-Age in Place:  Make sure your home is safe and fully accessible.  Should you have a pendant or watch that indicates a fall or other emergency?  Door bell monitor?  Understand and vet all available community services including medical, social and religious.  Is “Adult Day Care” a possibility?

-Village Concept:  This model links neighbors and local businesses together to help each other stay in their homes as they grow older.  “Villages” are not available in all parts of the country.  Some 55+ communities have partnered with groups like the National Aging in Place Council to link them to available services.

-55+ communities:  Intended to be independent, often with activities, swimming, golf, etc. available.  Health services are sometimes on the property.

Independent Living:  Usually age restricted, some offer meals, most will have kitchen, most will have a home care agency affiliation on the premises.

-Assisted Living Community: Provides housing, meals and assistance with your Activities of Daily Living.  Under the “Assisted Living” umbrella, you will find 3 types of communities:

   *Assisted Living Community- could be anywhere from 50 residents up to hundreds of residents.

   *Memory Care Units- Could be within an Assisted Living Community or stand alone.  Offers special assistance for those with cognitive decline.

   *Family Care Homes- Licensed for just a few residents (in NC, the maximum is 6).  Provides customized care in home type setting.

CCRC: Continuous Care Retirement Community.  There are many variations.  Some are “month to month”; other there is a buy-in to guarantee all levels of care.  If you are looking at a “buy in” community, fully understand what you are buying and what is the “exit costs” if you choose to leave or pass away.

Whatever you plan, make sure your legal documents reflect your wishes and medical care desires. 

Finances?  Will you need VA Aid and Attendance, Special Assistance or Medicaid to help pay for your care?  Call us today!




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Assisted Living: Possible ways to pay

Assisted Living is basically defined as a community to help an individual with their “Activities of Daily Living”.

ADL’s are:

  • Walking, or otherwise getting around the home or outside. The technical term for this is “ambulating.”
  • Feeding, as in being able to get food from a plate into one’s mouth.
  • Dressing and grooming, as in selecting clothes, putting them on, and adequately managing one’s personal appearance.
  • Toileting, which means getting to and from the toilet, using it appropriately, and cleaning oneself.
  • Bathing, which means washing one’s face and body in the bath or shower.
  • Transferring, which means being able to move from one body position to another. This includes being able to move from a bed to a chair, or into a wheelchair. This can also include the ability to stand up from a bed or chair in order to grasp a walker or other assistive device.

The national average cost of a community assisting with ADL’s, 3 meals and lodging is $4,050/month.  Please note that costs will vary by state and locations within a state, possibly the size of the community, if it is a smaller “boutique” Family Care Home (in NC there is a 6 resident max) or the need for Memory Care (much more expensive).


SO THE QUESTION IS- “HOW DO I PAY $4,000 PER MONTH?   Here are some possibilities:

  • VA Aid and Attendance:  For wartime Veterans or their surviving spouse
  • Special Assistance (NC) or some type of Medicaid waiver program. (most often low income and $2,000 in assets)
  • Life Insurance: Check to see if you have “accelerated” or “living benefits” that can be used now, but reduces the death benefit later.
  • Long Term Care Insurance.  Understand your policy. Does it have an elimination period, how much per day will it pay and for how many days.  It is rare to see a “lifetime benefit”.
  • Annuities: An investment where your lump sum purchase is stretched out over a period of time.  Although the annuity contribution may not be counted as an asset for many government programs, the income will.  Annuities are complicated investments and should be done with caution and a reputable advisor and company.
  • Reverse Mortgage:  This can provide a “lump sum” or monthly allowance.  Understand the terms of the “loan” and that home needs to be occupied (usually by the “at-home” spouse).
  • Renting your primary residence:  This may bring the needed boost to your income to afford Assisted Living, but may disqualify you from Government Benefits.  Most benefits programs will view the  home as an asset (it’s now a rental) and the rent is counted as income.

We would strongly suggest that you DO NOT undertake any of these ideas on your own, but seek the aid of a qualified Elder Law Attorney.  Many benefits programs do not work together.  You may do something that is permitted for VA Aid and Attendance that will disqualify you from Medicaid.

kevin.huston@gmail.com  (VA Accredited Attorney with a focus on Elder Law)







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Is it Dementia (Alzheimer’s) or is it something else????

