Interactive Legal Blog

Geriatric Care Management: An Untapped Resource for Elder Law Attorneys

By Jennifer Traglia, Gerontologist

It’s been two weeks since you last spoke to Jack. His mother, your client, has just fallen – again. This time it sounds serious. As far as you know, she is still in the hospital, with a long road of rehab ahead. Naturally, as a trusted family attorney, you feel responsible.

What will happen to the house? Will she move, or will her only son (who lives 900 miles away) set up in-home care? Surely, Jack will need to take more time off work to sort this out. If only there were a resource or professional to handle all of this…

A New Age of Aging

The statistics of our aging population are astounding. Nearly 10,000 baby boomers are turning 65 each day! The “oldest old,” those 85 and above, have more health care needs than any other age group and are proportionately the fasted growing segment of the aging population. The medical community is not the only service segment struggling to keep up with these growing demands. Due to established long-term client relationships some attorneys also see things reaching a boiling point. Estate planning and elder law firms are feeling the effects of the aging population and are increasingly being asked to act as frontline service coordinators.

Congratulations, Deslin, on 15 years!

InterActive Legal is delighted to commemorate 15 years of dedicated service by Senior Application Developer, Deslin Simmons. A veteran member of the team, Deslin worked with InterActive Legal authors and principals, Mike Graham and Jonathan Blattmachr, on the very first version of InterActive LegalSuite, released in 2003. In her primary role as a HotDocs Developer, Deslin works with the authors and on-staff Content Attorneys to develop and maintain the code that powers the program content. In her decade and a half with InterActive Legal, Deslin has proven an invaluable part of the company, not only as an integral member of the Content Team, but as a core contributor in all aspects of product development and subscriber support.

Consistent with her motto, "Keep Moving Forward," Deslin inspires and motivates her colleagues to continuously provide the content, knowledge, and support that has positioned InterActive Legal as the leading provider of drafting solutions for estate and elder law planners. "Deslin is simply part of the core and fabric of InterActive Legal. Few realize the level of dedication she has to our subscribers. Deslin was without power for several months on St. Croix following hurricanes Irma and Maria last year, yet every morning she started up a gasoline electric generator and worked all day with the sound of a generator out her window," remarked CEO, Mike Graham. Director of Education and Support Services, Teresa Bush, who apart from Jonathan and Mike has worked with Deslin the longest, commented that “Deslin is tireless, logical, and has one of the strongest work ethics I’ve ever seen; she continually goes above and beyond, to the benefit of our subscribers. We often ask her to move figurative mountains, but only because we know that she can move them – and she does.”

In addition to being a committed and professional co-worker to those at InterActive Legal, Deslin is a devoted wife and mother of five children. Her sense of humor and level-headed approach to problem solving endear her to her friends and colleagues. In the words of Mike Graham, "Deslin’s joy in others, particularly children, is part of what many do not realize. She has one of the biggest hearts of anyone I know." Please join the InterActive Legal principals and staff in congratulating Deslin and thanking her for her continued dedication to the company and its subscribers.

 

New VA Regulations for Aid & Attendance (Part 3): Deductible Medical Expenses

By Elizabeth Q. Boehmcke, Esq.

This is the third and final installment of a three-part series on the recently released final regulations that impact the Veterans Aid & Attendance pension benefit ("Aid & Attendance"). In the prior blog posts, I discussed the look-back period and transfer penalties that are now being imposed on certain transfers of assets within the 36-month period immediately prior to the aid & attendance application and the new net worth rules. This installment will focus on the expanded definition of deductible medical expenses and how it will be beneficial in allowing many veterans and their surviving spouses to qualify for Aid & Attendance.

Deductible Medical Expenses

Another major change in the final regulations concerns the deductibility of unreimbursed medical expenses from income for purposes of determining net worth. Pursuant to 38 U.S.C. 1503(a)(8), certain unreimbursed medical expenses paid by the veteran, the veteran's spouse or surviving spouse, or by the veteran's child in excess of 5% of the maximum annual rate of pension are deductible. The rule itself has not changed; however, the expenses that may be claimed as medical expenses have. 

New VA Regulations for Aid & Attendance (Part 2): The Look-Back Period and Transfer Penalties

 
By Elizabeth Q. Boehmcke, Esq.

