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What Everyone Should Know About ABLE Accounts

Congress passed the Achieving a Better Life Experience (ABLE) Act in 2014. This created tax advantaged accounts for people with disabilities. These accounts grow and are tax free. The money in the accounts can be used for qualifying expenses. Before the passing of the ABLE Act in 2014, if a person with disabilities had more than $2000 in their name, they would lose Medicaid coverage or Supplemental Security Income (SSI). ABLE accounts allow people with disabilities to have more than the $2000 in their name within the guidelines without losing these benefits.

In order to qualify for an ABLE account, the beneficiary must have become blind or disabled before the age of 26. When opening an account, a person with disabilities may or may not be asked to provide documentation if they are not already receiving Medicaid coverage or SSI.  In order to self-certify, the person with the disability will just need documentation from the doctor. Those already receiving Medicaid coverage or SSI should not have to provide documentation in order to open an account.

The ABLE account limit is $14,000 per year. This keeps the account from incurring the gift tax. ABLE accounts cannot grow above $100,000 without affecting other benefits. If the account grows above $100,000, Social Security payments are suspended until the account falls below the $100,000. These accounts are administered at the state level, but this does not mean that the account must be acquired in the home state. It is beneficial to investigate and find the account that best fits the needs of the disabled person. Fees are one consideration. Another is how the funds are accessed. If immediate access is necessary, an account that offers a debit card option may be important. This is something that must be explored individually. An elder law attorney and financial planner can be helpful in deciding which plan best meets an individual’s needs.

Funds in the ABLE account can, according to the ABLE Act, be used for “qualified disability expenses.” It further defines qualified disability expenses as “expenses related to the eligible individual’s blindness or disability which are made for the benefit of an eligible individual who is the designated beneficiary.” ABLE accounts can be used to pay for housing, transportation, assistive technology, support services, health, prevention and wellness, employment training, education, funeral and burial expenses, among others. It is important for a disabled person to speak with an expert, in order to take advantage of the full benefit of the account, as many people may be unaware of expenses the account can cover.

It is recommended that receipts and records for the expenses paid for with an ABLE account are kept as a record for the account. The IRS is responsible for regulating the accounts. Having records of the expenses the account was used for is very helpful in case of an audit. It may also be beneficial to keep a record of how each expense is related to the disability. Taking these measures will provide documentation if any expense covered by the ABLE account is ever questioned or if the account is audited.

ABLE accounts can benefit many Americans with disabilities. Many people continue to choose special needs trusts and other financial options. There is no limitation for one or the other. For those who can afford both, this may be an option to explore. The benefits of both outweigh one or the other. ABLE accounts are just one tool for those planning for the future of people with disabilities.

If you have questions or need guidance in your planning or planning for a loved one, please do not hesitate to contact our Reno office by calling us at (775) 853-5700.

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Addressing Abuse in Senior Living Facilities

If you have an elderly family member or friend living in an assisted living or skilled nursing facility, it is imperative to stay attuned to the signs of abuse to your loved one. The National Center on Elder Abuse reports the most common types of abuse include physical (29%), psychological (21%), gross neglect (14%), financial exploitation (14%), and sexual abuse (7%). While the facility’s staff perpetrates the majority of these abuse cases, 22 percent of cases are a result of resident on resident abuse. However, these statistics reveal only part of the story.

While abuse of senior residents is not the norm, according to McKnight’s Senior Living, it is a persistent and pervasive problem. Federal and State lawmakers are emphasizing the role of regulations and public policy to identify and decrease the abuse of residents while continuing to improve care quality. Once a comprehensive set of US standards for care are established, facility owners and employers will have to adhere to best practices to be in compliance and eliminate resident abuse.

Besides elder abuse being a persistent and systemic problem, it is also an under-reported one. Because it is under-reported, statistical data integrity is suspect. Typically, the resident who encounters abuse is 65 years or more, and the vast majority of those who are especially at risk exhibit moderate cognitive impairment or are living with dementia. Because of their medical conditions, these seniors are often unable to communicate about or report the abuse they experience, and so it continues unabated and without consequence.

