Nov 20, 2014

Facing a 30-day plus delay for a V.A. medical appointment? You can now apply to see a private provider

On November 17, 2014 the Veterans Administration began mailing "Veterans Choice" cards to veterans facing extended wait times for treatment at a V.A. facility. Veterans who qualify for the program will be permitted to seek treatment from private medical providers in their community who are V.A.-approved. To qualify for the program, a veteran must be facing a wait time of 30 days or more for his preferred appointment date, or the date his/her physician indicates is medically required. The Choice Program is a three-year, temporary program funded by the 2014 Veterans Access to Care Through Choice, Accountability and Transparency Act.

If you qualify for the program, you must call the Veterans Administration at their dedicated phone number for the Choice enrollment program, 866-606-8198. You will have to choose from a list from V.A.-approved private medical providers in your area, provide the V.A. with information about any other medical insurance you may have as well as other data. The V.A. will schedule your appointment.For more information, check out the V.A. website here

For information on V.A. long-term benefits for elderly and disabled veterans, click here.

Nov 14, 2014

Walk to End Alzheimer's

"Karp's Kommandos" - our attorneys, staff and our families - turned out for the Walk to End Alzheimer's on October 18 in West Palm Beach and October 25 in Jensen Beach. The Alzheimer's Association-sponsored event raises funds for research and for services to local patients and families.

West Palm Beach walk, October 18, 2014

 Jensen Beach walk, October 25, 2014

Nov 12, 2014

New book on the downside of "medicalizing" the aging process

Dr. Atul Gawande, the surgeon and author, has just published his newest book, "Being Mortal." The sensitive subject matter has sparked serious debate among physicians, the clergy and the public. Gawande argues that our society has "medicalized" aging, resulting in a greater concern with extending life rather than helping people maximize the time they have left. Gawande believes that approach - focusing on keeping people "safe" at all costs - does a tremendous disservice to the aging, the sick, and to their families. 

All of us have our own opinions on this most personal of issues. It's a subject that invariably comes up when my elder law clients address their preferences for health care, whether they want to establish a living will, etc. Whatever your personal feelings, you will probably find the book worth a read. Here are some recent reviews of the book:
Another thought-provoking commentary on this topic is "Why I Hope to Die at 75 - An Argument that society and families - and you - will be better off if nature takses its course swiftly and promptly," by Dr. Ezekiel Emmanuel. To be clear, the title is a bit of a misnomer. The author is not not actually hoping to die at 75 - he says he just doesn't want to live to a very old age if the years prove to be too painful for him and his loved ones.

What do you think? My readers and I would be interested to know where you stand. Post a comment!

Nov 10, 2014

Dealing with digital assets in your estate plan: it's the Wild West today

Shortly after comedy icon Robin Williams died, his daughter's Twitter feed filled up with gruesome fake photos of her father. She was forced to temporarily abandon the social media site. As a result of the incident, Twitter was pressured into changing its policy: It now allows family members to request removal of a deceased relative's online photos.

A good friend of my family passed away two years ago. While cleaning up his home, his brother stumbled upon some papers suggesting his brother had owned a large quantity of bitcoins (virtual currency) at the time of his death. We are now struggling to access the information and document his ownership. It's an uphill battle, made more complicated because many of the companies and individuals we're dealing with are located in Australia.

When University of Minnesota freshman Jake Anderson was found dead in a snowbank last year, his distraught parents tried to get access to his social media messages, cell phone data and email, hoping the information might clarify the circumstances of his death. The providers turned down their request. (Click here to see TV clip about this story.) 

And then there's the poster child of all cases, Ajemian v. Yahoo. John Ajemian  died in a car accident in 2006. His siblings wanted to access his Yahoo email account password so they could notify friends of his passing. Yahoo denied the request. Once the siblings were appointed personal representatives of his estate, they went to court, arguing they needed access to his account to help them locate assets, creditors, etc. in order to properly administer the estate. In the latest installment of the legal battle, the court sided with Yahoo in May 2013, noting that the decedent had agree to Yahoo's terms of service (yes, the gobbledydygook virtually no one reads) that reads: "No Right of Survivorship and Non-Transferability. You agree that your Yahoo! account is non-transferable and any rights to your Yahoo! ID or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted."  (You can read the court's decision here.)

