power to transact virtually all personal business that might require your presence or signature, this is called a General Power of Attorney. If you limit your agent to one or a few very specific tasks, such as selling one particular piece of property for you, this is called a “Special Power of Attorney. Even a General Power of Attorney will require that the powers given be specified. Virginia’s courts generally do not find documents saying my agent can do anything I can do acceptable.

Who May Make A Power Of Attorney?

To make a power of attorney you must be over 18 years of age and mentally competent. Once an individual is no longer mentally competent, he or she cannot make a power of attorney.

Who May Be An Agent?

To be an agent, a person must be over 18 and competent. A corporation, e.g., a bank or law firm, may also serve as an agent. No matter who is chosen, the agent should be someone trustworthy, especially if you are giving the agent substantial power and control over your financial affairs.

May My Agent Use My Power of Attorney After I Die?

Your agent’s authority to act for you ends at your death. If needed, an executor or administrator for your estate will take over responsibility for your financial affairs.

What Happens If I Do Not Have An Agent But I Need Help With My Financial Affairs?

At that time, someone would have to file a petition asking a court to appoint a Conservator to act on your behalf for financial matters. A Conservator, like an agent, must be over 18 years and competent. A corporation may also serve. A Conservator must file accountings with the Court. This provides greater oversight than is normally available with a Power of Attorney. Because of the Court’s initial and continuing involvement, Conservatorships are much more expensive and can be much more limiting than Powers of Attorney.

GUARDIANSHIP AND CONSERVATORSHIP Q & A

What Is A Guardianship Proceeding?

A Guardianship is a court proceeding in which the Court names a person as guardian to make personal and health related decisions for someone who is not able to make those decisions for themselves generally because of an accident or illness. While many think of guardianships in terms of the elderly, a guardian may be appointed for anyone over the age of 18 provided the Court finds the person “incapacitated.” Legal Guardians for adults can only be appointed by a Court.

What Is A Guardian?

A guardian makes personal decisions for the incapacitated person. He or she may be responsible for making decisions regarding the person’s support, care, health, safety, education, therapeutic treatment and possibly residence. This can include making medical decisions for the person and voluntary placement in a hospital or nursing home.

What Is A Conservatorship Proceeding?

A Conservatorship is a court proceeding in which the Court names a person as Conservator to make financial decisions for someone who is not able to make those decisions for themselves generally because of an accident or illness. Like a Guardian, a Conservator may be appointed for anyone over the age of 18 provided the Court finds the person “incapacitated.” Conservators can only be appointed by a Court.

What Is A Conservator?

A Conservator is responsible for an incapacitated person’s financial affairs. It is the Conservator’s duty to collect, manage and preserve his ward’s assets and income and to use those assets and income to pay the ward’s bills and obligations.

Are Both A Guardian And Conservator Required?

Depending on any existing legal documents executed by the incapacitated person before becoming incapacitated, such as a General Power of Attorney or an Advanced Medical Directive, the person may need only a Guardian, or only a Conservator, or neither. Where no documents exist to manage the person’s affairs, personal or financial, both a Guardian and a Conservator will be appointed.

Must The Guardian And Conservator Be The Same Person?

The court may appoint one person to carry out both of these responsibilities, or may select a different person for each duty.

How Is A Guardianship Or Conservatorship Initiated?

A petition is filed with the Circuit Court of the county or city where the incapacitated person resides, along with a doctor’s statement of the person’s mental and/or physical disabilities and an assessment of the person’s ability to handle his or her affairs. The petition describes the income and assets of the proposed incapacitated. Anyone may file a petition seeking the appointment of a Guardian, a Conservator, or both, and the petitioner may be appointed to serve in these roles or request that someone else be named. The Guardian or Conservator is often a family member or friend, but an organization or professional can also serve in these capacities.

Who Protects The Incapacitated Person?

The Court appoints an attorney to be the Guardian ad litem. It is the Guardian ad litem’s job to protect the interests of the incapacitated person, and to make an independent investigation of the facts in the petition for the Court. The Guardian ad litem will visit the incapacitated person and advise him of his rights. If the Guardian ad litem believes that the incapacitated person needs his own attorney, he will recommend that the court appoint one. The Guardian ad litem may talk to family members, medical personnel and other caregivers. Once the Guardian ad litem has completed his investigation, he will file a report with the Court.

What Happens In Court?

A hearing is held in the Circuit Court. The Guardian ad litem and the proposed guardian and/or conservator must both appear at the hearing. The person alleged to be incapacitated may attend if he or she wishes. If the Court finds that the person is incapacitated, and there is no Advanced Medical Directive or Healthcare Power of Attorney sufficient to manage the person’s personal affairs, it appoints a Guardian. Where there is no Durable General Power Of Attorney, Trust or other document sufficient to manage the incapacitated person’s financial affairs, it will appoint a Conservator. The Court’s order appointing a Guardian and/or Conservator will define his or her powers and duties so as to permit the incapacitated person to care for himself and manage his property to the extent he can do so.

