Authored by: Stephen R. Elville, J.D., LL.M. — steve@elvilleassociates.com, 443-393-7696

There is a subtle but unmistakable trend in estate planning and elder law in 2016.  Not surprisingly, this trend is being driven not by the legal community, but by market forces – estate planning and elder law clients.  The trend is this:  clients are increasingly demanding to be cared for – they are seeking and demanding attorney-client relationships where formal client maintenance and updating programs are offered – they are asking attorneys to stop engaging in the long-time practice of limiting the scope of their representation to such an extent that individuals and families are left with plans that are likely not to work over the long term due to many factors, including no commitment on the part of attorneys and law firms to a caring for clients model, and where there is no continuing relationship with the attorney or law firm.

This trend, like all value-based concepts, has its origins in foundational principles.  Would a sane person knowingly engage in the estate planning process – enter into a relationship with a law firm, share their most personal information, invest time, effort, and money, and make plans for the future based on the planning, if they knew that the plan was likely not going to work as intended and contemplated during the planning process?  Of course not.  Yet, this is what happens in estate planning and elder law each and every day.  The answer:  client maintenance and updating (client care).

To understand client care in estate planning, elder law, and special needs planning is to understand how planning actually works – or more exactly, how it doesn’t work.  In this brief article, we will explore the fundamentals of client care, the mechanics of how it works from plan inception and throughout the following years, and how it ultimately accomplishes its inherent goal of ensuring that planning works as intended, with the added benefit of cost minimization in final administration as a likely natural by-product.

Understanding client care is simple – it is treating the estate and elder law planning experience as more than a one-step process, and understanding that planning is not just a set of physical documents, but a lifetime of maintaining and updating those documents on a recurring, predictable basis, with the expectation that through follow-up and on-going counseling in a partnership-type relationship between attorney and client, in coordination with the client’s financial advisor, CPA, and other advisors, all aspects of planning are addressed, including the alignment of assets in harmony with the planning structure.  Traditionally, estate planning has been limited to one step – the design and implementation phase.  It is at this point where most failures in estate planning occur – that’s right, this is where failure happens practically from the very beginning, and as mentioned above, the point where if most clients realized their plans were subject to failure from inception they would likely choose to not plan at all.  This is where plan failure begins because clients are traditionally counseled that the set of documents they obtain is the estate plan.  Nothing could be further from the truth, and proof of this is best summarized in the following statement:  in estate planning, ultimately the only thing that really matters is the answer to this question – how were the assets titled and what were the beneficiary designations at the time of death?  The estate planning documents are ancillary and of secondary importance – they are merely tools by which to control the flow of assets and/or direct them.  Without proper titling, designation, and assignment (asset alignment), documents in and of themselves are potentially useless.

Rather than limiting oneself to a one-dimensional process (the design and implementation phase only), estate and elder law planning is a three-step process, inclusive of the following:  (1) design and implementation; (2) maintenance and updating (the client care process); and (3) success in final administration.  Although many analogies are applicable, perhaps the garden analogy best illustrates the truth of the planning process.  To have a successful garden, one must till the soil and carefully prepare the ground for planting, carefully designing the rows or patches, determining what yield is expected and what aesthetic look is desired, and thereafter the seeds are planted.  Then rain comes, and sometimes the wind blows; or at other times the rain does not come and measures must be taken to provide needed water to the plants; but then animals or insects may come and eat the plants or vegetables, frustrating your efforts.  And all during the growing season you must maintain the integrity of the garden by weeding, tending to the plants, placing stakes where necessary, spraying, and otherwise monitoring things on a consistent basis.  After considerable attention in time and effort, assuming the soil is good, the garden yields an abundance of tomatoes, corn, egg plant, yams, beans, squash, broccoli, watermelon, or whatever other plants were cultivated, usually in relation to the amount of planning and care expended in anticipation of a successful harvest.  Estate and elder law planning is the same – in our ever-changing and fast-paced world, one of the only things that is certain is we must recognize and adapt to change – we must implement planning with the understanding that it is not static, but constantly evolving.  Along these lines, the only way to assure the success of your planning, and ultimately the success of your beneficiaries through planning, is to focus on the following:  make sure your voice is heard – engage in planning only with an attorney/law firm that cares enough about you, your family, and the success of your planning to offer a formal client maintenance and updating (client care) program, and that has as its core mission, vision, and philosophy the education of clients and their families, and a commitment to a caring for clients model.

