Posted by admin on January 31, 2018 · Leave a Comment
In 2017, Virginia had enough affordable housing units for only 54 of every 100 low-income families, according to the National Low-Income Housing Coalition. This means almost half of low-income Virginians—more than 188,000 households—did not have access to housing they could afford. This shortage is most pronounced among extremely low-income households, i.e., those earning less than 30% of median income, for whom Virginia had only 37 affordable homes for every 100 families in need—a gap of more than 156,000 affordable dwelling units.
One important approach to meeting the need for affordable housing is through so-called “inclusionary zoning” ordinances. An inclusionary zoning ordinance requires a housing developer to make a certain percentage of the units in a new project affordable to households earning between 30% and 80% of the area median income, often (but not always) in exchange for valuable incentives such as expedited approvals or increased density allowances. As the U.S. Department of Housing & Urban Development has observed, “[t]his integration of affordable units into market-rate projects creates opportunities for households with diverse socioeconomic backgrounds to live in the same developments and have access to same types of community services and amenities [and] because[,] it leverages private-sector development, IZ requires fewer direct public subsidies than do many other state and federal programs that promote mixed-income communities.” Over the past five decades, more than 400 jurisdictions nationwide have adopted inclusionary zoning ordinances.
Virginia currently allows localities to adopt inclusionary zoning programs under two different Code provisions. A handful of jurisdictions (“the Counties of Albemarle and Loudoun, and the Cities of Alexandria and Fairfax,” as well as Arlington County), are authorized to adopt inclusionary zoning laws under Code § 15.2-2304. While this provision requires localities to offer builders a “density bonus” in return for developing moderately-priced housing, the statute otherwise provides ample flexibility for localities to tailor their inclusionary zoning programs to local needs and considerations. A density bonus allows a developer to build more units on a site than would ordinarily be allowed, thus generating additional revenue that offsets the cost of keeping some units affordable.
For all other Virginia localities, inclusionary zoning laws are subject to Code § 15.2-2305—a much more prescriptive and restrictive enabling statute. As with Code § 15.2-2304, localities that adopt inclusionary zoning programs under Code § 15.2-2305 must offer density bonuses to affected developers. But while jurisdictions under Code § 15.2-2304 are free to determine the parameters of both the density bonus and the number of affordable units required, Code § 15.2-2305 caps both of these provisions and requires localities to maintain a ratio between the size of the density bonus (up to 30% increase) and number of affordable units (up to 17%).
Another key provision of Code § 15.2-2305 limits the circumstances in which localities to impose inclusionary zoning requirements on builders to certain high-density site plans or where an application is made for a site to be re-zoned or for a special exception to be granted. Developers who wish to build low-density housing can avoid inclusionary zoning obligations altogether by conforming their site plans to existing land use restrictions. Still other provisions of Code § 15.2-2305 require localities that enact inclusionary zoning ordinances to adopt time limits for processing site plans, give public housing agencies a right to buy up to one-third of new housing units, and impose “reasonableness” limitations on local enactments that may invite litigation from developers.
The restrictions and limitations that Code § 15.2-2305 imposes on local jurisdictions make them less likely to adopt inclusionary zoning ordinances, and makes their inclusionary zoning programs less effective when they do. That is why the Virginia Poverty Law Center supports SB 290, a bill that Senator Jennifer McClellan has introduced this session to make Code § 15.2-2304 applicable statewide. With an affordable housing shortage of more than 188,000 units and over one-third of Virginia’s low-income families crushed by rents beyond their means, the General Assembly should not delay in giving local jurisdictions the tools to promote the development of new affordable housing in their communities.
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Posted by admin on January 30, 2018 · Leave a Comment
By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Elder Care Attorney
The topic of organ and body donation is sensitive. Even the undersigned is squeamish when the thought of having critical body parts and/or my deceased body donated to medicine or science.
Clients and I discuss this “uneasiness” all the time and while on a cerebral level, we all realize we are dead, on an intuitive and emotional level we still fear some “after death consequence” by making an organ/body donation.
So what’s the law on organ donation?
Upon death a hospital and/or physician with knowledge of an organization who has been designated as a beneficiary of a person’s organ or body is to be notified when death is imminent in order to allow for a timely examination, evaluation and confirmation of both the donor’s status and whether the donation of organs and tissues for transplant can be feasibly accomplished. Even before death a hospital with knowledge of an imminent death of an individual is required to make a reasonable search of the records of the New Jersey Motor Vehicle Commission to determine whether the soon to be deceased person has designated a donor registry for an anatomical gift.