What Are The Guardian’s Duties?

The Guardian stands in a fiduciary relationship to the incapacitated person. That means he must act in that person’s best interest and exercise reasonable care, diligence and prudence. The Guardian’s specific duties, such as obtaining medical care, will be outlined in the Court order appointing him. Under the Virginia Code, the Guardian is obligated to maintain sufficient contact with the incapacitated person to know his capabilities, limits and needs. Beginning six months after appointment, the Guardian, must file an annual report with the local Department of Social Services describing the physical and mental condition of the incapacitated person, his living arrangements and care, and any recommended changes to the guardianship.

What Are The Conservator’s Duties?

The Conservator also serves in a fiduciary capacity with the same responsibility to exercise reasonable care, diligence and prudence and to act in the best interest of the incapacitated person. Like the Guardian, his specific duties will be spelled out in the Court order. By statute, his duty is to preserve and manage the estate of the incapacitated person, considering the desires of that person, his accustomed manner of living, the size of the estate and the recommendations of the Guardian, if one has been appointed. Six months after appointment, the Conservator is required to file the first of annual accountings with the Commissioner of Accounts showing amounts received and disbursed on the incapacitated person’s behalf.

Is The Conservator Liable For The Incapacitated Person’s Actions?

By being named Conservator, a person does not become personally liable for the incapacitated person’s acts or debts. Those must be paid from the incapacitated person’s funds. But, if the Conservator mismanages or steals the incapacitated’s assets, he may be held personally liable to the incapacitated person’s estate.

When Does The Guardianship Or Conservatorship End?

A Guardianship or Conservatorship ends when the incapacitated person dies, when the individual petitions the Court to be restored to capacity and the Court determines that he is no longer incapacitated, or, in cases where the Court appointed a Guardian or Conservator for a limited period of time, when that period ends. A Guardian or Conservator can also resign or be removed by the Court.

What If You Have A Petition Filed Against You?

If you are notified that someone has filed a petition seeking to obtain Guardianship over you, and you do not want this to happen, you should remember that you have the right to challenge the procedure. You have the right to an attorney and to a trial, including trial by jury. You can have your own doctor testify and your lawyer can ask questions of the witnesses against you.

How Can Needham Mitnick & Pollack Help?

Needham Mitnick and Pollack can prepare the Petition, represent someone who has had a Petition filed against him or her and assist Guardians and Conservators with administration after his or her qualification.

HEALTH CARE AGENTS Q & A

Who Appoints A Health Care Agent?

You do, in a Medical Power of Attorney or an Advance Medical Directive. The individual appointed in the document is generally referred to as an “Agent,” “Health Care Agent” or an “Attorney-in-Fact.”  The individual who appoints the Agent to make medical decisions is often called the “Principal.”

Before Selecting An Agent What Should You do?

You should talk with the proposed agent about your beliefs and values regarding living and dying under a variety of scenarios. You must make sure that the person you pick as your Agent will be comfortable in carrying out your wishes if you lose the ability to make or communicate those decisions.

What Are A Health Care Agent’s Duties?

The Agent’s duties depend on what the Medical Power of Attorney or Advance Medical Directive says and upon state law. The Agent’s duties begin when the individual loses the ability to make or communicate his or her own health care decisions.

How Do You Make Medical Decisions?

First, the Agent needs to find out the medical facts. Second, the Agent needs to find out what the options are. This includes asking the physician about the risks and benefits of each treatment option. Third, the Agent needs to make a decision that best reflects what the individual would decide if he or she knew all the facts and options.

What Can The Agent Do To Make Sure The Patient Receives Good Care?

  1. Make yourself and your role known to the medical staff.
  2. Make one medical person take responsibility for overall care.
  3. Stay informed about the person’s condition as it changes.
  4. Keep the family informed, if appropriate.
  5. Advocate on the patient’s behalf and assert yourself with the medical team, if necessary.
  6. Retain the assistance of a private care manager if you need support when working with the medical team.
  7. If the patient is moved to another section or another facility, make sure the new placement is continuing the treatments already put in place.
  8. Be a squeaky wheel, if need be. Be polite but firm and insist that the facility give appropriate treatment and adequate pain relief. Put your requests in writing to the person in charge. Find out if the unit or floor has a patient care coordinator and ask that they arrange for a meeting of the caregiving team, including the doctor.
  9. Put your requests in writing.

MEDICAL POWER OF ATTORNEY Q & A

What Is A Medical Power of Attorney?

A Medical Power of Attorney gives your agent the authority to make medical decisions for you. As with a General Power of Attorney, what the agent can do will be stated in the document.

Can My Agent Override My Decisions?

