CARES Act - Time's Up!

Catherine E. Sears
Associate Attorney

Believe it or not, we have been living in a COVID-19 world for more than a year. For some, this is simply a depressing thought, as they prepare to celebrate a second round of birthdays and holidays amid the pandemic. For others, though, this anniversary could have very significant impact on their income and health insurance.

Pursuant to the provisions of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), recipients of means-tested government benefits, including Supplemental Security Income (SSI) and Medicaid, have one (1) year to spend the money they received as “economic impact payments,” or “stimulus checks.” After a year has elapsed, any money remaining from the stimulus payment will be treated as a countable resource, which could result in the recipient having too many resources to continue qualifying for government benefits. To learn more about this issue, please click here..

The first installment of payments began being issued in April 2020, which means that this one-year deadline is quickly approaching. SSI and Medicaid recipients should, therefore, be preparing to provide proof to their caseworkers that the money which they received last spring is no longer in their accounts. 

I suspect this will be easier said than done. Bear in mind, the federal government is now on its third round of distributing stimulus payments. Seemingly, the one-year deadline applies to each round of payments (so, if you received a payment in April 2020, the deadline for spending that payment is April 2021; if you received a second payment in January 2021, the deadline for spending that payment is January 2022, etc.). 

Let’s say, for example, that a Medicaid recipient has an excess of the allowable $2,000 in her bank account in May 2021. Rather than simply saying that she is now over-resourced and, consequently, ineligible to continue receiving Medicaid benefits, it would seem that further analysis should be done to determine whether any of these excess funds can be dated back to April 2020, or whether they are due to the second or third round of stimulus payments. If there are still funds remaining from the April 2020 payment, then, theoretically, it would seem that she would be able to re-qualify for Medicaid upon spending down just those funds, even if her bank account remains in excess of the $2,000 limit due to the more recent stimulus payments. Presumably, she would need to spend the excess funds on allowable, non-penalizing expenditures in accordance with the regular Medicaid rules, despite the fact that these stimulus payments are not contemplated anywhere in the Medicaid Manual. 

With so much uncertainty, it is crucial that those receiving means-tested government benefits do everything they can to maximize their likelihood of receiving a favorable outcome when their caseworker reviews their file. This is a moving target, and we truly do not know what the caseworkers will do. However, seeking professional assistance in spending the economic impact payments (and in documenting how you spent them) before any of the one-year deadlines occur can increase the likelihood that your Medicaid or SSI redetermination will go smoothly despite all these unprecedented factors. 

Please contact our office to schedule a long-term care consultation if we can be of any assistance as you navigate this complex area of the law.

Finding Joy Caring For Parents During the COVID-19 Outbreak

Teresa Clemons
Office Manager

My parents are 86 years old, live in a wonderful community here in Williamsburg and are still quite active.  When they moved here over 10 years ago, the plan was that I would be near by to take care of them as needed, and when they could no longer do for themselves.  Never in my wildest imagination did I think that I would be taking care of them because of a pandemic that has somewhat paralyzed the Nation and has caused mandatory quarantines. 

With both of them being in the “high risk” population, I do everything I can to eliminate any possible exposure to the monster called COVID-19.  I am the only one allowed in the house. And when I do, I where a mask, gloves and disinfect as I go.   We have created a path from the driveway through the garage and into the kitchen.  They are both on the other side of the room.  We chat as I put away the groceries, wipe down counters that have been exposed to the bags and then sterilize...me.  My mom will text me with things she needs as she thinks of them. I try to limit to one trip a week to the grocery store, again to limit exposure. Sometimes I am not sure what she is going to do with some of the items. But I don’t ask.  I assume like the rest of us she is getting bored and maybe going to create a new dish. She is an amazing cook.