To address the abuse problem requires a multi-pronged strategy. Raising awareness of abuse and educating family members, caregivers, and their teams, and managers to look for signs of abuse every day with every resident is crucial. Knowing the signs of neglect and abuse include skin tears, multiple fractures or long bone fractures as well as a resident’s inability to explain bruises. Bruising of the chest, breasts or genital regions, a sexually transmitted disease, bloody discharge, and unusually stained underwear are signs of sexual abuse. Medical neglect or abuse manifests itself both physically and psychologically. Symptoms include a resident’s poor hygiene, unintended weight loss, and dehydration. Other symptoms are marked by suspicious wounds, and poor case management of medical conditions, unmonitored prescription medications, depression, anxiety, and social withdrawal.

Certification and licensing verification, as well as criminal background checks, should be mandatory before hiring employees or volunteers to work with residents. Those individuals found guilty of any form of abuse or who have disciplinary action against their professional license should not be considered for hire. All qualified new hires should be trained on the facility’s abuse prevention policy before working with residents, and continuing education about abuse should be mandatory.

Training should encompass all aspects of potential resident abuse, mistreatment, and neglect for all staff and volunteers. Topics to cover should consist of ways to identify those residents at risk, recognizing the signs of abuse, how to properly report the violation without fear of reprisal, and understanding the Resident Bill of Rights. Staff should be trained on how to respond appropriately to difficult resident behaviors and recognize symptoms of caregiver burnout in themselves or other staff members.

Prevention policy should cover a range of procedures. Before a resident moves in, there should be an assessment made about their potential vulnerabilities. Continuing evaluations and documentation of any resident changes should be routine. Appraisals should include a review of the facility’s physical environment, number of residents, and requirements as to the risks of guarding against admitting a predatory offender as a resident. All of these preventative strategies are guided by specific Federal, State, and statutory requirements.

Reporting and response time are critical when abuse is alleged particularly in the case of serious bodily injury. Generally, most State laws and statutory requirements deem that within two hours of such an abuse a report must be filed. If abuse is not alleged and there is no evident serious bodily harm, the general rule is that it should be written up within 24 hours. Reports are filed with the facility’s executive director, state authorities, and law enforcement. Families should always be notified of allegations of or signs of abuse.

By employing these prevention techniques, focusing on policies and procedures as well as ongoing educational training, senior care residences can become a living environment where resident abuse is an unlikely event. Managing abuse risk is a significant factor in successful senior living. If your loved one is in a senior living facility, be sure to understand their vulnerabilities and the policies and procedures in place to prevent abuse.

If you have questions or would like to talk about your situation, please don’t hesitate to contact our Reno office by calling us at (775) 853-5700.

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Medicare Covering New Health Technologies

In response to the COVID-19 outbreak, the Centers for Medicare & Medicaid Services (CMS) recently announced that it has increased access to Medicare telehealth services. This means that Medicare beneficiaries can receive more benefits from their doctors without having to travel to a healthcare facility.

The terms “telehealth” and “telemedicine” refer to the ability to exchange medical information from one site to another through electronic communication to improve a patient’s health.  With the rapid rise of COVID-19 cases, there is the urgency to expand the use of technology to help people who need routine care. Telehealth will keep vulnerable beneficiaries and those with mild symptoms in their home, but with access to the care they need by phone and video rather than requiring an office visit.

Prior to this change, Medicare would only pay for telehealth on a limited basis, and only for persons in a designated rural area. Now Medicare beneficiaries will be able to receive the following services through telehealth: common office visits, mental health counseling, and preventive health screenings. This will help keep more of the at-risk population (Medicare beneficiaries) able to visit with a doctor from home, rather than traveling to a doctor’s office or hospital which puts the beneficiary and others at risk. Telehealth visits will be treated the same as regular, in-person visits and will be paid by Medicare at the same rates.

These changes go into effect for services starting March 6, 2020 and will continue for the duration of the COVID-19 Public Health Emergency. For more information, view the fact sheet prepared by CMS.

Better access to telehealth is a big step in getting Medicare beneficiaries appropriate care in the least restrictive way.