Upon notice and verification that an individual intends to make an organ donation, the prospective recipient organization is allowed to conduct blood, tissue and other minimally invasive examinations reasonably necessary to evaluate the medical suitability of a body part that is or may be the subject of an anatomical gift for transplant therapy, research or education from a donor to a perspective donor. The hospital is to maintain conditions to establish the medical suitability of the body until the procurement organization has a chance to make a determination. Of course if the decedent is a minor then parental consent must be made prior to the removal of organs and/or the body for medical research.
The subject of whether the decedent can have a prompt and solemn funeral if organ donation is contemplated is somewhat troubling but it appears from my review of the law that the procurement organization has the right to take as much time as necessary in order to accomplish the organ transplant/donation and only after the completion of the process may it then release the body to the funeral representative or agent to allow for embalming, burial or cremation and the use of the remains in a funeral service. Obviously, the removal of the organs is critical before the burial process.
Interestingly the statute provides that neither the physician, registered professional nurse or licensed medical professional who tends to the decedent at death or the physician or registered professionals who determine the time of the decedent’s death are allowed to participate in the procedure for removing or transplanting a part of the body from the decedent meaning a different physician and/or medical professional must evaluate the suitability of the donation and not the attending physician at the time of death.
I thought that you would find this blog of interest as it is a topic that is often asked but seldom answered by clients and professionals.
To discuss your NJ Elder Law matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing consultations if you are unable to come to our office.
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Posted by admin on January 27, 2018 · Leave a Comment
Do you have a loved one who is interested in Continuing Care Retirement Communities (CCRC)s? He or she should proceed with caution. Here’s an example of another CCRC in financial trouble –
Air Force Village West was a CCRC for retired military officers, located between downtown Riverside, California, and March Air Force base.
Twenty-five years after its opening, the property had too many unoccupied residences, and was located in a place that was not ideal for enough veterans. The debt was too high and the land had significant deed restrictions which severely limited what could be done with the property.
Today, they changed the name of the facility to Altavita Village and they have opened it to anyone who wants to move in and can afford it. Occupancy is up and their cash flow is being replenished. However, despite the fact that things are looking up, they have also not made any payments on their 61-million-dollar bond obligation for almost a year.
Bondholders currently believe there is sufficient reason to force the property into receivership. A for-profit senior living company that has the financial strength to take this project on that is doing due diligence at this moment.
Read the article, The Malingering Collapse of Air Force Village West – Part One, to learn more about the situation described above and to learn how this could have happened. Also, be sure to check out our blog posts about CCRCs –
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Posted by admin on January 27, 2018 · Leave a Comment
Q. My adult daughter, Hallie, is from a previous marriage. I have been happily married to my second husband for 15 years, and we have supplied much love and finances to keep Hallie’s family going through the years. We even placed a 2nd mortgage on our home so she and her husband would have a down-payment for theirs.
Recently I became critically ill with cancer. I was in the hospital for over a month, receiving chemo and other treatments, and she never visited me. Ever since I returned home over two months ago (still quite sick and still receiving chemo another treatments), she still hasn’t visited me once. We have always been close up until I got sick, so I just can’t understand why my daughter has not been here for me. My husband’s 2 children, who actually live further away, have both come to visit us and to help their dad take care of me, but not my own daughter.
Obviously, this lack of concern shown by my daughter has been very distressing to me, and as I am fighting this cancer and thinking more and more about the chance that I may not make it through this battle, I’m seriously thinking that I would like to change my Will to disinherit my daughter, and leave everything to my husband, even though my current Will leaves half of my house and financial assets to my daughter and half to my husband. However, I am concerned that my daughter might contest a new Will if I make one now, when I’m sick, which I know would make things a huge headache for my husband after my death.
My husband and I (and even his children, who I’m very close to) are all heartbroken about the situation, and none of them want me to disinherit my daughter, but I truly feel that she has abandoned me in my time of need and I have provided for her so well over the years, and I think my husband and his children are more deserving of my assets. I’m just not sure how to proceed. Can I completely disinherit my daughter, or do I have to leave her something under Virginia law? If I am able to and do decide to disinherit my daughter, is there any way I can ensure that she won’t contest my Will? Any other advice? I’m sure you must see the situation often in your practice.
A. I am very sorry to hear about your cancer, and about the situation with your daughter, and how it’s caused such a strain on your relationship. You would be wise to make an appointment to have your estate planning documents reviewed and changes made as appropriate due to your unfortunate circumstances. One big change is that you should probably have a living trust to distribute your assets upon your death, and not just a Will, because Wills are very easy to challenge, and Living Trusts are much harder to challenge. A Will also puts your estate through the time-consuming, complex, and costly nightmare of probate, whereas a properly-funded living trust completely avoids probate.
