Authored by: Jeffrey D. Stauffer, Community Relations Director — jeff@elvilleassociates.com, 443-393-7696

Elville and Associates is pleased to announce its sponsorship of the National Alliance on Mental Illness Walk, to be held May 21st in Baltimore’s Inner Harbor. This is the second consecutive year the firm will be sponsoring NAMIWalks.

NAMI began its work in 1979 and has grown into the nation’s leading voice on mental health. Today, it is an association of hundreds of local affiliates, state organizations and volunteers who work in communities around the country to raise awareness and provide support and education that was not previously available to those in need.

The organization offers educational programs to families, individuals and educators; acts as an advocate to shape the national public policy landscape for people with mental illness and their families; and is a leader is raising public awareness about mental illness through events and activities, including Mental Illness Awareness Week (MIAW), NAMIWalks and other efforts.

For more information about NAMI and NAMIWalks, please visit www.nami.org
The estate planning, elder law and special needs planning firm of Elville and Associates, P.C., engages clients in a multi-step educational process to ensure that estate, special needs 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.

For more information, please call 443-393-7696 or complete the form below.

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By: Matthew F. Penater, Esq., Partner – Elville and Associates, matt@elvilleassociates.com, 443-393-7696
The first time most people think about getting a Will is when they have their first child. The common thought is “Who will raise our kids should both parents pass away?” This is a legitimate and serious concern. Naming a person or persons to serve as Guardian of your minor (under 18) children is of paramount importance. However, arguably the second most important consideration is what happens to your children’s inheritance should both parents pass away? This issue tends to be glossed over by parents who are not aware of the risks posed by leaving an inheritance to a minor child.

Generally, if a minor child is a beneficiary under a parent’s Will, life insurance policy, or other beneficial interest, then a Guardianship of the child’s property needs to be put in place. Establishing a Guardianship of the property requires a Court proceeding. In addition, whomever is named the property Guardian needs to file annual accountings to the Court. When that child turns 18 years old, the child inherits the entire amount, outright and free of any oversight. I don’t know about you, but if I received a $50,000 check at the age of 18, it would have been gone by the time I was 21. There is a simple solution to this problem. Instead of leaving your assets to your children outright in a Will or life insurance beneficiary designation, leave it to a Trust for your children’s benefit. You will name a person or trust company to oversee the inheritance and use it for your children’s benefit (ex. education, health, and support), while at the same time, ensuring the assets are safely invested so the assets can grow over time. You can structure the Trust for your children however you think is best: for example, you can have the Trust distributed to your children in thirds at ages 25, 30, and 35.

Leaving assets in Trust for your children: 1) prevents the need for a Guardianship of the property; 2) protects your children from themselves by ensuring they do not receive everything at age 18; and 3) ensures the assets will be used for their benefit in a measured way while also seeking some growth in the assets for eventual distribution to the children.

For more information, please call 443-393-7696 or complete the form below.

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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 Annual Conference, to be held March 24-25 at the North Baltimore Radisson Hotel in Timonium, Maryland.  This year the Conference is celebrating its 28^th anniversary.

According to its website, the Conference, titled “Brain Injury: Navigating the Journey,” is “a multi-track neuro-conference focusing on issues related to: individuals with brain injury and family members, children and adolescents in the school system, advocacy, and professional and clinical training. The purpose of the two-day conference is to provide state-of-the-art information about brain injury treatment, services, research, and advocacy and to improve collaboration and networking between individuals with brain injury, families and professionals.”

This year’s Conference will bring together a wide variety of Individuals involved in the brain injury arena – including those with brain injuries & their families, service members involved with brain injury, heath care professionals, educators, psychologists, social workers, case managers, nurses, vocational rehab counselors, therapists, teachers, trainers, & other providers.

For more information about this year’s Conference, 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.

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.

For more information, please call 443-393-7696 or complete the form below.

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

When utilizing a Revocable Living Trust-based approach for the estate plan of a married couple, an important first step is deciding whether to develop a Joint Revocable Living Trust – one Trust covering both spouses – or whether to create two individual Revocable Living Trusts, one per spouse.  There is no blanket rule to apply to all couples or all estates, rendering a thorough discussion with your estate planning attorney necessary.  However, a general overview of some of the issues to consider is a good starting point.  In this month’s blog, I will touch on the type of couple for whom, and/or assets for which, a joint Trust might be appropriate.

As a starting point, are you a married couple, with no children from prior marriages, everything held jointly with each other, and a combined taxable estate of less than $3 million[i]?  A joint Trust may make the most sense for you and your spouse.

