Turning the Negatives into Positives During Challenging Times
Take Your Power Back from COVID-19: Estate Planning Steps to Protect Yourself and Your Loved Ones
News about the coronavirus is everywhere. We have all been affected by it in some way, even if we are completely healthy. It may seem as though circumstances are spinning beyond our control, but we are not powerless. There are some steps we can take in order to protect ourselves and our families, both physically and financially.
First, we can use caution in our interactions with others to ensure their health as well as our own, being sure to stay the recommended distance away from others, especially those who are more susceptible to illness, and washing our hands to avoid spreading germs. COVID-19 is a dangerous virus for some people, but the good news is that a large majority of people have not been infected. Most of those who have become ill are fully recovering.
Constant news reports about COVID-19 have brought the wellbeing of ourselves and our families into a sharp focus, highlighting the importance of planning for the unexpected. A second step you can take to ensure the welfare of your family is to pull out your estate planning documents and take a close look at them. Be sure to verify that they still reflect your wishes and are able to accomplish your goals.
As you review your documents, ask yourself a few important questions:
Would your last will and testament and/or revocable living trust still help you to achieve your goals? In your will, you have specified how you want your money and property distributed to the beneficiaries that you have chosen. In addition, if you have minor children, you probably have named a guardian in your will to care for them if you cannot, and perhaps you even specified a caretaker for your pet. In your revocable living trust, you likely named a trusted person to be your co-trustee or successor trustee to step in to manage the money and property held in the trust even during your lifetime if you are unable to do it yourself. In addition, you specified how the money and property in the trust should be distributed to beneficiaries you have named in the trust document once you pass away.
Life is constantly changing, so it is important to review not only the people you have named as beneficiaries, but also to consider whether the people you named to act as your executor or trustee are your top choices today. Even if you are still comfortable with your previous choices, are the individuals you selected currently available to act in those roles? Is the person you chose to be the guardian of your children still available and willing to care for them? If several years have passed since you first drafted your documents, your executor or trustee may be unwilling or unable to serve due to unforeseen circumstances. In the current crisis, the person you have selected may be unavailable due to illness, quarantine, or a stay-at-home order, and if he or she lives out of state, may be subject to travel restrictions.
Are you still comfortable with the people you have named to be your personal representatives under your medical and financial powers of attorney? In your medical power of attorney, you named a person that you trust to make medical decisions for you if you are too ill or unable to speak for yourself. In your durable financial power of attorney, you designated an individual to make financial and property decisions for you should you become unable to manage your own affairs. As mentioned above, because of the prevalence of stay-at-home orders, travel restrictions, and self-quarantines, make sure the person you have chosen is currently available to act as your agent. Consider designating individuals you trust but who also live close by to act in these roles. [Consider this also if you have young adult children who might need medical and financial powers of attorney.]
Does your living will or advance directive, the legal document that spells out your wishes concerning end-of-life care, still accurately reflect your wishes? For example, Would you like to receive life support if you are in a persistent vegetative state or if you have a terminal condition? Make sure family members have a copy of it or know where it can easily be found to ensure that they will not have to guess about what you would want if you become very ill and are unable to communicate your wishes.
Do you need to modify or update the beneficiary designations of your retirement accounts and insurance policies? If you have already named beneficiaries, now is the time to make any changes that are necessary to reflect your current wishes.
Do you have a list of legal, financial, and medical professionals who have performed or are still performing services for you, and if you do, is this list up to date? The list should include their contact information so your family can easily reach them in the event their help is needed if you become ill or if you pass away. In addition, ensure HIPAA authorizations are in place with medical professionals to ensure your family members are able to obtain needed information.
Do you have a current list of all your accounts and important documents? The list should include bank and investment accounts, titles to vehicles and homes, credit card accounts or loans, digital accounts (e.g., Facebook, LinkedIn, and Twitter) and passwords, Social Security cards, passports, and birth certificates, which may be needed to manage your property if you become ill, or to settle your estate if you pass away.
If you have these documents in place, you are well prepared! If your estate plan needs updating or if you don’t have an estate plan, this is something you can do today to prepare for the future. We have put procedures in place aimed at safeguarding your health during the current health crisis and are happy to meet with you over the phone or via a videoconference. Our primary goal is to help you have peace of mind about the future—regardless of the circumstances. Eventually, this crisis will be over (and that day can’t come too soon!), but right now, we want you to know that we are still here for you: Please give us a call at 609-580-1044 to take action to ensure the best plan is in place to provide for your care and for your family.
Does My Living Will Language Affect My Treatment if I Get COVID-19?