If you have questions or need guidance in your planning or planning for a loved one, please do not hesitate to contact our Reno, Nevada office by calling us at (775) 853-5700.

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VA Pension Qualification for Non-Disabled Veterans

It is a challenge to keep up with US Military benefits as they are always changing, and many veterans miss out on what can be life-changing aid. Many wartime veterans receive a disability pension due to injury. But did you know that wartime veterans age 65 or more may qualify for a VA Pension without being disabled? The Veteran’s Administration qualifications for this type of VA Pension include:

  • Your military service discharge is deemed anything other than dishonorable conditions,
  • Your service was 90 or more active duty days with at minimum one day of service during a period of wartime.
  • You are age 65 years or older,
  • Your countable family income is below a threshold set every year by law.

2020 Family Income Limits (Effective December 1, 2019)

If you are a…Your yearly income must be less than…*
Veteran with no dependents$13,752*
Veteran with a spouse or a child$18,008**
Housebound veteran with no dependents$16,805
Housebound veteran with one dependent$21,063
Veteran who needs aid and attendance and has no dependents$22,939
Veteran who needs aid and attendance (A/A) and has one dependent$27,195
Two veterans married to each other$18,008
Add for each additional child to any category above$2,351
*Some income is not counted toward the yearly limit (for example, welfare benefits, some wages earned by dependent children, and Supplemental Security Income. It is also important to note that your medical-related expenses are considered when determining your yearly family income. *To be deducted, medical expenses must exceed $687 ** To be deducted, medical expenses must exceed $900

The financial information chart above, published by military.com, is commensurate with the numbers posted on the Veteran’s Administration website.  Be aware; there is a look-back period that will determine if you have transferred assets in the three years previous to filing your claim. There would be a penalty period rate of $2,266 if you did move assets for less than fair market value during this period.

The VA will pay a qualified veteran the difference between personal countable family income and the yearly income limit category into which they fall. Payments are made in 12 equal installments per month and rounded down to the nearest dollar. As an example, a single veteran with a $5,000 annual income qualifies for an annual limit of $13,752. Subtracting that veteran’s income from the income limit yields an annual pension rate of $8,752, which translates into a VA monthly pension check of $729.33 or $729.00 rounded down to the nearest dollar value.

The VA website recognizes the following wartime periods that determine if your service was during an eligible wartime period:

  • World War II (December 7, 1941, to December 31, 1946)
  • Korean conflict (June 27, 1950, to January 31, 1955)
  • Vietnam War era (February 28, 1961, to May 7, 1975, for Veterans who served in the Republic of Vietnam during that period. August 5, 1964, to May 7, 1975, for Veterans who served outside the Republic of Vietnam.)
  • Gulf War (August 2, 1990, through a future date to be set by law or presidential proclamation)

In addition to VA pension, wartime Veterans may also qualify for an additional allowance called Aid and Attendance. To qualify medically for VA Aid and Attendance, one of the following must be true:

  • Another person is required for you to perform daily activities such as bathing, dressing, and feeding, or
  • You spend a large portion, or all of your day in bed due to illness, or
  • Due to a loss of mental or physical abilities related to a disability you are a patient in a nursing home, or
  • Your eyesight is severely limited (wearing glasses or contacts your eyesight is 5/200 or less in both eyes or your concentric contraction visual field is 5 degrees or less)

There are similar benefits available to surviving spouses of wartime Veterans. If you are a wartime veteran or the surviving spouse of a wartime Veteran, we can help you determine whether you could qualify for pension benefits.

While eligible veterans or surviving spouses can apply for benefits on their own through the www.va.gov  website, it is advisable to seek the advice of counsel before applying. There may be planning options available to avoid a penalty period and speed up the qualification process.

If you have questions or need guidance in your planning or planning for a loved one, please do not hesitate to contact our Reno, Nevada office by calling us at (775) 853-5700.

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Holding Title to Property

For many people, real property, including their home, is a big part of their overall net worth.  How the home and other pieces of real property is titled deserves careful consideration. Real estate constitutes the land and any structure, including vegetation, livestock, crops, and other natural resources that sit on the land under the state’s law. Real estate can be commercial or residentially owned. Ultimately how you hold a property title has far-reaching consequences for liability, and when it comes time for sale or the bequeathing of it as an inheritable asset.