Before you accept a diagnosis of Dementia, please have a full physical exam.
4 medical issues that could be mistaken for Alzheimer’s disease:
•Medication. The medications your doctor prescribes could provide different side effects as you age. …  (Have your meds looked at for adverse Drug Interactions)
•Urinary Tract Infection. A urinary tract infection (UTI) happens when bacteria reaches the urethra, the tube that carries urine out of the bladder. …
•Depression. …  (especially now with COVID)
•Vitamin B12 Deficiency.  (Check for ALL low vitamins and minerals)

In the meantime………. one of the most important document your loved one can have is a well written, broad POWER OF ATTORNY.  Not matter what the outcome of a medical exam, your loved one needs to know, and you have the peace of mind that you can act on their behalf.

QUESTIONS:   Please reach out- we offer FREE phone consultations.

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Shareholder rights (Especially if you own shares in small or privately owned companies)

Protecting Your Rights as a Shareholder

If you are considering purchasing shares in a company, do you understand the potential risks as well as the perks? What are the rights and privileges of a shareholder? And how do you protect these rights once you have them?

Before becoming a shareholder, review the shareholders’ agreement carefully with the help of a lawyer. The shareholders’ agreement typically provides several essential details on the following topics:

  • Mission or purpose of the company and how it will be run
  • Duties the company has to its shareholders
  • Duties the shareholder has to the company
  • Roles and rights (including voting rights) of each shareholder
  • Process for resolving disputes among shareholders
  • Process for buying and selling shares of the company
  • Impact and process for handling the incapacity, death, or divorce of a shareholder

Because the shareholders’ agreement impacts your rights and obligations as a shareholder and how you can exit the company, you must review the terms carefully and ask questions about anything you do not understand.

Reading, understanding, and signing the shareholders’ agreement is just the beginning of your work. Protecting your rights as a shareholder involves staying informed, communicating effectively, and knowing when to take action. The following is a list of things you can do to protect and preserve your rights as a shareholder.

  • Know the company’s purpose and who is on the board. Make sure you understand the overall purpose of the company and identify its short- and long-term goals. Because shareholders rely on the officers and directors to make day-to-day decisions for the company and propose major decisions, it is important to know who is leading the company. What are the names and backgrounds of the officers and directors? What experiences do they bring to the company? What potential problems could they bring with them?


  • Understand the duties of the board, officers, and directors. The primary duties of a board of directors to its shareholders are the duty of care, the duty of loyalty, and the duty of obedience. The duty of care means that the persons in charge of the company owe a duty to the shareholders to ensure good and prudent use of the company’s assets, people, and goodwill. The duty of loyalty means that the governing board must make decisions that are in the best interests of the company, rather than the best interests of an individual board member. The duty of obedience is the duty to abide by the company’s bylaws, as well as applicable laws and regulations.

  • Understand your rights as a shareholder. Shareholders retain certain rights within the company. First, shareholders have the right to vote and to attend meetings. Shareholders are usually allowed to vote on major decisions affecting the company such as board of director positions and other changes in leadership and potential buyouts or mergers. Second, shareholders have a right to pro rata ownership of company assets and the right to dividends, or the right to a portion of the profit that the company pays out. Third, shareholders have a right to transfer their ownership to another person or entity. Fourth, shareholders have a right to inspect the books, records, and other corporate documents of the business. This is an important right, and shareholders should assert this right by asking to see the bylaws, the minutes from board meetings, and the annual reports. Fifth, shareholders have a right to sue when the company has done something illegal or contrary to its bylaws. Usually the right to sue will involve a class action suit.

  • Communicate and attend meetings. Shareholder meetings are generally held periodically throughout the year. Notice of meetings is provided to inform shareholders of the place, time, and manner of the meeting. Attend the meeting and review any agendas and action items. Review any proposals to amend the bylaws, as well as the company budget, balance sheet, or annual plan. Ask questions and understand not only the purpose of proposed changes but also the potential risks and rewards. If something raises a red flag at the meeting or you suspect decisions are being made that are not in the company’s best interests or are illegal, seek legal advice.