Your agent may not override your decisions unless two doctors say you are incapable of making your own decisions. Whether you lack capacity is generally determined by a doctor. If the decision concerns end-of-life decisions, two doctors must make the decision.

When Is A Medical Power Of Attorney Used?

It is used in any situation where you desire or need someone else to help you with medical decisions or where you wish to give someone access to medical information. A Medical Power of Attorney may authorize your agent to hire medical and other personnel, to select health care facilities, to access confidential medical records and to authorize medical treatment. It can also give directions concerning the use, withholding or withdrawal of life prolonging medical treatment.

Who May Make A Medical Power Of Attorney?

To make a Medical Power of Attorney you must be over 18 years of age and mentally competent. Once an individual is no longer competent, he or she cannot make a Medical Power of Attorney.

Who May Be An Agent?

To be an agent, a person must be over 18 and mentally competent. A corporation may also serve as an agent. No matter who is chosen, the agent should be someone you trust and someone who can deal with medical issues.

What Happens If I Do Not Have An Agent But Can No Longer Make Medical Decisions?

At that time, someone will have to file a petition asking a court to appoint a Guardian to act on your behalf for medical matters. A Guardian, like an agent, must be over 18 and competent. A corporation may also serve as Guardian. A Guardian must file annual reports with the Court.

LIVING TRUST Q & A

What Is A Living Trust?

A living trust is a type of contract. It is created during the lifetime of the grantor (the person establishing the trust), in which the trustee holds property for the benefit of one or more beneficiaries. In many instances the person setting up the trust is both the trustee and the beneficiary.

How Long Does A Trust Last?

A trust may be established for a short period of time or may continue after the death of the grantor.

Are There Different Types Of Living Trusts?

Yes, there are revocable living trusts in which the grantor sets up a trust during his lifetime but retains the right to revoke the trust, change its terms, or regain possession of the property in the trust. There are also irrevocable trusts in which the grantor sets up a trust during his lifetime but then gives up all right to revoke, amend, alter or terminate the trust. Revocable trusts are the most commonly used.

Does A Revocable Trust Ever Become Irrevocable?

A revocable trust becomes irrevocable when the grantor dies or gives up all right to revoke, amend, alter, or terminate the trust.

In What Situations Is The Use Of A Trust Advisable?

There are many situations. For example:
  • the grantor wishes to ensure adequate management and ease of transition if the grantor or someone else named in the trust is no longer able to manage his or her affairs
  • the grantor desires privacy in the handling and administration of the grantor’s assets during lifetime and at death
  • the grantor desires to avoid probate
  • the grantor owns property in other states and wishes to avoid additional probate proceedings in those states
  • the grantor wishes someone else to accept management responsibility.

How Is A Revocable Living Trust Taxed?

For federal income tax purposes, all income is taxed to the grantor at the grantors tax rate since the grantor is considered owner of the trust assets. When the grantor dies, the trustee will be responsible for filing income tax returns for the trust. No gift tax is required when the trust is created because the beneficiaries do not receive assets until the grantor dies. Very large estates, currently those greater than $5.12 million, might be subject to gift taxes after the grantor dies.

Do The Assets In A Revocable Living Trust Have To Be Used To Pay For My Nursing Home Care?

Yes. The assets are treated as if they belong to the grantor. However, if removed from the trust, there may be steps that can be taken to preserve them, especially for married couples. See FAQ regarding Long-Term Care.

MEDICAID LONG TERM CARE COVERAGE Q & A

What Is The Difference Between Medicare And Medicaid?

Medicare is health insurance for people age 65 or older, or under age 65 with certain disabilities. Individuals qualify for Medicare by working required quarters for social security coverage. It provides hospital and medical insurance and now under Part D, prescription drug coverage. Medicaid is a federal-state program of medical assistance to eligible needy persons.

Do Medicare And Medicaid Cover Nursing Home Long-Term Care Expenses?

Medicare provides coverage for skilled nursing care in a nursing home. Skilled nursing care is limited to 100 days and during this period only the first 20 days are fully covered. Medicaid does cover nursing home care provided the applicant meets the eligibility requirements for Medicaid coverage.

Do Eligibility Requirements Under Medicaid For Long-Term Care Differ Between An Unmarried Person And The Spouse Of A Married Couple?

Yes, there are significant differences in Medicaid rules when an unmarried person requires Medicaid long-term care coverage versus when one spouse of a married couple requires Medicaid long-term care coverage.

Does My Spouse Have To Give Up The Family Home If I Require Nursing Home Care Coverage Under Medicaid?

No, the home that your spouse lives in while you receive nursing home care remains an exempt asset. It does not have to be sold.

Are There Other Situations In Which The Family Home Can Be Preserved?

Yes, there are ways under Medicaid regulations that make saving the home possible. It is best to seek the help of an Elder Law attorney regarding a particular situation.

