The Family Advisor





Check out the most recent issue of The Family Advisor.  This month’s issue focuses on children and what you need to know to protect your family.  You’ll find out how to select a guardian for your children, how to help your children adjust to divorce and the nine costly mistakes to avoid when planning for a special needs child.

Food Drive Friday, September 9th for Low-Income Seniors

Durham AARP celebrates Community Service Day with a food drive for low-income seniors on Friday, September 9.

Friday, September 9 is Community Service Day in every city in the US.  The goal of each chapter is to collect food for low-income seniors.

In Durham, there are approximately 2,356 seniors age 60 and above whose monthly income is $906 or less.  Often these seniors are forced to skip meals or subsist on inexpensive, poor quality food with little nutritional value.

The Durham Center for Senior Life already has a food pantry for low-income seniors, but it is in need of restocking.  AARP Chapter 189 members will be at Kroger Foods Store, 3825 S. Roxboro / MLK Pkway on Friday, September 9. Customers shopping at the store will be asked to purchase an additional food item for seniors.  Suggested items are: canned vegetables and fruits, soups, tuna, peanut butter, canned meats, pasta, brown rice, spaghetti sauce, dried beans, cereals, and juices  All items will be given to the Durham Center for Senior Life.

AARP is also encouraging individuals, groups, non-profits, churches, synagogues, civic and social groups to collect food for this event.  Items may be brought to the Durham Center for Senior Life, 406 Rigsbee Avenue , 8:30 am until 5 pm weekdays.

For more information about the food drive, please contact Helen Featherson, AARP President at (919) 598-1551 or at


Pet Therapy Benefits Seniors

Did you know that seniors who own dogs go to the doctor less often than those who don’t? In a study of 100 Medicare patients, even the most highly stressed dog owners had a 21 percent lower level of physician contact than non-owners.

Medication costs dropped from an average of $3.80 per patient per day to $1.18 per patient per day when nursing homes allowed for pets to be introduced into patient’s environments. Nursing homes in New York, Missouri and Texas were all used in the study.

I was first introduced to pet therapy in college.  I volunteered with an organization that took dogs from the local shelter and brought them to a nearby assisted living facility.  It was so much fun to sit with the seniors and listen to them tell me their life stories while we played with the dogs.  It was also a great way to get the dogs out of the shelter for the day.  It was what you call a win-win!  

Today I took our dog Kaya to the Adult Day Health Center at the Durham Center for Senior Life.  I was a little nervous at first because Kaya can be a barker, but she was a perfect angel!  The seniors took turns holding her in their lap and petting her.  My only regret was that it was just me and Kaya.  I wish we had more dogs with us so all of the seniors would have the opportunity to pet a dog.  I’ll be recruiting my friends with dogs to join me next time!  

Please enjoy these pictures of Kaya with the seniors and if you’d like to learn more about the Adult Day Health program at the Durham Center For Senior Life, please click here.  It is a wonderful program that helps seniors and their families!

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Medicaid Update 2011

Dori Wiggen will be one of the presenters at the Medicaid Update 2011 Continuing Education Seminar on June 14th at the Double Tree Hotel in Charlotte, North Carolina.  Topics include:

  1. State and Federal Medicaid Laws Update

  2. Qualifying Clients for Medicaid and Medicare Benefits

  3. Planning Tips and Traps Post DRA

  4. Understanding Medicare Parts A Through D, VA Veteran’s Benefits and the Impact on Medicaid Benefits

  5. Limitations on Medicare, Long-Term Insurance and HMO Coverage

  6. The Medicaid Application

  7. Medicaid Estate Recovery

If you would like more information on this seminar or would like to attend, please click here.

Three Legal Documents Every Graduating Senior Needs to Ensure Parents Can Make Important Medical and Financial Decisions on their Child’s Behalf

Will your graduating senior be protected without 3 important legal documents?

As a local attorney, I can’t stress enough how timely (and critical!) this information is for your audience.  Many young adults in our area will soon be heading off to college or traveling abroad without the 3 key documents (Advance Health Care Directive, HIPAA Form and Financial Power of Attorney) they need for mom or dad to oversee their care if they become ill or seriously injured and unable to speak for themselves.

Excerpt from Estate Practice and Elder Law Community : (click for entire article) 

Special Needs Planning Issues Following Divorce

Divorce can be complicated, frustrating, disappointing, expensive, along with a whole range of other emotions, as anyone who has endured this type of proceeding can attest. As difficult as the issues can be in a divorce proceeding, can you imagine what happens when divorce involves a child with a disability?

This article focuses on one case study to illustrate how much more difficult the issues can be when a child with a disability is involved in the marital split, and how important it is to have someone knowledgeable in government benefits and special needs planning issues participate in the proceedings.

The Facts
Consider the following situation: Husband and wife divorced in 1996, when their child, who is disabled, was 4 years old. The husband was ordered to pay approximately $2,800 per month in child support (considered to be about three times an ordinary child support order based upon his assets and income) for the life of the child. While it is unusual to see lifetime child support payments, and the award was larger than is customary, the husband agreed to this primarily because of the guilt he felt around the divorce. He also knew that his daughter was disabled and would require as much help as possible.

