Florida Estate Planning Lawyer Blog

The Trials and Heirs blog\ recently had an article about how to avoid exploitation of the elderly by a family member. They recommend

1 Getting Expert advise who knows the ins and outs of estate planning. I would also recommend using a Florida Estate Planning Lawyer who is familiar with Florida Elder Law.
2. Be careful of Joint accounts as they can take the money or create ineligibility for nursing home coverage.
3. Consider "Springing" Powers of Attorney or as we call them contingent Durable Powers of Attorney as they only give powers once you are incapacitated.
4. Choosing Wisely which may mean not choosing a family member or the oldest child because of emotional reasons.
5. Having Checks and Balances by using more than one person to make decisions and to avoid fights.
6. Selecting someone to monitor your accounts. This person can be a trusted advisor and should have the ability to question and stop inappropriate actions.

While in Florida a lawyer is not required to create a valid deed like a ladybird deed or Florida Enhanced Life Estate Deed it may be a good idea to have a lawyer or attorney review these specific document because of their propensity for errors and the bad or unexpected outcome that would occur with an invalid or incorrect Florida Enhanced Life Estate Deed.
1. A lawyer can check to make sure that the deeds are executed with the formality required under Florida Statutes.

2. That an Florida Enhanced Life Estate Deed is the best method of accomplishing your goals. With property with larger mortgages, a deed of this type may not be the best or most affordable method for transferring the property upon the death of the owners because of the mortgage taxes in Florida.

3. In addition, some of the forms and Florida Enhanced Life Estate Deeds that I have seen do not properly deal with the property upon death and title companies have been known to require a probate before they will issue a new title policy. This can cost the family thousands of dollars on a homestead and up to 3 percent of the value of the home on non-homestead properties.

4. Prevent a portion of the property from lapsing, Florida's anti-lapse statute deals with devises by will and in trusts but would not protect an interest in a property that was given to an individual who predeceased the grantor of the deed. Because a Florida Enhanced Life Estate Deed is a contingent gift, it is possible that the remainder interest would be directed back to the estate of the grantor in a case were the contingent remainder beneficiary of the deed was to predecease the grantor.

5. The most important reason to use a lawyer with a Florida Enhanced Life Estate Deed deals with the circumstances surrounding the use of this type of deed. Often when a lawyer prepares these deeds they the process will cause them to evaluate the other financial, estate planning, elder law, and Medicaid planning that are found when these deeds are used. Paying a lawyer who is familiar with these issues to prepare your deed is a good way to have your personal circumstances and issues evaluated at the same time.

If you would like more information on a Florida Enhanced Life Estate Deed you should Contact a Florida Estate Planning Lawyer who is familiar with these issues.

One very useful Medicaid planning technique involves the creation of an irrevocable Medicaid Asset Protection Trust. With a Medicaid Asset Protection Trust a person or couple can transfer some of their property to the trust to hold and manage for their benefit during their live with the remainder paid to their family after their death.

Example: David and Beth have assets in their savings and stock accounts of $250,000. They currently live off income from their investments, social security, and other retirement benefits. They are concerned that if they need nursing home care they will not have enough money to support their lifestyle and pay for the medical expenses for the remainder of their life.

Solution: David and Beth decide to transfer $150,000 to a Medicaid Asset Protection Trust. The trust provides that all income is paid to them while alive and in the event one needs nursing home coverage under Medicaid the income is paid to the other. Upon the death of the surviving spouse, the trust will terminate and distribute the remainder to their children. By using this type of irrevocable trust their assets are protected and they receive an income stream for their lives.

Potential Problems: The gift to the Medicaid Asset Protection Trust can cause a period of ineligibility for Medicaid benefits. The length of the ineligibility period depends upon 1) the value of the assets given away and 2) The date the assets were given away. After the ineligibility period, the assets in the Medicaid Asset Protection Trust should be protected and not counted as a disqualifying asset for Medicaid planning purposes. In addition, this removes the assets from the reach of the spouses.