Are There Ways My Spouse Can Retain Any Of My Income Of I Require Nursing Home Care Coverage Under Medicaid?

Yes, the spouse who remains in the community is allowed an income allowance from the institutionalized spouse. The law compares the community spouse’s own income to an income allowance. To the extent the community spouse’s own income is below the income allowance, the community spouse is allowed to supplement his/her income from the institutionalized spouse’s income.

Is The Community Spouse Allowed To Keep Other Family Savings Besides The Family Home?

Yes, there is a formula under the law that allows the community spouse to retain family assets. Its best to consult with an Elder Law attorney to determine how much the community spouse can retain and how the amount is determined.

Can I Give My Assets Away And Then Get Into Medicaid For Long-Term Care Coverage?

The important thing to know is that Medicaid penalizes the applicant who gives away assets within five years of applying for Medicaid. The penalty is the delay of when the applicant can actually obtain Medicaid coverage. This is a harsh penalty particularly if you have no other source of assets to privately pay for long-term care while the penalty period is running. Again, it’s best to consult with an Elder Law attorney who understands how the penalty works and can best plan for your situation.

Where Do I Apply For Medicaid Long-Term Care Coverage?

You apply for Medicaid coverage with the Department of Human Services run by the local city or county government. You do not apply with the Social Security Administration. You apply to the city or county office where you last resided immediately prior to entering a nursing home. For example, if you lived in Arlington County before entering a Fairfax County nursing home, you apply for Medicaid with the Arlington County Department of Human Services.

PROBATE Q & A

What is Probate?

It is the process by which a decedent’s estate is administered. This includes finding all of decedent’s assets, paying decedent’s debts, preparing tax returns, filing required reports with the Commissioner of Accounts and Clerk of the Circuit Court, and distributing the decedent’s estate to the beneficiaries named in the Will or the heirs-at-law if there is no Will.

Is It Always Necessary To Probate An Estate When Someone Dies?

Probate or estate administration is only required when there is no other way to transfer assets in decedent’s name to the person inheriting the asset. If property has a named beneficiary (life insurance for example), is jointly held with the right of survivorship, or is designated a “pay on death” account or a “transfer on death” account then probate will not be needed. If there are no probate assets, other than real estate, Virginia provides a simplified procedure for transferring the real estate to the beneficiaries (Will) or heirs-at-law (no Will) without requiring anyone to qualify to administer the estate. A simplified procedure is also available for estates with a total value of less than $50,000.

What Happens If There Is A Will?

If a decedent both has a Will and property that must be probated, the original Will is filed with the appropriate Circuit Court. This is generally the Court where the decedent resided. If the decedent was in a nursing home, it will be in the Circuit Court where the decedent resided prior to entering the nursing home. If the Will names an Executor, that individual or entity must qualify before the Court Clerk to administer the estate. This includes taking an oath, posting bond, if required, and paying the required probate tax and Clerk’s fees. If the named Executor does not qualify, then the Clerk will appoint an Administrator. There are specific rules as to when someone other than the named Executor may qualify to administer the estate. If there is only real estate or the assets are below $50,000, the Will must be filed, but no Executor or Administrator need be appointed.

What Happens If There Is No Will?

If there is no Will but there is property that must be probated, then the decedent is considered as having died “intestate.” Virginia has statutes which govern who will inherit the decedent’s estate when this happens. These individuals are often referred to as “heirs-at-law.” Someone may need to qualify as Administrator of the Estate, but this will depend on the amount and type of the decedent’s assets. The Administrator’s duties will be similar to an Executor’s duties.

Who May Be An Executor Or An Administrator?

An individual must be over 18 years of age, must be able to obtain a surety bond, if required, and must satisfy the Court Clerk that he is suitable to serve in this capacity. A surety bond insures the estate for loss or damage caused by the Executor or Administrator. It is provided by a bonding company. An individual need not be a Virginia resident, but special rules apply to non-residents. These include requiring surety bond (even if waived in the Will) unless a Virginia resident also qualifies. Bank and trust companies may also qualify provided they are authorized to do business in Virginia.

What Does The Proposed Executor Or Administrator Need to Bring To The Clerk When Qualifying

The Court Clerk will need the original Will; a certified death certificate; the approximate value of the personal estate subject to probate; the approximate value of any Virginia real estate (not held with right of survivorship); the names, addresses, and ages of heirs-at-law (even if there is a Will); and a checkbook to pay the probate tax (10 cents per $100 of value) and Clerk’s fees. If a surety bond will be required, then arrangements should be made with a bonding company before qualifying at the courthouse. Even if a Will waives a surety bond, there are some instances where the Clerk will require the surety. You should speak with an attorney or the Clerk to determine if a surety bond will be required in your case.

What Is A Bond Or Surety Bond?