The title is a reference to the document that lists the legal owner(s) of a piece of property and can depict ownership of both personal and real property. Real estate titles are regarded as real property as it is a tangible asset. The title for real property, by law, must be transferred if the asset is sold or inherited and must be clear for the title transfer to take place. A clear title is free of liens or any other encumbrance posing a threat to proper ownership. The most common types of real estate titles are joint tenancy, tenancy in common, tenants by the entirety, sole ownership, and community property. Less common property ownership titles are corporate, partnership, and trust ownership.

Individual name or sole ownership allows for a single person to hold title, even if you are married. If the person becomes mentally or physically incapacitated due to injury or illness, a spouse or family member typically will need to conduct business with regards to your property. Your family member will not be able to do business transactions like refinancing or changing lines of credit, and they will be unable to act until a court appoints someone to act on your behalf. Many people assume if they have a will it will address the problem, yet a will does not go into effect until after you die and is not in effect if you become incapacitated.

Joint tenants (some may have rights of survivorship) occur when two or more people hold the title to real estate jointly. This type of title is widespread among but not exclusive to married couples. Unmarried couples may also hold joint tenant title as can parents and their adult children. It is a fair, uncomplicated, and free way to hold the title. In the case of a couple, the death of one automatically transfers full ownership to the surviving owner without probate. However, probate is more than likely just to be postponed. In the event the surviving owner dies without adding another owner, or if both owners die at the same time, probate is almost certain to occur before the property can go to the heirs.

Being a co-owner means that to sell, refinance, or take any action to the property, both owners must agree to the business action. If there is disagreement or in the event your co-owner becomes incapacitated, the court will become involved to resolve the disagreement or to protect the interest of the one who has become incapacitated. Court involvement will occur even in the event the incapacitated owner is your spouse. Joint tenants also expose the property to both of the co-owners obligations and debts. If a creditor successfully sues your co-owner, you could lose your home. In the case a co-owner is not a spouse, there can be income tax or gift tax problems. A will does not control any jointly owned assets, and you may mistakenly disinherit your family when your co-owner inherits your share, particularly in the case of second marriages with children from a previous union.

Tenants in common (TIC) allows for two or more people to hold title to real estate with equal rights during their lifetime to enjoy the property. A tenant in common title creates shares of ownership, and those shares will be distributed as directed in a will upon an owner’s death. In the absence of a will, the property goes to the heirs of the owner. As a tenant in common individually holds title for a respective part of the property, they are at liberty to dispose of said owned property or encumber it at will. Owners of their respective shares are permitted to use their portion of the property as collateral or in financial transactions. They may also be sued or have creditors place liens on only their portion of the property.

Tenants by entirety (TBE) are only permissible if the owners are legally married. This title, for purposes of ownership, treats the couple as one person for legal action and interpretation. Upon the death of one person, the TBE title is transferred in its entirety to the other spouse. This is advantageous as no legal action is necessary upon the death of one’s spouse. It does not require a will and probate is unnecessary.

Community property is only in effect in nine states (AZ, CA, ID, LA, NV, NM, TX, WA, and WI) and is a form of joint ownership between spouses commonly referred to as community property. When you die, your share of the community property is automatically transferred to your surviving spouse unless your will provides otherwise. Both tenants, by the entirety and community property titles, can find the remaining owner with several new co-owners, who, upon their death, can have their heirs inherit the property. Also, issues of incapacity and lawsuits are magnified if several property owners are trying to reach a consensus about the sale of the property or other business actions.

Corporate ownership allows a legal entity, a company owned by shareholders, to hold title to property. Partnership Owners can own real estate as a partnership. This title constitutes two or more people who transact business for profit as co-owners. There are also limited partnerships where an investor has limited liability because they do not make management decisions regarding business transactions of the property. In the case of limited liability, a singular general partner will typically be responsible for making business decisions on behalf of the identified limited partners.