• A joint Trust can be simpler to administer and enables joint control over assets.
• A joint Trust can make the inheritance to the surviving spouse easier, requiring less administration than when a spouse with an individual Trust dies and leaves everything to the surviving spouse.
• A joint Trust can allow for separate ownership of certain assets, if properly titled.

However, gift taxes may be incurred when a joint Trust is funded.  A joint Trust can also be problematic if Medicaid asset protection planning is ever necessary.  And, a joint Trust can be less effective in avoiding estate tax, or addressing remarriage concerns.

In next month’s blog, I will delve into the issues and particularities that might render individual Trusts the right plan for you and your spouse.

For more information, please call 443-393-7696 or complete the form below.

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[i] This figure is based upon the current Maryland estate tax exemption of $1.5 million per person, slated to increase annually until 2019, when it will match the federal estate tax exemption, slated to be $6 million per person.

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By:  Jeffrey D. Stauffer

– Community Relations Director, jeff@elvilleassociates.com

Because the estate planning team at Elville and Associates strives to continue to be on the leading edge of maintenance and updating to ensure planning works as intended, the entire planning team will be attending the Client Maintenance Academy in Wakefield, Massachusetts on May 5th & 6th.

By attending this unique program, Elville and Associates will be assured to have the very best maintenance and updating program available in the country for its clients — and be one of 41 estate planning law firms in the country accredited with these services and knowledge.

Any client or planning team partner who has worked with Elville and Associates knows that the firm approaches estate planning as more than just a simple one-time transaction. At Elville and Associates, we consider this one-time transaction approach to planning the “traditional estate planning” approach – which generally leads to plan failure. In this process, attorneys tend to treat estate planning simply as the set of documents – with no maintenance or updating. In other words, the documents ARE the client’s estate plan. Most firms approach planning in this manner, and we simply have a different approach to how planning should be done for the benefit of our clients and their families.

Elville and Associates approaches planning as a three-step process: the design and implementation of the plan, continual maintenance and updating through the years, and final administration. This “Legacy Planning” and “Caring for Clients” model incorporates the three phases of planning and maintains a strong emphasis on education from the first meeting through the life of the plan, including the all-important continual maintenance and updating the plan will require to ensure the plan will work as intended when necessary.

For more information about the Client Maintenance Academy, please visit www.clientmaintenanceacademy.com.

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By:  Jeffrey D. Stauffer, Director — The Elville Center for the Creative Arts, jeff@elvillecenter.org, 443-393-7696
Over the past 18 months, Stephen Elville and Elville and Associates, P.C. have been very pleased with the growth of the firm’s charitable organization, The Elville Center for the Creative Arts, Inc. Now, we announce the launch of the charity’s website, www.elvillecenter.org, as well as its LinkedIn page. Be sure to check out both for the latest news and learn how you can make a musical difference in the life of a child today. We thank you for your support! A special thanks to Pablo Calvo of Plugin Group for his partnership and efforts in developing the site for us.

The mission of The Elville Center for the Creative Arts is to improve the quality of life of children of all ages by providing them the opportunity to learn music theory and application, experience cultural events related to the musical and creative arts, and to use music and the promotion of music-related activities to transcend social and economic divisions.

We are partnering with local and regional businesses and schools’ music programs to provide musical instruments, rentals, music lessons, funding for field trips and other participation in music-related activities for children of all ages.

The Elville Center is actively seeking monetary pledges and donations of used instruments of any kind, which will be refurbished (Donations may be tax-deductible. Please consult with your tax advisor.)

Thank you again for your support of The Elville Center for the Creative Arts!

For more information, please call 443-393-7696 or complete the form below.

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

Last week’s historic snow storm drives home the importance of having estate planning documents in place, including not only a Last Will and Testament or Trust agreement that dictates the disposition of assets after death, but, perhaps more importantly, an Advance Medical Directive (also called a Living Will) and Financial Power of Attorney, both of which serve to appoint and direct Agents to act on one’s behalf during life.

Hopefully, most of us made it through this remarkable weather event with only the minor (or sometimes major) headaches of increased traffic, snow shoveling, and missed work or school. But any number of unfortunate realities could have resulted from Mother Nature’s antics – traffic accidents, health issues arising from snow shoveling, and the like.