When qualifying the Executor or Administrator must take an oath and post a bond promising to properly carry out the duties of administering the estate. The bond may either be a personal bond in which the Executor or Administrator promises to reimburse the estate for any loss it incurs because of improper actions or it may be a surety bond. A surety bond is obtained through an insurance company which then protects the estate. Wills often waive a surety bond but the Court Clerk may nevertheless require a surety bond to be posted. You should discuss this matter with the probate office before going to qualify.

Are Witnesses Needed To Probate A Will?

Witnesses are not needed if the Will contains a “self proving affidavit.” This is a document attached to the Will which is signed by the person making the Will and the two witnesses to the signing. It is signed under oath before a notary public. If the Will contains this “self proving” affidavit and it complies with Virginia law, then it will not be necessary to bring witnesses to the courthouse to prove the signatures to the Will. If the Will is not “self proving,” then the decedent’s signature to the Will must be proven to be the decedent’s real signature before the Clerk accepts the Will for filing.

What Is A “Certificate Of Qualification?”

This is the document the Clerk gives the Executor or Administrator to show that he is authorized to act for the Estate. The Clerk will provide multiple copies (at a charge) since the Executor/Administrator may need several originals. This document must be given to every entity from which you are trying to collect the decedent’s assets, and to each entity where you will open an account in the name of the decedent’s estate.

What Reports Will An Executor Or Administrator Have To File With The Court?

After qualifying as Executor or Administrator of the estate, there are certain requirements that must be followed in order to show the Court that the estate has been properly administered and then distributed to those entitled to receive the assets. First, a Notice of Probate must be sent to those entitled to receive notice such as beneficiaries named in the Will and heirs-at-law. The Court Clerk will provide the necessary forms and instructions at the time the Will is filed or an Executor or Administrator is appointed. The Notice must be sent out within 30 days of filing the Will or qualification. Second, an Inventory must be filed with the Commissioner of Accounts for the jurisdiction where the estate is opened within four months of the qualification. This document lists all assets in the decedent’s name or payable to the estate. Third, an annual accounting must be filed with the Commissioner of Accounts until the estate is closed. This covers a one-year period and must be filed no later than four months after the accounting year ends (for example, the first accounting will be due 16 months after the qualification. Most Commissioner of Accounts will also require a tax certificate to be filed showing that all taxes have been or will be paid.

Is There Any Protection For The Executor Or Administrator When Paying The Decedent’s Debts?

The best protection is to request that the Commissioner of Accounts hold a debts and demands hearing. After the hearing the Commissioner will file a report with the Court as to any contested claims. The next step is to request the Court to issue a Show Cause Order. If no creditors object to entry of an Order of Distribution, the Executor or Administrator will be protected from creditor claims when he distributes the estate.

What Happens If An Estate Is Insolvent?

An insolvent estate is one in which there are insufficient assets to pay all claims and debts. When this occurs, it is very important for the Executor or Administrator to speak with legal counsel since the Executor or Administrator may be personally liable if he improperly favors one creditor over another.

Must The Executor Or Administrator File Tax Returns?

The Executor or Administrator must file the decedent’s final federal and state tax returns. He is also responsible for obtaining a federal tax identification number and filing any estate tax or federal and state income tax returns that may be required.

SPECIAL NEEDS TRUSTS Q & A

What Is A Special Needs Trust (Sometimes Called A Supplemental Needs Trust)?

Special Needs Trusts are designed to protect a beneficiary’s eligibility for government benefits, such as Medicaid or SSI, while at the same time providing some funds to give an elderly or disabled beneficiary a better quality of life. Government benefit programs provide for basic necessities only. They do not cover such items as dental care, eye glasses, hearing aids, special shoes, some medical equipment, incontinence supplies, tutors, massage therapy, acupuncture, entertainment, cable TV, telephone service, recreation, travel or other extras. We draft special needs trusts to provide for those extras. Special Needs Trusts may also be created to hold funds received in settlement of a personal injury lawsuit.

How Is Disability Defined?

Disability is defined under the rules established by the federal Social Security Disability program. The disability must be total and permanent. Basically, the person must be unable to do any gainful work activity because of an illness or disability.

What Programs Are Needs-Based Public Benefit Programs?

If the person is found disabled and has the requisite limited income and resources, different government programs may be available for basic needs. For example, Supplemental Security Income (SSI) provides income, Medicaid provides health care and Section 8 Public Housing provides shelter.

How is Eligibility Determined for Such Public Benefit Programs?

Eligibility for “needs based” (sometimes called “means-tested”) public benefit programs is not based solely on disability but also upon a person’s income and resources. For example, to be eligible for SSI or Medicaid a single person’s countable resources cannot be over $2,000, and depending upon the program, there are also limitations on the income they receive.

What Are Special Needs?

