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Serving South Florida
since 1982
Board Certified Elder Law
Attorney
By the Florida Bar and
National Elder Law Foundation
Florida Bar
celebrates it's 25th Anniversary.
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West
Broward
Fort
Lauderdale area
(954) 726-6602
Boynton
- Delray
(561) 496-0077
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News You Can Use
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April 29, 2009
Older Americans are now on-line!
The Detroit Tribune News reports that as recently as 2000,
fewer than 20% of Americans older than 64 were online. Today
the number has jumped to almost 40%. And the numbers keep
rising.
Companies like Microsoft see this untapped
market and are developing simpler and faster devices to
bring seniors into the computer age.
Most seniors get
online to stay in touch with family and friends. But they
are also fans of news sites and sites on health, investing
and caregiving. So for those of you in the business of
providing services to seniors, don’t overlook this
untapped market.
For those with seniors in
your life, follow these tips on getting your senior online:
• Keep the computer simple.
• Use a PC since these
are most used in classes and libraries.
• Search out
senior centers and other community resources for lessons.
• Remove unneeded icons.
• Use a larger keyboard.
•
Set up an email address book.
. . . and my
personal suggestions . . .
• Since many seniors are afraid
they are going to break the computer, advise them that this
will not happen by doing something wrong.
• Warn them
that computers have their own language and no one is going
to jail for performing “an illegal act”!
I would love
any feedback on this issue.
February 5, 2009
All Your Health and Medical Records
Online: Convenient or Intrusive?
As part of the
stimulus package, $20 billion will be used to accelerate the
use of electronic health records. Presumably, all of our
health records would be linked together for easy access by
all the patient's health care providers. With every person's
doctors having access to the patient's complete medical
file, this system would likely improve the quality of care
and reduce the costs of cumbersome paper records.
The
idea is, of course, well overdue. All of us have had the
experience of one doctor not knowing what the others are
doing! So, what's the delay? Critics fear that in spite of
privacy laws to protect the public that there is major
potential for abuse. For example, employers might
inappropriately obtain the medical records of a job
candidate and determine that they are too expensive to
insure.
On the other hand, too many administrative
burdens would impede the use of electronic records and
interfere with the coordination of care.
For the sake
of all of us, let's hope that Congress can balance these
concerns for the sake of consumers of health care services.
January 8, 2009
Essential Elder Law and Estate
Planning Numbers for 2009!
Medicaid:
Community
Spouse Resource Allowance (spouse living in the community)
can keep $109,560.
Income Cap:
$2022. Beyond that
level of income for the applicant, must do a Qualified
Income Trust.
Gift Taxes:
Annual exemption
increases from $12,000 to $13,000. This has nothing to do
with gifts for Medicaid purposes where all gifts made can
create a penalty period.
Medicare Premiums:
Unchanged from $96.40. (A new year miracle!)
Food
Stamps:
Assets not in excess of $2000 and income of less
than $1127 per month.
September 18, 2008
Living Wills and Health Care Surrogates
Over the last several years, it has been hard to avoid
hearing about the Terri Schiavo case. Though many of us
would prefer to avoid it, an article in the newspaper just
recently said that the Schiavo case has increased awareness
regarding the importance of living wills. It has, no doubt,
increased awareness---but will it really motivate people to
actually sign living wills? Are you going to sign a living
will now?
A living will is an expression of your wishes regarding
end-of-life decisions. If you don’t want to be kept alive
artificially, should you be terminally ill or in a
vegetative state, you should sign a living will making your
wishes clear. For a doctor to withhold or withdraw
artificial life sustaining treatment, the law says there has
to be clear and convincing evidence that those are the
patient’s wishes. The best way to accomplish this, of
course, is to put your wishes in writing by signing a living
will. As we know, Terri Schiavo didn’t do this. Her husband
says that before Terri became ill, they had discussed these
issues and Terri had made it clear she wouldn’t have wanted
to be kept alive in her condition. Her parents disagreed.
Terri was kept alive for 15 years.
I work with the elderly and their families every day.
Because these end-of-life issues are on so many peoples’
minds, we all have the opportunity to educate the
individuals we serve on these issues and empower them with
the knowledge they need to make informed decisions. It is
important for everyone to realize that a living will can be
tailored to suit their wishes. IT IS NOT AND SHOULD NOT BE A
STANDARD "FORM". For example, some may not want their lives
prolonged in any way should they be terminally ill and
unconscious, while others may want all means possible used
to keep them alive. Still others may wish to decline all
life prolonging treatment with the exception of food and
water. Often religious customs and preferences effect how we
draft these documents. Choice of who the trustee is should
be discussed with the attorney.