After a modem failure at their house, I had to step up and become an internet technician, which is so about my pay grade. I had tried for days to call Cox Communications but they were not taking calls because of the mass influx of calls, totally understandable.  After four days, and countless hours and text messages with my brothers, who do not live locally, trying to explain what to do still no wireless internet. But did get the phone up and working. I thought that was the most important, a way to communicate. Of course, they have cell phones but do not always have with them.  I explained to my father that there a lot of people with emergencies and thank God his was not one of them. They have a hard-wired computer so he did have internet access just not wireless.  He agreed but his face still said, I am annoyed. I couldn’t believe he was being like about his laptop. Come to find out, it was more than that, he couldn’t watch Netflix. Which when you are locked in the house, I guess is a needed outlet.  Finally, was able to schedule a service call with Cox. Their new protocol was the technicians were not allowed to enter the home but could come into the garage.  Perfect, they would call me when they were on the way and I would meet them at the house so my parents need not get involved. I waited in the driveway. Not often does it happen but the tech was a little early. As we walked up to garage there sits my father in the corner, 12 feet away waiting to oversee the repair, as he always does with any work being done on the house.  I realized then, after I scolded him for coming out of the house, that he felt like I was treating him as if he could not longer do things for himself versus assisting him as to keep him away from any possible contamination.  

Even though the time to help came sooner than later, I am so glad that I am here to help them though this unprecedented time and….always will be.  Love you Mom and Dad.

CARES Act Recovery Rebate’s Interaction with Means-Tested Government Benefit Programs

Catherine E. Sears

Congress recently passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act, which is intended to alleviate some of the economic hardship which the outbreak of COVID-19 has inflicted on the nation. This Act provides many examples of relief, not only to individuals, but also to businesses and business-owners.

For many individuals, the most widely-anticipated benefit is the “recovery rebate,” or a maximum of $1,200.00 for a single taxpayer or $2,400.00 for married taxpayers who file jointly. This stimulus check is intended to help people during this difficult economic time, especially those who may have lost their job. However, as well-intentioned as this recovery rebate is, it could pose a difficulty to those who, prior to the COVID-19 outbreak, had already been receiving means-tested government benefits, particularly in the form of Supplemental Security Income (SSI) and/or Medicaid.

These means-tested benefits have very stringent rules regarding income and assets. For example, an unmarried SSI recipient cannot earn more than $783.00 in countable income each month in order to maintain his SSI benefits. The same unmarried SSI recipient must also have less than $2,000.00 in countable resources, or accumulated assets, in order to maintain the monthly benefit. Therefore, though it may sound wonderful on paper, receiving an unanticipated $1,200.00 check could have a significant negative impact on this SSI recipient. Bear in mind as well that most SSI recipients are medically unable to work – hence, their reliance on this program in the first place. Therefore, the recovery rebate check would truly be an additional source of income which could disqualify the recipient from his SSI payments, and not merely be a replacement for lost wages which had already been factored into the recipient’s income for SSI qualification purposes.

It is also important to note that many SSI recipients also rely on Medicaid as their health insurance, and a disqualification from SSI benefits frequently also results in a disqualification from Medicaid. Once a former-SSI/Medicaid recipient no longer has the excess income or has spent-down the excess resources, she may re-qualify for SSI and Medicaid. However, the re-qualification process involves a copious amount of bureaucratic red tape and may take several months, during which time the former recipient is likely not receiving any form of monthly income or health insurance. Additionally, if the recipient’s caseworker did not notice the excess income/resources in a timely fashion, the recipient may find herself required to pay back SSI payments which she had previously received (again, while not currently commanding an income).

There are some safeguards in place to ensure that the CARES Act’s recovery rebate does not put the recipients of means-tested government benefits into the disastrous situation outlined above. For example, theoretically, the recovery rebate will not disqualify recipients of means-tested benefits for twelve (12) months after receiving the rebate. However, if any money in excess of the resource limits remains at that time, then we know that the recipient would definitely become disqualified from benefits. Furthermore, even if the recipient does spend-down the rebate money within the 12-month period, the caseworkers who process SSI/Medicaid applications and re-determinations have never dealt with this type of widespread situation before, and will therefore be navigating an uncharted territory, likely with very limited guidance to help them. This increases the risk that the CARES Act’s exception to the general SSI/Medicaid eligibility rules which exists on paper may not uniformly be implemented in practice, resulting in unnecessary headaches and economic difficulty for the recipients.

