Elder Law in Virginia

Elder Law in Virginia
Publication Date: 2017
Electronic Forms: 27
Available Formats: Print (697 pages, softcover, 1 volume)
  Electronic (searchable PDF via flash drive, CD, or immediate download)
  Both Print and Electronic formats
Product #: 908

Information

Content Highlights:
  • Elder Law Practice
  • Financial Planning and Security
  • Housing
  • Nursing Facilities
  • Home Care
  • Paying for Long-Term Care
  • Managing Incapacity
  • Wills, Powers of Attorney, and Advance Directives
  • Guardians and Conservators
  • Special Needs Trusts
  • Medicaid Practice

“This third edition of Elder Law in Virginia continues to draw on the extensive experience of members of the Virginia Academy of Elder Law Attorneys (VAELA) to provide substantive information in areas such as long-term care and Medicaid planning, incapacity planning, financial security, housing issues, special needs trusts, and related issues.” – Third Edition Introduction by Rhona Levine, VAELA President

Elder law practice has grown in response to the burgeoning senior population over the past few decades—by 2050, the senior population of the United States will likely double. Once considered a practice dedicated exclusively to Medicaid planning and other wealth preservation techniques, elder law now encompasses an array of complex issues and disciplines associated with today’s aging and disabled populations. The modern elder law attorney must be versed in both traditional asset protection and estate planning as well as a number of topics related to incapacity, health and long-term care, social security, housing, age discrimination, and elder abuse and fraud.

Elder Law in Virginia is the premier treatise in this area of practice for Virginia attorneys. In addition to the substantive issues, the handbook also gives practical information on managing an elder law or Medicaid practice and handling the ethical issues and conflicts of interest that elder law attorneys so commonly face, especially when dealing with agents and those with compromised cognitive abilities.

New topics addressed in the 2017 edition include the Special Needs Trust Fairness Act and the ABLE Act, each of which provides new and improved opportunities for disabled adults.


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Table of Contents

CHAPTER LIST

1. The Elder Law Practice

2. Financial Security

3. Housing

4. Paying For Long-Term Care

5. Managing Incapacity

6. Special Needs Trusts

7. Medicaid Practice


CHAPTER 1: THE ELDER LAW PRACTICE

1.1 INTRODUCTION
        1.101 Development of Elder Law as a Specialty
        1.102 Unique Challenges Facing Elder Law Practitioners

1.2 THE ELDER LAW PRACTICE
        1.201 Unique Aspects of the Elder Law Practice
        1.202 Legal Practice Areas Covered
        1.203 Cultivating Referral Sources
        1.204 Understanding the Aging Process
        1.205 Understanding Dementia
        1.206 Organizations and Resources
    
1.3 THE ELDER LAW CLIENT
        1.301 The Initial Contact
        1.302 The Initial Appointment
        1.303 The Client Information Questionnaire
        1.304 Identifying the Client     
        1.305 Payment of Legal Fees by Non-Client

1.4 ETHICAL CONSIDERATIONS WHEN THE CLIENT IS
        UNDER A DISABILITY
        1.401 Duties Imposed Under the Rules of Professional Conduct
        1.402 Other Resources for Ethics Rules
        1.403 ACTEC Commentaries on ABA Model Rules of Professional
        Conduct
        1.404 Client with Impairment
        1.405 Communications with Clients
        1.406 Conflicts of Interest
        1.407 Confidences of the Impaired Client

1.5 PRACTICAL CONSIDERATIONS INVOLVING THE
BLENDED FAMILY
        1.501 What Is a Blended Family?
        1.502 Marital Agreements
        1.503 Beneficiary Designations
        1.504 Standby Trusts
        1.505 Estate Plans—Contingency Planning
        1.506 Trusts—Protective Planning
        1.507 Importance of Comprehensive Planning

1.6 COLLABORATION WITH OTHER PROFESSIONALS AND
AGENCIES
        1.601 Private Health Care Professionals
        1.602 Governmental Representatives
        1.603 Certification as Guardian ad Litem for Adults
        1.604 The Multidisciplinary Practice Separate Services
        Arrangements
        1.605 Internet Resources and Professional Associations

1.7 THE ATTORNEY AS FIDUCIARY
        1.701 Ethical Rules for Attorneys Acting as Fiduciaries
        1.702 The Virginia Rules of Professional Conduct
        1.703 Fiduciary Roles
        1.704 Statutory Provisions
        1.705 Non-Attorney Fiduciaries
        1.706 Advantages of Attorney as Fiduciary
        1.707 The Drafting Attorney as Fiduciary
        1.708 Attorney as Executor/Trustee
        1.709 Fiduciary Litigation and Petitions for Court Guidance
        1.710 Fiduciary Accountings
        1.711 Attorney at Law as Attorney-in-Fact
        1.712 Risks of Construction of Powers of Attorney
        1.713 Risks and Rewards of Fiduciary Service
        
1.8 THE ATTORNEY AS FIDUCIARY
        1.801 Ethical Rules for Attorneys Acting as Fiduciaries
        1.802 The Virginia Rules of Professional Conduct
        