Trust ownership, most often in the format of a revocable living trust, is a legal entity that owns the real property, which is managed by a founding or designated trustee on behalf of all trust beneficiaries. In the event you become incapacitated, your named successor trustee can seamlessly take control of your trust without court interference. A successor trustee is legally obligated to follow the instructions put forth in your trust. If you recover from incapacitation, you resume control of your trust. If you were to die, the property would be distributed according to your trust instructions and without probate. Holding real estate in trust ownership has challenges regarding benefits that surround financial and legal liability, managerial influence, and tax considerations. A real estate trust document can provide significant advantages to property owners but only if created by competent legal staff who take into account the complexities surrounding the trust and its interaction with the liabilities listed.

Methods of holding and owning title to real estate property are determined by state law and, as such, must be considered when researching and determining the best method to acquire and hold title to real property where you live. Depending on the complexity of your situation, assessing the best way to title your real estate may require professional real estate, legal and tax guidance.

If you have questions or need guidance in your planning or planning for a loved one, please do not hesitate to contact our Reno, Nevada office by calling us at (775) 853-5700.

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More Seniors Continuing Care at Home

Decades ago in America, it was prevalent that extended family members lived near to one another, providing a system of general support and care for the family young and old. Now many families live far out of reach from the daily lives of their elderly parents save for the internet and internet of things allowing for digital contact. Even those living near to their aging parents are generally immersed in a world where work and nuclear family commitments preclude them from having the time to devote to their parents. So the advent of Continuing Care Retirement Communities (CCRC) began to meet the living needs of these seniors. A community that allows for stages of aging with minimal disruption to the resident is a great way to offset the adult child’s responsibility of daily care to a parent but still ensuring best practices for the parent’s health and well being.

Problems arose when joining a CCRC became prohibitively expensive for many in the baby boomer generation. Expensive entrance fees, monthly fees, and increases in pricing over time made the possibility to live in a CCRC financially untenable for many senior Americans. Financially, many baby boomers are dealing with the fall out of poor retirement planning and the possibility of substantial reductions in future social security benefits due to projected government trust insolvencies in 2034. These boomers are also contending with underfunded or collapsed private pensions and a federal actuary for cost-of-living adjustments (COLA) that does not adequately address aging Americans expenditure categories. What to do? The obvious solution for those seniors who are able-bodied and healthy enough is to age in place. In this scenario, who is day to day going to be looking after mom and dad? Who will create the plan for the senior’s health and well being, and how is that best facilitated?

At the outset, aging in place tends to require more communication oversight and remote troubleshooting of basic problems by family members. In time, the issues change; they become more severe and health-driven, and have far more dire consequences than the need to hire a gardener, house cleaner, or part-time home health aide.

The operators of life plan communities are closely watching this aging in place trend and are assessing the upside of participating in the emerging “continuing care at home” (CCaH) market. The model is beyond its conceptual phase in several communities. There are now many proposals to bring CCaH businesses to a neighborhood near you. However, this consumer solution and business opportunity have some downsides to consider beyond the actuarial and financial risks. A lack of regulations, standards, and best practices is of significant concern.

Using remote monitoring and communications through internet devices and technology as oversight to track a CCaH member’s health and well being are remarkable tools. Still, the tools proper, secure, and safe deployment in a private home setting can be challenging for this new business opportunity that lacks protocols. Operators will have to ensure that all of the data being transmitted via technology has adequate cybersecurity and that it protects against breaches of the system. Regulation compliance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and data privacy laws are a significant concern, as is resident user capability, data integrity, redundancy of system capability, and backups in the event of power or internet outages.

There are also care management risks to contend with as there is no real substitute for the daily “eyes on” human observations of an in-home resident. Technology-driven care is primarily a series of alerts triggered when some event occurs that is outside of the resident’s everyday norms. Artificially intelligent systems will someday be predictive enough to replace a set of human senses monitoring a patient in the home, and it will come with many complications as to how best to regulate the AI option. For effective care management today, there may be a need to include on sight protocol reviews and updates at standard intervals for which no regulations to follow yet exist.