Blog last updated on June 21, 2021.
Based on recent news and the availability of vaccines, we may be able to assume that the worst of the COVID-19 pandemic is finally behind us. Yet, thousands of people are still getting hospitalized on a regular basis.
When imagining emergency care for COVID-19, the minds of many people automatically drift to one medical device: the ventilator. This possibility has many people thinking: will COVID-19 activate my Living Will? There is a common language in a Living Will stating that in the event your Living Will is activated, you do not wish to be put on a ventilator and instead would like to be allowed to pass away naturally.
The truth is that there are strict conditions under which a Living Will must be activated, and they almost never apply to acute diseases like COVID-19. While the death toll across the nation from COVID-19 has admittedly been staggering, an incredibly small window of patients would experience conditions that would activate their Living Will. This is because Living Wills pertain to diseases that are considered terminal, and COVID-19 is an acute disease considered treatable.
If you are thinking about changing the terms of your Living Will or planning ahead in the event of an unforeseen event, then there is no time like the present to revisit these matters. While COVID-19 may not impact your Living Will, some other conditions might, so let your concerns motivate you to review your plans and change them as necessary.
Our New Jersey estate planning attorneys are here for you. Call us today at 609.580.1044 or contact us online to schedule a no-obligation appointment.
Does Needing a Ventilator During COVID-19 Treatment Activate My Living Will?
A ventilator is a machine that can breathe for you. It does so by forcing oxygen into the lungs and pulling it out again, aiding patients who are not able to breathe on their own. Since COVID-19 is a respiratory illness, many patients suffering from severe cases require the use of a ventilator during their treatment.
Generally speaking, physicians have guidelines to treat any patient to the best of their ability and using all reasonable and necessary means. With an acute respiratory disease like COVID-19, the survival rate for patients can be very high, especially if they receive prompt medical intervention. This survivability means that, in nearly every case, every doctor treating a COVID-19 patient will act as if the case is treatable right up until the moment the patient dies.
In any case, treatment for an acute disease like COVID-19 differs from a terminal, chronic diseases like stage 4 lung cancer, where medical knowledge tells us that survival is almost impossible once the disease has progressed so far. In cases where the medical consensus assumes the patient will not make it, doctors switch from life-saving care to palliative care. Palliative care means providers aim to make the patient comfortable, rather than trying to continue saving their life using any means necessary.
What this means is that a COVID-19 case — even a severe one in a patient with pre-existing conditions — is very different from a terminal illness. Even if a doctor knew there was a near-100% chance a patient would die, they would still provide life-saving treatment for as long as possible.
The only exception would be for cases where COVID-19 symptoms or related complications caused a patient to fall into a vegetative state or irreversible coma. If a patient's body continued living but they were unconscious for several days or more, and the attending physician has no reason to think the patient might recover, then the terms of the patient's Living Will may be activated. These cases are outliers, meaning they are extremely uncommon, and they most often occur in individuals who are older or who have severe pre-existing health complications.
When Is My Living Will Activated?
A Living Will is an estate planning document that allows you to express your wishes regarding the treatment you will receive during end-of-life care. Some Living Wills appoint a healthcare representative, similar to a power of attorney, who has the authority to make the ultimate decisions concerning your end-of-life care. Others do not appoint an agent and state that the physician must adhere to the decisions you have described in the document. The term to note when determining if the terms in your Living Will will apply to a situation is “end-of-life care."
In order for your Living Will to be activated, three facts have to exist: (1) your attending physician must agree that you are terminally ill, (2) you are in a vegetative state or an irreversible coma, and (3) your attending physician concludes there is no hope of recovery from this condition, and death is imminent if continued life-sustaining measures are not taken.
As with all legal documents, every Living Will is governed by its own terms, so be sure that you take the time to review your own Living Will to be sure that you are comfortable with its terms. If you do not have a Living Will or have questions or concerns about your existing one, you should contact an elder law attorney soon.
In some cases, you will see Living Will terms within the same document as your general Health Care Power of Attorney (Advance Health Care Directive). This makes it impossible to prevent the physician from seeing your end-of-life treatment preferences before the time comes to use them. Physicians should be aware of this standard and should not look at your Living Will unless life-sustaining measures are indeed necessary. If your current health care directive is a combined document and you would like to divide them into separate documents, contact an elder law attorney.