Government programs do not pay for all needs. Some needs which are not covered are:
  • Supplemental Nursing Care
  • Dental Care
  • Hearing Care
  • Mobility aids such as an electric wheelchair
  • Private Case Management by a social worker
  • Transportation
  • Recreation, including purchase of a TV
  • Hair, nail and other personal grooming
  • Advocacy to preserve benefits or to ensure better care.

Who Makes Distributions from the Special Needs Trust?

The Trustee named in the Special Needs Trust decides what items or services the Trust will pay for and makes those distributions.

What Are Permissible Special Needs Distributions?

A Special Needs Trustee must be very careful when making distributions from the Special Needs Trust. Certain distributions can reduce or result in the complete denial of public benefits. The impact will vary depending on the type of public benefit the beneficiary is receiving. The Trustee must also follow the instructions in the SNT when deciding what distributions can be made and must consider what is in the best interest of the beneficiary.

Are There Trust Distributions That Will Reduce SSI Benefit?

Payments for basic shelter related expenses (such as rent, real estate taxes, heating fuel, electricity, and water), food, and cash for any purpose or cash distributions directly to the beneficiary will reduce SSI benefits.

What Are Impermissible Trust Distributions?

Impermissible Trust Distributions include paying for a service already paid for by another or eligible to be paid for by a government benefit program and distributions not in the best interest of the beneficiary (made primarily for the benefit of another person).

Can A Special Needs Trust Buy A House?

The Trust can buy a house. This is often a good idea. However, there are some strict rules under Medicaid regulations that must be considered before making that decision. An attorney familiar with governmental benefits should be consulted before the purchase.

Can A Special Needs Trust Buy A Car or Van?

While the Trust can purchase an automobile or a van, insurance is often difficult to arrange. There are many issues that need to be considered when purchasing a vehicle. This is one area where the Trustee may find it helpful to discuss purchase options with an attorney.

Can A Special Needs Trust Pay For Vacations?

Yes, but consult with your attorney to see whose expenses, other than the incapacitated person’s, can be paid from the Trust.

Can A Special Needs Trust Distribute Cash To The Beneficiary?

Yes, but this is usually a bad idea. If you do and the beneficiary is on SSI, the payment will reduce the SSI payment dollar for dollar. If the SSI payment is lost, Medicaid may be lost. Even if the beneficiary is only on Medicaid, a cash distribution might make him ineligible.

Are There Different Types Of Special Need Trusts?

Generally, there are two types of special need trusts. The two types are: trusts established with resources from the disabled person (Self-Settled or Grantor Trusts) and trusts established with resources from a third party (Third Party Trusts).

What Is a Self-Settled Trust or Grantor’s Trust?

This Special Needs Trust is established with assets that come from the disabled person. There are specific federal and state law requirements to establish this type of Special Needs Trust. Typically, these trusts are established from settlement awards to the disabled or injured person from inheritances that were left outright to the disabled person, back payments from social security or other payments to the disabled person. Medicaid law requires that the Trust provide for reimbursement of Medicaid expenditures made for the disabled person’s medical care if anything remains in the trust at the death of the disabled person.

What Is A Third-Party Special Needs Trust?

Typically third party Special Needs Trusts are established from resources owned by a parent or grandparent. As long as the trust’s intention is to cover items not otherwise covered by public benefits, and the beneficiary has no direct control over resources, neither Medicaid nor SSI count the trust assets as an available resource to the disabled person. At the death of the disabled person, the assets remaining in the Trust are paid to whomever is named in the Trust. There is no requirement that Medicaid be reimbursed.

Do Self-Settled Trusts And Third Party Trusts Work In The Same Way During The Beneficiary’s Lifetime?

Although each type of trust has different requirements, both trusts work the same way. The disabled person is the beneficiary but the management and control of the trust is held by another person called the trustee. The trustee’s job is to pay for special needs while maintaining the beneficiary’s eligibility for public benefits. The beneficiary does not have direct use of the trust assets. Instead, the trustee has total discretion as to payments for any needs.

Who Should Be The Trustee Of A Special Needs Trust?

One of the chief difficulties in the use of any trust is determining who should be the trustee. The duties of a trustee fall into two categories – managerial and distributive. Managerial duties involve holding and investing the assets. The distributive duties involve paying for services and items. If the beneficiary is disabled, the trustee must also understand the various government benefit programs and other available services or hire someone who knows about these things. Distributions when a beneficiary is disabled also require considerable judgment and discretion. The trustee must have the intelligence, temperament and time required to handle the job appropriately.

What Is A Pooled Trust?

Federal and state law allow non-profit agencies to establish and manage a Special Needs Trust by investing and managing the funds for more than one disabled client as a single pool of money. A separate account is maintained for each beneficiary of the trust. The non-profit agency handles the managerial and distributive functions. Pooled Trusts are only available to those under age 65.

Who Can Advise You About Special Needs Trusts?