There are level-of-care transition risks for which standards must also be set. At what point does a CCaH have the legal authority to transition an unwilling resident to a higher level of care, removing them from their home? Should this authority remain at a business contract level or solely at the discretion of the person’s wishes, documented health directives, power of medical attorney authority, or family member? If the senior chooses to remain in their home, and they encounter an adverse health event because it is the CCaH facility legally responsible? Can the business legally remove a contract of care for the individual if they refuse to respond to the facility’s recommendation to seek a higher level of care at a health facility?

The CCaH model of care is a promising and less expensive alternative to more traditional life plan communities and other models for senior living. Because the at-home model is so new, technology-dependent, and without much of a blueprint for operational standards, both operators and aging in place residents must be mindful of the possible risks that can occur.

Appropriate government regulations and protocols are in development to mitigate problems as future proposals continue to come forward to meet the demand of this new senior living model.

We help families figure out how to age in place and how to pay for care without depleting their savings or losing their homes.

If you have questions or need guidance in your planning or planning for a loved one, please do not hesitate to contact our Reno, Nevada office by calling us at (775) 853-5700.

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Estate Planning for Children with Special Needs

Estate planning requires specialized planning when you have a child with special needs. Looking to the future as to how your child will be able to function in the world as they age is particularly tricky to assess. What is the child’s long term prognosis and what type of care is anticipated to meet their needs? What kinds of medical breakthroughs may occur that change their playing field? What government programs will they be eligible when they turn 18 and are those programs likely to still be in place when they need them? How will the parameters of the estate plan change when a child turns 18 and may want (and be legally able) to make some decisions on their own?

It is a daunting proposition for the parents or guardians who desire to set up the best plan possible for their special needs child. Are they able to express their needs and wants regarding their care? Most state laws mandate the fiduciary in charge of a special needs child’s care allow their participation in the process as much as they are able. To what degree can they adequately manage activities of daily living like eating, bathing, and dressing by themselves? Is the child deemed capable in the future of being employed outside of the home? Can they ride a bus to work? Is outside care such as an assisted living facility likely? Is the family capable of providing income and assets for their future well-being?

Flexibility is the key to success when creating an estate plan. What is set up now might need to be tweaked in the future due to unforeseen changes in a special needs child’s abilities, desires, or changes in government assistance programs. Government assistance may not be required if there are sufficient assets that can be paid out in a discretionary trust throughout the child’s life at the direction of the appointed trustee.

If your child is likely to receive government benefits a special needs trust is a good strategy as the trust can supplement what is otherwise provided by government benefits. It is crucial that the special needs trust is drafted to ensure the child does not become ineligible for their government benefits. In the event it is not possible to predict whether a child will be eligible for government benefits, an already established trust can give its trustee the ability to create a special needs trust at the time of their last surviving parent’s death. Whether or not a trust is funded now or left empty until the death of the parent when money can flow into the trust from the estate, another trust, or life insurance policy is a matter of preference.

Some parents opt not to create a trust for their special needs child and completely disinherit them so that government benefits can solely support the child. The absence of explicit financial support directives for a special needs child can have lasting negative impacts on the child’s financial and emotional well-being. Happily, most parents of special needs children try to overcompensate for their child’s future rather than take the approach of providing no aid whatsoever. Establishing a framework with legal documents that define the rest of a special needs family member’s life will help ensure that family member is taken care of financially and medically.

If you have questions or need guidance in your planning or planning for a loved one, please don’t hesitate to contact our Reno, Nevada office by calling us at (775) 853-5700.

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Senate and VA Look to Protect Veterans from Scams

Elder abuse scams are everywhere, but they are reaching a new level of sophistication in targeting their potential victims. Forbes is reporting about the problem that unscrupulous scam artists are contacting veterans and service members pretending to collect money to aid other vets or enlist them in a fictitious government program that requires their personal information as well as an initial payment. Other scams include home refinancing loans at extremely reduced rates, the offer of an upfront lump-sum payment of benefits for signing over all their future monthly benefit checks, fake charities, and posing as an old friend with a “sure thing” investment just for them. The problem has become so vast that the Senate Aging Committee is tasking the Department of Veterans Affairs to do more to protect veterans.