Putting that standard into the context of COVID-19, a doctor should not be looking at your Living Will unless all prongs of the standards above are met. If your attending physician believes that there is a fighting chance that you can recover from your condition, your Living Will is not activated, and you should be able to receive ventilator treatments, even though your Living Will expressly states that you do not want these end-of-life treatments under similar circumstances. Even if you are terminally ill, have been diagnosed with COVID-19, and unconscious, your Living Will terms will not be activated if the doctor believes that, using this ventilator, there is a chance you could make a significant recovery.
Review Your Living Will and Advanced Directives, and Prepare Ahead With New Jersey Estate Planning Attorneys
While there is so much talk about ventilators these days, you can rest easy knowing that you will not be denied any treatments that could allow you to make a full recovery, regardless of the language in your Living Will.
Times like these remind people of the importance of Living Wills that are up-to-date. After all, Living Wills are important documents to have in your estate plan.
Van Dyck Law assists its clients with the development of Living Wills, Health Care Powers of Attorney, and many other estate planning documents and long-term care planning. We continue to be here for you amid the pandemic, and during this time of social distancing, we are offering consultations via video or phone. Call us at 609.580.1044 or contact us online now to schedule your consultation.
National Health Care Decisions Day is Approaching
National Healthcare Decisions Day (NHDD) is recognized on April 16 each year. Its purpose is to inspire, educate and empower the public and healthcare providers about the importance of advance care planning. The NHDD initiative encourages patients to express their wishes regarding healthcare. It also encourages providers and facilities to respect those wishes, whatever they may be. NHDD was founded in 2008 to provide concise, clear and consistent information on healthcare decision-making to both the public and providers. The widespread availability and dissemination of simple, free, and uniform materials and content to guide folks through the process.
It is ironic and sad that NHDD will occur this year during a global pandemic. As a result, during this unprecedented time of social distancing and other mitigation measures, many live NHDD-related events have been cancelled. Advance care planning remains as important as ever. The ongoing COVID-19 crisis serves as a reminder of the importance of doing advance planning should you ever be stricken with an illness or medical condition that could render you incapable of making an important decision about your own healthcare.
An Advance Health Care Directive is a document that allows you to appoint a person, or group of people, to be able to make healthcare decisions on your behalf in the event you are unable to do so. This document can be written so that you are still in control of your health care decisions for as long as you are able, even by blinking your eyes, to make informed healthcare decisions. It also allows you to tell your medical providers who they are allowed to consult if you are unconscious or incapacitated.
It is important to ensure that your healthcare documents include evidence of your wishes for end-of-life treatment or living will provisions. If you were in a vegetative state and your physician determines that there is no realistic hope of a recovery, would you want to receive artificial nutrition (tube feeding) to keep you alive as long as possible? Would you rather receive comfort measures and be allowed to pass away naturally? You are in control of all these decisions, and these documents allow you to give a written record of your wishes now to ensure they are respected, even if you are not able to express them in the future.
At Van Dyck Law, we assist clients in developing Health Care Powers of Attorney, as well as numerous other types legal documents and advance planning. We are a full-service elder law firm that specializes helping our clients prepare for their second half of life, and we remain open and in remote operation to serve our clients during the COVID-19 outbreak. For more information, call 609-580-1044. We help you plan for life ahead.
What Can I Do When I Cannot Visit My Aging Loved One Due to COVID-19?
COVID-19 has changed all our lives in a dramatic way. Senior Living Communities are following the CDC recommendations and restricting all visitors, volunteers and any person considered non-essential. There are some exceptions in end-of-life matters.
Activities and traditional mealtimes have changed. Social distancing is in effect and can lead to feelings of loneliness, anxiety, and fear in these patients and residents. Since seniors are at high risk of developing severe illness or even dying from COVID-19, these communities must take critical measures to minimize exposure to the virus.
Seniors with dementia are likely to be frightened with increased agitation and confusion because they are not sure what’s going on and they are now in an unfamiliar situation. It’s also hard to explain what social distancing is to these seniors, and why it’s important right now. Or something as simple as washing hands can be a challenging task with someone who is agitated or more confused.
Staff in care communities are trying to keep communication going by use of technology, but depending on the older adult’s capabilities, this communication may be limited. We have seen beautiful stories of staff arranging visits through a window, but chances are, someone with dementia may not quite understand why they cannot see their family member, and this may agitate them even further.
Call the activity director at the care facility to try to schedule a call for someone who cannot initiate a call on their own. If using technology is scary to your loved one, then schedule a telephone call with the staff so you can speak to your loved one.
Mail letters or care packages to your loved one Include favorite snacks and family photos or small photo albums. Most of all include messages of love. You can even email messages more often to the activity directors to print out to give to your loved one.