  • Know when to take action. When should a shareholder consider filing a class action suit? Since the board of directors owes duties of care, loyalty, and obedience to its shareholders, a breach of any of these duties is grounds for a lawsuit. Some common examples that could be grounds for seeking legal counsel to assert the shareholder’s rights are the improper withholding of dividends, excessive compensation paid to directors, unfair business dealings with others at the expense of the company, and interference with shareholders’ voting rights.


Becoming a shareholder in a company comes with certain rights and responsibilities. Being an informed shareholder will help you spot potential risks in advance and minimize your exposure.

If you need help understanding a shareholder’s agreement or are concerned about the actions of your board of directors, please contact me today for a free consultation.

Kevin Huston

Carolina Estate Counsel div. of
Huston Law Firm, PLLC



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You should have easy access to these documents

Can you find your important “papers” when you need them most (and fast)?

Important paperwork and documents are markers of adulthood, and they become even more important as we age. While we should all strive to have our documents in order, the practice is critical as we grow older.

We never plan to fall ill or become disabled, but it can happen to any of us. Older adults must have their affairs in order so that they and their families are as prepared as possible in the event of an emergency. 

Dealing with documents can be overwhelming for seniors, and as a caregiver or family member, you can help make the process much more manageable. Here’s what you need to know about helping your older loved one get their documents in order:

Types of Important Documents

There are many different documents that seniors need to have sorted. Some of the most common include:

Financial Documents

  • Tax returns
  • Bank account information
  • Pensions, 401(k), annuity contracts
  • Property deeds
  • Vehicle titles
  • Documentation of all loans and debts
  • Financial power of attorney

Personal Records

  • Social security number and card
  • Birth certificate
  • Marriage license or divorce papers
  • Veterans discharge papers (most commonly know as the DD-214)  You can order the DD-214 here: https://www.archives.gov/veterans/military-service-records
  • Driver’s license
  • Passport or any other ID
  • Contact information for close friends, relatives, doctors, financial advisors, etc.
  • A list and explanation of regular medications
  • Legal documents including a will

Health Care

  • Health care preferences clearly outlined in a living will
  • Health care proxy/power of attorney
  • Personal medical history
  • Health insurance cards
  • Allergies or medical conditions
  • Emergency information

End-of-Life Documents

Every adult should have documents in place regarding estate planning and end-of-life, just in case. This is even more urgent for older adults. Families of seniors who pass away without end-of-life documents will face more financial and legal chaos than they need to. Your older loved one should have:

  • Life insurance policy information
  • Trust documents
  • A will
  • End-of-life instructions

Store Important Documents 

Gathering important documents for yourself or an older loved one is only the first step. For the documents to be useful, they must be accessible. They should be sorted and stored in a master box, which should be kept in a safe place. When possible, create electronic copies that you can store on a save drive via cloud storage or an external hard drive. In some states, you can store documents like a “Health Care POA” with the States “Secretary of State”.

If you have a loved one that is making regular doctors or hospital visits, you may ask if they’d like a copy for the practices “chart”.

Thanks to COMFORCARE Home Care for the bulk of this information.  
(704) 491-1090 (cell/direct/text)
(919) 647-9150 (office/after hours)


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Pre-Paid Funeral. I’m afraid my investment will be lost

I’m sure you’ve heard the story of people who lost the whole amount they gave to the funeral home that went out of business or was sold?   In N.C. – here is why it’s safe for you to do.

The facts are as follows for North Carolina (other states are different):

All NC pre-need accounts are actually funeral trusts.

Just as with other trusts, funeral trusts have  beneficiaries.
The funeral home is simply a beneficiary of the trust.

The future deceased person is also a beneficiary.
That person can also be the trustee.

Just as with other trusts, for funeral trusts the beneficiary can be changed.
This means, the funeral home can be changed.
If a funeral home goes out of business, a new beneficiary (funeral home) is named.
If the future deceased person moves out of town or out of state or just simply
wants to use another funeral home, the trustee can change the name of the funeral home.

There are times, such as for Medicaid planning, a Funeral Trust would have to be “Irrevocable”.  We suggest that this type of planning be done in conjunction with an experienced Elder Law Attorney.

