Friday, January 4, 2019

The Rise of The Green Burial

Elizabeth D. Johnson
Paralegal
Imagine taking a walk through a garden or forest, admiring the wildlife, flora, and fauna. Maybe there is a lake or stream that you can sit by and collect your thoughts while absorbing the natural beauty around you. Now imagine that this place you’re in is a cemetery. Hybrid, natural, and conservation burial grounds are popping up all over the country, focusing on green alternatives to the burial and funeral process. The Green Burial Council describes green or natural burial as a way of caring for the dead with minimal environmental impact that aids in the conservation of natural resources, reduction of carbon emissions, and the restoration or preservation of habitat. It is also a way of reconnecting with and having our final purpose be giving life back to the earth.

Funerals in the United States are the most resource intensive in the world, with 53 million gallons of toxic embalming fluid being buried every year. Most people believe the way to combat this is to be cremated, however, the cremation process consumes fossil fuels and releases more than 23 million pounds of CO2 into the atmosphere annually. While just having yourself or a loved one cremated seems small in the grand scheme of things, about 40% of Americans receive cremation. Among the most significant noxious emissions produced by cremation are carbon dioxide, hydrogen chloride, carbon monoxide, mercury, and of course, formaldehyde.

For those who would still rather have a more common funeral service including an open casket and the works, there are now formaldehyde-free embalming fluids and some are made entirely of nontoxic and biodegradable essential oils. Aside from formaldehyde being bad for the earth, the National Cancer Institute released in 2009 that funeral directors and embalmers have a much higher incidence of myeloid leukemia and cancers of the brain and colon.

Green burials may seem like a radical idea but they actually share many similarities with Muslim and Jewish traditions – no embalming, the body is usually laid to rest within a 24-hour period, and the body is touching the earth. They also involve the use of a shroud or a nontoxic, biodegradable casket.  During the 18th and 19th Centuries, burials in the U.S. involved, at most, a pine casket and a plot of land. The “green death movement” essentially takes us back to those practices, when we were more connected to death and the land - a true “ashes to ashes, dust to dust, earth to earth” burial.

If none of the reasons above are resounding enough to think about a green burial for yourself, there’s always the cost difference. Typical funerals cost between $7,500 and $10,000 and cremations cost around $2,000 – not including the service and any other bells and whistles.  The price of a burial plot at a green cemetery, including a marker, ranges from $800 to $3,500, with some of that cost going toward conservation and restoration. Some people also opt for a home funeral (being buried on your land), which is allowed by almost all counties, but most require a minimum number of acres and the filing of a plat map with the local planning department.

In this day and age, there are tons of things to consider about your life and your death. It seems like there are a thousand decisions to make and add-ons for everything that you want to do, whether buying a car or planning your own funeral.  Perhaps a green burial will allow you to take solace in knowing that your final act is providing nourishment for the earth and conserving what we have left for the people you leave behind.

For more information on green burials, go to:



Organizing your Digital Footprint in the New Year

Valerie M. Hollar
Paralegal
Happy New Year! I don’t know about you, but I always look to the start of a new year as a way to get organized in some area of my life. Just like you organize your closet or your cabinets, your digital assets also need to be organized. It seems like there are online accounts for just about anything these days. From banking, social media, networking, etc., there literally are online accounts for everything. Do you have a list of all of your online accounts and passwords? More times than not, the online account host has rules pertaining to a decedent’s account, and the powers granted in your estate planning documents do not always allow your agents to manage or close these accounts upon your death. The following article will give you a little more insight.

Digital assets are any type of personal property which are stored in digital form, such as photographs, word or pdf documents, financial information, email accounts, business accounts, banking accounts, domain names, blogs, web pages, social media accounts, loyalty program benefits, online storage accounts, online purchasing accounts, online sales accounts, etc.  Such information can only be accessed through computers, smartphones, tablets, etc., and is normally password protected. 