Many clients seek the services of an estate planning attorney before travel; the risk of an airplane crash or a situation arising in an unfamiliar location inspires many of us to get our ducks in a row. But what about the much more likely and equally risky situations that can arise in daily life? In the midst of last Saturday’s blizzard, would anyone have wanted to risk a medical situation coming up and no health care agent being designated to act on their behalf? Or no financial agent being designated to pay the expenses associated with just such an emergency medical situation? Not to mention the increased risk of losing one’s life – a terrifying possibility, in and of itself – but for that to happen, without a Will or Trust in place to ease the burden upon those loved ones left behind, makes a tragic situation that much more so.

If you don’t have documents in place, or if your documents need updating, make an appointment with Elville & Associates today. Whether an epic snowstorm, a freak accident, or simply the increased probability of something happening with the passing of time, life is full of unexpected situations. Don’t leave such important details as your health, finances, or ultimate disposition of assets without a plan.

For more information, please call 443-393-7696 or complete the form below.

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Tags: estate planning, estate planning attorney
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By: Jeffrey Stauffer, Community Relations Director – jeff@elvilleassociates.com, 443-393-7696

Mr. Stephen R. Elville, principal and lead attorney at the elder law, estate and special needs planning firm of Elville and Associates, P.C., is attending The National Academy of Elder Law Attorneys Summit January 28-30 in Newport Beach, California.

Hosted by the National Academy of Elder Law Attorneys (NAELA), this yearly elder and special needs law event engages attendees beyond a lecture by offering discussion, debate, and applications for the information provided in each session. Session titles include: “How My Communication Style Can Help My Bottom Line”; “Skills and Law When Serving Clients with Diminished Capacity”; and “Navigating Trustees of Special Needs Trusts (SNT) Through Rough Waters.”

Earlier in January, Mr. Elville attended the weeklong Heckerling Institute’s Symposium on Estate Planning in Orlando, Florida. Now in its 50th year, the Heckerling Institute is not only the leading continuing education program for estate planners, but also the national gathering place for all members of the estate planning team, including attorneys, trust officers, accountants, charitable giving professionals, insurance advisors, elder law specialists, wealth management professionals, educators and nonprofit advisors. In addition to the highest quality educational programming, attendees enjoyed valuable networking and professional development opportunities and reviewed the latest in technology, products and services displayed by nearly 150 vendors in an exhibit hall dedicated entirely to the estate planning industry.

Among the topics of discussion throughout the week were: tax and non-tax planning issues, what lies ahead and suggested useful planning strategies for the future; a review of significant estate planning developments in 2015; strategies for marital planning; an examination of the legal and political developments that define today’s Supreme Court; planning for same-sex and unmarried couples; asset protection planning; and planning for the increasing interplay among wealth transfer tax, income tax, and investment tax.
Mr. Elville attends these national events on a yearly basis along with other seminars to be at the forefront of the key, contemporary issues in elder law, estate and special needs planning.

Mr. Elville’s work is centered in these areas with special emphasis in the areas of tax planning and asset protection. He earned his law degrees from the University of Baltimore, cum laude, and is a member of the NAELA, The Academy of Special Needs Planners and the National Network of Estate Planning Attorneys, among numerous other organizations. Mr. Elville 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 works with individuals and families to provide peace of mind and a unique attorney-client experience through a proactive and collaborative approach based on leading edge legal-technical knowledge.

Elville and Associates focuses on the education of its clients, planning team partners and communities in which it serves in the areas of elder law, estate and special needs planning. The firm achieves this through its mission of engaging clients in a multi-step educational process using counseling and superior legal-technical knowledge to ensure that planning works from inception, throughout lifetime, and at death. Clients are encouraged to take advantage of the Planning Team Concept for leading edge, customized planning.

The firm also regularly holds free educational workshops and seminars throughout the communities in which it serves, covering topics related to its many practice areas. Mr. Elville and Elville and Associates also hold a bi-monthly Advisors Forum series for financial advisors, CPAs, attorneys and insurance agents, which provides valuable education to planning team members about elder law, estate and special needs planning.

For more information, please call 443-393-7696 or complete the form below.

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By: David A. (Andy) Hall, Esq. – Elville and Associates – andy@elvilleassociates.com, 443-393-7696

Many times clients will come for an appointment with an elder law attorney because their spouse or parent is no longer able to communicate decisions about their health or person. This can be the result of a progressive condition such as Alzheimer’s disease, or from a sudden onset, such as a fall resulting in a traumatic brain injury (“TBI”). The consequence can be the same if the alleged disabled person (“ADP”) does not have a healthcare power of attorney (“POA”) or advance medical directive (“AMD”) in place. Many Americans do not have incapacity planning documents — which can result in a guardianship of the person situation.