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Authored by: Olivia R. Holcombe-Volke, J.D. – olivia@elvilleassociates.com, 443-393-7696

When 529 college savings plans first arrived on the scene (Section 529 of the Internal Revenue Code was adopted in 1996), the primary motivation was addressing the reality of rising college tuition. Through various subsequent iterations, including those of the Economic Growth and Tax Relief Reconciliation Act of 2001 and the Pension Protection Act of 2006, qualified distributions became tax-free, rollovers became allowable, and account owners became able to make some investment changes, expanding the appeal of 529 plans beyond merely paying for the ever increasing costs of college.

What is a 529 plan? Legally known as a “qualified tuition plan,” a 529 plan (so called because authorized by Section 529 of the Internal Revenue Code) is a tax-advantaged savings mechanism to pay for future college costs. There are two types:  a pre-paid tuition plan, and a college savings plan. With a pre-paid tuition plan, units or credits toward future tuition and room and board are purchased from participating colleges and universities. With a college savings plan, an account holder establishes an account on behalf of a beneficiary (the current or future college student) in order to pay the beneficiary’s eligible college expenses. The account holder may select among various investment options for the contributions made to the account, with the particular college savings plan then investing the contributions on behalf of the account holder. Withdrawals from these plans can then be used at most, if not all, colleges and universities.

The tax implications of contributing to a 529 plan are almost exclusively positive.  Contributions to a 529 plan for the benefit of someone else will move assets out of one’s estate – thereby lowering potential exposure to estate tax.  Any growth in assets invested in a 529 plan will also avoid inclusion in the contributor’s estate.  Gift tax consequences are avoided if annual contributions remain at or below the annual exclusion amount (with no additional gifts in that year to the same beneficiary).  In fact, under special rules applicable to 529 plans, five years’ worth of the annual gift exclusion amount may be contributed (and a special tax election made) without gift tax ramifications; however, the contributor’s death during the five years following the contribution will result in the inclusion of a portion of the contribution in the contributor’s estate.  Finally, while contributions are not deductible for federal tax purposes, Maryland provides a deduction for contributions to the Maryland 529 Plans of up to $2,500 per beneficiary, per year, for contributions made that year, with contributions in excess of $2,500 eligible for deductions for up to the next ten (10) years (or until the full amount of contributions has been deducted).

A 529 savings plan account can be established for the benefit of anyone – a friend, relative, or anyone else – and that beneficiary can be changed at any time, without consequence, so that if a beneficiary receives a scholarship, or decides not to attend college, a new beneficiary may be named without penalty.  Additionally, there is no limit to the number of plans that can be set up.  The opportunities presented by contributing to 529 savings plans are immense:  for minimizing estate tax exposure; for providing a legacy that will be put to good use; for the ability to push assets out of one’s estate while still maintaining some level of control over their investment, use, and ultimate disposition.  This combination of benefits is unusual.  If any aspect of this technique is applicable or appealing to you, your estate, and/or your preferred beneficiaries, it is worth discussing with your estate planning attorney today.

Addendum:  On April 12, 2016, Governor Hogan signed the Achieving a Better Life Experience (ABLE) Act into law, joining thirty-nine (39) other states in providing a mechanism for many individuals who developed disabilities prior to the age of twenty-six (26) with the ability to open tax-exempt bank accounts to hold funds for use toward certain qualifying disability-related expenses, without the risk of negatively impacting eligibility for means-based government benefits.  Specifically with regard to 529 savings plans, the ABLE law provides for the Maryland 529 Board (formerly the College Savings Plans of Maryland Board) to establish and administer 529 accounts for individuals with disabilities, offering Maryland income tax subtraction modifications similar to those available for contributions to 529 accounts for non-disabled individuals (though more limited), and, most importantly, without the funds in such 529 accounts counting against an individual’s ability to qualify for means-tested benefits.

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¹ Nothing in this article is intended as tax advice.  All readers are advised to speak with a tax professional regarding any federal or state-specific tax applications.

