Contents

• Library: Elder Law in Virginia (Virginia CLE) (2021 Ed.)

TABLE OF CONTENTS

Chapters and Authors
About the Editor and Authors
Acknowledgments
Electronic Forms: Instructions and Table
Introduction
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	Ethics Rules Pertaining to Issues Arising from Incapacity
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 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	Perceived 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	Specific Grant of Authority Required for Certain Acts
1.713	Risks and Rewards of Fiduciary Service
1.8	MARKETING THE ELDER LAW PRACTICE
1.801	Marketing the Elder Law Practice Generally
1.802	Communication of Specialization or Certification
1.803	Clarifying the Vision for the Practice
1.804	Mission Statement
1.805	Technology
1.806	Back to Basics
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	THE FINANCIAL PLANNING PROCESS
2.201	Fundamental Steps
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	A New Approach
2.302	Acquiring 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	Regulation of Broker-Dealer Agents
2.404	Regulation of Investment Advisor Representatives
2.405	Regulation of Registered Investment Advisors
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	Retirement Planning
2.506	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: SECURITIES PROFESSIONALS QUALIFICATION EXAMS
APPENDIX 2-2: DISCLOSURE STATEMENT—FINANCIAL SERVICES
APPENDIX 2-3: 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) and Community-Based Continuing Care (CBCC)
3.4	NURSING FACILITIES
3.401	In General
3.402	Sources of Law
3.403	Quality of Care and Resident Rights
3.404	Admission, Transfer, and Discharge Rights
3.405	Enforcement
3.5	HOME CARE
3.501	Medicare Coverage
3.502	Medicaid Community-Based Care
3.503	Area Agencies on Aging Services
3.6	COVID-19 PANDEMIC
APPENDIX 3-1: VIRGINIA UNIFORM ASSESSMENT INSTRUMENT
APPENDIX 3-2: BASIC PRINCIPLES OF NURSING HOME DISCHARGE
APPENDIX 3-3: COVID-19 AND LONG-TERM CARE FACILITIES
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
4.501	In General
4.502	Aid and Attendance Benefits and Housebound Allowance Program
4.503	Net Worth, Asset Transfers, and Income Exclusions for Needs-Based Benefits, Final Rule
4.504	Geriatrics and Extended Care
4.505	Veteran-Directed Care Program
4.6	HEALTH AND DISABILITY INSURANCE
4.601	In General
4.602	Health Insurance
4.603	Disability Insurance
4.7	PAYING PRIVATELY FOR LONG-TERM CARE
4.701	In General
4.702	Reverse Mortgages
4.703	Annuities
4.704	Trusts
APPENDIX 4-1: LONG-TERM CARE CARRIER RATINGS 2020
CHAPTER 5: MANAGING INCAPACITY
5.1	INTRODUCTION
5.2	THE EVALUATION PROCESS
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
5.301	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

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