APPENDIX 1-1: ELDER LAW ESSENTIAL INFORMATION
SURVEY

APPENDIX 1-2: GUARDIANSHIP/CONSERVATORSHIP
ESSENTIAL INFORMATION SURVEY

APPENDIX 1-3: ENGAGEMENT AGREEMENT—MEDICAID
PLANNING

APPENDIX 1-4: ENGAGEMENT AGREEMENT—ESTATE
PLANNING

APPENDIX 1-5: ENGAGEMENT AGREEMENT—GUARDIANSHIP
AND/OR CONSERVATORSHIP APPOINTMENT

APPENDIX 1-6: LETTER TO PHYSICIAN FOR CAPACITY
DETERMINATION—GUARDIANSHIP/CONSERVATORSHIP
PETITION

APPENDIX 1-7 LETTER TO PHYSICIAN FOR CAPACITY
DETERMINATION—TESTAMENTARY

APPENDIX 1-8: ASPIRATIONAL STANDARDS FOR THE
PRACTICE OF ELDER LAW

APPENDIX 1-9: LIST OF ELDER LAW RESOURCE
ORGANIZATIONS

APPENDIX 1-10: LEGAL ETHICS OPINION 1617: ATTORNEY
AS FIDUCIARY; ACCOUNTING FOR FUNDS
AND PROPERTY

APPENDIX 1-11: DISCLOSURE LETTER PURSUANT TO LEO 1515

CHAPTER 2: FINANCIAL SECURITY

2.1 OVERVIEW
    2.101 The Evolving Role of the Elder Law Attorney
    2.102 Adopting Financial Planning as a Core Competency
    2.103 Ethical, Competency and Practical Considerations
    
2.2 WEALTH MANAGEMENT
    2.201 The Financial Planning Process
    2.202 Client Engagement
    2.203 Data Collection
    2.204 Financial Analysis
    2.205 Plan Design
    2.206 Plan Implementation
    2.207 Plan Monitoring
    
2.3 THE ELDER LAW ATTORNEY AS A FINANCIAL
PLANNER
    2.301 Determining What Planning Should Be Done
    2.302 Acquiring Financial Planning Skills and Expertise
    2.303 Elder Law Attorneys Providing Financial Planning
    Services
    2.304 Conflicts of Interest
    2.305 Collaboration with Allied Disciplines
    
2.4 INTEGRATING ELDER LAW PRACTICE WITH FINANCIAL
PLANNING AND INVESTMENT ADVISORY SERVICES
    2.401 Services Offered
    2.402 Regulation and Supervision
    2.403 Broker/Dealer Affiliation
    2.404 Elder Law Attorneys as Registered Investment Advisors
    2.405 Investment Advisor Registration and Licensing
    2.406 State Regulation and Insurance Licensing Requirements
    2.407 Elder Care and Long-Term Care Insurance
    
2.5 FINANCIAL PLANNING ELEMENTS
    2.501 General Principles
    2.502 Insurance Planning
    2.503 Investment Planning
    2.504 Income Tax Planning
    2.505 Estate Planning

2.6 ADDITIONAL ELEMENTS OF FINANCIAL SECURITY
    2.601 Medicare
    2.602 Social Security
    2.603 Retirement Plans and Accounts

2.7 CONCLUSION

APPENDIX 2-1: CFP® BOARD-REGISTERED PROGRAMS FOR
VIRGINIA ATTORNEYS

APPENDIX 2-2: SECURITY LICENSES

APPENDIX 2-3: DISCLOSURE STATEMENT—FINANCIAL
SERVICES

APPENDIX 2-4: SAMPLE FINANCIAL PLANNING COURSE
CURRICULUM

CHAPTER 3: HOUSING

3.1 HOUSING CHOICES AND THE CONTINUUM OF CARE

3.2 INDEPENDENT LIVING
    3.201 “Aging in Place”
    3.202 Retirement Housing
    3.203 Subsidized Housing (Federal or State)
    3.204 Housing Opportunity Through Modernization Act
    of 2016
    3.205 Virginia Property Tax Relief
    
3.3 SUPPORTIVE HOUSING
    3.301 “Supportive Housing” and “Assisted Living”
    3.302 Assisted Living Facilities (ALFs)
    3.303 Continuing Care Retirement Communities (CCRCs)
    3.304 Adult Foster Care Homes
    
3.4 NURSING FACILITIES
    3.401 In General
    3.402 Sources of Law
    3.403 Quality Care and Resident Rights
    3.404 Admission, Transfer, and Discharge Rights
    3.405 Adult Foster Care Homes
    
3.5 HOME CARE
    3.501 Medicare Coverage
    3.502 Medicaid Community-Based Care
    3.503 Area Agencies on Aging Services
    
3.6 HOUSING FOR THE INTELLECTUALLY DISABLED
    3.601 Funding for In-Home Residential and Group
    Home Support
    3.602 Micro-boards
    
APPENDIX 3-1: VIRGINIA UNIFORM ASSESSMENT
INSTRUMENT

CHAPTER 4: PAYING FOR LONG-TERM CARE

4.1 THE PAYMENT DILEMMA
    4.101 The Demographics of Aging
    4.102 Longevity and Declining Health
    4.103 The Nursing Home Population
    4.104 Long-Term Care Costs
    4.105 Sources of Payment for Long-Term Care
    