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Matthew F. Penater — Of Counsel — The Penater Law Firm, LLC

One of the rules in estate planning is to ensure that upon the death of parents, assets are not directed outright to minor children. A bequest directly to a minor child requires a Court-Ordered Guardianship of the Property, at worst, or a Custodianship under the Uniform Transfers to Minors Act (“UTMA”), at best. A Guardianship of the Property can only be obtained through Court action and once obtained, annual accountings must be filed with the Court. Upon a minor’s 18th birthday, all assets subject to the Guardianship are distributed outright to the child, whether it is $100 or $1.0 million. A Custodial arrangement under the UTMA may be utilized under specific circumstances and does not require annual accountings to the Court. In addition, the child would not receive the assets subject to the Custodianship until age 21 instead of age 18. With that said, most estate planners and professional advisors would caution against an estate plan that results in an 21-year old receiving a lump-sum inheritance outright.  Handing over $200,000 in cash to a 21-year old could very well do more harm than good. The entire amount is available for the child to spend and is subject to the claims of any creditors of the child.

The tried-and-true solution to the above problem is to leave assets for a younger child in trust, with instructions to the trustee to utilize the trust assets for the child’s benefit, until the child is old enough to manage the assets. Traditional estate planning called for the trust assets to be distributed to the child, outright, once the child attained an age (or in fractional amounts at several different ages) that the parent felt was appropriate: ex. 35 years old. The idea being that at some point, the child should be in charge of his/her inheritance and be able to control how he/she enjoyed it. However, this created another potential problem – exposure to creditors. Once the assets are distributed from the trust to the child, those assets become exposed to creditors of the child (ex. divorced spouse). So how can we give the child control of the assets while still protecting those assets from most creditors of the child?

Solution: Beneficiary-Controlled Trusts

We can modify the traditional plan of leaving assets to a trust for young children by requiring the assets to remain in a beneficiary-controlled trust instead of being distributed to the child at a certain age, thereby exposing those assets to the creditors of the child. In addition, instead of distributing the assets to the child, he/she becomes trustee of the beneficiary-controlled trust at the age where the trust would have been distributed under traditional estate planning. That way the child is in control of the assets. Under the Maryland Trust Act, a beneficiary can be the sole Trustee of his/her own trust and the assets in the trust are NOT subject to the creditors of the beneficiary. So what have we accomplished under this plan? We have: 1) avoided the need for a Guardianship or Custodianship resulting in a large distribution to a young child; 2) given the child control over the assets as a Trustee when the child is old enough; and 3) protected the assets in the beneficiary-controlled trust from the creditors of the child.

If protecting your child’s assets at your death is of importance to you and requires more attention in your plan, contact your estate planning attorney to discuss the best solution for your situation.

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Authored by: Lindsay Moss, J.D. — lindsay@elvilleassociates.com, 443-393-7696

For many people caring for a loved one with disabilities, providing care in the home indefinitely is an unrealistic goal. As well-intentioned as most family caregivers are, the fact is that being a caregiver is extraordinarily hard.  Countless caregivers have come to Elville & Associates in crisis, burnt-out from the responsibilities of providing 24/7 care, not knowing where to turn. Acknowledging the extreme demands of being a caregiver and seeking help when at your wit’s end is OK! It is in the best interest of the disabled loved one to not be a burden, and to be cared for in an appropriate environment. This often means accepting the reality that the appropriate environment may be an assisted living or skilled nursing facility.

When a family caregiver has made the decision to start looking at placement options, they often don’t know where to start. Selecting the right place for one’s loved one to live can be an emotional roller coaster. And, added to the stress of having to place a loved one in a facility is the overwhelming number of options to decide between; a quick Google search on local facilities will shoot back over 20 million results.  However, there are many steps a caregiver can take to make the selection process more bearable. Understanding the difference between assisted living and skilled nursing is an excellent place to start.

Assisted living is often more desirable because of, among many things, the living spaces and the recreational activities offered. Assisted living facilities (ALFs) offer assistance with activities of daily living (ADLs) such as dressing and bathing. They also offer medication management and administration. Larger assisted living facilities can offer extensive ADL assistance, and often have separate memory care units geared towards individuals with moderate to severe dementia. Costs for ALFs can range from about $3,000 per month for smaller, independent facilities (5-12 individuals) to upwards of $10,000 per month for large, chain-type facilities (50-200 individuals). Generally, the bigger the facility, the more amenities available. The cost of assisted living is primarily paid out-of-pocket; however, long-term care insurance policies will pay benefits towards assisted living costs, and Veterans and their spouses may be eligible for Aid & Attendance pension benefits through the Veterans Administration that may be used to help offset the same.

