William & Mary Elder and Disability Law Clinic

Serving Seniors in the Greater Peninsula Area

Thoughts on Leaving the Elder & Disability Law Clinic: Surprises, Concerns, and Paying It Forward

By Paige Melton, Elder & Disability Law Clinic Student, Spring 2018

This week marks the end of my two-semester run working in the Elder & Disability Law Clinic.  Working in the EDLC has been an incredible experience for me; and I know other students, past and present, share in my sentiment.  I thoroughly enjoyed the substantive work, the clients, and the Clinic’s positive environment.  However, I know that not everyone gets to have this experience.  So, I would like to share some about what surprised me, what concerned me, and my parting encouragements.

Let me start by saying there are a lot of resources and options available to seniors and disabled individuals in our legal system and community.  For instance, estate planning provisions allow for one’s voice and options to be memorialized, and there is a host of benefits available to the financially needy and disabled. However, I was very surprised at how long some people will wait to take advantage of these opportunities.  Perhaps it is the unpleasant topics of death and incapacity that make people hesitant to be proactive, or just simple procrastination, but several times I observed clients or potential clients waiting until the last minute to put estate planning documents in order.  In some instances, their delay prevented them from enjoying the opportunities that could have otherwise been available to them.  During my tenure with the EDLC, I never observed a case where waiting was a good thing.

One major thing I will continue to encourage everyone[1] to do is create estate planning documents as soon as you have the ability.  Wills and Powers of Attorney can be modified or even revoked after execution—but having them in place now is vital to preserving one’s autonomy and wishes, should something unexcepted occur.

A second issue that surprised me, and remains a big concern for me, is guardianships.  There are countless elderly and disabled individuals in our community that desperately need guardians or conservators to help protect their best interests and property.  But sadly, for these individuals, there is no one available or willing to step into the role—perhaps no loved ones are close by to recognize their need, they do not have family or friends with the time or ability to serve, or maybe their disability has led them to ostracize themselves from any assistance.

Thankfully, there are some resources available.  There are Public Guardianships funded through the Commonwealth and there are also private charitable organizations that provide assistance. For example, Jewish Family Service and Catholic Charities both take on guardianships of elderly and disabled individuals in need.

However, the capabilities of these entities combined are not enough.  There are still needy people that “fall through the cracks.”  As of 2016, Virginia had only arranged funding for only 706 individuals across the entire state to be assisted by a public guardianship.  Furthermore, there are long wait lists for guardianships for both Jewish Family Services and Catholic Charities—particularly for impoverished individuals.  How many people remain in need? It’s incredibly difficult to tell—again, they have fallen through the cracks and the system is not able to account for their care and needs.

What I suggest people do, in light of these concerns, is donate![2] Please consider donating your time, attention, or any available resources to organizations that assist the aged and disabled.  For law students, consider enrolling in the Elder & Disability Law Clinic or volunteering for the regular pro-bono estate planning events in the area.  For attorneys, consider serving as a guardian pro-bono to someone in need.  For concerned citizens, volunteer or consider making donations to one of the several organizations in the area.

In doing these things, you bolster the ability for these entities to help the needy in your area. If that’s not persuasive enough, consider this—you may one day need these services—and it could be sooner than you expect.  Some consequences of aging or disability appear can appear suddenly, and wouldn’t it be comforting to know that organizations that are eager to assist are well equipped to meet increasing need? Think of any current generosity as your own system of Social Security—pay it forward, and hope that in the future, when you may need assistance, you have helped develop a pattern of generosity and the next generation will step up to assist you.

[1] This advice is not just for elderly or disabled individuals!

[2] Again, this advice is for everyone!

Providing Peace of Mind: How a Power of Attorney Can Help

By Christina Romine, Elder & Disability Law Clinic Student, Spring 2018

Growing older has many challenges and concerns. As children become caretaker of their parents, they may find themselves faced with many barriers that block their ability to fully care for their aging parents. HIPPA laws, for example, may prevent them from speaking to doctors about the elderly parents’ medical conditions or treatment. Banks, government agencies and other services may also give caretakers the run-around unless they have some sort of legal power over the elderly person.