So, what happens to this information if you become disabled or when you die?  Some accounts are eventually closed for inactivity, but others stay open until directed to be closed by someone having the appropriate authority.  It is this question of authority that causes problems for family members and fiduciaries. Many online organizations have put rules into place for accessing the digital information of a decedent.  This article explains some of the established processes and suggests that every estate plan contain a strategy for dealing with digital assets, including the appointment of a digital executor to handle these assets.

Virginia defines a digital asset as an electronic record in which an individual has a right or interest. Article 3.1 of the Virginia Code is the Uniform Fiduciary Access to Digital Assets Act which describes how to protect your digital accounts after you pass away. This Article was established in July 2017 and provides your trustee, personal representative, or agent under a power of attorney is allowed to manage your digital assets and can restrict said fiduciary from accessing your electronic communications, including emails and texts, unless otherwise specified in your estate planning documents.  The prior governing act, The Privacy Expectation Afterlife and Choices Act, brought the issue of different state’s laws into play since every company is tied to a particular state. The new act now applies to the owner of a digital asset if they reside in the Commonwealth of Virginia or did when they died.

The paragraphs that follow detail several popular digital account holding websites that you may have accounts with. As you will see, each of these organizations has certain criteria for accessing a decedent’s account. This list does not list every online digital asset holding account that currently exists, but it does serve as a good starting point for you to think about in terms of your digital footprint.

Google (Gmail, YouTube, Google+)

Google has what is called an Inactive Account Manager, which is a way to either share or delete your account after a set period of inactivity.  You set a timeout period, after which time of inactivity on your account, any trusted contacts will be notified, given an option to share data, and your account will be permanently deleted.  If you fail to set up your Inactive Account Manager before your passing, members of your family can request the contents of your account, but there is no guarantee that they will actually get them. By providing proof of kinship, a death certificate, and possibly a court order (i.e. certificate of qualification on the decedent’s estate), Google will review whether or not to release the contents of your account. 

Yahoo

Similar to Google, Yahoo will not give anyone access to the account.  It does provide an option for closing a decedent’s account. A letter containing the request and the account name (email address), a death certificate, and a copy of a document appointing the requesting party as the personal representative or executor of the estate of the deceased are required to close the account.

Microsoft (Hotmail.com, Live.com, Windowslive.com, MSN.com)

Microsoft will release contents of emails, attachments, address book and messenger contact list to the next of kin of a deceased or incapacitated account holder following a short authentication process, but it will not provide any passwords or access to the account.  A death certificate or certified document stating the user is incapacitated, a certified document proving kinship, and a photocopy of a government issued photo ID of a family member are required. Microsoft will not provide this support for SkyDrive, MSN Dial-up or Xbox Live.

America Online

 AOL will not release the contents of any account to anyone, but it is possible to transfer ownership to another AOL Username already listed on the account.  The next of kin can change the payment information online through My Account Settings, using the deceased person’s Username and Password.  AOL Customer Service will provide this information if needed. 

Apple iCloud (Mac.com, Me.com)

Apple has no right of survivorship, which means that rights to Apple ID or content within an account are non-transferable.  Next of kin may provide a death certificate, in which case the account will be terminated and all content will be deleted.

Facebook

 Your Facebook account can be handled one of two ways, either the account can be memorialized or it can be deleted.  Either option can be chosen by the user before death.  For either option, after death, a family member needs to fill out an online form with a link to either an obituary or news report confirming the death.  When an account is memorialized, all sensitive information including contact information and addresses are removed, as well as status updates.  The profile settings are changed so that only friends can find the profile and post information to the user’s wall.  Login information will be deactivated, preventing anyone from accessing the account.

Twitter

Twitter will not release any passwords or information about an account, but the account can be deactivated with proper documentation.  The Username of the deceased user’s Twitter account, a copy of the death certificate, a copy of a government-issued ID, and a signed statement including contact information and relationship to the deceased user is required to request deactivation.

Instagram

Like Facebook, an Instagram account can either be memorialized or deleted.  A family member must provide a death certificate and proof of authority as a representative of the estate.  Memorialized accounts cannot be changed in any way, but posts the deceased person shared stay on Instagram and are visible to the audience they were shared with.  Instagram does not allow anyone to log into a memorialized account.