A healthcare POA or AMD allows the person nominated to serve as the agent for the ADP. This means that the agent can make healthcare and other personal decisions for the person that is no longer able to communicate those decisions. The most common context is making decisions about healthcare matters, i.e., whether to select a certain course or treatment, or whether to decline treatment because the ADP has made their wishes known regarding when they no longer want treatment.

Without this document, then a loved one can make decisions for the ADP pursuant to the MARYLAND HEALTH CARE DECISIONS ACT as codified in MD. CODE, Health Gen. Art. §5–605. Where the ADP has not nominated a person, then after two physicians determine that the person can no longer make decisions for himself, then the following people may serve as surrogate (in priority of the order listed):
(i) A guardian for the patient, if one has been appointed;
(ii) The patient’s spouse or domestic partner;
(iii) An adult child of the patient;
(iv) A parent of the patient;
(v) An adult brother or sister of the patient; or
(vi) A friend or other relative of the patient who meets the requirements
Id. While this statutory recognition is great for ad hoc or crisis situations, it may not be a viable long term solution for clients. Sometimes the ADP’s illness will drive them to fight against decisions which are objectively being made in their best interests. Then the loved one in that situation will want the imprimatur of a court order.

The Circuit Court in the Maryland County where the ADP resides or is admitted to receive medical treatment is the proper venue for filing for a guardianship of the person and it has the authority to appoint a guardian. Md. Rule 10-201; Estates & Trusts § 13-704(a)(2). The Petition is the document whereby a client (through her attorney) requests that the court appoint someone as guardian. Among other basic informational items, the Petition will need to include: a description of less restrictive alternatives to guardianship of the person that have been attempted and failed; facts as to the need for a guardianship; and two certificates signed by medical doctors (or one can be signed be an licensed psychologist or licensed clinical social worker) attesting to the ADP’s need for a guardianship. The timing of the certificates is important as one needs to be completed within 21 days of filing the petition. A seasoned guardianship attorney will give you a checklist of the required documents and information in order for the Petition to be accepted by the Court.

The Petitioner (the one filing for guardianship of the person) has to meet the burden of proving that the ADP:
(i) Lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person
(ii) Because of any mental disability, disease, habitual drunkenness, or addiction to drugs, and
(iii) That no less restrictive form of intervention is available which is consistent with the person’s welfare and safety
Estates & Trusts § 13-705.

The Court will appoint an attorney for the ADP, and it is very likely that the court appointed attorney will be paid out of the ADP’s assets. For a married couple, this can mean that the two parties will be paying for both sets of attorney’s fees. It can seem counter-intuitive to have to pay for an attorney to fight against you, but a guardianship of the person seeks to take away the inalienable right of self-determination regarding one’s person. A court will not do so lightly.

Consult with your fiduciary litigation attorney to go over the options regarding a loved one who can no longer make decisions for themselves and has not executed incapacity planning documents. If you have not already done so, then consult with an estate planning attorney to prepare for incapacity. It is truly a case where, as Benjamin Franklin said, “An ounce of prevention is worth a pound of cure.”

Tags: guardian, guardianship, guardianship of the person, guardianships
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Authored by: Olivia Holcombe-Volke, Esq. –

Elville and Associates

443-393-7696

olivia@elvilleassociates.com

The Maryland Statutory Power of Attorney (MSPOA) is a literal creature of statute – it is in a form that is set forth by Maryland Estates and Trust Code Section 17-202. It is statutorily mandated to be accepted by receiving institutions – if wrongly rejected, the statute provides for penalties and attorney’s fees. It is short, succinct, and in a form that is, verbatim, set forth in the statute. If a client were to choose to only sign one version of a Power of Attorney, it is this one that we recommend.

However, it is our practice to also provide a Durable General Power of Attorney (DGPOA), which is more comprehensive, and covers powers ranging from the Power to Fund Trusts, to the Power to Provide for Recreation and Travel. Importantly, it provides the Power to Gift, which is an important power for an Agent to have on behalf of a Principal in many Medicaid asset protection strategies. The Maryland Statutory Power of Attorney does not provide for the Power to Gift, and, without the explicit provision of this power, its availability is extremely questionable/limited (some would argue nonexistent). It is our practice and advice that utilizing the Durable General Power of Attorney as a supplement to the Maryland Statutory Power of Attorney serves as an additional, powerful tool for a trusted Agent to act on behalf of and protect the Principal.

For more information, please call 443-393-7696 or complete the form below.

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