Appointing an adult child or caretaker to be Durable Power of Attorney or Health Care Power of Attorney or both will help facilitate an easier process to allow an adult child to care for his aging parent. The key for both documents is that they must have been drafted and signed while the elderly person still had legal capacity. If the elderly person has pronounced Alzheimer’s or dementia, she will be legally unable to sign off on such documents.

A Durable Power of Attorney (also called a General Power of Attorney) appoints someone to be your Agent. This means that person can speak on your behalf, sign documents on your behalf, and sign checks on your behalf, among other powers. One of the benefits of a Durable Power of Attorney (DPOA) is that it is customizable. You can limit the powers of your POA to make decisions about your finances and property. A Health Care Power of Attorney (HCPOA) is like a DPOA except that it is limited to medical decisions. Your HCPOA will be able to talk to doctors on your behalf, decide when you enter a nursing facility or hospital, and make determinations about your medical treatment. Like a DPOA, it is customizable so that you may limit or expand the powers of your HCPOA to make decisions about your medical care.

You can also decide when the DPOA powers begin. A DPOA can either have immediate power once the document is signed, or the power can be “springing” – meaning that the DPOA does not begin functioning as your agent until a certain set of conditions has been met. Usually, this condition is that doctors have determined you are no longer capable of making decisions for yourself due to mental incapacity caused by Alzheimer’s or dementia.

If you do not appoint a POA and you eventually suffer from an advanced disease that affects your capacity, your caretakers may need to initiate a legal process called “Guardianship” to obtain the authority to make decisions for your care. Unlike a DPOA which can be completed at your attorney’s office with a notary, a Guardianship is a process through the courts. In this process, the court will appoint someone to be a “Guardian” over an incapacitated person. The powers of a Guardian are less customizable and it’s a much more expensive process because of the court fees involved.

By including Power of Attorney documents in your estate planning, you can have the peace of mind of knowing your loved ones will have the ability to assist in your care when you need it.

Aging and Autonomy

By Mat Snarr, Elder & Disability Law Clinic Student, Spring 2018

The William & Mary Elder & Disability Law Clinic provides services to elderly and disabled clients who are unable to afford the legal assistance they need.  Clinic students often assist clients with planning for long-term care.  Family members facing the decision of how to support aging loved ones understand how tough this can be.  Some of the main considerations are the cost of care and the preservation of individual autonomy.  Commonly, an elderly person is either physically healthy but suffers from diminished mental capacity or is physically incapacitated but mentally competent.

Care services for aging loved ones can place a great financial burden on families.  Currently, the national average cost for long-term care in the United States is $225 a day or $6,844 per month for a semi-private room in a nursing home.[1]  Private insurance and Medicare only cover long-term care in limited situations, and even then, the number of days covered is restricted.  The national average cost for a home health aide is $20.50 per hour.[2]  This cost varies depending on the time of day and the type of services provided.

I recently had the opportunity to work with Jack and Grace, a couple trying to obtain care and preserve their autonomy.[3]  Jack and Grace are both advanced in years but have still managed to care for themselves.  Both require walkers to navigate their residence and Grace often uses a wheelchair.  Recently, Grace’s mental capacity has begun to deteriorate.  Jack’s health has strained his ability to care for her.  Jack sought the Clinic’s help to evaluate options for acquiring home care for Grace through Medicaid.

After meeting with Jack and Grace, I evaluated their medical and financial eligibility for Medicaid.  It quickly became apparent that neither Jack or Grace qualified for the care they wanted through Medicaid.  Although both may be medically eligible for Medicaid, their financial situation made them ineligible.  If they arranged their limited assets to become financially eligible, they would lose their independence.  Due to Jack’s military service, another available option was a VA Pension.  Unlike Medicaid, VA pension deducts unreimbursed medical expenses from its financial eligibility calculations.[4]  If determined eligible, a VA pension could provide additional income to Jack to pay for home care.  After completing a financial analysis, I discovered that Jack was ineligible for a VA pension.

Jack and Grace have worked hard their whole lives to take care of themselves.  They have reached the point where their assets and fixed income preclude them from the benefits that they need.  If Jack and Grace reallocate their resources to qualify for benefits, they will lose their autonomy.  Unlike many people his age, Jack is still able to work part-time.  He hopes that his part-time work will provide the resources he needs to maintain his current living arrangements and provide Grace with the care she needs.  Unfortunately, Jack may be prolonging the inevitable, but that is his decision to make.