An uphill battle for your fiduciaries?
All these cases demonstrate the uphill battle fiduciaries can face when trying to access a deceased or incapacitated loved one's digital assets. These days, much of our financial life is lived online. Banking and brokerage statements are accessed in the "cloud." Shoeboxes of old photos are now online accounts. Then there are other assets: domain names, email accounts, Facebook accounts, online magazine subscriptions, Paypal accounts, blogs, frequent flyer accounts. And that's just the tip of the iceberg for most people.

Florida law and federal law are fairly clear regarding who can access a decedent's traditional physical assets, and when. But for digital assets, it's a legal Wild West out there, governed by different state laws; by the federal Stored Communications Act (also known as the Electronics Communication Privacy Act) which limits the ability of online providers to provide surviving family members with a decedent's account information; and of course, by those cryptic internet terms of service. Every online service provider, tech company and social media site has its own terms of service. Some will automatically delete an account after a given period of activity, or after a duration that you specify. Some providers will not provide passwords or transfer ownership, but will, with the proper documentation, provide the account contents to certain individuals. 

Take control!
If you are reading this, chances are you have digital assets, and  probably more than you think. What will become of them when you are gone?  Even if an asset does not have financial value per se - an online photo-sharing account, for example - it may have sentimental value to your family and you will want your loved ones to be able to access it. On the other hand, you may have private accounts -- emails, others, use your imagination - that you want to die with you, and don't want anyone to see, ever.

Having your desires carried out requires some planning. I suggest that at the very least, you make a list of all your digital assets. Check to determine each provider's terms of service, then write down how you want those accounts handled if you become incapacitated or when you pass away. Make a separate list of user names and passwords, as well as the answers to the security questions that pertain to each account. Do not include that list with your will or trust. That list should be tucked away somewhere safe, and your agent and Personal Representative should know how to access it.

Some people use online password storage services, such as last pass and secure safe. Another possibility: Back up all your data and information onto your own hard drive. Create a password-protected file with the information - and be sure to let your personal representative and agent know the password! 

Your elder law/estate planning attorney will be able to guide you on how to handle your digital assets in the event you become incapacitated or pass away. (Another compelling reason to plan for the disposition of your digital assets: once your death is part of the public record, your existing digital financial data becomes more attractive for would be identity thieves (read my prior post on this topic).

Any changes on the horizon to make this all easier?
Delaware was the first state to adopt the Uniform Fiduciary Access to Digital Asset Act (UFADAA), which gives fiduciaries the same access to digital assets that they have to physical assets. The Florida Bar has recommended that our state legislature incorporate the Uniform  code, but there are no guarantees that it will, or when. In fact, the Uniform code has come under attack from privacy advocates who argue that it is an infringement on an individual's right to have his/her digital assets kept private, even in death and disability. Yahoo recently stated that the uniform code is based on the "faulty presumption that the decedent would have wanted the trustee to have access to his or her communications" and that the model statute sets "the privacy default at zero." 

So for now, as far as your digital assets go, you are not living not in the South... you're in the Wild West! You have to plan accordingly.

Nov 7, 2014

IRS announces 2015 estate tax exemption

The estate tax certainly isn't what is used to be. And that's a good thing. Before 2001, a significant percentage of my estate planning clients were concerned with finding ways to minimize estate taxes. But with the current generous estate tax exemption, today's client typically is more concerned with minimizing capital gains taxes and income taxes. 

Of course, if you are among the minority of individuals with a potentially taxable estate, you still need to be concerned about estate taxes. You'll be glad to hear that in 2015, the lifetime unified estate and gift tax exemption will increase to $5.43 million per individual, up from $5.34 million. This is the amount that you may give away free of estate and gift taxes during your lifetime and at your death. If you are married, you and your spouse may double that amount. Moreover, a surviving spouse may use any portion of the deceased spouse's unused estate tax exemption (provided that the survivor elects the "portability" option on the final tax filing). The top tax rate for anything above the exemption is 40%. 