Although it may sound cruel to disinherit a child, many people, such as those in your situation, have valid reasons.
In many situations, parents might feel one adult child is well-off and does not need an inheritance, While perhaps another adult child is not financially successful and needs an inheritance much more. Still, a person’s circumstances can change, so be cautious when making such decisions. Fair doesn’t necessarily mean equal, but feelings can be hurt despite the fact that the person making the distribution has good intentions.
Also, sometimes there is no relationship or a strained relationship or, as in your case, a single incident and that has impacted your relationship negatively. In all cases of a strained relationship, I inquire with my clients as to whether they have taken any steps to try to repair the relationship or to understand the reasons for the rift. For example, in the situation you have described, perhaps your daughter is still the loving daughter you know, but is simply afraid of dealing with your possible upcoming death. Perhaps the reason she has not visited you is not out of a lack of love, but out of fear of losing you, and simply not being able or willing to face this fear. Keep in mind that cancer and death are scary for most people, and especially scary for children, particularly younger children.
Regardless of the above, it is your absolute right to disinherit your daughter if you so wish. But there are other options that may be preferable to outright disinheritance, especially if you are concerned about her challenging your decisions.
The 4 Myths of Estrangement
Estrangement looks different for those affected, but new research relayed by New York Times health reporter Catherine Saint Louis shows that the experience is more common and complex than we might think. Here are the four myths about estrangement that Saint Louis debunked in her article:
Myth 1. Estrangement is sudden
Estrangement is actually a “continual process.” Although it sometimes means a clean break, a fight and that’s it, it can also be a chaotic disassociation, or a relationship that’s on and off again over a period of years.
Myth 2. Estrangement is rare
Estrangement is more common than most people realize. In fact, one research study said 12 percent of parent-child relationships in the U.S. are estranged, which is likely a conservative estimate, since the study only observed mother-daughter relationships.
Myth 3. People become estranged for a clear reason
Estrangement typically falls into one of three categories, according to St. Louis’ findings: choosing between the parent and someone or something else (a partner, a passion, an identity, a lifestyle, etc.); a difference in values or perceived wrongdoing; or stressors such as domestic violence, divorce or failing health. A combination of two or more of all these factors is also possible.
Myth 4. Estrangement happens on impulse or whim
According to St. Louis, “(m)ost of the participants said that their estrangement followed childhoods in which they had already poor connections with parents who were physically or emotionally unavailable.” She believes that
estrangement is typically years in the making — resulting of unhealthy relationships that couldn’t be saved.
Virginia Disinheritance Laws
· When it comes to your children, you do have the right to disinherit them in Virginia and in most other states, but you must be explicit in doing so. If you don’t make your disinheritance explicit, there is room for confusion after you pass. Failing to do so could give a disinherited child leverage during court hearings.
- In the conversation with your attorney, be sure to explain in detail your reasons for disinheriting an adult child. No reason needs to be stated in your Will or Living Trust, but it is a good idea for you or your attorney to prepare a written statement that can be left with your estate planning documents explaining your reasons.
- There are several instances where disinheriting children in your Will can be invalidated in Virginia, such as undue influence, lack of testamentary capacity, fraud, and duress.
- Though it’s often extremely difficult to prove any of this to the court, you should be aware that there is a chance your children can prove this after you pass.
Contesting a Will
A no contest clause (also referred to in latin as an in terrorem clause) in a Will or Trust is a provision that states that if a beneficiary under the Will or Trust challenges the validity of the document (or, in some instances, tries to take certain other actions against the executor, administrator, or trustee), that person will forfeit his or her rights to take under the document.
In Virginia, if a person challenges a Will or Trust with a no contest clause and prevails in that challenge, the court will declare the Will or Trust to be invalid and of no effect (thereby eliminating the effect of the no contest clause), and a prior Will or Trust (if any) will control the disposition of the assets. if there is no prior document, then the laws of intestacy will control the disposition of the estate. So, when a person is considering challenging a Will or Trust that contains a no contest clause, he or she faces a very important choice: risk challenging the Will or Trust (and, if unsuccessful, potentially losing his or her inheritance), or not take any action and instead accept an estate plan as written.
Consider leaving your daughter something, in case she contests
If the potential challenger has a sizeable sum of money at stake, he or she will need to carefully think through the merits of the challenge. So, although you cannot do anything to completely prevent the risk of a disinherited child challenging your estate plan, it is sometimes best — depending in part on your age and health, because these things factor into a potential claim of incapacity or undue influence or duress — to leave the child you wish to disinherit enough money to serve as a disincentive for them to challenge your Will or Trust, even if you have a “no contest” clause, because a no contest clause is effectively meaningless without a bequest to go along with it that the disinherited person risks losing by filing the contest.