4.2 LONG-TERM CARE INSURANCE
    4.201 Availability, Qualification, and Suitability for the Client
    4.202 The Lawyer’s Advisory Role
    4.203 Regulations, Disclosures, and Policy Requirements
    4.204 Lump-Sum Universal Life Insurance/Long-Term
    Care Policies
    4.205 Accelerated Death Benefits (ADBs)
    4.206 Virginia Long-Term Care Insurance Partnership
    Policies
    
4.3 MEDICARE PAYMENT OF LONG-TERM CARE
    4.301 Limited Medicare Payment of Skilled Care Costs
    4.302 Covered and Excluded Services
    4.303 Prohibited Practices Related to Payments and
    Charges
    4.304 Medicare Benefits for Dually Qualified Medicaid
    Beneficiaries
    4.305 Medicare Appeals

4.4 MEDICAID BENEFITS FOR PAYMENT OF
LONG-TERM CARE

4.5 VETERANS BENEFITS
    4.301 In General
    4.302 Aid & Attendance and Housebound Allowance
    Program
    4.303 Veteran-Directed Home and Community Based
    Services Program (VD-HCBS)
    
4.6 HEALTH AND DISABILITY INSURANCE
    4.601 In General
    4.602 Health Insurance
    4.603 Disability Insurance
    
4.7 PAYING PRIVATELY FOR CARE
    4.701 In General
    4.702 Reverse Mortgages
    4.703 Annuities
    4.704 Trusts
    
APPENDIX 4-1: LONG-TERM CARE CARRIER RATINGS
FEBRUARY 2017

CHAPTER 5: MANAGING INCAPACITY

5.1 INTRODUCTION

5.2 PLACEHOLDER ONLY
    5.201 In General
    5.202 Presumption of Capacity
    5.203 Mental Ability
    5.204 Defining Capacity
    5.205 Causes of Incapacity
    5.206 Undue Influence
    5.207 Attorney Assessment
    5.208 Medical Evaluation
    5.209 Four Basic Legally Relevant Criteria
    5.210 Level of Evaluation
    
5.3 LAST WILL AND TESTAMENT
    5.201 Testamentary Capacity
    5.302 Incapacitated Adult with Testamentary Capacity
    5.303 Unnatural Dispositions
    5.304 Testator’s Free Will
    5.305 Proponent’s Burden of Proof
    5.306 Undue Influence
    
5.4 PROTECTION OF INCAPACITATED PERSONS
    5.401 Financial Exploitation—Criminal Offense
    5.402 Reporting Abuse, Neglect, or Exploitation
    5.403 Obtaining Attorney Fees When Protecting
    Incapacitated Individuals from Fraud
    
5.5 POWER OF ATTORNEY
    5.501 The Virginia Uniform Power of Attorney Act
    5.502 Governing Law
    5.503 Creation
    5.504 Capacity
    5.505 Effectiveness of a POA
    5.506 Possession of the POA
    5.507 Durability
    5.508 Agent
    5.509 Federal Agency Requirements for POAs
    5.510 Recordation
    5.511 Letter of Instruction Interpreting Distribution Powers
    5.512 Litigation
    5.513 Liability for Breach of Duty
    5.514 Reimbursement and Compensation of the Agent
    5.515 Third-Party Acceptance of and Reliance upon a POA
    5.516 Agent’s Resignation
    5.517 Termination of the POA
    5.518 Agent’s Certification

5.6 ADVANCE MEDICAL DIRECTIVE
    5.601 In General
    5.602 Terms Used in the Act
    5.603 Individual Rights Not Limited
    5.604 Capacity Determinations
    5.605 Certification of Incapacity
    5.606 Recertification of Incapacity
    5.607 Communication-Related Disabilities
    5.608 Notice to Patient and Agent
    5.609 Restoration to Capacity
    5.610 Creation of an AMD
    5.611 End-of-Life Decisions
    5.612 Medical Power of Attorney
    5.613 Oral AMD
    5.614 Agent’s Standard of Care
    5.615 Patient Protest
    5.616 Working with the Physician
    5.617 Protected Health Information
    5.618 Virginia Health Records Act
    5.619 Incorporation of a Letter of Instruction or
    Memorandum
    5.620 Life Insurance
    5.621 Advance Health Care Directive Registry
    5.622 Court Intervention
    5.623 Statutory AMD Form
    5.624 Revocation of an AMD
    5.625 Health Care Decision-Making if an AMD Is
    Inadequate, Incomplete, or Absent

5.7 DURABLE DO NOT RESUSCITATE ORDER

5.8 PHYSICIAN ORDERS FOR SCOPE OF
TREATMENT (POST)

5.9 TRUSTS
    5.901 Definitions and Background
    5.902 Requirements for Trust Creation
    5.903 Benefits of Trusts in Incapacity Planning
    5.904 Drawbacks of Trusts in Incapacity Planning
    
5.10 GUARDIANSHIPS AND CONSERVATORSHIPS
    5.1001 In General
    5.1002 Definitions
    5.1003 Petition Against a Minor
    5.1004 Venue
    5.1005 Jurisdiction Generally
    5.1006 Continuing Jurisdiction
    5.1007 Court’s Discretion to Decline Jurisdiction
    5.1008 The Petition
    5.1009 Guardian ad Litem
    5.1010 Notice of Hearing
    5.1011 Answer
    5.1012 Evaluation Report
    5.1013 Court Hearing
    5.1014 Filing Fees and Court Costs
    5.1015 Order of Appointment
    5.1016 Qualification of Guardian and Conservator
    5.1017 Duties and Authority of Guardian
    5.1018 Duties and Authority of Conservator
    5.1019 Termination of Conservatorship
    5.1020 Petition to Expand the Appointment of a Guardian
    or Conservator
    5.1021 Petition to Modify or Terminate the Appointment
    of a Guardian or Conservator
    5.1022 Additional Issues