Cell-Phone Carriers

Cell phone providers make the process of closing accounts of their deceased account holders a bit easier. Most, including AT&T, Verizon, T-Mobile, and Sprint, require account holders’ names, in some cases social security numbers, phone number and death certificates to terminate the decedent’s account. Most will also waive the account termination fees for deceased account holders. Check with your individual carrier for specific guidelines.

Take a moment to think about all of your online accounts. You probably have numerous usernames and passwords for different accounts that probably change with some regularity. You may be apprehensive about keeping a list of all of these accounts and passwords in one place for fear of a security threat. Beginning in May 2012, the U.S. Government started encouraging people to create social media wills in which a person would name an Online Executor to close online accounts, social media profiles, email accounts, etc. after death. 

This information should not be contained in your actual will because when your will undergoes probate after your death, the information contained within it becomes public record. It is recommended that you make a list of all of your personal accounts, usernames, and passwords and state how you would like each handled upon your passing.  This list should be kept with your original will or trust so it can be found upon your incapacity or death.  For your security, this list should not be given to anyone prior to your incapacity or death, but it is important to advise the person you have named as your Online Executor as to where this list can be found. When you’re thinking about who to give this title to, keep in mind it may be easier for the trustee of your trust, or personal representative, etc., to take on this role. Finally, this list should be reviewed and updated at least every six months because, as we all know, accounts and passwords change regularly.  The list is only beneficial if it contains the most relevant and up to date information.

In lieu of making the list discussed previously, there are a few websites which can store account information and passwords for you securely.  Some of these include passwordbox.com, everplans.com, and planneddeparture.com. These sites are set up to store all passwords to any of your online accounts.  You then select a Digital Estate Executor, who should be a trusted person, to receive access to your accounts upon passing.  Once your Digital Estate Executor has contacted the site and provided proof of your passing, all of your passwords will be released to that person, with details on how you want each account handled. Some digital companies, such as PSN, Snapchat, and Tinder, do not have options for account management after passing so it would be a good idea to leave instructions on how you want those accounts managed.  Keep in mind that it could be a violation of the Terms of Service Agreement for someone else to access your account, even with written consent.  So, read the various Terms of Service Agreements for each company and stay up to date on their policies.

What happens to your social media accounts after you die is something that is usually overlooked.  Like with anything else, having a plan in place is the key to making things easier on your agent, personal representative, trustee, and/or family members by providing the information that person will need to access and/or close your digital accounts upon incapacity or death.  If we can provide any additional information on this issue or assist you in appointing your Online Executor, please contact us. I wish you a new year full of prosperity, happiness, and organization!

Monday, November 5, 2018

Changes to VA Pension Rules

Catherine E. Sears, Esq.
On October 18, 2018, new rules went into effect involving VA Pension benefits, which are commonly called “Aid and Attendance” benefits.

The purpose of VA Pension is to provide financial assistance to medically-eligible veterans and their widow(er)s. Unlike Medicaid, which pays for the entire portion of an individual’s nursing home costs which the individual cannot afford to pay herself, Pension does not guarantee that the veteran will have sufficient funds to pay for a nursing home. Instead, it provides an additional source of monthly income which can then be used to help the veteran’s assets last longer in paying out-of-pocket for long-term care.

To receive Pension benefits, a veteran need not have been injured during his wartime service, but rather is currently disabled (perhaps, due to age) and in need of assistance with activities of daily living, such as bathing, toileting, or feeding oneself.  Additionally, to be eligible for VA Pension benefits, the veteran has always needed to have a low financial net worth.  In other words, the veteran must have less than a certain amount of monthly income, and less than a certain amount of accumulated assets.  If the veteran’s income exceeds the eligibility threshold but the veteran has a great deal of unreimbursed medical expenses, the VA will deduct those expenses from the veteran’s income in making its eligibility calculation.