Regardless of your decision, it is
critical that you discuss
your wishes with your family members and loved ones. While a
living will is clear and convincing evidence of a person’s
wishes, it is possible that from a practical standpoint in a
true end-of-life situation, the document’s strength might be
diminished if parents, children, or spouses claim the living
will does not reflect their loved one’s wishes. This could
also happen if close family members simply don’t agree with
each other on whether or not the living will reflects their
loved one’s wishes. You can imagine the concerns a doctor is
going to have when a patient’s living will says she doesn’t
want to be kept alive artificially but the patient’s
daughter is there pleading with the doctor to keep her
mother alive---saying that she knows her mother would have
wanted to live. You must discuss your wishes with your loved
ones. And again, you must name your most trusted person to
make these decisions.
In our office we include the living will in our
Health Care
Surrogate (also called a Health Care Power of Attorney) This
is a document that designates another person to make
any
health care decisions for you if you are unable to make them
yourself. A doctor must determine your incapacity before the
surrogate can act.
Sometimes these provisions are included in a Durable Power
of Attorney but should really be a separate document
dedicated to health care so that it can be more
comprehensive.
The key is to act now. You may want to begin by contacting
our office to discuss questions you have about living wills
and health care surrogates. Once you’ve been educated about
your options, you can make the decision that’s right for
you. And once your decision is made and you have acted on
it, you can take the next step of discussing your wishes
with your family. Our office takes a holistic approach to
serving our clients and can help you with this part of the
process as well.
August 28, 2008
Elder Law 101 - Trusts
Introduction: A trust is an separate entity that holds
assets for the benefit of
named persons. The person who creates the trust is the
“Grantor” (also called Trustor, Creator or Settlor). The person(s) who benefits from the
trust are the “Beneficiaries”.
The trust itself is a document that often looks and feels
like a will. The difference is that
a trust actually owns assets which are managed by the
“Trustee”.
Many kinds of trusts: Most of the confusion arises because
there are many different “flavors” of trusts: meaning that
there are many different types of trusts and reasons,
purposes and goals for a trust. If a person tells me they
have a “trust” it is like telling me they have “wheels”. I
don’t know about the wheels (car, motorcycle, trust,
bicycle, van, scooter, wagon etc.) and the purpose of the
wheels (work, exercise, transportation, play, hauling etc.).
Revocable Living Trust: That said, most people are familiar
with one kind of trust called the Revocable Living (Intervivos)
Trust. (RLT). It works like this:
• The Grantors (Mom and Dad) create the trust making
themselves as beneficiary,
• They title their assets in the trust so that the trust is
the technical “owner”,
• Mom and Dad are their own Trustee, maintaining control
during their lifetime,
• At death, the Successor Trustees (usually the children)
distribute the assets to
the beneficiaries (usually the same children).
Among its benefits, a RLT provides for orderly distribution
of assets on death and
provides a vehicle for managing assets during the incapacity
of the grantor. It is
generally thought of as a will substitute which avoids
probate at death. A RLT is
relatively inexpensive and easy to set up and maintain.
A RLT is not an asset protection or tax saving tool.
Different or additional trusts are used to accomplish these
goals.
Other types of trusts: Therefore, whether done within the
context of a living trust or in a different trust document
altogether, trusts can accomplish a myriad of good results.
For example trusts can:
• provide asset protection from future nursing home costs.
• reduce the likelihood of will contests.
• coordinate distribution of assets through one vehicle.
• avoid probate (and double probate with out of state real
estate).
• provide maximum privacy.
• prevents court control of inheritance by minors.
• save on estate taxes.
• provide for distribution to beneficiaries at specified
ages or over a period of time or for retirement.
• provide for assets to be held for beneficiaries with
special needs.
• provide for assets to be held for beneficiaries who have
creditors or who cannot handle money.
• provide for education of grandchildren.
• provide for a second spouse or partner.
• provide for pets.
• protect assets for Medicaid eligibility.
Conclusion: The use of trusts is not new . . . far from it.
Trust laws and its foundation go back centuries. What is new
is that trusts have found a home with the middle class. The
middle class has discovered that trusts can provide
solutions to common estate planning, asset protection and
elder law concerns. I am happy to say that it is common for
my clients to embrace these very versatile tools.
August 14, 2008
Law 101- Back to School Edition
Since this is the time of the year that children go back to
school, I thought that for the next few weeks, we might go
back to school with them! So here is the first installment
of Elder Law 101!