Much of the focus of the Veterans Administration has been to deliver quality and timely health care. The Senate Aging Chair Susan Collins (Maine-R) acknowledges the precedence to fix VA health care issues pushes protecting veterans from financial fraud to a lower priority. Now the committee is calling for a specific two-step action plan that will not require additional resources and can be implemented immediately.

According to Collins, the first step would be to elevate veteran claims of financial fraud to the Federal Trade Commission (FTC) and the Justice Department (DOJ). The FTC has a public service announcement on its website to educate people on how to identify an actual veterans charity organization that properly uses donations to help veterans. Many fraudulent charities have the word veteran in their name specifically to mislead people into giving them money. The FTC is the central point of contact for reporting fraud outside of the VA.

At this time, the DOJ references consumer fraud complaints to the FTC toll-free phone line or website to access the FTC’s fraud task force. The DOJ recognizes veteran benefit fraud and misuse by refocusing the problem back to the VA but does not have a specific veteran consumer fraud complaint program. Collins is asking the VA to increase the visibility of the veteran fraud problem to the DOJ through the forwarding of complaints. In keeping with the VA prioritizing veteran health care over victims of fraud, the DOJ Office of Inspector General has a newly created Veterans Affairs Health Care Fraud Task Force. It may take some time before more is done about veterans and scams, but elevating VA fraud complaints to the DOJ is a start.

The second step in the committee’s recommendation is to distribute a brochure to all veterans from the combined efforts of the American Association of Retired Persons (AARP) Fraud Watch Network and the United States Postal Inspection Service (USPIS). The educational pamphlet can also steer veterans to the OperationProtectVeterans.com website, where more information about veterans scams can be found. This website features videos, lists of the most common scams, and the tips veterans need to know to avoid becoming a victim to a scam. The USPIS, in conjunction with the DOJ, is working on getting more authority from Congress to prevent veteran financial abuse.

According to the AARP, veterans are twice as likely to fall victim to scams as the population at large. They also have twice the rate of Post Traumatic Stress Disorder (PTSD) as that of the general public. PTSD is one of the leading reasons veterans fall prey to fraud. Because of their disorder, veterans living with PTSD find it more challenging to recognize and then resist the emotional manipulation scammers employ. Because of their vulnerability, veterans are heavily targeted by scam artists. According to an AARP study, 80 percent of retired military persons maintain they have encountered at least one veteran-specific scam and that 16 percent have lost money to scammers, again double the rate of the general public.

Surely the veterans of America deserve to be better protected against financial fraud. The Senate Aging Committee is making scams targeting veterans a priority and pressuring the VA to take more action. Until more programs and education are in place, there are some general rules to follow that every veteran and family of a veteran should know:

  • Do not give personal information over the phone.
  • Do not feel pressured to “act now.”
  • Consult a trusted family member or your local veterans’ affairs office before providing a donation.
  • Get and check references and do your due diligence before signing anything. Check with the Better Business Bureau or consult your lawyer.
  • Do your research and take your time. Legitimate veterans businesses and charities will not try to rush you.

Be aware if you are a veteran who has PTSD. Seek out legitimate charities or businesses to employ through your efforts. Being susceptible to emotional manipulation is difficult to combat because of your disorder. If you begin to feel uncomfortable with a person or entity trying to get a donation or sell you something, shut the conversation down immediately and talk to a trusted loved one, then contact the VA.

If you have any questions or need guidance in your planning or planning for a loved one, please do not hesitate to contact our Reno, Nevada office by calling us at (775) 853-5700.

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Guide to Advance Directives

Kevin stands at the door of Winnie’s nursing home room, tears streaming down his face. The medical staff just finished inserted a feeding tube into Winnie – an act Kevin knew she didn’t want. Unfortunately, Winnie couldn’t express her wishes due to advanced dementia, and she had no legal documents that expressed her wishes not to be fed by artificial means.  Kevin had no choice but to sit back and watch his wife go through a procedure she didn’t want.

The situation with Kevin and Winnie could have been avoided through the use of proper advance directive. An advance directive is actually a collection of documents. What that includes differs depending on your needs and wishes, along with what the law allows. However, it usually means at least a Living Will and a Power of Attorney for Healthcare.