Under the old VA rules, a veteran could, without penalty, give away as much of his accumulated assets as necessary in order to reduce his assets and become financially eligible for Pension. The assets could be given to a trustworthy child as an early inheritance or with the hope that the child would help pay for the veteran’s care by using that gifted money on the veteran’s expenses. Similarly, the assets could be transferred to an irrevocable trust or into an annuity so they were no longer within the veteran’s control (thus, making the veteran financially eligible for Pension), but would still be used for the veteran’s benefit.  Therefore, under the old rules, a veteran with substantial accumulated assets could simply transfer all of those assets away one day and qualify for Pension benefits the next day.

The new rules, however, will impose a penalty on assets which have been given away or transferred for less than their fair market value. This is intended as a way to maintain the purpose of the Pension program: to provide assistance to those who are truly financially needy. Therefore, a penalty period is imposed on veterans who have made transfers for less than the fair market value within three years of the veteran becoming eligible for Pension benefits.  The length of the penalty period is directly related to the value of assets which were given away.

This new policy impacts asset protection planning strategies, then, as a veteran or surviving spouse must now plan to make any gifts or transfers more than three years before expecting to need Pension benefits. However, though this is a new factor to consider in Pension planning, a “lookback period” and penalties on asset transfers are very familiar concepts in long-term care planning, as Medicaid has always had these rules.  Because Medicaid planning and VA Pension planning often go hand-in-hand, a long-term care planning attorney should already have considered the ramifications of making gifts and risking a penalty period when advising her clients.


The new VA Pension rules make many other changes regarding eligibility and medical expenses, but the lookback period will likely have the most significant impact on the majority of prospective VA Pension recipients. If you have previously engaged in any long-term care planning with the intention of qualifying for Pension benefits, you should talk to a VA Accredited attorney to make sure that these new rules will not impact your current plan, and to revise the plan as needed.

Wednesday, October 3, 2018

Tax-Free Rollovers from 529 Savings Plans to Able Accounts Now Permitted

Helena S. Mock, Esq.

In a previous blog, I wrote about the enactment of the ABLE (“Achieving a Better Life Experience”) Act, which was signed into law in 2014.  The ABLE Act is a federal law that allows states to establish a savings program for persons with disabilities.  ABLE accounts may be used to accumulate money for a disabled beneficiary.  The funds in an ABLE account can be invested and grow free from all income taxes.  The money can later be used by or for the beneficiary for purposes such as education, housing, transportation, employment training and support, assistive technology and personal support services, health, prevention and wellness, financial management and administrative services, legal fees, expenses for oversight and monitoring, funeral and burial expenses, and other “permissible expenditures.

The ABLE account is modeled after the 529 education savings plan, which allows savings for future college expenses to grow free from income tax.  You don't get a federal income tax deduction for contributions into the plan, but the earnings on the account aren't taxed while the funds are in the program.  The custodian of the plan can also change the beneficiary or roll over the funds in the program to another plan for the same or a different beneficiary without income tax consequences.  And, distributions from the program are tax-free up to the amount of the student's "qualified higher education expenses." These include tuition (including up to $10,000 in tuition for an elementary or secondary public, private, or religious school), fees, books, supplies, and required equipment. Reasonable room and board are also qualified expenses if the student is enrolled at least half-time.

Often 529 college savings accounts are established by parents or grandparents for an infant or young child before knowing if that child will ever be able to attend college.  If that child later suffers a disability such that he will not need the funds for “higher education expenses,” what happens to the funds in the 529 account?  As mentioned, the custodian can change the beneficiary.  But that money was set aside for this child.  And, this child will have other needs. Why can’t those funds be used for her other needs?