Wills - What They Can Do and What They Can't Do!
A will is a legal document that controls how and when
certain assets are distributed at our death. Since people do
not like to think about their death, many people do not have
a will. Some think they don't have enough assets to do a
will. Others think they don't need a will because everything
they have is held jointly or payable on death.
This is a mistake! A will is needed in some cases even to
distribute personal property or a car. It can name a person
to make funeral decisions. A will is a basic estate planning
document that everyone should have. It keeps things tidy!
However, a will won't . . .
• distribute property you own with another or payable on
death or with a beneficiary. These assets go according to
the title. Only assets in the decedent's name alone are
subject to the will. A will won't and can't override the
title of the asset.
• avoid probate. Probate is needed any time assets are owned
individually and it is the probate proceeding that
determines, in accordance with the will, how these assets
are distributed.
• update itself. This is especially true for out of state
wills! Never mind trying to locate those witnesses!
• prevent your heirs from fighting. Good, comprehensive
estate planning, however, will go a long way in preventing
will contests and hard feelings.
• fix it's mistakes because it was not done by a lawyer. A
well-drafted will includes certain provisions particular to
the state and does not include others. For example, ordering
your home to be sold and the proceeds distributed (very
common in other states) will effect your Florida homestead
protection against claims of creditors. Have your legal
documents done by a competent legal professional and save
your family confusion, stress and aggravation.
July 24, 2008
New Ratings System in Place for Nursing Homes
NBC has reported that a new rating system for nursing homes
should be in place by the end of the year. It is designed to
give consumers another tool to consider when shopping for a
nursing home. The ratings should be up on the
CMS government
website. (See also
Medicare website)
The ratings would not only be based on inspections as they
are now in the state of Florida but also on comments from
within the industry and consumers, making it a more
reliable.
Some hints for choosing a good nursing home include:
• Location
• References
• Taking a tour
• Asking about "care plans"
• Good communication with staff
For more information about Choosing a Good Nursing Home
click here.
July 17, 2008
Long term care diversion program is now being funded
The Long Term Care Diversion Program offers assistance to
seniors to remain at home or to live in an assisted living
facility (ALF). It is sponsored by the State of Florida
Department of Elder Affairs and the Agency for Health Care
Administration. There are companies in each county who have
contracted with the State of Florida to provide these
services.
The funds for this program are limited and there is often a
waiting list for the services.
Financial and Benefit Information.
At Home:
The applicant will receive home aid benefits of
approximately 15 hours per week depending on each
evaluation, and the contracted rate with the provider.
At an ALF:
The ALF's have agreements with the providers. They generally
receive approximately $1000 per month toward the monthly
cost.
Financial eligibility is the same as for the nursing home
Medicaid program. Please
click here to contact our office to
assist your clients in becoming financially eligible.
Clinical eligibility: The applicant must be at risk of
nursing home placement and meet one of the following
criteria:
• Require some help with five activities of daily living*;
• Require some help with four activities of daily living
plus requiring supervision or administration;
• Require total help with two or more activities of daily
living;
• Have dementia/Alzheimer's disease and require some help
with three or more activities of daily living;
• Have a diagnosis of a degenerative or chronic condition
requiring daily nursing services.
*eating, bathing, walking, transferring, toileting,
continence and dressing
July 11, 2008
Costs of Medical Care Endangering Retirement Plans
USA Today reports that with medical care and other costs
soaring, many retirement plans are being severely
compromised.
For years, we assumed that most people could retire on
70%-90% of their pre-retirement income. The projection now
is that people will actually need 126% of their
pre-retirement income. This is largely to do with increased
life expectancy, fewer pensions and the high cost of medical
and long term care.
"Almost everyone needs to be saving more for retirement,"
says Sheryl Garrett, founder of Garrett Planning Network.
A sobering fact:
An average 65 year old will need $225,000 for just medical
and long term care costs not covered by Medicare.
Our office suggests that pre-planning for these costs are
essential. We are a big proponent of Long Term Care
Insurance and will be happy to make referrals to specialists
in this field. For questions regarding asset protection for
long term care and nursing home costs, please feel free to
contact our office.
July 3, 3008
Local Hospital Sued For Not Recognizing a Valid Power of
Attorney
Jackson Memorial Hospital in Miami is being sued for failing
to allow a same-sex partner access to her ill partner's
room, ignoring a valid power of attorney and citing privacy
issues for their decision.
As an elder law attorney this is very disturbing since it
was clear that the reason was based not on the law but
solely on the couples same-sex status. The social worker
told the partner that this was "an anti-gay city and state".