Skilled Nursing Facilities (SNFs) are necessary for individuals who require a greater level of care  Rooms are generally semi-private, and recreational activities are available, but limited. Costs for SNFs can range from approximately $8,000 per month for smaller, independent facilities (50 individuals) to upwards of $15,000 per month for larger, chain-type facilities (100-200 individuals). Aside from the increased level of care offered in SNFs, the biggest difference between assisted living and skilled nursing is the source of payment. Once someone enters a SNF, depending on their financial situation, it may be time to start the process of applying and qualifying for Long-Term Care Medical Assistance (more commonly known as Medicaid). Once qualified, Long-Term Care Medical Assistance benefits will cover the costs of skilled nursing care that exceed the resident’s income.

After a determination has been made about assisted living versus skilled nursing, the next task is choosing a facility. Research is key, both online and in-person. Both Medicare and U.S. News and World Report publish yearly rankings of skilled nursing facilities throughout the country, both of which are extremely helpful in determining the appropriate placement for a loved one. It is always recommended to visit a facility unannounced, because one can get a better idea of how the ALF or SNF actually operates.There are organizations that can assist with the placement process. Many placement assistance organizations get a referral fee for assisting residents in the selection and placement process.

As one of the leaders in Maryland elder law, Elville and Associates helps clients with assisted living facility and skilled nursing facility placement. Our attorneys work with facilities throughout Maryland, and have a vast knowledge bank of experience. If you are contemplating the placement of your loved one outside the home, Elville and Associates is here to help you navigate the complicated and emotional process of selecting the facility that best fits your specific needs and budget, or that of your loved one.

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At Elville and Associates’ 2016 Annual Client Event, Elville and Associates’ principal Stephen Elville introduced its next generation Client Care Program (“CCP”).  The following is a brief general description of the CCP.  Stephen R. Elville and discussed the specific details of the CCP at the Client Event and answered questions.

Elville and Associates Client Care Program

Access to Attorneys and Staff

The members of our team will be reasonably available to answer your questions whether by telephone or email whenever and as often as you would like.

Client Education Services

Our Client Care Program coordinator will notify you and schedule your attendance for on-going educational workshops and client appreciation events – for you, your family members, successor trustees, and planning advisory team.  These workshops will feature topics such as recent changes to the trust and estate, tax, health care, special needs, and other elder planning-related laws, what successor trustees should do if you become disabled and when you die, how to maximize your Social Security benefits, and other topics in contemporary estate planning and elder law.  Each fall you will also be formally invited to our Annual Client Education Event.

Document Updates

We will review your estate plan whenever you reasonably request, and at least every two years, and we will update your plan as the laws change, when your personal situation or goals change, and as the nature and value of your assets change.  This will ensure that your estate and elder law planning will always be up-to-date.

Asset Review, Tracking, and Updating

We will provide regular reviews of your asset alignment and funding, and will also provide regular alignment updating to ensure that your estate or elder law plan is fully aligned and funded, and that consequently it will work as intended.

Family – Advisor Meeting

Within sixty (60) days after your estate or elder law-related plan is completed (or as soon thereafter as you can arrange for your family members to participate), we will provide you the opportunity to have a family – advisor meeting, to include members of Elville and Associates, your family members, and your financial and professional advisors (who will work together collaboratively to implement all aspects of your planning) so we can begin to (1) educate family members appropriately about the essentials of estate planning, (2) explain how your planning works, (3) answer any of their questions, and (4) describe the post-mortem process, including an explanation of how to administer and settle your estate (non-probate or otherwise) upon your death.

Coordination and Collaboration with Advisors

Our staff will be available to consult with your financial advisors, accountants, insurance professional, and geriatric care managers.

Additional Participation Benefits

We will provide free notary public services as and when needed and will provide copies of your estate planning documents to your advisors and others upon your request.  You will be enrolled in a health care document retrieval service called DocuBank which provides 24-7 access to your medical records and other documents.  You will also be provided with your own personal Everplan, a state-of-the-art digital archive for all of your essential information.