5.11 ALTERNATIVES TO GUARDIANSHIPS AND
CONSERVATORSHIPS
    5.1101 In General
    5.1102 Limited Guardianships
    5.1103 When Conservator or Guardian Need Not Be
    Appointed
    5.1104 Joint Tenancy
    5.1105 Payment of Federal Benefits
    
APPENDIX 5-1: CAPACITY WORKSHEET FOR LAWYERS

APPENDIX 5-2: FOLSTEIN MINI-MENTAL STATUS
EXAM (MMSE)

APPENDIX 5-3: LEGAL CAPACITY QUESTIONNAIRE

APPENDIX 5-4: GENERAL DURABLE POWER OF ATTORNEY

APPENDIX 5-5: CONSENT TO RELEASE HIPAA-PROTECTED
INFORMATION

APPENDIX 5-6: ADVANCE MEDICAL DIRECTIVE

APPENDIX 5-7: DURABLE DO NOT RESUSCITATE ORDER

APPENDIX 5-8: TRUST PROVISION—CARE OF GRANTOR
IN EVENT OF GRANTOR’S INCAPACITY

APPENDIX 5-9: ADDENDUM FOR PROTECTED IDENTIFYING
INFORMATION

APPENDIX 5-10: PETITION FOR APPOINTMENT OF GUARDIAN
AND CONSERVATOR

APPENDIX 5-11: ORDER APPOINTING GUARDIAN AD LITEM

APPENDIX 5-12: NOTICE TO RESPONDENT OF MOTION
FOR ORDER APPOINTING GUARDIAN AD LITEM

APPENDIX 5-13: NOTICE TO FAMILY OF MOTION FOR
ORDER APPOINTING GUARDIAN AD LITEM

APPENDIX 5-14: CERTIFICATE OF COMPLIANCE WITH
NOTICE REQUIREMENT

APPENDIX 5-15: PHYSICIAN’S EVALUATION REPORT

APPENDIX 5-16: PETITION FOR PROCEEDING IN CIVIL CASE
WITHOUT PAYMENT OF FEES OR COSTS

APPENDIX 5-17: AFFIDAVIT OF INDIGENCE

APPENDIX 5-18: ORDER OF INDIGENCE

APPENDIX 5-19: ORDER APPOINTING GUARDIAN AND
CONSERVATOR

APPENDIX 5-20: REPORT OF GUARDIAN FOR AN
INCAPACITATED PERSON

CHAPTER 6: SPECIAL NEEDS TRUSTS

6.1 INTRODUCTION
    6.101 In General
    6.102 What Is a Special Needs Trust?
    6.103 Purposes of Special Needs Trusts
    6.104 Uses and Misuses of Special Needs Trusts
    6.105 Special Needs Trusts and Malpractice

6.2 PUBLIC BENEFITS OVERVIEW
    6.201 In General
    6.202 Benefits Not Based on Financial Need
    6.203 Benefits Based on Financial Need
    
6.3 SELF-SETTLED SPECIAL NEEDS TRUSTS
    6.301 In General
    6.302 Drafting Rules for (d)(4)(A) SNTs
    6.303 Other (d)(4)(A) Trust Provisions
    6.304 Drafting a (d)(4)(C) SNT
    6.305 Alternatives to a Self-Settled Special Needs Trust
    
6.4 THIRD-PARTY SPECIAL NEEDS TRUSTS
    6.401 In General
    6.402 Drafting Rules
    6.403 Additional Trust Provisions
    6.404 Form of Trust
    6.405 Interface with Other Aspects of Estate Plan
    6.406 Special Needs Trust for Surviving Spouse

6.5 DISTRIBUTIONS AND DISBURSEMENTS FROM
SPECIAL NEEDS TRUSTS
    6.501 In General
    6.502 Effect of Income and In-Kind Support and
    Maintenance on SSI Eligibility
    6.503 Medicaid Requirements
    6.504 State Requirements and “Decoupling”
    
6.6 ADMINISTRATION AND TAXATION OF SPECIAL NEEDS
TRUSTS
    6.601 In General
    6.602 Notification and Reporting Requirements
    6.603 Trustee Powers and Duties
    6.604 Trust Taxation Issues
    6.605 Investment and Management of Trust Assets

6.7 LITIGATION ASPECTS OF ESTABLISHING SPECIAL
NEEDS TRUSTS
    6.701 In General
    6.702 Establishment Process for Inheritances and Excess
    Funds
    6.703 Establishment and Administration Process for
    Matrimonial Law
    6.704 Establishment Process for Personal Injury Claims

6.8 CONCLUSION

6.9 BIBLIOGRAPHY OF SPECIAL NEEDS PLANNING
RESOURCES

APPENDIX 6-1: SELF-SETTLED SPECIAL NEEDS TRUST

APPENDIX 6-2: THIRD-PARTY SPECIAL NEEDS TRUST

APPENDIX 6-3: ATTORNEY CERTIFICATION FOR SURVIVOR
BENEFIT PLAN ANNUITY

CHAPTER 7: MEDICAID PRACTICE

7.1 INTRODUCTION
    7.101 Medicaid Services Generally
    7.102 Funding and Administration of Medicaid
    7.103 Sources of Law and Regulation
    7.104 Financial Limitations, Standards, and Thresholds