Estate Planning is Vitally Important for Families with Estranged Loved Ones
We see many families who have a loved one who is estranged. For those with an estranged loved one, estate planning is vitally important. We here at the Farr Law Firm have strategies in place to help all types of families plan for themselves and their loved ones (whether you are tight-knit, estranged, or other). With advance planning, each person can retain the assets it has taken a lifetime to accumulate and the peace of mind that the needs of the loved ones who he or she designates will be adequately and properly addressed. If you or members of your family have not done Incapacity Planning or Estate Planning, or if a loved one is beginning to need more care than you can handle, please contact us as soon as possible to make an appointment for a no-cost initial consultation:
Fairfax Estate Planning: 703-691-1888
Fredericksburg Estate Planning: 540-479-1435
Rockville Estate Planning: 301-519-8041
DC Estate Planning: 202-587-2797
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Posted by admin on January 27, 2018 · Leave a Comment
Dear Magic,
My husband and I came to Evan’s office to do our estate planning several years ago. We have had some family changes since then, such as our children got married and had children of their own. With all this happening and with the new tax plan going into affect, does our estate planning need to be updated?
Thanks!
Estee Taplan
—-
Dear Estee,
It’s a wise idea to get your estate planning and incapacity planning documents reviewed at least every 3-5 years (although for your Power of Attorney, Evan generally recommends it be re-signed every year since many banks won’t accept a POA that’s more than a year old). Similarly, the older an Advance Medical Directive is, the less likely it is that it will be honored by a doctor or hospital. With the tax laws that went into effect this year, it is especially important to have your legal and financial situation reviewed as soon as possible.
According to CNBC MarketWatch, now is an ideal time to meet with an experienced estate planning attorney, such as Evan, to make sure you’re coming up with a plan to get the most important tax advantages. This article provides reasons why you should get your estate plan updated in light of the new tax plan, and some questions you should ask your estate planning attorney regarding gifting and other important tax-related topics.
Here are some additional times you should get your estate planning documents reviewed. Based on what you said, it sounds like the time for making updates, in your situation, is now! Updates are typically made when:
• Your spouse dies or becomes incapacitated;
• You become ill or disabled;
• You get married or divorced;
• You have a new child;
• Your child marries or divorces;
• Your child becomes ill or disabled or dies;
• You have a new grandchild;
• One of your beneficiaries develops a drug or alcohol problem;
• The value of your assets has significantly increased or decreased;
• You acquire property in a different state;
• You move to a different state;
• You retire or change employment;
• One of your beneficiaries shows signs of being financially irresponsible;
• There have been changes in the law that may affect the language of your documents.
The reason for updating your planning documents during these life changes is that it’s the only way to ensure that your estate plan truly reflects who you are, what you care about, and what you have.
Call us and be sure to ask about The Farr Law Firm’s Lifetime Protection Program, which ensures that your documents are properly reviewed and updated as needed, so that they will always have the proper effect under the law.
Hop this is helpful,
Magic
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Posted by admin on January 26, 2018 · Leave a Comment
If Congress and President Trump won’t do their jobs, Virginia must.
SB 624 and SB 625 will update Virginia law to address online lending abuses.
It’s no secret that every year the payday loan industry finds new ways to exploit legal loopholes and skirt regulators. Once new rules are implemented, they try another tactic to dodge them.
The Virginia Poverty Law Center has made great strides in recent years in making lenders fairer to consumers, but the industry is as persistent as ever in circumventing existing laws.
In this year’s General Assembly session, loan sharks and their allies are fighting bills that would regulate the newest segment of this industry: internet lending.
Internet lenders provide the same predatory and reckless loans of storefront payday and car title loans. Same obscene interest rates, same deceptive business practices, same unbreakable cycle of debt for vulnerable consumers. On top of that, even more abuse of borrowers due to the sale of their personal financial information.
These online lenders are problematic across the country. Here in Virginia, the VPLC and the state’s Attorney General have sued numerous internet lenders for skirting usury laws with one unlawful scheme after another.
And while internet lending is a relatively new segment of the industry, VPLC recently sued one internet lender that has done nearly $100 million of business in Virginia over the past four years. This problem is only going to get worse over time. We can do better.
This year, SB 624 and SB 625 put a stop to internet lending abuses. These regulations are necessary because:
They can call it whatever they want — internet lenders are absolutely no different from brick-and-mortar loan sharks. These predatory businesses have long been debated in the General Assembly, and lawmakers from both parties as well as consumers from every corner of Virginia strongly support regulating this industry. Put simply, this is the latest loophole the industry is unfairly exploiting, and everyone should play by the same set of rules.