For loved ones who are safe and social distancing at home, plan a visit via FaceTime or Zoom and of course, the telephone is always an option. Have the kids make pictures to mail or drop off and prepare care packages with your loved one’s favorite healthy goodies. Have food delivered locally or drop off groceries so that your loved one does not need to head out to the grocery store during this time.
There are resources for your loved one out there if you cannot do the shopping due to your own health. If you need local resources, please feel free to call Van Dyck Law at 609-580-1044. We specialize in Elder Law and Elder Advocacy and can help you find a connection for your loved one.
My Spouse Needs a Nursing Home. What Will That Mean for Me?
The Medicaid rules for long-term care are complicated; however, these rules are meant to prevent the healthy spouse (also known as the community spouse) from becoming impoverished because his or her spouse needs care in a nursing facility or at home. The New Jersey Department of Aging Waiver Program pays for in-home care for someone that would otherwise need nursing home care.
When a spouse requires long-term care, a resource assessment will need to be completed. This assessment determines what portion of a couple’s countable resources can be protected for the spouse who is living at home in the community (the healthy spouse). Of the amount of countable assets1 reported, the spouse living in the community can keep one-half up to a current maximum of $128,640. The other one-half of the resources must be spent down before the spouse who is residing in the nursing home will qualify for Medicaid benefits.
One way to spend the excess resources is to pay for monthly care at a rate of $12,000 (on average) until these resources are gone; then, the spouse who is residing in the nursing home will qualify for Medicaid benefits. However, there are other options:
- If the income of the spouse who is living in the community does not meet his or her monthly housing expenses, that spouse is able to protect additional resources through the use of a special kind of annuity. Using this annuity option, the spouse who is living in the community may be able to protect a large portion, even all, of the excess resources. If done properly, the spouse who is residing in the nursing home may qualify for Medicaid immediately. These excess resources can be used for anything that would benefit either the spouse living in the community or the spouse residing in the nursing home. These resources can be spent on things such as home improvements, furniture, appliances, computer equipment, irrevocable burial accounts, and a new car, to name just a few. When these excess resources are “spent down,” the spouse who is residing in the nursing home will then qualify for Medicaid benefits.
- It is still possible to give assets away. Please be aware if assets are given away during the five year “look-back” period, a period of Medicaid ineligibility (or a penalty) is created. This period of ineligibility is one month for every $10,458.77 given away.
There are additional ways to preserve excess resources from the cost of long-term care. For example, if there is a child who has a disability or a child who has provided care, there are special Medicaid rules that allow assets to be protected from long-term care costs.
The Medicaid rules are very complicated; therefore, it is important to get good advice when faced with the decision of how to protect assets from the rising costs of long-term care. Contact Van Dyck Law at (609) 580-1044 to schedule your consultation.
1 Countable assets are things that are considered available to pay for long-term care. They include such things as bank accounts, stocks, bonds, certain annuities, investment accounts, certain non-resident property, and the cash value of life insurance, to name just a few. There are certain assets that are not available to pay for long-term care. These include the home of the applicant or spouse, term life insurance, a small amount of whole life insurance, personal property, irrevocable burial accounts, and cemetery spaces.
Flexible Meetings for Clients
Van Dyck Law Has Exiciting News to Share!
We have some very exciting things happening at Van Dyck Law! Fiona Van Dyck, Managing Attorney and Sheli Monacchio, Director of Life Care Resources recently attended the 2nd Annual National Alliance of Attorneys for Alzheimer's planning in Tempe, Arizona from Jan. 31 to Feb. 1 to meet with over 75 other leading elder law attorneys and key staff from across the nation.
While at the conference, Fiona and Sheli completed the training to be Certified Alzheimer’s Disease and Dementia Care Trainers (CADDCT) with the National Council of Certified Dementia Practitioners. We are proud to make the official announcement that as CADDCT trainers they will now be able to provide the state of the art and comprehensive ADDC Alzheimer’s Disease and Dementia Care curriculum to health care professionals and the community. We will be offering this training, which is the training required to become a Certified Dementia Practitioner (CDP®), in The Education Center at Van Dyck Law coming this Summer and throughout New Jersey and the surrounding area. The CDP® also commits to ongoing professional development through NCCDP Staff Education Week or other educational opportunities and re-certification every two years. The NCCDP remarks that the "CDP® certification reflects a deep personal commitment on the part of the front line staff, health care professional and the organization’s sense of accountability by abiding by the NCCDP ethics statement, inspiring confidence and dedication in an individual's professional knowledge through quality of life and quality of care provided by the CDP® to the dementia patient." The goal of the NCCDP is to develop and encourage comprehensive standards of excellence in direct-care skills, education, and sensitivity in the area of dementia care.