A Medicaid Asset Protection Trust is not for everyone, but it can be a means of protecting a family's financial security. These trusts can be complicated and must be tailored to the families resources and needs. It is important that you use a Florida Elder law attorney who is familiar with the Florida Medicaid laws and who has experience in creating this type of trust.

Please note: The Irrevocable Medicaid Asset Protection Trust is not the same as a "revocable trust", "revocable living trust" or "living trust" that is currently being sold through Trust Seminars.

Contact us by email or at (904) 685-1200 for more information.

As our population continues to age, more and more individuals are concerned about how they will pay for care as they get older. Often individuals and families find that they are unable to take care of themselves and need assistance.

As medical costs have continued to rise, so have the costs of home health care. As a result we are seeing more individuals need the assistance of Medicaid. Too often we find individuals who have received advise from family members, friends, and professionals who do not understand Medicaid and only deal with elder law or estate planning issues. While it may be great to avoid the costs and fees associated with probate, what if you end up being disqualified from Nursing home coverage. This could cost far more than the savings on probate.

Florida is a great state to live at the time you need Medicaid coverage because of the large exemption allowed on one's home. Generally you can protect up to $500,000 of equity in a Florida homestead. Unfortunately in an effort to save a few thousand dollars many individuals transfer a partial ownership in the property to their children with rights of survivorship. Often this is done with a life estate deed.

This can cause many problems for the owner in the event they ever need nursing home coverage. There is way to accomplish similar results without risking the tax detriments, gifting issues, loss of control, and Medicaid eligibility - us a Florida Enhanced Life Estate Deed.

Michael Bonasera with the Ohio Trust and Estate Blog recently wrote a on a similar topic Avoiding Probate vs Avoiding Taxes vs Medicaid Eligibility

If you would like a review of your estate planning that takes into account Elder law, Medicaid planning, as well as probate and tax issues Contact a Florida Estate Planning Lawyer who is familiar with Estate Planning and Medicaid Planning

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

Leanna Hamill, a Massachusetts Estate Planning and Elder Law Attorney, has an article on a new website Videocaregiving.org. She states that the videos are designed to be short, simple, and direct. They easily accessed by users 24 hours a day and cover the tasks and daily activities for caregivers.

If you need help with a Florida Medicaid Application Contact a Florida Elder Law Attorney

It’s that time, once again, to make changes to Medicare options. According to CMS, which is the government entity that oversees Medicare, the six weeks from November 15, 2008 through December 31, 2008 is a hectic time of the year otherwise known as the Annual Election Period (AEP.) Once a year, Medicare allows enrollees to opt in or out of Medicare Part D and Medicare Part C -- otherwise know as Medicare Advantage Plans. Before we get into what that means, some background is in order…"

Continue reading "Medicare Enrollment Starts November 15, 2008" »

A Miller Trust is a irrevocable qualified income trust used for Florida Medicaid planning. Generally, when an individuals income is over the limits a Miller trust or Medicaid Qualified Income Trust can help.

Generally a Medicaid Qualified Income Trust will distribute your income in such a way that your income will not disqualify you.

If your live in Florida and you do not qualify for Medicaid coverage because your income is over the limits, Contact a Florida Elder Law Attorney

What happens if Grandpa needs to Nursing home coverage and he owns a Class3 weapon like a Machine Gun?

Class 3 weapons or those controlled by the National Firearms Act are not exempt assets when it comes to Medicaid Planning.

There are ways to preserve these assets for your family but it involves converting the asset from an exempt asset to a non-exempt asset. On my other blog, Gun Trust Lawyer I wrote a Gun Trust Information article addressing this issue.

If you or your family has a person who needs nursing home coverage and they have war relics which may include a Machine Gun you should Contact a Florida Estate Planning Lawyer to discuss your situation.

In Florida, the Life tenant is generally responsible for the costs of repairs, but the remaindermen are responsible for the payments for improvements to the property.

If the life tenant paid for the costs of improvements on a property, this would constitute an uncompensated transfer or gift which could result in a period of ineligibility for Medicaid.