- Internet Lending is like the Wild West.
In many ways, online sharks are more reckless and dangerous to consumers than their storefront counterparts, because interstate online commerce is regulated differently than standalone businesses. Internet lenders largely refuse to comply with state-specific interest rate caps, with some going as high as 950 percent a year – all the more reason to pass bills that treat them the same as brick-and-mortar businesses.
- The Federal Government won’t do their job.
In recent weeks, the Consumer Financial Protection Bureau (CFPB) dropped a federal lawsuit accusing internet lenders of misleading consumers by failing to properly disclose the true cost of their loans, indicating their plans to roll-back the payday loan rule. This is forcing individual states to regulate online loan sharks themselves. If Congress and President Trump won’t act, the General Assembly must. States like West Virginia, Maryland, Arkansas and Colorado have already passed similar legislation.
Tell your lawmakers: Rules apply to internet lenders, too.
Internet lenders should be treated the same way as their counterparts. We strongly urge our Governor and elected officials to insist that online loan sharks are regulated like brick-and-mortar payday and car title loan businesses. Please support SB 624 and SB 625.
In the absence of stronger rules throughout the entire industry, VPLC asks that internet lenders be required to follow the same rules that are already in place for payday and car title lending.
Contact your legislator today to fight for fair lending in Virginia!
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Posted by admin on January 25, 2018 · Leave a Comment
No matter how old we are, most of us have had the fantasy of winding back the clock on our personal aging process. Whether it’s having less wrinkles or grey hair, or even feeling like we did 20 years ago, most of us wish we could experience it again.
Well, thanks to researchers at the Salk Institute for Biological Studies in La Jolla, California, such a dream may not stay a figment of our imagination for much longer. Scientists believe it is now possible to wind back the biological clock. Aging would not only stop. It would reverse. At least in mice (for now)!
We all know that as people live longer, their risk of developing age-related diseases increases. In fact, data shows that the biggest risk factor for heart disease, cancer, and neurodegenerative disorders is simply age. One clue to halting or reversing aging lies in the study of cellular reprogramming.
In research published in the journal, Cell, Salk Institute scientists were able to rejuvenate mice with the premature aging disease, progeria, by reprogramming (or rejuvenating) cells. When the reprogrammed cells were examined, it was found that they exhibited a reversal of multiple hallmarks associated with aging. Compared to untreated mice, the reprogrammed mice looked younger; their cardiovascular and other organ function improved; and—most surprising of all—they lived 30% longer, yet did not develop cancer. The researchers suggest that the discovery could also be used to help humans.
Leonard Guarente, who studies the biology of aging at M.I.T., said, “This is huge,” citing the novelty of the finding and the opportunity it creates to slow down, if not reverse, aging. “It’s a pretty remarkable finding, and if it holds up it could be quite important in the history of aging research,” Dr. Guarente said.
Salk Institute scientists explained that the main goal of the study was to find a way to improve human health by providing more healthy years. Dr. Alejandro Ocampo, one of the researchers said. “We would like people to reach 90 or 100, but to be healthy for the duration of that lifespan, and not to suffer from the symptoms of aging. However, we also understand that if we’re able to improve health, at some point lifespan will also be extended.”
“I think we will see some of this work being applied in the next 10 years,” Ocampo noted. “I don’t know whether that will be [with the goal of] lifespan extension, but certainly to slow down some of the aging symptoms.”
Another lead researcher, Izpisua Belmonte added, “Obviously, mice are not humans and we know it will be much more complex to rejuvenate a person. But this study shows that aging is a very dynamic and plastic process, and therefore will be more amenable to therapeutic interventions than what we previously thought.”
The Salk researchers believe that the findings may be the most promising approach to achieving cell rejuvenation in humans. However, they caution that, due to the complexity of aging, these therapies may take up to 10 years to reach clinical trials.
Other Anti-Aging Research Most of us Don’t Know About
Most are unaware that Alphabet Inc. (the parent company of Google) has a whole unit devoted to extending human life, called Calico, in which it has invested $1.5 billion. Most of the focus, however, is on cancer and age-related diseases. Time magazine ran a cover story a few years ago, titled “Google vs. Death” about Calico, a then-new Google-run health venture focused on understanding aging — and how to beat it.
But how exactly is Calico helping humans live longer, healthier lives? It’s pretty hush-hush. Information has been scarce on the company’s anti-aging efforts. There are a few potential explanations for Calico’s secrecy. Among them is that Calico is just waiting for a big reveal. A December 2017 article in the MIT Technology Review, which was also scant on details about Calico’s anti-aging science, hinted that might be the case.