The funeral home NEVER has access to the trust funds prior to death.

The funds in the trust are always owned by the trustee, trustor OR the future deceased beneficiary BUT NEVER the funeral home.

Any funeral home in NC that is depositing pre-need funds in their own bank account is embezzling and, if used, misappropriation.

NC has a Board of Funeral Service governed by the state which conducts annual audits on all pre-need accounts for all funeral homes.

Thanks to:  Joe R. Smolenski, III
V.P. and Manager,   Renaissance Funeral Home, Raleigh, NC



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If you are receiving Medicaid Waiver Payments, you need to read this!

Article Highlights:

  • What are Medicaid Waiver Payments?
  • IRS Ruled Them to be Non-Taxable
  • Taxpayer-Favorable Tax Court Case
  • Tax Credits
  • Amended Returns

Medicaid waiver payments are a type of payment from a state to an individual to take care of another individual who would otherwise be institutionalized, saving the government the cost of the more expensive institutional care.

Back in 2014, the IRS ruled that Medicaid waiver wages would be mandatorily excludable from gross income (not taxed) if the caregiver provided care in the caregiver’s home. This exclusion from taxable income applied regardless of whether the caregiver and the care recipient were related.

Prior to this ruling, payments were taxable and treated as W-2 wages. As such, they were categorized as earned income, which qualified many lower-income individuals for the earned income tax credit (EITC) and, in some cases, for the additional child tax credit (ACTC).

However, this change was a double-edged sword, providing tax-free income for some taxpayers but eliminating others’ ability to qualify for the EITC and ACTC, since the IRS had specified that the payments had to be excluded from gross income, thus eliminating the earned income needed to qualify for the credits.

One couple, the Feighs, disagreed with the IRS’s position. The Feighs received Medicaid waiver payments as wages for caring for their disabled adult children in their own home. When the Feighs filed their tax return, they excluded the income but still treated it as earned income for the EITC and the refundable child tax credit. The IRS took umbrage to that position and the case ended up in Tax Court.

The Tax Court held that the IRS could not reclassify the taxpayer’s Medicaid waiver payment so that it no longer qualified as “earned income” for the purpose of determining tax credits. The Court reasoned that IRS cannot remove a statutory benefit provided by Congress. On March 30, 2020, the IRS acquiesced to the court’s decision, meaning that returns from prior years for which the statute of limitations has not expired can be amended to claim the EITC and ACTC even though the Medicare waiver payments are being excluded from income.

It is important to contact this office immediately if you received Medicaid waiver payments in 2016, since the statute of limitations for claiming a 2016 refund expires on July 15, 2020 for most individuals. Not everyone will qualify for EITC and ACTC, so please contact this office to see if you qualify and if amending your 2016 return would be to your benefit.


This article provided by:


  • 10030 Green Level Church Rd. Suite 802-92
  • Cary, North Carolina 27519
  • (919) 302-0336
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Medicaid Planning? Starting with the finances.

Assets we’ll look at:

  • Checking accounts
  • Savings accounts
  • Brokerage accounts
  • Certificates of deposit
  • Stocks and bonds
  • Savings bonds
  • Primary residence if applicant does NOT intend to return home (note that if equity is greater than $595,000.00, then applicant does not qualify for Medicaid)
  • Real property, other than primary residence (with certain exceptions)
  • Limited partnerships
  • Cash value of life insurance if the total face value of all such policies is greater than $10,000.00
  • Vehicles other than the one excluded vehicle
  • Boats, unless it is your primary residence
  • Recreational vehicles, unless it is your primary residence or your only vehicle
  • Loans payable to applicant
  • Deferred annuities and some immediate annuities, depending on how they are structured and the date purchased
  • Retirement funds, generally

Excluded Asset Description:

  • Primary residence if equity is less than or equal to $595,000.00 and applicant intends to return home
  • Primary residence, regardless of equity, if spouse, child under age 21, or blind or disabled child of any age lives there
  • One vehicle
  • Life insurance with no cash value
  • Life insurance with cash value if the total face value of all such policies is less than or equal to $10,000.00
  • Irrevocable burial contracts
  • $1,500.00 designated for burial expenses (revocable burial contracts, burial savings accounts, or life insurance policies)
  • One burial plot per family member

Our suggestion:  Never apply for Medicaid benefits for Long Term Care on your own.  Seek professional help.


