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

Stephen R. Elville, Esq., Principal at Elville and Associates, spoke at the Anne Arundel County Department of Aging’s 24^th Annual Caregivers’ Conference on Saturday, April 16^th on the topic of “VA Aid & Attendance,” and on Wednesday, April 27^th will be discussing with members “Enhancing the Maryland Statutory Power of Attorney” at the Anne Arundel Bar Association’s Continuing Legal Education Series.

In keeping with Elville and Associates’ mission of education and counseling and providing the very best in legal-technical knowledge to its community and advisory team partners, Mr. Elville regularly speaks to organizations and their members like these throughout the year covering the latest topics in the world of elder law estate and special needs planning.

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.  In 2014, he also founded the non-profit organization, The Elville Center for the Creative Arts.

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.

Please visit our events page for a complete list of Elville and Associates’ upcoming speaking engagements.  If you are interested in having Mr. Elville speak at an upcoming event for your organization, please contact Jeff Stauffer at jeff@elvilleassociates.com or fill out the form below.

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By: Stephen R. Elville, Esq. – Elville and Associates, P.C., steve@elvilleassociates.com, 443-393-7696, 

Asset protection takes different forms depending on the situation.  During lifetime, with the exception of domestic asset protection jurisdictions such as Delaware, Nevada, Alaska, South Dakota, Wyoming, and approximately nine (9) others, asset protection is difficult to achieve, except in certain routine but little understood assets owned by most people, such as husband and wife property, IRAs, qualified plans, life insurance, and annuities.  Conversely, providing asset protection at death is relatively easy to achieve, through the use of spendthrift trusts for spouses, children, and other beneficiaries.  Somewhere in between lifetime asset protection and the asset protection provided to loved ones at our deaths is the world of long-term care asset preservation.

Asset protection in the long-term care context is difficult to understand, mainly because the subject has traditionally been shrouded in mystery due to a lack of available information and few educational resources.  In essence, this subject can be broken down into three (3) easily understood subcategories:  (1) pre-crisis planning; (2) mid-crisis planning; and (3) crisis planning.  Pre-crisis planning usually involves a desire on the part of the individual or couple to preserve assets for the benefit of children and grandchildren, and includes a strong motivation to transfer or divest assets to children for purposes of starting the “five year look-forward period” for Medicaid (Medical Assistance in Maryland).  In this type of planning as in all planning, the client’s goal to preserve assets from Medicaid spend down is the driving force.  Income tax, control, and other fact-driven issues are key considerations.  As in all planning, legal counseling, not just legal-technical planning, is essential.  Pre-crisis planning, while goal driven, is best achieved where the individual or couple has sufficient income or other assets; or, alternatively, long-term care insurance, to sustain them in the event of a crisis during the five-year look-forward period, and ensure that the planning works as intended.

Mid-crisis planning presents in spousal situations where one spouse has learned that they have the beginnings of an illness, or is becoming impaired.  In such circumstances, and where appropriate, certain non-invasive asset protection measures can be taken to achieve preservation of funds should certain events unfold in the interim period prior to possible institutionalization of the ill spouse.

Crisis planning means that an institutionalization (usually placement in a skilled nursing facility) has occurred or is getting ready to occur.  In such situations involving spouses, state and federal law provide for the protection of the community (non-institutionalized) spouse (protections for income and assets).  In non-spousal situations, fewer protections are available.  However, in general, under the current laws approximately one-half (1/2) of the assets of an unmarried individual can be preserved while still attaining his or her Medicaid eligibility.

In this brief blog article, I have attempted to outline and simplify the fundamentals of asset preservation as applicable to most seniors.  The advice and counsel of a competent elder law attorney is absolutely essential, along with the assistance of your CPA and financial advisor as part of the planning team.  And in any event, comprehensive estate planning documents, especially updated financial powers of attorney and advance medical directives, are indispensable and essential tools without which planning opportunities may be limited, or even lost.  As in all estate and elder law planning, thorough plan implementation, along with annual or bi-annual maintenance and updating, is necessary for plans that work.

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