Clinic work at the law school is a rewarding experience. I feel great satisfaction in helping clients attain their goals and receive the benefits and legal services they need.  However, situations arise where clients have to make decisions that limit the Clinic’s ability to help them attain their goals.  These cases can be heartbreaking.

[1] https://longtermcare.acl.gov/costs-how-to-pay/costs-of-care.html

[2] https://longtermcare.acl.gov/costs-how-to-pay/costs-of-care.html

[3] Pseudonyms for clients’ actual names.

[4] https://www.benefits.va.gov/pension/current_rates_veteran_pen.asp

What’s the Difference? Unraveling SSI and SSDI

By Sara Sapia, Elder & Disability Law Clinic Student, Spring 2018

Clients often come to our clinic with the goal of applying for public assistance benefits through Social Security, primarily based on concerns of age, disability, or both. Social Security offers two types of benefits – SSI and SSDI. Many of our clients have applied for these benefits before but have been denied for one reason or another. It is common for clients to think they have applied for one program but have in fact applied for the other. The similar acronyms alone are enough to understand why people commonly confuse the two programs. However, SSI and SSDI have distinct purposes and are designed to provide benefits to different groups of people.

SSI stands for Supplemental Security Income and is meant to benefit low-income individuals who are aged, blind, or disabled. The benefit received through SSI is capped at $735 per month for an individual ($1,103 for a couple)[1] and is designed to allow an individual “to meet basic needs for food, clothing, and shelter.”[2] Applicants must show that they fall below the capped income and resource guidelines and also provide supporting medical documentation if they are filing as disabled. Additionally, if an individual is granted SSI, he immediately becomes eligible to receive Medicaid health insurance benefits in many states.  In Virginia, however, the individual must apply and meet separate qualifications for Medicaid benefits.

SSDI stands for Social Security Disability Insurance and is designed to assist individuals who become disabled during their employment years and are thereby no longer able to work. The monetary benefit received is based on how much an individual has paid into Social Security during her working years. This program, therefore, essentially acts as a way for individuals to access their Social Security contributions before they reach retirement age. Applicants must show that they are completely and totally disabled and unable to perform any work which is available to someone with their same physical and mental abilities.[3]

According to the most recent available data, first-time SSDI applications are denied at an alarming rate, approximately 72 percent.[4] For this reason alone, it is important to know and understand the unique requirements for each program in order to not waste time completing an application that does not fit a person’s needs or characteristics, particularly under SSDI. If a client is low-income and has only minimal work history, it makes more sense to file an SSI application. However, if a client has worked for a number of years and became disabled while working, it is best to start by applying for SSDI because it could yield a higher benefit amount for the client each month. It is also important to keep in mind that waiting times for Social Security applications can be extremely long, ranging from as little as three months to as long as one year, so clients should not immediately expect a decision on their application after it is submitted.

SSI and SSDI are therefore distinct programs with their own unique characteristics and advantages that should be well explained to clients prior to application. Additionally, before applying for benefits, individuals should seek assistance from a professional who understands the Social Security system and can guide them through the process.

[1] 2018 rates.

[2] https://www.ssa.gov/ssi/

[3] https://www.disabilitybenefitscenter.org/social-security-disability-insurance/how-to-qualify

[4] https://www.ssa.gov/policy/docs/statcomps/di_asr/2011/sect04.html

Can I cut my spouse out of my will?

By Bryony Harris, Elder & Disability Law Clinic Student, Spring 2018

Death is a natural part of life, and no matter what, you will eventually face it. When someone passes away, it is often a difficult and emotionally draining time. It is better to be prepared for this, not only for yourself, but also for your family’s sake. Being prepared for your own death will help them in this difficult period. A common way to make this process easier is to create a will. The will describes how you wish your estate to be managed and divided after you pass away. Many people decide to leave their estate to their family members, and often leave their entire estate to the surviving spouse; however, you may not want your spouse to inherit all or even part of the estate.