We are so excited to bring this to our practice and continue to be an educational resource to our care partners! Be on the lookout for posted classes, and if you would like information how to hold this class in your company or community for your staff, please reach out to Sheli by emailing .
Important Changes to the Tax Code for Retirement Accounts
As part of the spending bill passed by Congress and signed by the President in December 2019, the Setting Every Community Up for Retirement Enhancement Act of 2019 (otherwise known as the “SECURE Act”) is now law and has been in effect since January 1, 2020. This law changes the way required minimum distributions in IRAs and Roth IRAs are treated as you age as well as when they are inherited by your beneficiaries. Prior to the SECURE Act, owners of an IRA were required to begin taking required minimum distributions (RMDs) from their IRAs at age 70½. Once the IRA holder passed away, the RMDs a non-spouse beneficiary had to take were determined based on the life expectance of the beneficiary. For example, if you designated a 45-year old child as a beneficiary of your IRA, he or she may stretch those RMDs across his or her life expectancy, which allowed beneficiaries to stagger income taxes across a larger period of time while taking advantage of tax-free growth on funds remaining in the IRA.
After the passage of the SECURE Act, IRA owners are now allowed to postpone RMDs until age 72, allowing more time for tax-free growth for the account owner. This law removes the prohibition on IRA contributions after age 70½, allowing individuals to contribute to their IRAs for a longer period. Although this is good for those trying to reduce their taxable income for as long as possible, it could certainly result in larger IRAs at time of death, which will be passed to your beneficiaries and subject to their income tax calculations.
The Effects of the SECURE Act on inherited IRAs
Under the SECURE Act, IRAs and Roth IRAs, with some exceptions, must be paid to the designated beneficiaries within ten years following the owner’s death. The entire balance of an inherited traditional IRA will be income taxable to the beneficiary within ten years following the owner’s death. Exceptions to this ten-year rule include beneficiaries who are the owner’s spouse, the owner’s minor child, disabled, chronically ill, or are less than 10 years younger than the account owner. If one of these exceptions are met, or if the IRA is left to a trust of which one of these persons is the direct beneficiary, the previous life expectancy rule will apply.
What About your Existing Trusts?
If you have a trust as a beneficiary of an IRA, it is important to think about how this law will affect the tax ramifications for your beneficiaries following your death. If you have minor children or children with disabilities, you can create a direct beneficiary trust or supplemental needs trust for the benefit of that person to avoid the new ten-year rule. If you have not done so recently, this would be a good time to have your trust reviewed to ensure that it is compliant with this new law. It is important to be sure that tax calculations are still advantageous to your beneficiaries.
What Should I Do?
Give us a call to schedule an appointment to review your estate plan ESPECIALLY IF YOU HAVE NAMED TRUSTS AS YOUR BENEFICIARIES and to discuss any questions you may have about your retirement plans. If you have traditional or Roth IRAs, this is a great time to review your existing beneficiary designations and estate plan with a qualified professional.
Is Alzheimer's Disease Impacting You or Your Family?
In 2020, it's estimated more than 5 million Americans will be affected by Alzheimer's Disease, which is why Fiona Van Dyck has published two new books for people who have been impacted by Alzheimer's Disease. Each book is designed to be read in about an hour and gives readers a helpful path of information and encouragement based on years of experience in helping others on the same journey.
You're Not Alone: Living with Alzheimer's Disease was written for the person who has been recently diagnosed with Alzheimer's and encourages and guides them to prepare for this chapter in life. Each chapter in this easy-to-read book provides important information and resources to protect loved ones (including pets) and maintain independence for as long as possible.
The Second Book, You're Not Alone: Living as an Alzheimer's Caregiver is written for family members and loved ones who are caring for those with Alzheimer's Disease. These individuals need to know what resources are available to help them as they help their loved one and this book offers an excellent collection of tips, ideas and resources available.
In describing why, she published these two books, Fiona shared the following comments. "As a resident of this area, I've seen hundreds of individuals and families affected by Alzheimer's Disease. The news of diagnosis and the responsibility of care that goes along with it are profound and life-changing." She continues, " It's my personal mission in life to help, encourage and guide both the diagnosed and his or her caregivers. I want them to truly know, that they are not alone, and my team and I are here to help when needed."
For a limited time, Fiona is giving away copies of each book at no cost. There is no obligation and you can read them in the privacy of your home. Just give our office a call at (609) 580-1044 or email to request your copy of the book of your choice. You can arrange to pick them up or we can mail them to you!