In Fortune Magazine, last month, a rare glimpse into Calico’s current research was provided. The research, which is in its earliest stages, is being done on mouse models—including 750 mice segregated into five groups with different diets. The idea is to explore how caloric intake influences overall health. (A major recent global health study funded by the Bill & Melinda Gates Foundation was one of the first to pinpoint how poor diet and nutrition has an effect on life expectancy and quality of life.) To conduct the study, Calico scientists are tracking the growth of yeast cells to probe how cellular aging affects the behavior of cells, and how they begin to break down. We will update you on the findings as they become available.
Better Your Own Odds of Living a Longer, Healthier Life
Will the research at the Salk Institute and at Google’s Calico Center translate into potential treatments for humans? It remains to be seen. Until then, do what you can to better your odds of living a long, healthy life. Focus on eating healthy, exercising, and minimizing stress; develop good social ties with a healthy community; and stay physically active in whatever way works for you. Forget tobacco and substance abuse and eat proper amounts of nutritious food. And have a best friend. Or two. Last, but certainly not least — have something worthwhile or meaningful that you do in your life!
As you are taking care of yourself and enjoying your life, it is also a good idea to plan for your future and for your loved ones. Our firm is dedicated to helping protect seniors preserve dignity, quality of life, and financial security. If you have not done Long-Term Care Planning, Estate Planning, or Incapacity Planning (or had your documents reviewed in the past several years), or if you have a loved one who is nearing the need for long-term care or already receiving long-term care, please call us to make an appointment for a no-cost consultation:
Fairfax Elder Law Attorney: 703-691-1888
Fredericksburg Elder Law Attorney: 540-479-1435
Rockville Elder Law Attorney: 301-519-8041
DC Elder Law Attorney: 202-587-2797
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Posted by admin on January 24, 2018 · Leave a Comment
600,000 Virginians have lost their drivers licenses simply because they are too poor to pay their court fines and costs. This effectively deprives them of reliable, lawful transportation necessary to get to and from work, take children to school, keep medical appointments, care for ill or disabled family members, or, paradoxically, to meet their financial obligations to the courts.
This needs to change!
VPLC joins the Legal Aid Justice Center struggle to change Virginia law during the 2018 General Assembly session. Senator Stanley will introduce legislation repealing the law that mandates automatically losing your license for being too poor to pay fines and costs. How will the Commonwealth collect these fines if this law is repealed? There are still numerous ways for the Commonwealth to collect– such as wage garnishments and tax refund intercepts. In fact, repeal of this law might lead to greater collections since some of these 600,000 Virginians will likely then be able to increase their income and then be able to pay.
As the Richmond Times-Dispatch said in its editorial last year: “When Virginia lawmakers convene in Richmond in a few weeks, their to-do list should include fixing Virginia’s excessive and unproductive habit of taking away people’s driver’s licenses.”
Contact your elected official and let them know taking someone’s drivers license for failure to pay court courts is not equal justice.
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Posted by admin on January 20, 2018 · Leave a Comment
Q. During her last two years of agony, my mother would look at me and her doctors and nurses often and say, “Can’t you just give me a little black pill?” It was obvious to all of us what she meant and, of course, all we could say was that we couldn’t do that, but we would do everything possible to aid her comfort and reduce her pain.
Mom had some mild memory loss at the time, but certainly not severe dementia. I had Power of Attorney over her health, though I consulted my whole family on all important issues. In her Advance Directive, mom had requested her doctor and agent enter a Do Not Resuscitate clause and, as a family, we of course supported her choice. Mom spent her final days in the hospital, and sadly, she died a few months ago, in pain.
In thinking about her situation, what if I had a legal option that would have enabled me to honor mom’s request to free her from her pain much sooner? It was obvious that she was slowly dying anyway. Would I have helped her by telling the doctor to put her out of her misery? I believe I would have truly honored her wishes, but the option was not there yet, and her memory loss would likely complicate things even further.
I have read about people who find out they have Alzheimer’s and don’t want to lose their memory or burden their family. And, I’ve experienced with my mother seeing someone in pain begging to end it all. What are the legalities of assisted suicide for people who have Alzheimer’s or another form of dementia? And, what can we do to make sure our wishes are known and followed by our loved ones?
