Florida Estate Planning Lawyer Blog

Joseph Percope has written an article The Impact of Co-ownership on Florida Homestead in the Florida Bar Journal that discusses the tree kinds of homesteads defined in a 1997 Florida Supreme Court case: The tax exemption; The Protection from Creditors; and The restrictions on alienation of homestead property in Florida.

While most are primarily concerned with their tax breaks, as a Florida Estate Planning Lawyer we often deal with the second two more often in our planning. We see families attempting to avoid probate by adding kids on to deeds all the time. We also see parents who own part of their children's homes. The problem begins when in either of these situations one or more of the owners does not live in the home. The home or at the ownership of the person not living in the home is subject to the claims of their creditors.

When no ownership percentage is specified, Florida will apply equal percentages of ownership to each person named on the deed. If a single person adds their child onto their deed as joint tenants with rights of survivorship, 50 percent of the equity in the home will be exposed to the creditors of the child who is not living in the home.

Once a creditor takes an ownership in the home, it is possible to force the sale of the home.

While these types of deeds are rarely a good idea because of the tax and basis considerations, many have not considered the additional risk due to the creditors of co-owners who do not live in the home or qualify for the second type of homestead (the constitutional protection from creditors)

The same scenario applies to those who try to use a traditional life estate deed to avoid probate. ( a Florida Enhanced Life Estate Deed does not have many of the problems that a traditional life estate does.

If you are trying to avoid probate in Florida and would like to also have protection for your homestead from creditors, not have adverse tax consequences, not lose stepped up basis, and/or not create a disqualifying transfer of assets for Medicaid purposes, you should contact a Florida Estate Planning Lawyer to discuss how to protect your homestead and the options available that deal with your circumstances and goals.
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A Florida Enhanced Life Estate Deed (sometimes called "The Lady-Bird Deed" is a tool used by Florida Estate Planning Attorneys, Florida Elder Law Attorneys, and other by Florida Lawyers to preserve the homestead for the benefit of the family and avoid a Probate in Florida. Upon the death of the homeowner's the property will pass to the people designated without the need for a costly probate process in much the same way as a bank account with a beneficary designation.

Why Use an Enhanced Life Estate Deed?
The Florida Enhanced Life Estate Deed provides a mechanism to bypass the probate process and thus the creditors. Under this document, the husband and/or wife retain a Life Estate Interest under which he or she retains the right to live on the property for their life. Unlike a Life estate, the husband and/or wife retain the right to sell, mortgage, convey, gift, or cancel the remainder interest at any time during their life. If there is any property interest upon the last to die of the husband and/or wife, the remainder will pass in fee simple to the designated individuals named in the deed.

Who should use the Enhanced Life Estate Deed?
A Florida Enhanced Life Estate Deed or Florida Lady-Bird Deed should be use by individuals or couples who want to simplify the transfer of their property upon their death and retain full authority and possession over their property.

Will using an Enhanced Life Estate Deed affect my Florida Medicaid Eligibility?
As long as the individuals demonstrate an "intent-to-return" to the homestead Medicaid Eligibility should not be affected.

What are some common mistakes with deeds?
Many Florida residents add their children on their deeds as Joint Tenants with Rights of Survivorship.
Many Florida Residents deed their property to their children and retain a life estate.

What can happen if I have made a common mistake on my deed?
1) My home may not be protected from creditors and/or loose its homestead protection.
2) I may be disqualified from Medicaid in the event that I need to go into a Nursing home.
3) I may have made a gift, subject to Federal Gift Taxes, Penalties, and Interest which my heirs and/or family may be responsible for paying.
4) I may not be able to sell my home or use the proceeds from my home to enhance my quality of life, travel, or pay for the necessary medical care I need.

If I have made a mistake transferring my property, can it be fixed?
Yes, You should meet with a Florida Estate Planning Lawyer to evaluate your situation, and prepare the documents necessary to allow you to qualify for Medicaid, deal with the Gift taxes, protect your homestead, and pass your homestead to the desired beneficiaries without the costly expense and delay of Florida probate.