7.2 CATEGORIES OF NEED IN THE ELIGIBILITY
DETERMINATION
    7.201 SSI Recipients
    7.202 80% Federal Poverty Level (FPL) Applicants
    7.203 Medically Needy Applicants

7.3 GENERAL ELIGIBILITY CRITERIA FOR “MEDICALLY
NEEDY” APPLICANTS
    7.301 The Evaluation Process
    7.302 Marital Status of Applicant
    
7.4 CITIZENSHIP, IDENTITY, AND RESIDENCY CREDENTIALS
FOR NON-MEDICARE/SSI ENROLLEES
    7.401 Proof of Identity and Citizenship
    7.402 Virginia Residency Requirement

7.5 AGE, BLINDNESS, OR DISABILITY REQUIREMENT
    7.501 “Aged”
    7.502 “Blind”
    7.503 “Disabled”
    
7.6 INSTITUTIONAL STATUS REQUIREMENT
    7.601 Virginia Auxiliary Grant Program for Assisted
    Living Residents
    7.602 Institutional Status Defined
    7.603 Pre-admission Screening for Institutional Status
    
7.7 INCOME ELIGIBILITY AND “SPENDDOWN”
    7.701 Income Test for Initial Eligibility
    7.702 Medicaid Spenddown
    
7.8 POST-ELIGIBILITY INCOME DEDUCTIONS
    7.801 Determining “Patient Pay”
    7.802 Deductions from Patient’s Income
    7.803 Patient Pay for Married LTC Recipients
    7.804 Spousal Monthly Maintenance Allowance
    7.805 Dependent Family Member Allowance

7.9 CONTRIBUTIONS FROM THE COMMUNITY SPOUSE

7.10 “COUNTABLE” AND EXEMPT RESOURCES
    7.1001 Countable Resources
    7.1002 Exempt (Excluded) Resources
    
7.11 COMMUNITY SPOUSE RESOURCES RULES
    7.1101 Purpose of the CSPRA
    7.1102 Calculating the CSPRA
    7.1103 Resource Eligibility Dates

7.12 TRANSFER OF ASSETS OR RESOURCES
    7.1201 Purpose of Transfer Limitations
    7.1202 Attempts to Impose Criminal Liability for Prohibited
    Transfers
    7.1203 Meaning of “Transfer”
    7.1204 Limited Reach of Transfer Rule
    7.1205 “Penalty Period” for Prohibited Transfers
    7.1206 Imputed Transfers of Assets
    7.1207 Transfers by Spouses
    7.1208 Exempt Transfers
    7.1209 “Undue Hardship” Exemption from Transfer Penalty
    7.1210 The “Look-Back” Period for Transfers

7.13 MEDICAID PLANNING STRATEGIES
    7.1301 Planning for Initial Eligibility
    7.1302 Suggested Dispositions of Excess Resources
    7.1303 Conversions to Cover a Period of Ineligibility Because
    of Asset Transfers
    7.1304 Transfers That Precede Institutionalization
    7.1305 Divorce Following Transfer of Assets to Community
    Spouse
    7.1306 Purchase of EE or I United States Savings Bonds

7.14 MEDICAID RECOVERY FROM TRANSFEREES

7.15 ESTATE RECOVERY

7.16 MEDICAID RECIPIENTS AS ESTATE BENEFICIARIES

7.17 THE MEDICAID APPLICATION
    7.1701 The Application Form
    7.1702 Authorized Representative of Applicant
    7.1703 Processing the Application
    7.1704 Retroactive Coverage
    7.1705 Required Information and Verification
    7.1706 Notice of Action
    7.1707 Right of Appeal

7.18 APPEALS
    7.1801 Right to and Basis of Appeal
    7.1802 Policies and General Procedures
    7.1803 Notification Requirements
    7.1804 Appeal Validation and Agency Appeal Summary
    7.1805 Fair Hearing Procedure
    7.1806 Continuation of Medicaid Coverage During Appeal
    and Remand
    7.1807 Informal Review Through Local Agency Conference
    7.1808 Appeal of Administrative Decision to Circuit Court
    
7.19 MEDICAID COMMUNITY-BASED CARE WAIVERS
    7.1901 Background
    7.1902 The Virginia Waiver Programs
    7.1903 Funding
    7.1904 Qualification for Services
    7.1905 Access to Services
    7.1906 Elderly or Disabled with Consumer-Direction
    Waiver (EDCD)
    7.1907 CBC Waiver Spenddown
    
7.20 THE PACE PROGRAM IN VIRGINIA
    7.2001 Introduction
    7.2002 Availability in Virginia
    7.2003 Organizational Requirements
    7.2004 PACE Services Offered
    