The annual gift tax exclusion will remain unchanged in 2015, at $14,000. This is the amount that you may transfer to another person other than your spouse, free of gift tax and without impacting your lifetime exemption. If you are married, you and your spouse may double that amount. For example, a married couple could give each of their three children $28,000 per year without any gift or estate tax ramifications. Certain gifts may exceed $14,000 per year and still incur no gift tax, such as a check written for a child's college tuition when the check goes directly to the educational institution. 

Learn more about estate and gift taxes here.

IRS announces 2015 deductibility limits for long-term care insurance premiums

Taxpayers will be able to increase the amount they deduct on their federal taxes for long-term care premiums in 2015. To qualify for the deduction, certain conditions must be met: 

The policy must be "qualified." If issued after Jan. 1, 1997, the policy must be in compliance with the regulations established by the National Association of Insurance Commissioners, and offer inflation and non-forfeiture protection (whether or not the insured party chooses those options).  Additionally, the policy must contain certain 'triggers' under which benefits can be paid. The insured individual may be able to collect benefits only when he/she requires assistance with two of six "activities of daily living" for at least 90 days; or when a physician certifies that there is cognitive impairment to warrant supervision for safety purposes. Any policy purchased before Jan. 1, 1997 will be grandfathered in and treated as qualified so long as it has been approved by the insurance commissioner of the state in which it was sold. 

Premiums, plus unreimbursed medical expenses, may not exceed 10% of gross income for those under age 65; for those over 65, the threshold will remain at 7.5% through the year 2016. (The rules are slightly different if you're self-employed; check with your accountant.)
Here are the IRS' deductibility guidelines for 2014. The figures are based on the attained age of the taxpayer before the end of the taxable year: 
40 years or younger: $390 (was $370)
41 - 50: $710 (was $700)
51 - 60: $1430(was $1400)
61 - 70: $3800 (was $3720)
71 and older: $4750 (was $4660)

Nov 5, 2014

Brittany Maynard passes away

Brittany Maynard ended her life peacefully on November 1 with the aid of prescription drugs provided by her physician in Oregon, where physician-assisted suicide is legal. Maynard had been diagnosed with an inoperable brain tumor earlier this year and was given six months to live, during which time her seizures had intensified and she became increasingly debilitated. A beautiful, just-married woman of 29, her situation and her decision to end her life attracted, and continues to attract, significant discussion about patients' right-to-die.

The morality of physician-assisted suicide is an issue I leave for physicians, ethicists, clergy, patients and politicians to sort out. Right now the practice is legal in Oregon, Washington state, and Vermont, and is in legal play in several other states. It is not legal here in Florida, nor is any legislation pending to make it so.

Wherever you stand on this most sensitive of sensitive issues, Maynard's situation makes it clear: Most people want to remain in control of their lives and their deaths. That, of course, is where thoughtful planning can help. As a Florida elder law/estate planning attorney, I help people plan so that their health care decisions can be made by someone they know and trust, and in keeping with their own values and desires. 

Putting your wishes in writing gives you control over your destiny, and that means peace of mind. The place to start is with a well-drafted health care power of attorney in which you name the person(s) you want to make your health care decisions if you are unable to make them yourself. That is quite a responsibility to assign, so you need to be sure the person is intellectually and psychologically capable of handling it, and willing to do it. Also have a discussion with your health care agent about your core values and preferences for medical treatment; that will help your agent feel more secure if he/she is ever called upon to make the decisions for you. Appoint back-up health agents, too and from time to time, check to make sure all your agents are still willing and able to serve. I have had people walk into my office with documents that name a long-deceased spouse as agent - and no backup agents! Also think about establishing a living will, a document with provides instructions specifically related to end-of-life care. 

You can learn more at my website about health care planning in Florida.