Under the law, the distribution of funds from a 529 account for any purpose other than for qualifying expenses are taxed to the beneficiary to the extent that they represent earnings on the account. A 10% penalty tax is also imposed. However, under the Tax Cuts and Jobs Act of 2017, amounts from a 529 account can now be rolled over to an ABLE account without penalty so long as the ABLE account is owned by the designated beneficiary of the 529 account, or a member of the designated beneficiary’s family.  Not only is this useful if the beneficiary himself has become incapacitated such that he will not need the funds for educational purposes, but it is also useful if the beneficiary has completed his education and there is money left in the account which can be rolled over from the 529 account to an ABLE account for the benefit of a member of the beneficiary’s family who is blind or disabled.

Certain rules and limitations apply, and therefore you should consult a qualified special needs planning attorney to discuss your individual situation before taking any action.


Monday, September 17, 2018

The Final Moments

Teresa M. Clemons
Office Manager

Last week I lost a very special man, my father-in-law. For three days, my husband (his wonderful son) never left his side and was there when he took his last breath. Being with someone you love at the point of their death is a profound experience. At times, you feel guilty for wishing it to be over but it's an understandable response to a very stressful situation and wanting them to be at peace and comfortable.

The hearing is thought to be the last sense to go in the dying process, so never assume the person is unable to hear you. Talk as if they can hear you, even if they appear to be unconscious or restless. Our entire family spent several hours with him the day before he died. We reminisced about good times, even asked questions. Though he was non-responsive, someone would answer what they thought he would say. Assuming he could hear us, I am sure he was frustrated that he could not communicate, but at the same time was laughing inside at the responses that we were all making on his behalf. He had an oxygen mask on but a couple of times I saw him yawn and thought "maybe we're boring him!" Even when unconscious or semi-conscious, yawning is a natural response to draw more oxygen into the body.

We tried to create a soothing atmosphere by playing his favorite music, particularly older country. Finding a song from that genre on Pandora, we placed the cell phone next to him and wished he could have sung along. We all gathered around his bed and prayed when the minister arrived. The last words my husband spoke to him minutes before he died, made us believe that he really could hear us. He said, "Dad, it’s okay, we are all going to take good care of mom." And with that, he took his last breath and went home.



Wednesday, August 22, 2018

Using Mindfulness and Meditation to Navigate the Waters of Care-giving

Valerie M. Hollar
Paralegal
The number of Americans that are caring for an older loved one is on the rise. According to the Family Caregiver Alliance, about 34.2 million Americans have provided unpaid care to an adult age 50 or older in the last 12 months. About 15.7 million adult family caregivers care for someone who has Alzheimer's disease or dementia. Nearly 75% of all caregivers are female, around 50 years of age and these caregivers are spending around 20 hours a week providing care. With numbers like these and tasks ranging from simple grocery shopping and household chores to complicated issues dealing with finances and medical care, it is not any surprise that caregiver burnout is on the rise. Caregiver burnout is defined as a state of physical, emotional, and mental exhaustion that may show up as signs of fatigue, stress, anxiety, depression, and a general lack of self-care. 

The questions that come to mind immediately when caring for a caregiver is how do we treat this burnout state, but also what are some ways we can prevent it. My yoga teacher training points me straight to the practice of mindfulness and meditation. I personally found this practice from being a caregiver in a stressful situation. Mindfulness is the practice of paying attention to the present moment. For example, if you are feeling a sensation of overwhelming or a tightness in a part of the body, you may need to find a focus on your breath. By doing this, you are allowing the body to find a way to help itself.

So, what does this mean for a caregiver? I know, and I’m sure those reading this who are caregivers know, that just getting through a day can feel like an impossible struggle. You are busy, you have more tasks than you feel like you can complete which lead to being overwhelmed, you’re sometimes angry for having to be in this situation, you feel a sense of resentment, and it’s just plain hard. Self-care is important. While it is not always feasible to take a vacation to get away or to even get a break for yourself, it is possible to find mindfulness and meditation and use it as respite. Meditation can be done anywhere. You can literally practice it while sitting next to your loved one. 

Mindfulness and meditation have numerous benefits. Both can help to bring acceptance to feelings regarding the changes that are happening with your loved ones. Meditating on a regular basis calms the mind, which can promote a better sleep at night. It is something you can do in a short amount of time with big benefits. It can promote stronger immunity when the body is run down from the constant hustle and bustle of caring for someone else. Meditation improves concentration and focus as well as decreasing blood pressure and cholesterol levels. So not only does it improve the health of the mind, it can also improve the health of your body!  