If you or anyone you know receives SSI or Medicaid benefits, consider seeing an attorney with experience in special needs planning to ensure that you have a plan in place for your recovery rebate and can continue to maintain your government benefits seamlessly after this health crisis is over.

What Are Some of Your Tolerations?

Helena S. Mock, Esq.

Tolerations are the little annoyances we put up with on a daily basis. They are the things in our work and home lives, relationships, health, and finances that we simply accept because it would be too difficult, or too painful, or just take too long to resolve. Or so we think. And they really aren’t that bad, are they? After all, we’ve been living with many of them for years, and we’re still doing okay

My tolerations are not keeping me from being successful; they are not keeping me from being happy; and they are not keeping me from living my life to the fullest. Or are they?

Studies show that tolerations drain energy, but we don’t usually notice it because we are so used to living with them. Some examples of tolerations include: 

•My desk is so full of work that needs to be done, I feel overwhelmed;

•I haven’t been to the dentist in 3 years;

•My husband has been telling me he will clean out the garage for months;

•I never seem to get enough sleep;

•The kitchen faucet drips incessantly;

•My teenager is constantly staying out past curfew and doesn’t call to say he’ll be late;

•I really need to set aside some time for exercise;

•I hate spending weekends cleaning my house; I really need to hire someone to help me;

•Employee Y is creating office drama and disrupting the work environment. 

These are just a few examples, some of which were on my own tolerations list for quite some time before I finally tackled them. And I know you probably have quite a few on your list as well, some of which are not even your responsibility; or rather you don’t see them as your responsibility; and the fact that someone else hasn’t done them is just plain annoying. For example, I drive into that garage every day after work and just cringe at the mess. Why doesn’t he clean it, I ask myself every day… do I have to do everything myself? Now you don’t really mean that; you are just frustrated because you keep seeing the mess… or hearing the dripping faucet… or not getting that

phone call from your teenager. Sometimes we think we are dealing with things best by ignoring them, but they are still there, annoying you a little more every day, and getting harder and harder to ignore. 

Note that none of these things are particularly difficult to deal with. Yes, some will take more effort, or time, on your part than others, but in most cases, the tolerations we live with are relatively minor. Start by identifying the items on your list that would take the least amount of time to resolve and work up to the biggies. For example, let’s take the dentist off my list. All I have to do to resolve that one is to make (and then keep) an appointment with my dentist. So why don’t I do it? I start by asking myself why I haven’t been to the dentist in 3 years. That’s the first question. Step 1 – Identify the “Why”. 

Once you are honest with yourself about the why, the next step is to identify what’s standing in your way of resolving this issue now. Maybe my dentist retired and I just don’t know who I should see. Or, maybe the last time I had a checkup, the dentist told me I would be needing a root canal soon, and I definitely don’t want to do that. Is it a matter of taking the time? Is this something I need help with from someone else? Does it require an uncomfortable conversation with someone? Whatever the reason, stopping to identify, and then acknowledge, what’s holding you back, will help you move forward. Step 2 – Identify and acknowledge what’s standing in your way of getting this done? Once you have answered this question, you are one step closer to finally striking it off your list. 

The next step is to determine what you need to do or who you need to talk to in order to resolve the situation. Do I need to ask friends about who they would recommend as a new dentist, or do I simply need to make the call and schedule the appointment? Again, we are just determining what needs to be done here; we are not yet taking action. This step is important if the project requires some planning first. For example, if I need to have an uncomfortable conversation with someone, this step in the process will allow me to think about the best way to approach the subject with the other person. Obviously, with the dentist example, there’s nothing to do here except decide which dentist to call. That may take some time for research, checking patient reviews, talking to friends, etc. But it’s certainly not as involved as deciding how best to discuss the garage situation with my husband or how to approach an employee who is not working up to expectations. These situations take more time and more consideration to decide the best approach. Step 3 – Identify what needs to be done to resolve the situation? 