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By: Jeffrey D. Stauffer, Community Relations Director –  jeff@elvilleassociates.com, 443-393-7696

Elville and Associates is pleased to announce it will sponsor the 11th Annual Scarecrow Classic 5K Run and 1 Mile Walk, to be held on Sunday, October 4, 2015 on the University of Maryland-Baltimore County campus.  For detailed information and to sign up for the event, visit biamd.org as the event nears and more details become available.

According to the event’s website, “this event, hosted by the Brain Injury Association of Maryland will rally survivors, families, friends, and supporters around the common goal of raising awareness about brain injury within the community and providing much-needed funding to support the programs and initiatives of BIAMD.”

Elville and Associates fully supports the important mission of the Brain Injury Association of Maryland, which is “to create a better future through brain injury prevention, education, advocacy, and promotion of research.”  For more information about the BIAMD, visit its website at biamd.org and follow them on Twitter at @BIAMD.

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By:  Olivia R. Holcombe-Volke, Associate – olivia@elvilleassociates.com, 443-393-7696

It is common in meeting with clients who are either pregnant or have young children to learn that their driving motivation in contacting an estate planning attorney is to make sure their children are taken care of in the event that they (that is, the parents) die.  These clients should be applauded for addressing this important detail, rather than leaving it to chance.  As with all estate planning documents (such as Advance Medical Directives, Financial Powers of Attorney, Last Wills and Testaments, and Revocable Living Trusts), the main point is self-determination.  The law will generally step in and fill in the gaps, but leaving any decision up to the legal system is leaving it up to the determination of what’s important in the view of the legislature, and in the judicial discretion of the courts, and in the subjective opinions of those who choose or are able to participate.  For most parents, this is not the preferred method for determining who will care for their children in the worst case scenario when they are not alive to do so themselves.

In Maryland, the guardian of a minor may be appointed by the Last Will and Testament of the parent.  This testamentary appointment need not be approved by any court.  However, in the absence of a Will naming the guardian, a minor child (that is, someone under the age of eighteen (18) years old) who becomes parent-less will be subject to the proceedings of court, open to guardianship by any person who petitions the court for that role.  Again, if asked, most (if not all) parents would prefer to be the ones to determine who will care for their children if they are not alive to do so themselves.

If you or someone you know is a parent to a minor child, make sure the necessary documents are in place to address this vital detail in a worst case scenario situation.

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By:  Olivia R. Holcombe-Volke, Associate – olivia@elvilleassociates.com, 443-393-7696

When appointing agents to act on one’s behalf, whether in a fiduciary or non-fiduciary capacity, there are several decisions that can result in consequences far more complicated than one might anticipate.  One of these has to do with designating more than one agent to act at a time.

To clarify:  a common preference in designating agents to act on one’s behalf is to name two (or more) agents simultaneously, which then leads to the question of whether these agents must act jointly (but not individually), or, in the alternative, jointly (or individually).  In my experience, the motivation for naming more than one agent to act jointly (or, jointly or individually) is two-fold:  some are comforted by the idea that more than one person will have to sign off on decisions, or at least will be aware of decisions being made, rendering a built-in system of checks and balances; others are driven by the concern that by only appointing one agent at a time, feelings will be hurt or offense will be taken (agent #2 will feel “why wasn’t I named as agent #1?”).  

But what other considerations should be taken into account?  As a starting point, if two (or more) agents are named to act jointly (but not individually), this means that both (or all) will have to sign off on every decision – they will have to act jointly.  This can be problematic enough when the agents live in close proximity to one another; imagine a scenario where immediate action needs to be taken, and one agent is out of town or otherwise temporarily unavailable.  If the agents live in different locations, the complications can be greater – even in these modern, digital times.  And, whether two (or more) agents are appointed to act jointly (but not individually) or jointly (or individually), there are situations where simply having more than one agent empowered to act at the same time can lead to healthcare, financial, or other institutions refusing to recognize the authority of the agent(s), due to the institution’s refusal to face even the slightest risk of potential liability (on the basis of improperly allowing action to be taken by an agent, for example).   

As with all important financial and healthcare decisions, comprehensive counseling with a professional should play an integral role.