Fourteen years later, in 2010, the daughter turns 18 years old. The husband has since remarried and had another child. He feels he can no longer continue to make child support payments at the current level, and in fact his current wife now assists him in making these payments each month.

The husband wishes to seek a modification of the child support award, and he hires the attorney that handled his divorce years earlier to file the court papers seeking a downward modification of child support payments. The theory behind seeking this downward modification of child support payments is twofold. First, the husband would like to argue that since his daughter has just turned age 18, she can now qualify for Supplemental Security Income (SSI) benefits. Second, his daughter could receive services through a Medicaid waiver program, but her income from the child support payment could prevent her from qualifying. Therefore, the husband would like to know if establishing a court-ordered special needs trust to receive the child support payments would protect the child support payments from being counted as income to the daughter.

Can the Daughter Qualify for SSI?
During the course of the proceedings, the wife appears to be the only person testifying as to the question of whether her daughter can qualify for SSI benefits and the utility of creating a special needs trust for her daughter. According to the wife, her daughter cannot qualify for SSI benefits due to the so-called deeming rules, pursuant to which a parent’s income and assets are deemed to be available to the child for purposes of determining the child’s eligibility for SSI benefits. The husband argues that the wife should apply for SSI for their daughter, but she refuses to do so, citing the deeming rules as an obstacle to her daughter’s eligibility, and arguing that her own work income and $400,000 in assets will result in a denial of eligibility.

Without expert testimony, the court may have determined that the daughter was not eligible for SSI benefits, based solely on the testimony of the wife, who had apparently “done her own research on the issue.” In fact, the deeming rules stop when a person turns age 18 under CFR Sections 416.1165 and 416.1851, and their daughter could qualify for an SSI benefit of up to $674, plus any additional state supplement. With this testimony now on the record, the husband is able to argue, credibly, that his daughter is entitled to a monthly SSI benefit of $761 and, if she were to avail herself of this benefit, then this increased income should be taken into account by the court in evaluating husband’s request for a downward modification of the original child support payment.

Can a d4A Trust Hold the Daughter’s Income?
The second major issue in this case pertained to the daughter’s income surplus for Medicaid purposes. As a Medicaid recipient, daughter’s income (solely in the form of child support payments she received from her father) could have prevented her from receiving Medicaid benefits as an adult. The husband wanted the court to order the creation of a self-settled special needs trust under 42 USC Section 1396p(d)(4)(A) (often referred to as a “d4a trust”), and have the child support payments irrevocably assigned into the newly established trust, thereby eliminating any surplus income.

Unfortunately, the husband and wife could not agree on the establishment of a d4A trust. The wife questioned whether such a trust could legitimately receive child support payments. She also testified that she may move to a different state to be with family, and that such a move would require a payback to the first state, reducing available trust funds that would be needed to care for her daughter. What the wife didn’t realize was that under the Social Security Program Operations Manual System (POMS) Section SI 01120.200G(1)(d), an irrevocable assignment of child support payments (i.e., as a result of a court order), is not income for SSI purposes, and therefore would not count for purposes of determining daughter’s SSI or Medicaid eligibility, or the amount to be received under either program.

In addition, there is no such requirement for payback when a Medicaid recipient and d4a trust beneficiary moves from one state to another, a point that was made through expert testimony. The only time payback to any state would be required is when the disabled daughter dies.

The Lesson Learned
The issues in the case study above make it clear that when a child with a disability becomes part of a divorce proceeding, difficult issues arise that warrant the expertise of elder law and special needs planning attorneys. Matrimonial or family law attorneys will very likely not possess the expertise needed to address these issues.

Please contact us if you would like additional information on any of the topics addressed in this newsletter or if you would like to discuss a specific issue.

To comply with the U.S. Treasury regulations, we must inform you that (i) any U.S. federal tax advice contained in this newsletter was not intended or written to be used, and cannot be used, by any person for the purpose of avoiding U.S. federal tax penalties that may be imposed on such person and (ii) each taxpayer should seek advice from their tax adviser based on the taxpayer’s particular circumstances.

Please feel free to call Wiggen Law Group at 919-680-0000 if you have any questions about this or any matters relating to elder law or special needs planning.

Join Us at the Sunset Golf Classic!

Wiggen Law Group will be at the Sunset Golf Classic on May 16th at Croasdaile Country Club.  This is a great event to raise money for Durham Seniors.  Please join us  for the entire day beginning with a hot southern breakfast at 8:30am , lots of golf and ending with the “banquet/silent auction after party”

If you’re not a golfer, you can still attend the silent auction after party for only $25!  This buys you all the beer and wine you desire, fabulous food from Thrills from the Grill, live beach music by Chuck Alford and a chance to bid on some excellent items at the silent auction while networking with many of your colleagues.

For more information visit

Please feel free to contact me with questions. If you’re interested in donating an item to the silent auction or promotional items for the golfers’ goodie bags, please let Jean Carden know by Friday of this week.  You can contact her at the Durham Center for Senior Life: (919)688.8247.