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Financial (General/Durable) Power of Attorney

Understanding Financial (General/Durable) Power of Attorney

A power of attorney allows a person you appoint — your “attorney-in-fact” or agent — to act in your place for financial or other purposes when and if you ever become incapacitated or if you can’t act on your own behalf. There are four main types of powers of attorney.


General Power of Attorney. In this situation, the agent can perform almost any act as the principal, such as opening financial accounts and managing personal finances. A general power of attorney arrangement is terminated when the principal becomes incapacitated, revokes the power of attorney or passes away.


Durable Power of Attorney. This arrangement designates another person to act on the principal’s behalf and includes a durable clause that maintains the power of attorney after the principal becomes incapacitated. This type of POA will revoke when the principal passes away.


Special or Limited Power of Attorney. In this instance, the agent has specific powers limited to a certain area. An example is a power of attorney that grants the agent authority to sell a home or other piece of real estate.


Springing Durable Power of Attorney. In some states, a “springing” power of attorney is available and becomes effective when a specified event occurs such as when the principal becomes incapacitated.

In order for the Power to become effective, the principal’s doctors must verify in writing that the principal is incapacitated. It is very important you understand what happens if the physicians won’t sign off on the incapacity.


It’s helpful to have these conversations in happy times, when your loved one is well so you can determine their wishes for their financial security and healthcare should a time come when they are unable to make the choices for themselves.

Responsibilities of the Agent within your Durable POA

  • use your assets to pay your everyday expenses and those of your family
  • buy, sell, maintain, pay taxes on, and mortgage real estate and other property
  • collect Social Security, Medicare, or other government benefits
  • invest your money in stocks, bonds, and mutual funds
  • handle transactions with banks and other financial institutions
  • buy and sell insurance policies and annuities for you
  • file and pay your taxes
  • operate your small business
  • claim property you inherit or are otherwise entitled to
  • transfer property to a trust you’ve already created
  • hire someone to represent you in court, and
  • manage your retirement accounts.
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Health Care Power of Attorney: North Carolina

North Carolina HEALTH CARE POWER OF ATTORNEY:   7 things to think about


  1. What is it?

In North Carolina a Health Care Powers of Attorney authorizing someone to make medical decisions for you, if you become unable to make or communicate your own medical decisions. Note that the creator of the Health Care POA must be mentally competent at the time of creation and signing.


  1. Who will your agent be and if not available, who is the agents back-up?

A Health Care Power of Attorney is a document we believe everyone should have, which frequently designates a primary agent and also back-up agents (contingent agents), in case the primary agent cannot be reached or cannot make a decision for you.


  1. Do I need additional forms to express my health care wishes?

The Health Care Power of Attorney form, as set out in the North Carolina General Statutes, is very comprehensive.  It also contains some blank spaces, in which you may add to, limit or explain your Health Care Agent’s powers in further detail if you wish to do so.


  1. What else can I say in a Health Care POA?

Your Health Care Power of Attorney may be modified to express your personal wishes, such as religious beliefs, whether or not you want to be an organ donor, or to express your funeral and burial wishes, or your desire to be cremated, if applicable.


  1. Do Health Care POA’s in NC need witnesses and be notarized?

A Health Care Power of Attorney must be signed in the presence of two witnesses and must be notarized.


  1. Can I have my spouse or children witness my POA?

The witnesses may not be related to the person creating the document, (spouse or children, or even siblings, aunts, uncles or first cousins) or people who are beneficiaries under your Will, employees of your doctor or a hospital or other health facility, such as a retirement or a nursing home, where you are a resident.


  1. Why is a Health Care POA important?

We believe the Health Care Power of Attorney is a very important document, letting both family and the medical community know your wishes, thus preventing disputes between family members or family members and the primary/attending physician.

If you have questions about your existing Health Care Power of Attorney or are in need of a new one, please don’t hesitate to contact our office.    Also, if you have moved from another state or your legal document are more than 5 year old, we offer a free review.

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