With the popularity of meditation on the rise, your smartphone can provide a wealth of resources when it comes to these types of exercises. Several apps come ready to guide you through different meditation exercises. Some of my favorites include Calm, Headspace, and the Insight Timer. Calm offers a variety of different options with guided and unguided meditations. Headspace is narrated by a man with a lovely Australian accent and provides options for many types of meditation for stress, anxiety, confidence, etc. The insight timer app is perhaps my favorite as it offers guided meditations from many individuals with different backgrounds, unguided sessions set to sounds that soothe, and provides podcast type interviews with those that lead the meditations. No matter what you are looking for, there is a meditation app out there for you! Take the time to make mindfulness and meditation a part of your care-giving practice.  

Want to get an idea of what a meditation session is before you try an app? Check out one of my favorite simple guided meditations below. You can read through this and practice yourself, or even share with the one you are caring for and practice together. 

First, find a quiet and comfortable spot. Sitting nice and straight, feet pressing into the floor, place your hands in your lap, palms up or down, whatever is comfortable for you. Then, close your eyes or keep a soft gaze. Take a scan of your body, noticing what you are feeling in your body and what feelings are circling around in your mind. Start to focus on your breath. Feeling each inhale and exhale. As you breathe in and out, try to focus on something. Maybe thinking of a place that you feel safe and secure. Picturing that space while continuing to breathe deeply in, and deeply out, keeping the focus where you have chosen. Stay here as long as you like. When you are ready to end your meditation, come back to focusing on your breath as you scan your mind and body again. Notice how you feel. Notice what you're thinking. Repeat as often as you’d like!

For more information:
Caregiver Statistics:
Caregiver Burnout:
Meditation Benefits Seniors and Their Caregivers:
Caregiver Meditation:

Meditation Apps:
Insight Timer -  https://insighttimer.com/
Or search for them in your App Store


Wednesday, August 1, 2018

Accepting Death While You're Still Young



Elizabeth D. Johnson
Legal Assistant 
Growing up, you never truly think about getting old - which is strange because you obviously know that people get old. Your parents are old, your grandparents are really old, some have even passed away along with the other relatives you never got to meet. For me, I never actually felt like that was going to happen to me but I do remember the shift in reality when it finally hit me...oh damn, I'm going to DIE one day?!? That sucks!

I used to have panic attacks just thinking about death until I started my current job. In short, we prepare people for death and help those whose loved ones have passed, so I either had to come to terms with it or let my boss know I'd be in the fetal position every afternoon from 12-3. So, even though I'm only 28, I have already started to accept death. Obviously, if some voodoo doctor comes along and tells me they have a concoction for everlasting life, I will for sure gulp it down like Meryl Streep in Death Becomes Her. Considering that doesn't seem to be happening any time soon, I've decided I must to come to terms with the fact that we all have to die one day, and yeah it does suck, but what can you do?

As I'm nearing the age of 30, I'm realizing just how short life can be. Some have not been as lucky as I am to live even this far, and people take life for granted every day. I still take life for granted every day. None of the trivial things should matter. What should matter is the fact that I have all of these wonderful people in my life, who care about me. I have a roof over my head and food to eat and a car that doesn't break down constantly. While the goals that I set in the past now actually have deadlines, I should feel grateful to even have goals. No one knows what happens after you die and it is up to you what you believe, but regardless you can't put things off. You are fragile, your loved ones are fragile. Tell everyone how much you love them, or how much you hate them - just tell people how you feel!

People will leave your life all the time - whether it’s a fight that wasn't worth resolving, someone moving away, or you know…dying, so it's important to remind yourself every day that you are not invincible like your 13-year-old self once thought. Work hard at making yourself happy and making the people around you happy. Go outside more, meditate, eat carbs, and try not to die yet.