Announcing Medicare A and B costs for 2015

Overall, good news on your costs for Medicare in 2015. Although some costs will rise, Part B deductibles and premiums will remain unchanged, largely as a result of the Affordable Care Act, aka "Obamacare." Fees for higher-income beneficiaries will also remain at 2015 levels. Here are the new numbers for next year, according to the Centers for Medicare and Medicaid Services:

Part A 
Deductible: $1,260 (was $1,216 last year)

Part B   
Deductible: $147 (no increase from last year)
Premium: $104.90/month (no increase from last year)   

Premiums for high income beneficiaries, rates based on 2013 income:
  • Married couples with annual income between $117,000 - $214,000 and individuals with annual income between $85,000 and $107,000: $146.90/month (no increase from last year)
  • Married couples with annual income between $214,000 - $320,000 and individuals with annual income between $107,000 and $160,000: $209.80/month (no increase from last year)
  • Married couples with annual income between $320,000 - $428,000 and individuals with annual income between $160,000 and $214,000: $272.70/month (no increase from last year)
  • Married couples with annual income in excess of $428,000, and individuals with annual income in excess of $214,000: $335.70/month (no increase from last year)
Note: rates differ for married couples who file separate tax returns.

Hospital co-payments 
  • Days 61-90: $315/day (was $204 last year)
  • Days 91 days or greater: $630/day (was $608 last year)

Skilled Nursing Facility co-payments
Days 21 - 100: $157/day (was $152). Note that Medicare does NOT cover long-term, custodial nursing care!

You can find more information on 2015 Medicare costs here.

Oct 28, 2014

Glenn Campbell's Alzheimer's journey revealed in documentary film

Grammy-award winning musician Glen Campbell was diagnosed with Alzheimer's Disease in 2011, but he kept playing music for as long as he could. He hit the road for his farewell tour, making light of his ailment, raising public awareness of Alzheimer's, and of course, entertaining his loyal fans. You can read my prior posts about Campbell here and here

Campbell, now 77, is no longer able to perform and lives in a long-term care residence. He has two guitars in his room which he will still pick up from time to time, his wife says.

Filmmaker James Keach followed Campbell and his family during the Farewell Tour's 150 shows. He and Campbell's wife gave a touching interview to NPR Radio about the musician and his journey through Alzheimer's. Click below to listen.



Oct 26, 2014

Keep your eyes open when visiting aging parents at Thanksgiving

Calls to assisted living residences always spike right after Thanksgiving.  That's not coincidence: Those calls are from adult children concerned about the parents they just visited. Our office gets more calls from adult children at this time, too.

Thanksgiving is is one of the few opportunities many children and parents have to spend time with one another. If you're a parent, why not take a few moments to tell your adult kids about where your important documents are, and how to access them? What you would like them to do in the event you have a medical crisis? Give them some general idea of your finances? (You don't need to discuss specific inheritances, or show them bank statements.) This key information will prevent your children from being blindsided if you become disabled, run into a medical emergency, or when you pass away. If your kids express discomfort with the conversation, let them know it gives you great peace of mind to provide them with this information, and that you really appreciate them hanging in there for "the talk."

On the other hand, if you are an adult child who wants to initiate this conversation, you may find your parents resistant. You can't make your parents talk, and you certainly don't want to turn your holiday visit into an inquisition! Let them know you really would like the information for your own peace of mind, so that you will have some idea of what to do if they run into trouble. 

If your parent still resists, just look around: You can learn a lot about their circumstances through casual conversation and observation.What should you look for? For starters, is the house in good order? Are there unopened bills piling up? Is the house physically safe? Is your parent exhibiting any out-of-the-ordinary behaviors? Showing signs of significant declining health like weight loss or a different gait? Are the refrigerator and pantry stocked? If you go for a drive with your parent, how is his/her driving? Does your parent's hearing and vision seem okay? If your parent wishes and you are in town for a sufficiently long period of time, your parent might even want you to accompany him/her to a doctor's appointment or two. This is also a good time to get a list of their doctors and prescriptions.

If you parent is forthcoming, find out about their safe deposit box, insurance coverage, and whether they have a durable power of attorney, living will, trust or will. If they have these documents, where are they kept? I have had people tell me they it was only when they inquired about these matters during a family get-together that they learned they had been named as their parent's attorney-in-fact, trustee or personal representative! If your parents have not done any estate planning,  this is a good time to encourage them to do so.

The AARP offers a good checklist of what to observe and ask when visiting your parents. But go slowly and go easy. Remember, this is Thanksgiving. Enjoy!
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