The hospital's reaction is very disturbing from a
legal
point of view. A durable power of attorney is the document
we rely on knowing that, without the document, non-family
members will not have the same access as family members. The
hospital asserts that it's actions were to protect the
hospital's privacy responsibilities to the patient. However,
ignoring the specific wishes of the ill partner silences all
of us when we cannot speak for ourselves.
I wish the only moral of the story was to make sure that you
have a well drafted, tailor made power of attorney if you
are in any kind of "non traditional" relationship but the
facts indicate that at least, in this case, it would not
have mattered.
I do believe though that in general
it matters a
great deal because specific language authorizing someone to act for
another and waiving privacy rights is crucial in having a
power of attorney accepted by the recipient, especially in
medical settings.
This case raises questions about how hospitals deal with
same-sex or unmarried partners of patients, which has led to
controversy in the past. If there is good news to come out
of this, it's that this lawsuit may give direction in an
area in which it is greatly needed.
May 15, 2008
Elder Law and Estate Planning Mistakes to Avoid
#1 Blunders with Deeds
Many people use deeds as a way of transferring property at
death and avoiding probate. Unlike most estate planning
documents, deeds cannot always be easily revoked or changed.
Whenever property is transferred by deed, it can raise a
myriad of unforeseen problems. For example:
• Life estate deeds are a type of deed that allows an
individual to retain the right to live on the property for
life and at death the property automatically goes to the
beneficiary. However, if not worded properly this deed can
result in:
1. a gift for gift tax purposes
2. a gift that would disqualify a person for Medicaid for
long term care and
3. adverse tax consequences, both real estate and capital
gains.
• There may also be problems with transferring homestead
property into a trust. Conflicting court cases have created
a controversy as to whether this effects your homestead
protection against creditors so many attorneys are wary of
this. Also, only an individual (not a couple) can transfer
homestead property into a trust. If you have an old deed
where both husband and wife have deeded property into a
trust, this should be reviewed.
• Whenever there is a change of ownership there can
potentially be adjustment in real estate taxes to the
current market value. THIS CAN BE DISASTROUS. Also, there
may be capital gains issues. These all need to be explored.
• Your homestead property is completely exempt from claims
of creditors. Any transfer of your homestead property should
be looked at as to whether this transfer will in any way
effect your protection from creditors.
#2 Blunders with Wills
Wills should be done professionally by a competent elder law
or estate planning attorney and not any lawyer. An
experienced practitioner will know to make sure to include
important provisions such as permitting the sale of
property, which avoids the need for court permission and
avoids other provisions such as not requiring a sale of
homestead property which will void the homestead protection
for creditors and providing for minor children. (These are
biggies!)
MORE WILL BLUNDERS: Doing it yourself, not doing one because
you think you don't need one or relying on old wills where
we might have to find witnesses from 30 years ago are all
common but potential serious mistakes.
#3 Blunders in Trusts
Doing a Revocable Living Trust is only half the job.
The
trust must be funded - meaning that assets must be titled in
the name of the trust. This should be done with the
direction of an elder law attorney since not all assets are
suitable for transfer into a trust.
Revocable Living Trusts
are not asset protection tools. They
do nothing for protecting money for long term care, Medicaid
or Veteran's Benefits purposes. In fact they can be a big
problem. That's a big surprise to many of my clients.
#4 Blunders With Durable Powers of Attorney and
Health Care Surrogates and Living Wills
In general, these "Advance Directives" should be relatively
current and be very specific
as to the powers delegated to
the agent named. Florida law requires this specificity.
Additionally, in 2003, Congress passed privacy laws known as
HIPAA laws. Your document should include "HIPAA" language to
be sure your agent can access any medical and other records.
A Durable Power of Attorney should have special provisions
such as gifting, doing a Qualified Income Trust, permission
to sell real estate etc. necessary for a Medicaid
application. And although these documents do not expire,
failure to regularly update them makes them much more likely
to be ignored or subject to attack.
Has the family member
not done "Advance Directives"? No
problem - we'll just get a COURT APPOINTED GUARDIAN to take
care of them for the rest of their life. It won't be too
aggravating or expensive for the family!
#5 Not Taking Action!
Remember to have "The Talk" with your family. At any age,
the family should be aware of your wishes as to death and
dying, long term care etc. As we age, we should also be
discussing finances. Failing to make your wishes known
creates confusion and stress for the family. Write it all
down and discuss it with the family.
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Florida
Elder Law, Estate Planning &