Special Needs Trusts are an important planning tool, but they are complicated. It is important that the trust be drafted so it will not disqualify the disabled person from available benefits, and will provide for services appropriate to the specific beneficiary. The attorney advising you must understand disability criteria, public benefits law, and have knowledge about various services in the area. Planning requires consideration of the severity of the disability and the projected changes in its condition or treatment plans. All available resources, public and private, must be assessed when planning to use a Special Needs Trust.

VETERAN'S BENEFITS Q & A

What Are Veteran’s (VA) Benefits?

Veteran’s Benefits are various types of compensation available to elderly or disabled veterans. These include financial benefits for service-connected and non-service connected disabilities, VA pensions, housebound/aid & attendance benefits, healthcare benefits, burial benefits, and life insurance. We will only be discussing VA pensions and housebound/aid & attendance benefits in this Q & A.

What Is A VA Pension?

A VA pension is a monthly benefit paid to a wartime veteran or his or her eligible surviving spouse or his or her eligible surviving child.

Who Is A Wartime Veteran?

To be classified as a wartime veteran the following criteria must be met:
  • A veteran must have served at least 90 days of consecutive active duty service;
  • One day of this service must have been during a wartime period; and
  • The veteran must have received a discharge other than dishonorably.

Who Is An Eligible Surviving Spouse?

With rare exceptions, a surviving spouse must meet all of the following criteria:
  • Have been married to the veteran before or during the veteran’s service, and at the veteran’s death;
  • Have lived together continuously from the time of the marriage until the veteran’s death , unless the separation was due to Medical or Military reasons; and
  • Currently be unmarried (i.e., any subsequent marriage must have been terminated).

Who Is An Eligible Surviving Child?

An eligible surviving child must meet all of the following criteria:
  • Be unmarried;
  • Be a member of the veteran’s household;
  • Be under the age of 18, or in school and under 23, or over 18 but became permanently incapable of self-support prior to age 18.

How Is Eligibility For A VA Pension Determined?

To be eligible for a VA pension a veteran must satisfy the following criteria:
  • Be age 65 or older, or, if under 65, permanently and totally disabled;
  • Have a disability not resulting from the veteran’s own willful misconduct;
  • Have insufficient assets (or combined assets with his/her spouse) to cover the veteran’s expenses for his or her lifetime; and
  • Have countable income less than the maximum applicable annual pension rate (the permissible family income limit).

What Are Insufficient Assets?

Any asset or investment that could be easily converted into income might disqualify the veteran and his or her family seeking benefits. A home, used as a residence, vehicles and difficult-to-sell property are generally excluded from this asset test. The VA will also allow assets to be transferred or converted to income in order to meet the asset test. There is no look back penalty for transferring assets like there is with Medicaid. There are specific rules governing transfers of assets and what constitutes income from assets. In general the standard is whether the veteran, his or her spouse or dependant has ‘sufficient’ means to pay for their own care.

When it comes to gifting assets it is very important that this be done correctly. Therefore a Veterans Benefits Attorney should be consulted in so as to avoid any problems that may arise if there is a need for Medicaid in the future. The Attorneys at Needham Mitnick & Pollack, PLC, understand how to reallocate assets in order to qualify for VA benefits as well as Medicaid.

What Is The Maximum Applicable Annual Pension Rate (Permissible Family Income Limit)?

This amount depends on the following:
  • The number of dependents a veteran has;
  • Whether or not the veteran is permanently and totally disabled;
  • Whether or not the veteran is in need of aid and attendance;
  • Whether or not the veteran is housebound; and
  • Whether or not two veterans are married to each other.

How Does The VA Determine If The Maximum Applicable Pension Rate Has Been Expended?

The VA looks at the veteran and his or her family’s countable income and assets to determine what his or her applicable maximum pension rate (permissible family income limit) is.

What Is Countable Income?

The VA counts as income earnings from work, disability and retirement payments, interest and dividends, and net income from farming or business that are received by the veteran and his or her dependents. The VA excludes from countable income any welfare payments and SSI benefits.

What Reduces Countable Income?

Countable income can be reduced by the amount of unreimbursed medical expenses paid by the veteran and his or her dependants. Unreimbursed medical expenses include home health care, assisted living care, skilled nursing home care or health insurance premiums. Thus, even though most veterans have income that exceeds the maximum applicable annual pension rate (permissible family income limits), they are eligible because of the reduction for high medical expenses.

What Are Housebound Or Aid And Attendance Benefits?

A veteran, and his family, who are deemed eligible for pension benefits may also be eligible for Housebound or Aid & Attendance benefits. If this is the case they will receive additional financial assistance in the form of an increased monthly pension. In addition once the VA gives a veteran, or his family member, Housebound or Aid and Attendance status they may obtain free medications, medical equipment, incontinence supplies, glasses and hearing aids. A separate application is required to get these additional benefits.