This is the second of a three-part series on the recently released final regulations that impact the Veterans Aid & Attendance pension benefit.  In the prior blog post, I discussed the new net worth regulations, including the new bright-line test for net worth currently set at $123,600, the exclusion of certain assets like the primary residence from net worth and the VA's view on how assets and income can decrease.  

The big news coming out of the regulations is that the VA is imposing a 36-month look-back period on asset transfers.  For planners, the news is a bit of a mixed bag.  As will be discussed, while the imposition of a look-back period and transfer penalty at all is a tremendous change in how veterans plan for the pension benefit, as compared to Medicaid, there are some differences that benefit the veteran - with only certain transfers being subject to penalty, with the penalty period beginning as of the first of the month after the transfer instead of the date of application and a five-year penalty cap (although arguably a well-planned application for Aid & Attendance should never trigger a five-year penalty).

Look-Back Period and Transfer Penalty

Prior to these regulations, veterans were able to transfer assets by gift in any amount on Day 1 and apply for the Aid & Attendance pension benefit on Day 2.  This process was unlike Medicaid which imposes a transfer penalty for uncompensated transfers within the look-back period (currently 60 months).  The VA did not, however, wholly adopt Medicaid's transfer penalty system and just shorten the look-back period.  Not all asset transfers will result in an imposition of a penalty.  Only those transfers which, had they not occurred, would cause or partially cause the claimant's net worth to exceed the net worth limit will create a penalty.  §§3.276(a)(2) and 3.276(8)(e).¹   In other words, if the claimant, at the time of transfer, has a net worth below the net worth limit, no penalty will be applied.  The VA's policy is enshrined in the regulations as follows:  "VA pension is a needs-based benefit and is not intended to preserve the estates of individuals who have the means to support themselves.  Accordingly, a claimant may not create pension entitlement by transferring covered assets."  §3.276(8)(b).

New VA Regulations for Aid & Attendance (Part 1): Finally! VA Releases Regulations for Needs-Based Benefits

The first article in a series reviewing the Impact of the NEW VA Regulations on Aid & Attendance

By Elizabeth Q. Boehmcke, Esq.

In January 2015, the Department of Veterans Affairs (the "VA") published proposed regulations amending eligibility requirements for its needs-based programs, including the veteran's aid and attendance pension benefit for veterans and their surviving spouses (referred to herein as the "Aid & Attendance pension benefit"). The VA reports that it received over 850 comments to the proposed regulations during the public comment period, which ended in late March 2015. Since then we have been waiting to learn to what extent the VA would make changes to those proposed regulations, unsure whether the final regulations would impact clients' applications that were in process when the final regulations were finally published. The final regulations were published on September 18, and are effective as of October 18, 2018. For professionals who work with veterans, their surviving spouses and families, the final regulations bring significant changes to the considerations that bear on their planning for such individuals.

The final regulations made major changes in three areas that will impact planning for the Aid & Attendance pension benefit: the calculation of net worth, an expansion of the types of expenses which can be taken as unreimbursed medical deductions from income, and the imposition of a three-year look back period for certain transfers, and penalties for such transfers. I will discuss each change in detail over the course of three installments. It should be noted that some changes to the proposed regulations may well be very favorable for claimants notwithstanding the new penalty for certain transfers. This post will concentrate on the new net worth regulations, because the transfer rules really cannot be understood without first comprehending the net worth rules. (Unless otherwise noted, all section references are to 38 C.F.R., Part 3.)

How the Elder Law Attorney Can Help the Personal Injury Attorney

By Joanne Marcus, MSW, and Karen Dunivan Konvicka, Esq., Commonwealth Community Trust



This article was originally published in "NAELA News."  The opinions expressed in this article are those of the authors and are not to be construed as an endorsement by NAELA or InterActive Legal.

When the call comes from the plaintiff’s attorney asking what should be done about the client’s public benefits, be prepared to answer. The case is about to settle, or the verdict is in, and now the client wants to know how will it affect his or her benefits. First, you will likely have to help the personal injury (PI) attorney assess the type or types of benefits the client is receiving and determine if the settlement puts the benefits in jeopardy. How did the client receive these benefits — through means-testing or due to work history? Perhaps the PI attorney has not considered benefits, but understands that the client is incapacitated and will need the assets managed; or perhaps public benefits may be necessary in the future.