APPENDIX 7-1: MEDICAID APPLICATION FORM

APPENDIX 7-2: ASSET TRANSFER UNDUE HARDSHIP CLAIM
FORM

APPENDIX 7-3: WAIVER OF ELECTIVE SHARES IN SPOUSES’
ESTATES

APPENDIX 7-4: BURIAL FUND DESIGNATION FORM

APPENDIX 7-5: INTENT TO TRANSFER ASSETS TO THE
COMMUNITY SPOUSE

APPENDIX 7-6: CHECKLIST OF NEEDED VERIFICATIONS

APPENDIX 7-7: NOTICE OF ACTION ON MEDICAID
AND FAMIS

APPENDIX 7-8: ADVANCE NOTICE OF PROPOSED ACTION

APPENDIX 7-9: NOTICE OF APPEAL FROM DENIAL OF
BENEFITS

TABLE OF AUTHORITIES

INDEX


Authors

Editor

Christopher M. McCarthy, White & McCarthy, LLP / Midlothian (Expand/Collapse Bio)

Christopher M. McCarthy, editor and co-author of Chapter 7, is a partner at White & McCarthy, LLP in Midlothian, Virginia, and has been practicing in the field of elder law since 1999. His practice includes the areas of estate planning, estate and trust administration, disability and special needs planning, Medicaid planning and long-term care planning, guardianships and conservatorships for incapacitated adults, and fiduciary services.

Mr. McCarthy received his undergraduate degree from Georgetown University in 1992 and his law degree from the University of Richmond, T.C. Williams School of Law, in 1999.

Mr. McCarthy is certified as an elder law attorney (CELA) by the National Elder Law Foundation (NELF), the only organization accredited by the American Bar Association to offer that certification. He is Past President of the Virginia Academy of Elder Law Attorneys, a Past Chair of the Elder Law Section of The Virginia Bar Association, a member of the Council of Advanced Practitioners of the National Academy of Elder Law Attorneys, a member of the Academy of Special Needs Planners, and a member of the Advisory Committee of the Virginia Center on Aging.

Authors

George P. Wakefield Buxton, TrustBuilders Law Group / Yorktown (Expand/Collapse Bio)

George P. Wakefield Buxton, co-author of Chapter 2, is the Managing Partner at TrustBuilders™ Law Group and the President of TrustBuilders Fiduciary Group. He specializes in elder law, asset protection, and advanced wealth transfer as well as charitable giving and business succession planning. Mr. Buxton is an Accredited Estate Planner® and member of the Virginia, West Virginia, and Minnesota Bars and also practices before the United States Tax Court. He holds a bachelor’s degree from Virginia Tech, a law degree from Regent University, and a Master of Laws in Estate Planning from the University of Miami. He has also completed his graduate work in Financial Planning at Georgetown University and holds an MBA from The College of William and Mary.

Prior to joining TrustBuilders, Mr. Buxton held senior management positions at some of the nation’s largest financial services companies including Northwestern Mutual, Minnesota Life, and Key Bank. He was most recently the Senior Vice President and Managing Director of United Bank’s Wealth Management Group, where he oversaw its $4B Trust Department, Private Wealth Management Group, and Brokerage Divisions.

Over the years, Mr. Buxton has held numerous securities licenses including the FINRA Series 7, 23, 65, and 66. He has also been named to the financial service industry’s prestigious Million Dollar Round Table and established the state of West Virginia’s only Board Certified Financial Planning Program at the University of Charleston. In 2010, Mr. Buxton was named the President of the West Virginia Tax Institute.

In 2012, Mr. Buxton returned to Tidewater to join the family law practice. In addition to serving the firm’s eight thousand-plus clients, he spends much of his time promoting financial literacy through various volunteer roles. He is a popular instructor at William and Mary’s Christopher Wren Association and an adjunct professor at Regent University School of Law. Mr. Buxton is a fourth generation native of Newport News, where he attended Menchville High School and Hampton Roads Academy. He currently lives in Williamsburg with his wife and fellow attorney, Lori Buxton, and their two boys, Joseph and William.

Joseph T. “Chip” Buxton III, TrustBuilders Law Group / Urbanna (Expand/Collapse Bio)

Joseph T. “Chip” Buxton III, co-author of Chapter 2, is Founder and President of TrustBuilders™ Law Group, with offices in Yorktown, Urbanna, Williamsburg, and Virginia Beach. He has been in private practice since 1978 after several years as Associate General Counsel and Corporate Attorney with Newport News Shipbuilding. After nearly four decades of practice, he remains widely regarded as one of the most experienced attorneys in the state in the areas of elder law, estate planning, and trust administration.

Mr. Buxton received his B.A. from Denison University and his J.D. from the College of William and Mary. He is a graduate of the Navy’s Officer Candidate School and the U.S. Naval School of Justice and holds the rank of Commander USNR (Ret.).

Mr. Buxton is a member of the Virginia and Florida Bars and the past President of the Tidewater Chapter of the Federal Bar Association, the Peninsula Estate Planning Council, and the Virginia Academy of Elder Law Attorneys.

Buxton is most proud of his advocacy to the Peninsula’s aging community. He is one of less than five hundred attorneys in the country accredited as a Certified Elder Law Attorney (C.E.L.A.) by the National Elder Law Foundation and currently sits on the Board of Governors for the Virginia Senior Lawyer Conference. He is also actively involved in the Virginia Law Foundation’s Division of Continuing Legal Education as an advocate and teacher. Over the years, Mr. Buxton has been appointed to numerous judicial and academic positions including Commissioner in Chancery for the Middlesex Circuit Court, Escheator for Middlesex County, and adjunct law professor (Advanced Estate Planning) at the Regent University School of Law.