—-
A. I am so sorry to hear about your mother’s prolonged suffering. I had a client just earlier this week in her mid-50s with early-onset Alzheimer’s asking about this exact same issue. Physician-assisted Suicide, also known as Death with Dignity (sometimes also called euthanasia or mercy killing), is not legal in Virginia or Maryland at this time, but it is legal in Washington, DC and 6 other states. Unfortunately, the way these laws are written, they don’t apply to dementia patients because these patients won’t have the capacity to make the required decisions/requests and take the required actions once the time comes for these decisions and actions.
As Alzheimer’s disease and other forms of dementia continue to become more prevalent, however, it may not be long before there is a push for legalizing physician-assisted death in more states and in dementia cases. However, American officials must thoroughly consider the moral and social consequences of such action.
The issue of physician-assisted death (PAD) gaining national attention goes back a couple of decades. According to Rebecca Dresser, professor at Washington University Law School, “(I)n the early 1990s, the first person to secure Jack Kevorkian’s life-ending services was Janet Akins, a woman diagnosed with Alzheimer’s disease.”
According to Dresser, “(S)upporters of legalizing PAD for dementia offer several reasons for their position. They contend that respect for individual autonomy and self-determination requires authorities to give people the freedom to choose an earlier death over the suffering and indignities of life with dementia. For them, the loss of intellectual abilities as well as the loss of valued relationships and activities that accompanies dementia can be a fate worse than death. Many also want to protect their loved ones from the psychological and financial burdens of caring for someone with dementia.”
Dresser also brings up how PAD in the context of dementia raises several issues:
- Individuals choosing PAD are making one of the most significant medical decisions a person can make. All medical decisions should be competent and informed, but this is especially true of the decision to opt for PAD.
- There is a need for rigorous capacity assessment, as well as meaningful education, for dementia patients requesting PAD.
- Serious consideration should be given about whether something like an “Advance Euthanasia Directive” should be allowed as part of an Advance Medical Directive.
- The directive’s potential negative impact on clinicians and families should also be acknowledged.
So, as you can see, although there are several reasons in favor of PAD in general, and for dementia patients in particular, there are also some major ethical issues involved with PAD.
The Current Laws Regarding PAD
Currently, PAD is strictly prohibited in Virginia, as it is in most other states. As of February 20, 2017, California, Colorado, District of Columbia, Oregon, Vermont, and Washington have Death with Dignity statutes allowing physician-assisted suicide for terminally ill or otherwise suffering individuals who wish to end their lives, although the DC la could be overturned by the federal government. There is currently no legislative activity around Death with Dignity in Virginia. Individuals are working to raise the profile of aid in dying in Virginia through news stories, petitions, and other individual advocacy, but no group is on the ground organizing for physician-assisted dying.
In Maryland, a Death with Dignity law was considered in 2017, but was not passed, supposedly due to lack of public support.
In DC, as already mentioned, PAD is legal, but patients must be older than 18 with less than six months to live to be eligible. Similar to the Death with Dignity Act in the six other jurisdictions that I have enacted it, DC residents wishing to use this statute must make two requests at least 15 days apart for life-ending medications and ingest the drugs themselves. Two witnesses must attest that the patient is making the decision voluntarily. These criteria clearly exclude dementia patients, because by the time a physician is able to say that the dementia patient has only six months to live, the dementia patient will not be mentally competent to make these requests or to take the action of ingesting the medication on his or her own volition.
Other Options for People with Dementia
As you can see, people with Alzheimer’s disease or other forms of dementia are currently ineligible to request medication under Death with Dignity laws in any state, because their judgment and decision-making abilities are impaired by the illness. In addition, if a person in the early stages of these illnesses is without cognitive impairment and does not have another disease that is causing a terminal illness, he or she also does not qualify in the states where it is legal due to not having a terminal diagnosis.
So, while Alzheimer’s and other dementias are daunting diseases to face, advance planning will help provide some control. An Advance Directive, for instance, aims to help people make their intentions known to prepare for a time (such as if they have Alzheimer’s or another form of dementia) when they are no longer able to communicate. An Advance Directive (including a Long-term Care Directive, a vital part of the advance directive that I created for my clients) specifies what medical and long-term care related actions should (or should not) be undertaken if a person is too ill or incapacitated to make decisions. However, additional information can be included to cover decisions involving day-to-day choices such as where he or she would like to be treated, who the preferred caregiver is, and who’s authorized to be his or her healthcare agent. The directive can also rank health care institutions in order of preference, and it can even discuss wishes pertaining to pet care.
A personal statement can be included, as well, describing your history, values (including religious beliefs), and any other information that will help people understand or at least have a sense of who the directive’s author is. This allows caregivers to make informed decisions based on more complete information and allows them to fill in the gaps in unanticipated situations. This document reinforces that the person making it doesn’t want their wishes to be ignored, and doesn’t want someone else’s judgment substituted for their own.