The purpose of this set of documents is to allow you to control what happens to your health care in case you cannot speak for yourself. If certain criteria are met, your doctors must consult with your advanced directive before making decisions about your care.

Usually, what this means is that two doctors agree that an individual is terminally ill, permanently unconscious, or at the “end-stage” of a condition. Once that happens, and the individual cannot express their preferences, doctors turn to the advance directive to figure out what the individual wants.

A Living Will determines what happens to an individual making it, unlike a Last Will and Testament, which determines what happens to their money and possessions. A Living Will describes what healthcare providers can and cannot do to prolong your life and/or ease your pain when you cannot express those preferences yourself. For example, do you want to be placed on a ventilator if you cannot breathe on your own? Do you want a feeding tube and IVs set up, and if so, for how long? Do you want to be an organ or tissue donor?

A Durable Power of Attorney for Healthcare lets you choose someone to make healthcare decisions for you when you cannot. They still must follow your Living Will, but they will be able to make decisions not explicitly considered by your Living Will, in accordance with the facts of the situation. In most states, there are “default surrogate consent laws” which allow family members to make treatment decisions on your behalf, but who is chosen to make these decisions and what they choose to do may not be in accordance with your wishes, as it hopefully would be with a Durable Power of Attorney.

Other documents may be part of an advance directive by law, or they may be worth including on your own volition. These include Do Not Resuscitate orders and Physician Orders for Life-Sustaining Treatment, among others. You might also consider an advance directive in case of a mental health crisis.

This is a difficult subject to consider, and it always seems like it won’t be necessary. But nearly 70 percent of Americans don’t have plans in place for a worst-case scenario, which means for some of them, decisions may be made for them with which they would not agree if they had the capacity to choose. For that reason, it is worth thinking about implementing an advance directive even if it seems unnecessary now.

If you or a loved one would like more information about advance directives, please don’t hesitate to contact our Reno, Nevada office by calling (775) 853-5700.

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Having a Power of Attorney Can Protect Your Right to Vote

Your right to vote is a fundamental lynchpin of what it means to be a citizen – yet you could lose your right if you become a ward in a guardianship. Having a strong power of attorney is essential to avoid that drastic, but little-known, consequence.

A power of attorney gives a trusted person the authority to act on your behalf. Support like that is especially important if there is any question that you might have become unable to make decisions for yourself. Sometimes, however, that situation is far from clear. Elderly people can be dragged into unnecessary guardianship proceedings, not of their choice.

This can happen, for example, if you are temporarily hospitalized and a not-so-friendly person – maybe related to you by a second marriage – sees an opportunity to seize control of your finances. Any adult person can file a petition seeking a guardianship. If you had designated your trusted agent before hospitalization, your agent could defend against that kind of predatory danger.

The danger is real. You could lose not only your money and your independence but also your right to vote. For example, until relatively recently a provision in the Arkansas Constitution stated that “no idiot or insane person shall be entitled to the privileges of an elector.” That provision had the force of law until 2009. And again in Arkansas, once a person is placed in a guardianship, court approval is required before the ward is permitted to vote. Laws like these are by no means exceptional. Many states disqualify from voting persons who have been adjudicated incompetent, incapacitated, or of “unsound mind.”

But the standard to decide whose mind is “unsound” is far from clear. For example, a diagnosis of dementia can encompass a wildly variable population, depending on the point of view of the evaluating professional. And judges usually have no specialized education of their own in psychology.

Whether a person can handle their finances or retains the ability to drive, are far different questions from whether a person retains enough sense to vote. A citizen who votes for any winning candidate joins the majority of the electorate. Determining, in advance, that one vote of all those is irrational discriminates against that particular voter – when many uninformed voters, who might choose candidates based on the brilliance of their smile, say, would not be subjected to that kind of scrutiny.

How much better it would be, then, to avoid that battle in the first place. With the help of an elder law attorney, you can create an effective power of attorney that will do just this.

If you have any questions or need guidance in your planning or planning for a loved one, please don’t hesitate to contact our Reno, Nevada office by calling us at (775) 853-5700.