Medicaid, the means-tested public benefit for people with disabilities who are also impoverished, will need to be protected. More than $2,000 in resources and the client will lose this valuable benefit; personal injury proceeds are plainly resources. Medicare, the benefit received by workers with disabilities who have earned enough quarters to qualify for disability benefits, may also need to be protected as well. In addition, Supplemental Security Income (SSI) and Social Security Disability Income (SSDI) need to be considered. Both of these benefits provide a monthly income to people with disabilities. SSI is means-tested, just as Medicaid is, but SSDI, like Medicare, is not; therefore, SSI income will need to be considered when planning. 

The Cobbler's Children

By Teresa L. Bush, Esq., Director of Education and Support Services, InterActive Legal

My great-grandfather emigrated to the USA as a teenager from a country that no longer exists, and was a cobbler by trade. I treasure his two iron shoe stands passed down to me, because they are symbols of one man’s hard work that laid the foundation for generations of descendants. But they also bring to mind the old saying about the cobbler’s children having no shoes.

I have no reason to think that my grandmother didn’t have shoes, but I will confess that I, as an estate planner, spent several years without an adequate estate plan of my own. It makes me wonder how many of my colleagues are in the same boat. As estate planners, we should arguably have the most up-to-date and well thought-out estate plans. If the law changes, we should change our own plans first (if necessary), and then we are better equipped to help our clients. Perhaps it’s a bit like putting on your own oxygen mask first, before you help other passengers.

Pursuit of Higher Education Creates Upward Mobility at InterActive Legal

 

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Megan Respol has left her role as InterActive Legal's Finance & Operations Coordinator to pursue a Master’s in Criminology at Florida State University’s College of Criminal Justice. Megan served her role well, having been baptized by hurricanes a year ago when she arrived just as the office was battening down the hatches in preparation for hurricanes Irma and Maria. We wish all the best to Megan and will miss her. 

 

Stepping into the role vacated by Megan is our very own Deanne McDougall, who has served as InterActive Legal’s Customer Relations Coordinator since 2015. Deanne will now serve as the Human Resources & Operations Coordinator, a well-deserved promotion, and a natural fit, given her attention to detail. We have high expectations for her continued growth. In addition to her excellent work at InterActive Legal, Deanne is an attentive mother to her 7-year-old son, Jordan, and is equally accomplished in the culinary arts. 

 

 Subscribers who have had the pleasure of speaking with our Implementation & Office Coordinator, Victoria Holmes, know that her efficient and friendly demeanor makes her the compelling and logical choice to move into the Customer Relations Coordinator role. A lifelong learner investing in her future, Victoria is presently attending Eastern Florida State College where she is pursuing simultaneous degrees in Advanced Allied Health and Financial Management. Victoria is an avid member of the International Phi Theta Kappa Honor Society, a recognition of distinguished excellence in her studies. We are betting on a very promising future for Victoria at InterActive Legal.

 

Telephone Intake Scripts Decrease Fee Objections, Increase Closure Rates, and Save Hours of Time

by Candace Wells, COO and Law Business Strategist, Attorney Alchemy

You’ve probably heard that policies, procedures, systems, and processes will not only save your sanity, but also make you and your team more efficient. Maybe you even “get” it and want to document your processes, but don’t know where to start. I hear you. It can be daunting to figure out where to begin.

My recommendation? Start small. By formalizing your intake script, you can get started on documenting how things work in your firm and decrease fee objections, increase your closure rates, and save hours of your time.

Let me explain.

SSA Clarifies Sole Benefit Rule: Trustees May Breathe a Little Easier

by Elizabeth Q. Boehmcke

Practitioners who regularly work with special needs clients are probably aware that the Social Security Administration ("SSA") released revisions to the Program Operating Manual System ("POMS") on April 30, 2018.  But since many of us are still processing the revisions, I hope to highlight some of them for those of us who are between CLE sessions. 

These revisions may come as welcome news to attorneys who draft special needs trusts or advise trustees of special needs trusts.  I am unfortunately limited herein primarily to highlighting the sole benefit rule revisions.  However, there were a number of important changes and if you want more details, you may want to review the full article I drafted, which you can find here.