Even if the marital bliss has worn off, by law, you cannot necessarily cut your spouse out of the estate. Your spouse has certain rights at your death, regardless of whether you leave them anything in the will. Unless you have a written marital agreement, your spouse may claim an assortment of these rights: the elective share, the family allowance, the exempt property allowance, or the homestead allowance.

  • The elective share equates to 1/3 of your estate; your spouse is entitled to this portion. This share must be claimed within six months of probate of the will, but if claimed, it is paid before any other bequests. It is first paid from items that are owned jointly, and then from anything left to your spouse in the will. If this does not amount to at least 1/3 of the total estate, the balance will come from the residue of your estate, even if you have designated that portion to other beneficiaries.
  • The family allowance must be claimed within a year of your death. With this allowance, your spouse could collect up to $24,000 from the estate for support and maintenance during the period of estate administration.
  • The exempt property allowance allows your spouse to claim up to $20,000 in tangible personal property from the estate. This must be claimed within one year of your death. This allowance could include any personal items, such as cars, furniture, jewelry, or other individual items.
  •  The homestead allowance allows your spouse to collect an additional $20,000 from the estate. Your spouse must claim this within one year of your death.

First option: your spouse could decide to claim the elective share*, the family allowance, and the exempt property allowance either separately or together.

Second option: your spouse could decide to claim the homestead allowance*, the family allowance, and the exempt property allowance either separately or together.

 * Note your spouse cannot claim both the homestead allowance and the elective share.

Depending on the size of the estate, some allowances may be more lucrative or realistic than others. After your death, your spouse is not required to claim any of the allowances, but if your spouse does choose to claim any of them, they are automatic payouts. So, even if you choose not to leave your spouse anything in your estate, your spouse can claim these allowances and get a portion of the estate regardless of what the will says. Since these allowances are often unknown or misunderstood, they are something to be aware of and you should determine how you want to deal with your spouse’s rights ahead of time. In summary, although a will can make the process after death easier, there are limitations on what you can do with it and some inherent spousal rights cannot be avoided without a marital agreement.

An Unexpected Development

By Gulliver Brady, Elder & Disability Law Clinic Student, Spring 2018

In my limited experience as a pseudo-professional, I have learned that a 9:30 pm email usually comes with bad news, an assignment, and a stressful night. However, last week I received a 9:30 pm email that left me saddened rather than stressed. My client’s daughter emailed me to inform me that her father had passed away earlier that day.

Because mortality is a factor in most of the cases the clinic takes, I should not have been so shocked to learn of a client’s death. As this clinic specializes in elder law, the clients we represent are largely advanced in age. Many of our clients seek our assistance in end-of-life planning. We also help our clients secure the financial and medical aid they need as they age. The client’s passing was, nonetheless, shocking news.

I regret that I was unable to help my client in any tangible way before his death. The client, a war-time veteran, sought assistance from the clinic in obtaining financial benefits from the VA. These benefits were to be used to pay the veteran’s nursing home bills. Though we determined that he was likely eligible for VA assistance, he died before receiving any such assistance.

Upon receiving the sad news, I responded to my client’s daughter, hopefully conveying my condolences and possible next steps. At the conclusion of our email conversation, the daughter told me that the clinic had been a lifeline for her. Though I was unable to help her father in a concrete way, I am glad the clinic provided some comfort, support, and assistance to our client and his daughter.

As an elder law clinic, we seek to provide legal assistance to seniors in our community. Sometimes, circumstances beyond our control render us unable to achieve our clients’ legal goals. However, I think the clinic may still provide a valuable service if we serve as a lifeline and support system for our clients and their families. This experience has taught me the important non-legal assistance an attorney should give a client. I am grateful to my client and this clinic for teaching me this lesson.

 

The Executor – An Important Decision for An Important Job

By Tom White, Elder & Disability Law Clinic Student, Spring 2018

One of the more thankless positions a person may find him or herself in is being the Executor (or executrix) of a will. This is not a position that requires any formal training or legal education. However, as complex property issues can arise, the need to consult a lawyer is relatively common.

The role of executor is an awkward one. It demands that you carry out the wishes of a document that you likely had no part in writing, all the while dealing with the personalities of various family members trying to get their hands on their inheritance. Being that this position requires the ability to juggle personalities whilst being studious about dealing with the will’s demands, the selection of a proper executor is incredibly essential.