The tolerations that involve other people can be the most frustrating and the most difficult to resolve because marking them off your list requires you to confer with someone else. This is why Step 3 is so important. Step 3 gives you time to analyze the situation and determine the best approach. Without Step 3, you may wind up simply getting angry and blowing up, which creates other problems. Taking time to analyze the situation and prepare for a potentially uncomfortable conversation will likely produce a better result than simply exploding from frustration. This step also gives you time to consider the situation from the other person’s perspective. Why isn’t he stepping up to clean the garage? Doesn’t it bother him as much as it bothers me? Maybe it’s just as overwhelming to him as all those files on my desk are to me. Once I can calmly look at a situation from another’s perspective, suddenly it doesn’t seem like such a big deal anymore. 

The final step is to move forward. It doesn’t do any good to go through steps 1, 2, and 3 above if I still never make the call to schedule the appointment. You might think this step is the hardest part because it requires you to take action. But once you have gone through the first 3 steps, this part really isn’t as bad as you imagined. Sometimes there is a lot involved in taking action. Scheduling an appointment with my dentist may only take a few minutes, but sitting down with an employee to address job performance will definitely take more time. But after you have gone through the first 3 steps, you are on a roll and it’s not that difficult to just roll into Step 4. You can see the light at the end of the tunnel by now. One more step and you get to cross that annoying toleration off your list. You’ve come to far to stop now. Step 4 – just do it! 

A toleration generally refers to the conditional acceptance of a situation, and we all have them. But living with a lot of tolerations can zap our energy and negatively impact our well-being in a variety of ways. Take the opportunity now to cross just one toleration off your list. I guarantee it will feel so good, you will want to tackle another, and then another. Watch how your mood and energy improve as your list of tolerations gets smaller and smaller.

Scams and the COVID-19 Epidemic

Leslie Salvo
Paralegal

As we attempt to adapt to our “brave new world” with COVID-19 at the center of our attention, let’s not forget to be vigilant for those individuals who are always ready to take advantage of a bad situation. Regrettably, there are people using this pandemic to line their pockets with your money. Here are a few scams to be aware of:

(1)  Receiving a call, email or text message that there is a vaccination available for COVID-19. At this time, there is no vaccination available at any cost. You should also avoid responding to calls regarding home test kits. Hopefully these will be available soon, but for now, beware.

(2)  Services offering to clean your home but requesting prepayment for the service. Also be wary of online retailers selling cleaning products claiming to kill the virus. 

(3)  Charity scams offering assistance to those affected by the virus. If you want to contribute to a charity, please contact the “tried and true” charitable agencies - The Red Cross, The Salvation Army, or even your local United Way chapter. 

(4)  If someone offers to do your grocery shopping for you, that’s wonderful! But if you’re going to give someone money upfront to do so, make sure you know the person. There may be some honest strangers out there offering to help, but this is a situation ripe for taking advantage of your vulnerability.

Please take care of yourself and your community during this difficult time.

Banks vs. Lawyers: The Best Way to Access a Loved One’s Bank Account

Catherine E. Sears, Esq.

Frequently, clients tell me that they have certain assets (often, a checking or savings account) titled jointly with one or more of their children.

“This way,” they tell me, “my daughter can step in and pay my bills if something happens to me.”

Nearly always, when I ask whose idea this was, the client informs me that an employee at the bank said that this was the best way to allow family members to help in case of a crisis. However, at the risk of irritating any bankers reading this blog, I can say with complete certainty that naming someone as a co-owner is NOT the best way to give another person access to your finances. Instead, you should name your child as your agent under a Durable Power of Attorney.