It has been many years since the regional divisor has been updated. For the last several years the penalty period was calculated using an outdated nursing home cost of $5000. As of now, the divisor has been raised from $5000 to $6880 in Florida (Florida Administrative Code)

What does this mean? If one does property planning, they can give away $6880 and only have a 1 month penalty. This becomes important when doing planning for individuals who have nursing home exposure.

This will significantly increase the amount of money most people could save by doing elder law planning in Florida. As you age it is important to consider both Florida Estate Planning and elder law when structuring your plan.

With the recent changes to the Florida Statutes, it is even more dangerous to use Powers of Attorney documents created by online systems or found in forms books. Not only is there a big risk that they will not comply with the new Florida laws and be worthless, but if they are valid, you run a big risk of handing someone a blank check. YES that is what many are calling the powers contained in the new Florida Durable Powers of Attorney act.

While those using a POA are supposed to act in a fiduciary capacity, when they do not, someone has to complain about it or nothing will be done. While under Florida's Elder Law abuse statutes, anyone may complain about the actions of another who is over the age of 55, those under 55 who grant powers of attorney have little recourse when their power of attorney is abused without their knowledge.

More Jacksonville Estate Planning Lawyers are creating systems to accomplish the springing powers that have recently been stripped from the statutes.

Many are asking who pushed for these new changes. The answer is simple, the banks. It is easier for banks to understand what they have to do with the new documents, it limits lawsuits against banks, but all of this comes with great potential harm to the consumer.

individual already do not understand how to properly structure a Power of Attorney, now many will create invalid powers and potentially incur thousands of dollars of additional legal expenses when they find that they are not valid or do not provide the rights necessary to make gifts, create revocable and irrevocable trusts, or do planning that will enable an individual to preserve their assets instead of spending down their assets to qualify for government benefits. (Currently an individual must spend their assets down to less than $2000 before receiving government benefits.)

Even if they have no assets and can qualify for nursing home coverage, they may have too much income to qualify. Most free or low-cost powers of attorney do not provide the correct language necessary to create income trusts.

Some of the Major changes

• Agents May not Take Any Actions not Clearly Granted to Them
• New Springing Powers of Attorney Are No Longer Recognized
• Certain Delegations of Authority Require the Principal's Initials or Signature
• Creating an inter vivos trust
• Amending, modifying, revoking, or terminating an existing trust (additionally, the trust instrument must explicitly authorize the settlor's agent to exercise such authority)
• Making gifts, subject to statutory limits
• Creating or changing rights of survivorship
• Creating or changing a beneficiary designation
• Waiving the principal's right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan
• Disclaiming property and powers of appointment
• Some Delegations of Authority are Ineffective (Even With the Principal's Consent)
• Perform a contract under which the principal was obligated to provide "personal services"
• Make an affidavit as to the personal knowledge of the plaintiff (in other words, take an oath affirming facts which the principal did or did not know)
• Vote in a public election on behalf of the principal
• Execute or revoke a will for the principal
• Exercise authority granted to the principal in her capacity as trustee or as a court-appointed fiduciary
• General Language No Longer Sufficient to Revoke Prior Powers of Attorney
• Co-Agents Can Act Independently on the Principal's Behalf
• Co-Agents to report wrongdoing or become liable for others actions

If you are looking to create a Florida Power of Attorney you should discuss your goals, objective,and limitations under the new Florida law to make sure you create the documents necessary to be able to provide for yourself and family in the case you become incapacitated at sometime in the future.

Often in an attempt to avoid a relatively small probate fee, individuals can create huge penalty periods and taxable issues for themselves. Take for instance, a woman in New York who, two years before applying for Medicaid, transferred money from her account to an account with a co-owner. Transferring individually owned funds to an account with joint tenants is a common way to avoid a Florida Probate.

While her estate planning attorney seems to have given the advice, he was not aware of the problems that estate planning techniques to avoid probate can have on Medicaid eligibility.

Not only can transfers like this have problems for the individual making the transfer, but they can also create problems for the beneficiary or the new co-owner who will now have additional assets in their name, that may disqualify them from government benefits like Medicaid.

Before you try to save a few dollars and do what worked for your parents or friends, you may want to discuss your circumstances with a Jacksonville Estate Planning Lawyer who is familiar with Medicaid and Elder law issues.