Many are quick to select close family members or friends as executors. The selection of a family member may seem like the obvious choice to some, and many would not consider any alternative. However, there are probably times when a third party, unrelated to the family, might be in the better position to execute a will properly. I bring this up because I once watched a family member deal with the troubles of being an executor.

The will in question required the selling of a home owned by the decedent before the rest of the assets of the will could be distributed. Unfortunately, the house did not sell quickly, and this executor was left with the task of dealing with both real estate agents and contractors for months. All this time, he was also dealing with mounting pressures from other members named in the will wanting their settlement. These family members used emotional appeals on the executor until he finally fronted the beneficiaries the money out of the decedent’s savings.

This would have been a situation, I believe, in which a third party like a bank or a trust company would have been better suited to deal with the will. A third party will not be as likely to succumb to the emotional pressure of being an executor and handling family members. Meaning, when it comes to selecting an executor, the drafter of the will needs to be honest with himself and ask if he can foresee conflict in which demands will be made that strain the familial balance. If the answer is yes, he should turn to resources like the National Academy of Elder Law Attorneys (naela.org) which has a directory listing qualified attorneys or other organizations who can help in these matters.

Proving an Older Veteran’s Military Service

By Greg Dahl, Elder & Disability Law Clinic Student, Fall 2017

We take time each November 11th to recognize the commitment and sacrifice of the men and women who risked their lives as members of our armed forces. In the spirit of Veteran’s Day, it is worth taking a moment to discuss an obstacle to obtaining veteran’s benefits for older veterans that may be overlooked by those unfamiliar with the process.

It is no secret that veterans of World War II and the Korean War have reached an advanced age. A veteran who was 18 years old in 1946 (the last year of the WWII period recognized by the government) will have turned 89 by the end of this year. A veteran who was 18 in the last year of the Korean War period (1955) will have turned 80 by the end of this year. Veteran’s benefits administered by the US Department of Veterans Affairs (the VA), may be able to help qualifying veterans with some of the medical and financial burdens associated with aging.

A veteran seeking benefits bears the responsibility of proving his or her military service. This preliminary step can sometimes prove more difficult than one would expect. Many veterans have lost their discharge documents in the decades since they received them. In addition, a fire at a government archive in 1973 destroyed the government records for many servicemen and women. As a result, the VA does not have the discharge records of most of the men and women who served in the Army during World War II or the Korean War. Most of the records of Air Force veterans from a comparable period (1947-1960), starting with the last name “Hubbard” and going alphabetically through “Z” were also destroyed. Most records for veterans who served in the Navy, Marine Corps, and Coast Guard during this period survived the fire.

Fortunately, there are ways to prove a veteran’s service to the VA even if the formal records are lost. Assembling any kind of documentation that mentions a person’s service is useful. This may include tax records, medals or other commendations, photos of the veteran in uniform, or newspaper clippings that mention the veteran’s military service.[1] If the veteran served in a National Guard unit, state records may still exist.

Another method is to prepare a “Statement in Support of Claim,[2]” known informally as a “buddy affidavit.” A buddy affidavit is a sworn statement by a person who served with the veteran and who can attest to his military service. In addition, it may be worth checking with the National Archives[3] to request a copy of the veteran’s records, as not all records from this period were destroyed.

Proving a veteran’s military service can be more complicated than one would expect, but it can also be a rewarding way of learning more about a relative’s military service and of developing a deeper appreciation for the men and women who have served our country in the uniformed services.

[1] Ryan Guina. “How to Prove Military Service – Official Military Documents, Forms, and Other Ways to Prove You Served.” https://themilitarywallet.com/prove-military-service/

[2] Family of a Vet.com “What Makes a Good ‘Buddy Letter?’” http://familyofavet.com/good_buddy_letter.html

[3] National Archives. “Request Your Military Service Records Online, by Mail, Or by Fax.” https://www.archives.gov/veterans/military-service-records

Facing Eternity

By Sarah Spencer, Elder & Disability Law Clinic Student, Fall 2017

“Thou know’st ’tis common; all that lives must die,
Passing through nature to eternity.”

Hamlet Act I, scene 2, line 72.