When a bank account is jointly owned, legally, that bank account belongs to both of the co-owners. This means that your child can do whatever he or she wants with that money, and is not bound by any legal obligation to use the money in your best interests. Even if you trust that your child would not go on a shopping spree with your money, your account can still be subject to your child’s creditors if, for example, your child gets into a fender-bender and gets sued, or if he goes through a divorce. Additionally, co-ownership often creates a “right of survivorship.” This means that, upon your death, the entire bank account will belong to your co-owner child, regardless of the provisions in your will or revocable living trust which may state that your assets are to be divided equally among all of your children.

I recently had a client who had named her adult child as co-owner of her checking account many years ago. In fact, this happened so long ago that the bank no longer had records showing that the account had, at one time, been titled in my client’s sole name. Sometime after adding her child as co-owner, the client’s child developed a disability, could no longer work, and began receiving Supplemental Security Income (SSI) and Medicaid. Both of these programs are means-tested, which means that the child could only receive these benefit programs by meeting certain financial eligibility requirements. The child had been receiving these benefits for several years, and these programs were the child’s sole source of income and health insurance coverage.

Recently, though, the Social Security Administration learned that the child was co-owner on my client’s checking account. Though my client was by no means wealthy, she had money in the account in excess of the low limits which are required to maintain SSI and Medicaid coverage. The child’s benefits stopped, which was problematic because the child had a home-health aide, who had been paid through the Medicaid coverage, and this left my frail, eighty-something year-old client in charge of providing very physically-demanding care to the child. Additionally, the child received word that he owed tens of thousands of dollars to the Social Security Administration because, due to this co-owned account, he should never have been eligible to receive these benefits.

I was heartbroken to learn of this situation, because the family’s problems would have been solved if the client had not listened to the bank employee all those years ago and had simply executed a Durable Power of Attorney naming the child as her agent. Then, the child would not have any legal claim to the money in the client’s account. If the client had needed assistance, the child could simply have paid bills by showing a copy of the Durable Power of Attorney and by signing “Child’s Name, POA for Client’s Name.” This also would have held the child to the fiduciary standard, which means that, if he had happened to misuse the client’s money, he would have gotten in trouble for it.

So, please learn from this family’s mistake. Nobody knows what the future will hold; clearly, this client thought that she would be the first family member to need help, not her child. If you ever have any doubts about the proper way to title any type of asset, consult an experienced estate planning or elder law attorney – not just the person sitting behind the counter at the bank.

Happy New Year!

Barbara Armstrong
Paralegal

Happy New Year!

Here we are already into the middle of January. Where does time go? Before you know it, daylight savings time will be upon us, daffodils and tulips will be blooming, and of course, allergies will be thriving!

Last year was a whirlwind. The year started out uneventful, but in July, tragedy struck our family. Our youngest granddaughter nearly drowned. She was saved due to the fast work of her other grandmother, who knew CPR, the police officer that arrived next and took over, and then the EMTs. She began breathing on her own, but the prognosis wasn’t good. 

After two MRIs while at CHKD, it was discovered that she had suffered major brain damage. The little girl we knew was no longer with us. She was in CHKD in the PICU for almost two months and on a ventilator for a month. She suffered severe “storms” during this time. The doctors inserted a feeding tube. She and her family suffered greatly. 

During that time, a GoFundMe page was set up. Through the generosity of folks, her parents were able to take family leave from their full-time jobs and took turns staying with her so that one of them would always be with her and the other with the other two girls. They were able to do some remodeling so that they could bring her home when the hospital finally released her. When she was released, it was a happy day. She was smiling when she heard a familiar voice. She started tracking with her eyes. She began moving her legs and arms so much more, although she couldn’t sit up.

Fast forward to this year. Our little one is now sitting up, and the other day, tried to stand! What tenacity she has. Through the diligence of her parents, she is continuing physical therapy and was accepted into a school program which she just started this month.

Although the doctors told us that we would never have our little girl back in the way she was before the accident, we are eternally grateful for the fact that she is still with us and I truly believe that she will walk again one day and begin to dance like she used to.

A new year brings new hope! God Bless.