Now is the Time to Get Your Advance Directive and Other Documents in Place
No one can precisely predict the exact life changes that’ll occur during the course of a mental decline. And no one can predict the type of health care setting he or she will need or how quickly the disease will progress. That’s why planning in advance is so important. Once you have taken the step of speaking with your loved ones about your wishes, it is important to develop incapacity planning documents, including an Advance Medical Directive and a Lifestyle Care Plan, to make your wishes known. If you or a loved one has not done Incapacity Planning, Long-Term Care Planning, or Estate Planning (or had your Planning documents reviewed in the past several years), now is a good time to plan and get prepared. Call us to make an appointment for a no-cost initial consultation:
Fairfax Alzheimer’s Planning Attorney: 703-691-1888
Fredericksburg Alzheimer’s Planning Attorney: 540-479-143
Rockville Alzheimer’s Planning Attorney: 301-519-8041
DC Alzheimer’s Planning Attorney: 202-587-2797
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Posted by admin on January 20, 2018 · Leave a Comment
Dear Ribbit,
I read something about people in Florida getting tattoos that tell doctors that they do not want to be resuscitated. Is this something more people should consider? If someone doesn’t have a tattoo, how do medical professionals find out that someone has a DNR order entered in their medical file?
Dana Riordor
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Dear Dana,
In Florida, they currently have an approved DNR (do not resuscitate) form. However, it doesn’t do any good if the form is lost or not shown to the rescue unit or emergency-room staff. On top of that, many medical facilities in Florida and other states do not accept a previously-signed state-approved Do Not Resuscitate (DNR) form when a patient is admitted. Rather, the patient or the health-care proxy in many states have to sign new DNR forms for each hospital admission or else the patient is resuscitated.
A DNR tattoo might seem to be a perfect solution as it would seem to clearly indicate a patient’s wishes. However, this is not necessarily the case according to the doctors in Florida that recently dealt with this issue. At first, the doctors actually decided not to honor the tattoo, saying they did not want to choose an irreversible path when faced with uncertainty. They cited one other case, found in a review of the scientific literature, involving a person with a DNR tattoo — saying that patient’s tattoo no longer reflected his current wishes.The medical team was also worried about the potential unknown circumstances in which a person might get such a tattoo. What if the patient had done it while under the influence of drugs or alcohol?
However, not everyone on the medical team agreed, and so an ethics committee was brought in to consult on the issue. The ethic committee advised the doctors to honor the DNR tattoo. The ethics team stated that it was reasonable to infer that the tattoo expressed an authentic preference.
The tattoo is not being used (to my knowledge) in Virginia, MD or DC, nor are there any laws allowing the use of such tattoos. However, Virginia does have a Durable DNR statute, which means that people do not have to sign a new DNR each time they are admitted to a hospital. In fact, the Durable DNR is the only DNR form issued by the Virginia Department of Health (VDH). Durable DNR Orders do not expire. They remain in effect until the patient or someone designated to act on the patient’s behalf revokes the order. Click here for more information.
Virginia also allows specialized durable DNR jewelry (bracelets and necklaces) to be purchased and worn by people with a durable DNR order entered in their medical records. This jewelry is only available from two State-approved vendors. Click here for ordering information.
From my limited research, Virginia is the only state that seems to allow Durable DNR orders. However, many other states have a somewhat similar Medical order called a MOLST (Medical Orders for Life-Sustaining Treatment) or MOST (Medical Orders for Scope of Treatment ) or POLST (Physician’s Orders for Life- Sustaining Treatment). These medical orders are typically durable, meaning they do not have to be re-signed upon each admission.
Maryland offers the use of a MOLST form which can be signed by your doctor. Click here for further information http://marylandmolst.org/pages/molst_form.htm.
DC allows use of a MOST form. Click here for more info. Although this law has been enacted in DC, it is not clear whether the DC MOST form actually exist yet.
These forms differ from DNR orders in that they also include directions about life-sustaining measures in addition to CPR, such as intubation, antibiotic use, and feeding tubes.
Despite all of the above, it is important to understand that none of these forms can be used by healthy individuals; they are designed to be used by people who already are extremely sick or elderly. Also, none of these forms are substitutes for a properly-prepared Advance Medical Directive, which is a document that should be signed by individuals of all ages, regardless of current health.
Ready for Incapacity Planning?
Once you have taken the step of speaking with your loved ones about your wishes, it is important to develop incapacity planning documents, including an Advance Medical Directive and General Power of Attorney, to make your wishes legally enforceable. Call Evan to make an appointment for a no-cost initial consultation.
Hop this is helpful!
Ribbit
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