Andrew H. Hook, Hook Law Center, PC / Virginia Beach (Expand/Collapse Bio)

Andrew H. Hook, co-author of Chapter 6, is the president of Hook Law Center, P.C. He practices in the areas of elder law, estate and trust administration, estate planning, long-term care planning, asset protection planning, special needs planning, and personal injury settlement consulting. He is certified as an elder law attorney (CELA) by the National Elder Law Foundation and is an Accredited Estate Planner (AEP®).

Mr. Hook received a bachelor’s degree in nuclear engineering from the University of Virginia in 1972 and a law degree from the University of Virginia School of Law in 1975.

Mr. Hook is the Chair of the Elder Law and Special Needs Planning Section of The Virginia Bar Association, a member of the legislative committee of the Trust and Estates Section of The Virginia Bar Association, and the Past President of the Special Needs Alliance, a non-profit association of disability attorneys. He is a Fellow of the American College of Trust & Estate Counsel (ACTEC) and the National Academy of Elder Law Attorneys (NAELA). Mr. Hook is also a Certified Financial Planner™ professional. He is a co-author of Representing the Elderly and Disabled Client, published by R.I.A. He is also the author of the BNA Portfolio on Durable Powers of Attorney.

Shannon A. Laymon-Pecoraro, Hook Law Center, PC / Virginia Beach (Expand/Collapse Bio)

Shannon Laymon-Pecoraro, co-author of Chapter 6, is an Associate at Hook Law Center, P.C. She practices in the areas of special needs planning, personal injury settlement consulting, elder law, long-term care planning, asset protection planning, estate and trust administration, guardianship, and estate planning. Ms. Laymon-Pecoraro received a bachelor’s degree in Business Management from the Wilmington University in 2007 and graduated cum laude from the University of Baltimore School of Law in 2012.

Ms. Laymon-Pecoraro is accredited with the Department of Veterans Affairs and serves as a Guardian ad Litem for Incapacitated Adults. She is a member of the National Academy of Elder Law Attorneys (NAELA) and the Virginia Academy of Elder Law Attorneys (VAELA). She serves on the Board of Directors for Hope House Foundation, a 503(c)(3) organization that supports adults with a primary diagnosis of developmental or intellectual disability.

R. Shawn Majette, ThompsonMcMullan / Richmond (Expand/Collapse Bio)

R. Shawn Majette, author of Chapter 4 and co-author of Chapter 7, is a shareholder and director of the law firm of ThompsonMcMullan in Richmond. He focuses his practice in the legal aspects of mental and physical disability, with a strong emphasis on the legal, medical, financial, and management issues involved in caring for the incapacitated elderly. As the founding Chairperson of The Virginia Bar Association’s Elder Law Section from 1993 to 1996, he helped to raise awareness of the special issues involved in his practice area throughout the Commonwealth. He has served as Chairperson of the Section’s legislative affairs subcommittee and the Section Council and (in 2006 and thereafter) as the Chairperson and later as task force member for the Virginia Supreme Court’s Mental Health Commission.

Mr. Majette is a 1976 graduate, magna cum laude, of the University of Richmond, with major concentrations in English and Economics. He received his law degree from the College of William & Mary in 1979.

Mr. Majette has held numerous appointments to Virginia General Assembly advisory committees and has assisted in drafting several Virginia statutes relating to elder law and mental health issues, including revisions to the law of civil commitment, emergency medical consent, guardianship, and the prevention of financial abuse of incapacitated adults under durable powers of attorney. He is a frequent writer and speaker on elder and mental health law topics and has delivered presentations for the National Academy of Elder Law Attorneys, of which he has been a member since 1989. In addition, he has served as President of the Academy’s Virginia chapter. Since 1991, Mr. Majette has been a speaker for the Annual Elder Law Seminars sponsored by the Virginia Law Foundation. Mr. Majette has written articles for various legal publications, including his 1998 chapter addressing Virginia issues connected with powers of attorney, long-term care insurance, and Medicaid for the standard Virginia treatise on wills and trust practice, Estate Planning in Virginia (Virginia CLE). Recognized by Best Lawyers In America since 2007, he has twice been recognized as “Lawyer of the Year” in Elder Law. Mr. Majette is also member of the Special Needs Alliance, a network of America’s leading disability and public benefits lawyers. He has been a speaker and contributor to the Academy’s and Alliance’s seminars and publications.

An amateur magician, short-term missionary to Grand Goave, Haiti, and adult Sunday School teacher at Chamberlayne Baptist Church, Mr. Majette at the time of press is working on perfecting the regurgitation of perfectly tied, previously loose needles and thread swallowed before his audience. Dee, his bride of 36 years, wonders.

Kevin B. Rack, Rack & Moccia, PC / Virginia Beach (Expand/Collapse Bio)

Kevin B. Rack, author of Chapter 1, is a shareholder of Rack & Moccia, P.C. in Virginia Beach. His practice is focused in estate planning, estate and trust administration, fiduciary taxation, and elder law. He is also experienced in estate litigation, including will contests, augmented estate claims, removal of fiduciaries, Medicaid appeals, and petitions for conservatorship and guardianship. Mr. Rack has served as Chair of the Elder Law Section of The Virginia Bar Association. He received the Distinguished Service Award from the Virginia Academy of Elder Law Attorneys and the Outstanding Achievement Award from the Virginia Chapter of NAELA. Mr. Rack has been named to the list of Best Lawyers in America in Trusts and Estates (Litigation) and the Virginia Business “Legal Elite.” He has also served as a member of the Virginia Governor’s Advisory Board on Aging, as Chairman of the Mayor’s Committee for the Aging in Virginia Beach, and as an Officer and Director of the Alzheimer’s Association, Southeastern Virginia Chapter.