As Jacksonville Elder Law Lawyers, we are always looking for the most effective and least restrictive ways in which to serve the needs of our Jacksonville elderly. We keep current of the Florida statutes and the numerous Florida cases which interpret matters involving Florida's senior citizens.

Elder law encompasses many aspects, including estate planning, guardianship, medicaid issues, and of course, health care issues. As Florida Elder Law Attorneys, we also look to various research and articles throughout the nation which focuses on issues related to aging.

Recently an interesting article caught our attention dealing with coconut oil and it's effect on those suffering with dementia and alzheimers. We want to share information we learn of that may have a positive impact on your lives. This article addresses alternative medical treatment.

Coconut oil, once thought to be harmful due to elevating cholesterol levels, actually has numerous positive influences on human health. While pure non hydrogenated coconut oil does in fact raise cholesterol levels it is the good (HDL) cholesterol that is influenced. Although there is little evidence at this point to support it, some leading researchers believe that Alzheimer's, dementia, ADHD and other central nervous system impairments can be helped with the use of pure coconut oil.

Glucose is the primary nutritional source for brain cells. Some conditions impair the body's ability to utilize glucose and as a consequence brain cells do not function optimally and will ultimately die.

Recent research along with antidotal testimonials suggest that the median chain triglycerides can provide a source of ketone to brain cells that acts as an alternative to glucose. Some patients with Alzheimer's and dementia have seen improvement in cognitive, emotional and physical function with the use of pure coconut oil.

If you would like information or direction with an elderly person in your life, consult with a Jacksonville Elder Law Lawyer.

The eligibility requirements for Medicaid have changed for Florida as of 1/1/2012. There were changed in the income criteria, maximum amount of assets, and maximum equity in your homestead property.

Florida Medicaid Income Limits as of 1/1/2012.

The Applicant's income limits have increased from $2022/ month to $2094/month. If the applicane for Medicaid has income in excessof $2094, they may use a Qualified Income Trust or Miller Trust to help the appllicant qualify for Florida Medicaid Benefits under the Medicaid Asset Test.

Florida Medicaid Asset Limits as of 1/1/2012.

For an individual who is not married, the Applicant can only have $2000 in countable assets. This number is unchanged from 2011.

For an Applicant who is married, their Spouse's Asset limits have increased from $109,560 in 2011 to $113,640 as of 1/1/2012.

If you have more than the maximum assets, we can talk about how to convert countable assets to exempt assets, spend the money appropriately or plan for gifting, loans, or Medicaid compliant Annunites to allow you to qualify even if you have signifiantly more assets than the maximum.

Florida Medicaid Homestead Equity Limits as of 1/1/2012.

An Applicant for Florida Medicaid can have $525K in homestead equity. This value has increased from the $506K which was allowable in 2011. If your home has more than the maximum value of equity, there are ways to reduce the amount of equity to allow you to qualify for Florida Medicaid.

if you or a family memeber will be looking for Florida Medicaid Benefits, you should consult with a Florida Medicaid Lawyer before you apply for coverage to protect excess income or assets and allow you to qualify properly. Many of these techniques can still be used even if the family member is already in a nursing home.

As you or your family members age, it is important to review your Florida Estate Planning Documents with somone who is familiar with Elder law and estate planning because many of the techiniques used for estate planning can cause problems when applying for Florida Medicaid Benefits

For those working with Jacksonville Elder Law Attorneys the Florida news that a daughter living with her elderly mother was accused of stealing her mother's money to fuel a gambling and drug addiction was not a shock. In attempting to ascertain the Florida elder mother's mental state, the investigators turned to her doctors.

The medical insight gleaned from treating physicians can lead to tougher charges against those who use their position of trust to scam the elderly. However, many doctors' are hesitant to get involved in the Florida legal proceedings of their elderly patients.

In Florida counties, where the population of elderly over the age of 60 often exceeds 25%, many law enforcement financial crimes units are seeking volunteer licensed physicians. These doctors assist in determining the mental and physical state of a victim at the time of the perpetration and fraud.