Who Is Eligible For Aid Housebound Benefits?

Housebound benefits are available to a veteran or surviving spouse or dependant of a veteran, who is determined to be disabled and is essentially confined to the home.

Who Is Eligible For Aid And Attendance Benefits?

Aid and Attendance benefits are available to a veteran or surviving spouse or dependant of a veteran who meets one of the following criteria:
  • Are blind;
  • Lives in a nursing home;
  • Requires the aid of another person in order to perform personal functions required in everyday living, such as bathing, feeding, dressing, or toileting;
  • Requires the aid of another person to protect him or her from the hazards of his/her daily environment.

How Do You Apply For A VA Pension Or Housebound Aid And Attendance Benefits?

Applications for VA pensions, Housebound or Aid & Attendance benefits are available at the VA website located at http://www.va.gov/. You must send completed applications and copies of other requested documents to the VA regional office that serves your area of residence. The regional office for Virginia is located in Roanoke, Virginia and its website is located at http://www.vba.va.gov/ro/Roanoke/.

The Advantage Of Applying

Many veterans or family members of a veteran are greatly advantaged by the additional income and other benefits received through these programs. It may enable a housebound veteran to remain at home rather than become institutionalized. It may enable someone receiving assisted living to stay longer at that facility rather than entering a nursing home.

WILLS Q & A

What Is A Will?

A Will is a legal document which gives instructions as to how your assets will be distributed at your death and names the individuals who will be responsible for carrying out your directions.

Who May Make A Will?

Generally anyone over the age of 18 and “of sound” mind can make a Will.  “Sound mind” means that the person making the Will is capable of understanding the purpose of a Will, knows what property he or she has, who are his or her  heirs, and how he or she wishes to dispose of property at death.  An individual does not have to have a perfect memory to make a Will. Capacity is determined at the time the Will is signed.  Eccentric behavior, sickness or mental illness or even being subject to a conservatorship does not make someone incapable of making a Will.

What Happens If I Do Not Have A Will?

If you do not have a Will then state statutes will decide who will receive your estate and this may not be what you want.  If you have no apparent heirs and die without a Will, it is even possible the state may claim your estate.

What If I Have Young Children?

In most cases, a surviving parent assumes the role of sole guardian.  However, it’s important to name a guardian for minor children in your Will in case neither you nor your spouse is able and willing to act. The guardian you choose should be over 18 and willing to assume the responsibility.  If you do not name a guardian to care for your children, a judge will appoint one, and it may not be someone you would have chosen.

Your Will can also be used as a vehicle for establishing a trust for minor children.  You can nominate individuals to serve as Trustee of your children’s Trust.  Additionally, you can provide direction as to how funds are to be spent and when your children should receive their inheritance outright.

What Is An Executor (Sometimes Called Personal Representative Or Administrator)?

An Executor is the person who marshals your assets and oversees the distribution of your assets according to the terms of your Will.  When making a Will most people choose their spouse, partner, an adult child, a relative, a friend or professional to fulfill this duty. It should always be someone you trust and who is good at record-keeping and is very detail-oriented.

What Are The Duties Of An Executor Or Administrator?

The Executor’s duties include:
  • Paying valid creditors and taxes;
  • Notifying Social Security and other agencies and companies of your death;
  • Canceling credit cards, magazine subscriptions, etc.;
  • Filing documents with the Court such as notices and accountings;
  • Filing the decedent’s final tax returns and any estate returns; and
  • Distributing assets according to the Will or state statute, if there is no Will.

When Should I Update My Will?

You will probably need to update your Will several times during the course of your life.  For example, a change in marital status, receipt of an inheritance, the birth of a child, death of a beneficiary, or a move to a new state, should all prompt a review of your Will. You can update your Will by amending it by way of a Codicil or by drawing up a new Will.  Be sure to destroy the old Will after you sign a new one and remember not to update your Will by writing the changes on it.  This may invalidate your Will and lead to court hearings.

What About Estate Taxes?

On December 17, 2010, President Obama signed the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010.

Under this Act, effective for 2011 and 2012 the gift, estate, and Generation Skipping Transfer (GST) tax exemption amounts have been increased to $5 million per person, with a tax rate of 35%.  This will greatly reduce the number of individuals faced with potential estate tax liability and will allow married couples to shelter $10 million from estate taxes.  However, this rule only applies through December 31, 2012, and may be changed by further Congressional action.

Where Should I Keep My Will?

Once your Will is signed, it should be stored in a safe place that is accessible to others after you die.  If the Will is placed in a safe deposit box and no one else has access, Virginia permits interested persons to access safe deposit boxes for the limited purpose of retrieving a Will and filing it with the Court.  Some Circuit Courts in Virginia will also accept Wills for safekeeping.  These Wills are not available to the public until filed for probate.  The cost is $2.00.

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