Mr. Rack earned his B.A. in English from James Madison University (1980), his J.D. from the T.C. Williams School of Law at the University of Richmond (1984), and his LL.M. in Taxation from the Marshall-Wythe School of Law at the College of William & Mary (1993). He lectures frequently as a faculty member for Virginia CLE.

Sandra L. Smith, Oast & Taylor PLC / Portsmouth (Expand/Collapse Bio)

Sandra L. Smith, co-author of Chapter 6, is a partner in the law firm of Oast & Taylor PLC, with offices in Virginia Beach and Portsmouth. She practices in the areas of elder law, estate planning, estate and trust administration, asset protection planning, special needs planning, long-term care planning, and veterans’ benefits planning. Ms. Smith is certified as an elder law attorney (CELA) by the National Elder Law Foundation.

Ms. Smith received a Bachelor of Science in Aeronautical and Astronautical Engineering from Purdue University in 1976 and graduated from Embry-Riddle Aeronautical University in 1979 with a Master of Aviation Management degree. Ms. Smith is a 20-year veteran of the United States Air Force and received a Bronze Star for meritorious service during Operation Desert Storm. She graduated from the College of William & Mary School of Law in 2000, where she was a member of the William & Mary Law Review and Moot Court.

Ms. Smith is a member of the Virginia State Bar, The Virginia Bar Association, the National Academy of Elder Law Attorneys, Virginia Academy of Elder Law Attorneys, and the Special Needs Alliance. She is a member of the Board of Directors of The Virginia Bar Association Elder Law Council, the Board of Governors of the Virginia State Bar’s Military Law Section, and the Board of Directors of the I’Anson-Hoffman American Inn of Court. Ms. Smith is also the Chairman of the Virginia Beach Task Force on Aging. She was selected by Virginia Lawyers Weekly as an Influential Woman of Virginia in 2014.

Recognized for her service by Virginia Super Lawyers Magazine, Ms. Smith was named a “Rising Star” in 2008 and a “Super Lawyer” in 2015, 2016, and 2017 for her work in all of her areas of specialty. Ms. Smith is a past President of the Commonwealth Community Trust and a past National President of the American Business Women’s Association.

Matthew C. Sunderlin, Clark & Bradshaw, PC / Harrisonburg (Expand/Collapse Bio)

Matthew C. Sunderlin, author of Chapter 5, is a partner in Clark & Bradshaw, PC, a full service law firm in Harrisonburg. His practice includes tax and nontax estate planning, probate, estate and trust administration, incapacity planning, planning with regard to Medicaid, Medicare, Social Security and SSI, veterans’ benefits, real estate settlements, and fiduciary services. Mr. Sunderlin handles litigation involving these issues, such as contested wills and trust and estate administration disputes. He also has substantial experience in guardianships and conservatorships.

Mr. Sunderlin received a bachelor’s degree in history from Hampden-Sydney College and a law degree from Regent University School of Law.

Mr. Sunderlin is certified as an elder law attorney (CELA) by the National Elder Law Foundation, is certified to serve as a guardian ad litem for incapacitated adults by the Virginia Supreme Court, and is accredited to practice before the Department of Veterans Affairs. He is a member of the National Academy of Elder Law Attorneys and Virginia Academy of Elder Law Attorneys, the Virginia Guardianship Association, and the board of the Elder Law Section of The Virginia Bar Association. Mr. Sunderlin is Past President of Autumn Valley Guardianship, a public guardianship program and Past President of the Harrisonburg-Rockingham Bar Association (2014-2015). He is also a former president and member of the board of directors of The Arc of Harrisonburg/Rockingham and of The ElderAlliance. He is the Assistant District Governor (Area 3, District 7570) Rotary International and a member of the Board of Blue Ridge Community College.

Edward E. Zetlin, Edward E. Zetlin Law / Arlington (Expand/Collapse Bio)

Edward Zetlin, author of Chapter 3, practices elder and disability law at Edward Zetlin Law in Arlington. Before entering private practice, Mr. Zetlin served as counsel for the elderly for Legal Services of Northern Virginia for many years. He has been an adjunct professor of law at the Washington College of Law of American University, where he taught classes on elder law and on wills, trusts, and estates.

Mr. Zetlin earned his law degree from the University of Richmond, T.C. Williams School of Law.

Mr. Zetlin was named a Fellow of the National Academy of Elder Law Attorneys (NAELA) in 2006. He served as a member of the board of directors for NAELA and as chairperson of NAELA’s Guardianship/Capacity Section. He is a former president of the Virginia Academy of Elder Law Attorneys (VAELA) and served on VAELA’s board for many years. Mr. Zetlin has taught and written for lawyers, law students, and laypersons on a variety of elder law and special needs planning topics, including Medicaid, nursing and assisted-living contracts, and guardianship and capacity matters.

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