Jacksonville Elder Law Attorneys have experience with numerous elderly who are victims of financial exploitation. Jacksonville's elderly victims are described by Florida Statutes as a "person of 60 years of age or older who suffers from infirmities of aging manifested by advanced age or organic brain damage, or other physical, mental, or emotional dysfunctioning. . . that the ability of the person to provide adequately for the person's own care or protection is impaired."

Many cases of Florida elderly abuse and exploitation are by home health care providers, relatives, guardians, and even opportunistic friends and neighbors.

A Jacksonville Guardianship Attorney can talk to you about the elders in your life who may need assistance. Jacksonville Estate Planning Lawyers have the experience to advise of ways to protect your loved ones before they become victims. Some of these strategies encompass having a trust prepared and consulting with a Jacksonville Medicaid Law Attorney.

I recently updated the Free Florida Probate Handbook to deal with many of the changes from this year's legislature. If you have a preivous copy or would like an undated verstion please let us know by requesting on this page.

In Callahan, Guardianship Lawyers often have clients who have parents who have been diagnosed with dementia and Alzheimer's. It can be a struggle to do what you feel is best for your parent and when they are often argumentative and irritable. Growing old is not easy for anyone, especially the kids. Often times an adult child will need to step in and take over the financial and health care needs of their parents.

In some cases, the aging parent will voluntarily sign a Florida Power of Attorney (NOTE: the law changed 10/1/2011 and documents drafted prior to that date may not be valid if signed after 10/1/2011) or Designation of Health Care Surrogate. Another option is a Voluntary Guardianship for a parent who voluntarily elects a guardian to handle financial matters. Elder individuals suffering from dementia and other infirmities are often influenced by those not acting in their best interest. Therefore, speaking with a Jacksonville Guardianship Attorney may be helpful in learning your options.

A Guardianship proceeding in Callahan is a dual process and takes place in the Nassau County Court. It involves petitioning the Nassau court to appoint a certain individual to be appointed as guardian. At the same time a petition is filed to determine that an individual is incapacitated and cannot make decisions in their own best interest.

There are certain criteria that must be met to be appointed guardian of the person and property of another. If there are conflicting opinions about the best interest of an elderly parent or relative, please discuss your situation with a Jacksonville Guardianship Lawyer who handles Callahan Guardianship cases.

Likewise it is important to learn about the manner in which a court goes about determining that an individual is mentally incompetent to manage their own health and business affairs.

Although there are alternatives to Guardianship in Florida, many such methods may be temporary at best. To ensure your elderly parent will be protected from the wrong decisions, contact a Jacksonville Estate Planning Lawyer who also deals with Florida Guardianship and Jacksonville Medicaid Planning to learn what choices you have.

DCF will reject Medicaid planning involving trusts and personal service contracts where a power of attorney is executed after 10/1/11 and the DPOA does not specifically authorize the ability to execute trusts or personal services contracts.

If you are using forms for a POA or DPOA, you should have them reviewed by an attorney as the may not be valid with the recent law change. In addition, the forms may not let you accomplish what needs to be done in regards to planning for a nursing home or Medicaid eligibility.

Recently in the Jacksonville news there was a disturbing story about Florida's senior citizens being exploited. Men posing as bank investigators were targeting Jacksonville women in their 70's and 80's. These women were being told, among other things, that illegal activity was occurring in their bank accounts, thereby paving the way for the con men to obtain crucial bank account information.

As a Jacksonville Elder Law Attorney, this is just one of the many horrific stories I hear about our Florida Elderly population being taken advantage of and exploited.
The Florida Statutes provide for a remedy when abuse, neglect or exploitation of elderly person or disabled adult occur. This abuse can take the form of financial theft and exploitation, or the intentional infliction of physical or psychological harm. The amount of money involved, the nature, the and severity of the injury will determine the degree of the crime.

Sadly family members and friends often take advantage of the elderly. In addition, Acquaintances, such as the hairdresser, caretakers, or neighbors, are also guilty of exploiting Florida's older population. If you live in Jacksonville or the surrounding area, and feel like you are being treated in an abusive manner, or feel like money or property is being taken without your consent, contact a Jacksonville Elder Law Attorney.