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By: Jeffrey D. Stauffer, Community Relations Director – jeff@elvilleassociates.com, 443-393-7696

Stephen R. Elville, Esq., Principal at the elder law, estate and special needs planning firm of Elville and Associates, was part of a panel discussion titled, “As Clients Age, the Next Wave of Challenges” at The Financial Planners Association of Maryland Spring Symposium on Thursday, May 26th in Columbia.

Also participating on the panel were Ms. Kim Natovitz of TriBridge Partners and Ms. Mary Faith Ferreto of Ferreto Elder Care Consulting. The three experts in their fields provided insight to the financial planners in attendance about what they are seeing in their work with aging clients.

The primary goal of the panel was to help the attendees understand the next wave of challenges with aging clients and the need to develop an understanding of what is to come so advisors are prepared to serve these clients now – as opposed to waiting for a crisis to occur.

Mr. Elville addressed the discussion from a legal perspective, talking about the importance of financial powers of attorney, maintaining agents and the overall importance of keeping documents up-to-date and staying in touch with clients through a comprehensive client maintenance and updating program, as well as the importance of having documents that provide flexibility for both the grantors and agents. Mr. Elville also discussed the importance of having a comprehensive planning team in place for clients – which would include an attorney, a financial advisor, insurance professional, geriatric care manager, and others as appropriate.

Mr. Elville works with individuals and families to provide a unique attorney-client experience and peace of mind solutions to the challenges they face with estate, asset protection, and tax planning issues, and with disability and a long-term care planning issues. He has extensive experience in working with clients involved in crisis situations. He also brings a unique and personalized approach to pre-crisis planning. Mr. Elville routinely handles clients issues in the followings areas: wills, trusts, powers of attorney, living wills/advance medical directives, Medicaid asset protection trusts, Medicaid planning and qualification, estate administration, fiduciary representation, nursing home selection, guardianships, special needs planning for children and adults, Social Security Disability Income (SSDI), Supplemental Security Income (SSI) and IRS tax controversy.

Mr. Elville was named to the Maryland Super Lawyers list for 2015, and is a member of the National Association of Elder Law Attorneys, Elder Counsel, Wealth Counsel, the Academy of Special Needs Planners, and the National Network of Estate Planning Attorneys. He currently serves as a member of the Maryland State Bar Association Elder Law Section Council and the Charitable Gift Planning Advisory Committee for Anne Arundel Medical Center. He also serves as Chair for Law Day Maryland.

He is a frequent guest presenter for banks and credit unions, businesses, associations, hospitals, and other facilities and groups. He provides continuing education for financial advisors and CPAs, and is a guest lecturer for the National Business Institute. Mr. Elville’s daily blog appears on WBJC.com and on elvilleassociates-staging.bgbshlgq-liquidwebsites.com and his articles have appeared in The Business Monthly.

Tags: financial planners
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By:  Jeffrey D. Stauffer – Community Relations Director, jeff@elvilleassociates.com, 443-393-7696

Elville and Associates is pleased to announce it will be sponsoring the Brain Injury Association of Maryland’s 19^th annual Eat A Peach Challenge Bike Ridge, to be held Saturday, August 13^th coinciding with Carroll County’s Farmers Market Peach Festival.

Individual riders and teams can choose from three different bike routes, including the “Peach Pit Century,” a tough 100-mile route, winding through Carroll and Frederick County’s countryside.

Elville and Associates will sponsor the fourth of six rest areas on the 100-mile ride in Taneytown, providing snacks, drinks, music and encouragement for the riders as they bike towards the end of their journey.

For more information about this year’s Eat A Peach Challenge Bike Ride, please visit biamd.org.

Elville and Associates also sponsored the BIAMD’s Scarecrow 5K this past fall on the campus of the University of Maryland, Baltimore County as well as the Association’s Annual Conference this spring and is pleased to announce it will be sponsoring the Scarecrow 5K again this fall.

Elville and Associates engages clients in a multi-step educational process to ensure that estate and elder law planning works from inception, throughout lifetime, and at administration.  Clients are encouraged to take advantage of the Planning Team Concept for leading edge, customized planning.  The education of clients and their families through counseling and superior legal-technical knowledge is the mission of Elville and Associates, and the firm proudly serves clients in central Maryland, the Washington metro area, and the Eastern Shore.

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