What do we do when it comes time to make a decision that entails facing those things which scare us most? Usually, our first instinct is to just not face it—to not make that decision. We leave those uncomfortable truths for our future selves, saying “not today,” or “I’ll be better equipped to face that down the road.” However, the cost of ignoring those problems, of temporarily soothing our fears, doesn’t fix anything. In fact, it usually just makes those problems worse, looming larger and larger in our imaginations until it robs us of the very peace we’re trying to preserve by ignoring those problems in the first place.

One of the most uncomfortable truths any of us have to face in our lives is the fact that we are mortal. Making provisions for when we leave this life forces us to think about our loved ones in a world without us, which is usually not a pleasant task. Consequently, some people choose not to think about it until it’s too late. Others begin to face this decision but become emotionally overwhelmed—unable to make a choice or commit.

This latter situation is exactly what I experienced with my client, Mrs. Sweet[1]. She has been in the process of drafting her will for over a year now. While she has modest assets, she never seems able to commit to a plan. Perhaps this reflects how a person’s life constantly changes and the difficulty in creating one document to reflect the variety and richness of that. However, I sense that it has more to do with worry—worry over what will become of her children when she’s gone. Worry that she’ll get this big decision wrong.

I used to be like Mrs. Sweet with all my big decisions. But, one of the simplest and most life-changing lessons I’ve learned is that you must force yourself to be brave and tackle things head on. Even if it still turns out a mess, I’m always glad I did. And so should everyone, especially when it comes to that scariest of decisions. Everyone leaves this world at some point, so there’s no use denying it. It’s better to commit to a plan than wind up with no contingencies or control at all. Then when the inevitable happens, we’ll be ready and comforted by the knowledge that things will be done how we would have wanted, easing the burden of our passing for our loved ones.

 

[1] Pseudonym for client’s actual name.

The Difficult Decision of Long-Term Care

By Sara Sapia, Elder & Disability Law Clinic Student, Fall 2017

As their loved ones age, many people must confront how their parents, grandparents, or partners will continue to be cared for as their physical and mental health declines. According to the Family Caregiver Alliance, approximately 69 percent of people over the age of 65 are expected to develop disabilities before they die, and 68 percent are likely to become unable to perform at least two activities of daily living or become cognitively impaired as a result.[1] So how do you decide what to do as a child, grandchild, or spouse when you witness your loved one’s health deteriorating?

‘Do I put them in a home?’ is one question that often comes to mind. The negative stigmas associated with nursing homes persist, including allegations of abuse, maltreatment, and neglect. On top of that, many people feel a sense of guilt or abandonment when they place their loved one in a nursing home, assuming that by doing so they are ‘giving up’ on them, and therefore often seek to avoid nursing homes altogether. Family dynamics can also come into play here, as a child may have promised his parents that he would never put them in such a home or his parents expressed that they wish to have a family member care for them instead. I must admit that when I think of my own parents I hope to be able to care for them myself into their old age and know I will do everything I can to keep them in a comfortable, safe environment as they grow older. I have also seen them struggle with these same concerns related to their own parents.

Long-term care by a family member, however, is not always possible. Potential caregivers typically have their own families and expenses and may not be financially capable of cutting back on their hours at work, or even quitting their job, to care for an aging family member. In addition, they may have their own chronic health conditions that prevent them from physically caring for someone else. To adapt to the needs of an ever-increasing elderly population, many new caregiving alternatives have been created. These include assisted-living facilities, continuing care retirement communities, in-home care services, and active adult daycare centers, all providing less restrictive means of aid for aging seniors, depending upon their level of disability. These provide families who are faced with aging loved ones options other than total care by a family member or admission to a nursing home to consider when looking for a safe, reliable, and comfortable plan for long-term care.

Because of the varying nature and costs associated with each of these options, it is important for family members to discuss their expectations for long-term care up front and ideally before a loved one’s health has deteriorated to the point where long-term care is necessary. Estate planning documents, such as a healthcare power of attorney and a living will, can also play a key role in these decisions. Ultimately, a person’s long-term care plan is a personal decision to be made by him and those closest to him based on his health, finances, and preferences.

[1] https://www.caregiver.org/selected-long-term-care-statistics

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