Florida elders know the importance of having a Living Will prepared. A Florida Living Will is a legal document, which expresses a person's wishes as to life-prolonging procedures. A Living Will typically only comes in to play when certain legally defined conditions exist. These conditions are:

• a Terminable Condition;


• an End-State Condition; and


• a Persistent Vegetative State

An Eighty year old granddmother made her wishes plain as day, when she had the words "Do Not Resuscitate" tattooed across her chest. She is not kidding around. Just in case emergency personnel find her face down, a large tattoo "PTO" with an arrow is inked on her back. It's not that this Octogenarian has a death wish, it's just that her feelings are Strong that she not be kept alive through artificial means. If she is in a vegetative state, she does not want her family to remember her as a "lump".

When asked whether her tattoos were legally sufficient, a General Medical Council spokesman stated that most doctors would ignore her DNR tattoo. He said her DNR wishes need to be put in writing and witnessed, or for a health surrogate to be designated.

Moral of story. . . before you get inked, consult with a Jacksonville Advance Health Directives Attorney about having the legal documents prepared to express your end of life health care wishes. A Florida Living Will, executed pursuant to Florida Statutes, establishes a rebuttable presumption of clear and convincing evidence of a person's wishes.

A Florida Voluntary Guardianship is a great option for those with elderly parents and elderly relatives who have increasing difficulty managing their own "property affairs". Business transactions such as banking matters, real estate transactions, and money management are some of the everyday tasks that become increasingly difficult to handle for Florida's elderly.

Ponte Vedra or Jacksonville residents may become a Voluntary Guardian by request and petition of the individual ("ward") who is in need of assistance from a trusted family member or friend.

The petition must also include a physician's certificate stating that the person who is petitioning the court for a guardian is competent to understand the nature and scope of the guardianship.

A wonderful feature of the provision is that it allows the guardian to take possession and control of less than all of the wards property. This enables the "ward" to maintain a sense of independence, and allows that person to manage a certain "portion" of their property, and still feel in control of their world. Each circumstance is unique and therefore, it is prudent to discuss your situation with a Ponte Vedra Guardianship Attorney.

When the Petition requests that the guardian only take control of a part of the wards estate, the court order must be specific as to the property to be included in the guardianship estate.

A Voluntary Guardian must file an annual report with the court, which gives an accounting as to the property under the guardian's control. The ward may terminate the voluntary guardianship at any time by filing a notice of termination with the court and must obtain a new certification of competency each year for the guardianship to continue. If you have questions about how a voluntary guardianship may assist someone in need of assistance, contact an experienced Guardianship Attorney in Ponte Vedra.

Currently the Revocable Living Trust is the most popular type of trust for estate planning. With the current estate tax exemption at 5 Million dollars, many have begun to ask if there is a need for such a trust. More over the Revocable Living Trust provides no asset protection.

Currently 99.7% of the US population has less than 5 Million in Assets. While a Revocable Living Trust can offer privacy, probate avoidance, easier management of one's assets, and numberous other benefits, it does not offer any asset protection. Many people really want an irrevocable trust, but do not want the consequences of the traditional irrevocable trust. While there are many types of irrevocable trusts, most either cause a loss of control over the assets by the grantor, loose the stepped up basis, or cause the trust to pay taxes at the highest tax rate with as little as $11,000 in earnings.

There are variations of the irrevocable trust that can solve one or more of these issues, but there is only one type of Irrevocable Trust that has the flexibility of a revocable trust, provides asset protection from the creditors of the creators as well as the beneficiaries, allows the income to be taxed at personal rates, and provides for stepped up basis upon the death of the creator.

While the IPUG: Irrevocable Pure Grantor Trust defies the logic of most estate planners, it has been designed using common law, trust law, and tax law to provide Asset Protection, taxing at a personal level, the ability to control the income and principal, stepped up basis and even can even help in nursing home qualification or Medicaid eligibility.

If you would like to find out how you can upgrade your standard revocable trust or create a new Florida Asset Protection Trust, contact a Florida Estate Planning Lawyer that is knowledgeable about the Irrevocable Pure Grantor Trust and how to structure it to accomplish your goals.