If repairs are being done on the property, it is important to have he contractor and suppliers specify that everything is begin done as a repair to avoid the possibility of the DCF worker classifying it as an improvement and creating a gift.

Before making repairs on a life estate, you should make sure that the act will not disqualify your family member from coverage. Please Contact a Florida Elder Law Lawyer to discuss your situation and Florida Medicaid Planning.

The Miami Herald reported that Florida lawmakers on Wednesday added language to a state budget companion bill (HB 5085) that would expand a Medicaid pilot program that shifts some beneficiaries to private managed care plans, such as health maintenance organizations, the Miami Herald reports. The bill seeks to expand the pilot program to nine additional counties in 2010. Critics of the pilot program say that many beneficiaries have had difficulty finding a health plan that meets their needs and that it is not clear the program saved money or improved care. The state Agency for Health Care Administration had said it would not ask lawmakers to expand the program this year, after the agency's inspector general acknowledged problems with the pilot. However, the agency's new secretary, Holly Benson, supports expanding the Medicaid overhaul more quickly, and state Reps. Bill Galvano (R) and Aaron Bean (R) are pushing for further expansion of the program. Galvano said officials are learning from the pilot program and will make adjustments accordingly.

As we get older long term care insurance premiums can become expensive. To qualify for a deduction on the insurance costs the policy must be a "qualified policy" as defined by the IRS.

A qualified policy is one issued after January 1, 1997 that adheres to certain regulations established by the National Association of Insurance Commissioners. Policies purchased before January 1, 1997 may still be treated as "qualified" if they are approved by the insurance commissioner of the state where it was sold.

If you policy is qualified then premiums are treated as un-remibursed medical expenses for income tax purposes. To qualify for the deduction of the premiums these un-reimburesed medical expenses must exceed 7.5 percent of the adjusted gross income. In determininging whether you meet the threashold you can use the lesser of the premium paid or the value. If on 12/31/2008 you are:

- 40 or under, the maximum portion of your long term care insurance premium considered "health insurance premiums" is $310.
- Between 41 and 50, the maximum portion of your long term care insurance premium considered "health insurance premiums" is $580.
- Between 51 and 60, the maximum portion of your long term care insurance premium considered "health insurance premiums" is $1,150.
- Between 61 and 70, the maximum portion of your long term care insurance premium considered "health insurance premiums" is $3,080.
- Over 70, the maximum portion of your long term care insurance premium considered "health insurance premiums" is $3,850.

The JC FLorida reported on recent cuts on proposed cuts in state funding.

This week both the Senate Health and Human Services Appropriations Committee and the House Health care Council introduced their 2008-09 budgets. The Senate reduced nursing home funding $163 million and the House reduced funding $278 million.

Florida legislators approved landmark elder-care facility reform legislation in 2001 that mandated increased minimum staffing requirements, tougher regulation and quality improvement, and risk management programs. Since then, nursing home quality has steadily improved. Now, Medicaid funding cuts threaten this progress and the vulnerable elderly who have nowhere else to go.

Today, Florida’s nursing home staffing standards are one of the highest in the nation. The Florida Legislature has funded these required staffing increases, but the new Medicaid rates effective Jan. 1, 2008, cut funding by an annualized $75 million, eliminating the funding received for the Jan. 1, 2007 mandatory nurse and certified nurses’ aide staffing increases.

Many individuals have long term care insurance to help with nursing home and assisted living costs. Generally long term care insurance is considered a good investment when individuals are healthy can afford the premiums. Rarely does having long term care insurance lead to a negative result.

Things might have changed in Florida with outcome of a recent caseRosenshein v. Florida Department of Children (Fla. Ct. App., 3rd Dist., No. 3D07-989, Oct. 24, 2007). The Appeals court agreed with the state's determination that payments received from a long-term care insurance policy are income. This income can create an ineligibility for Medicaid benefits.

What does this mean for your current long-term care policy? Should you abandon long term care insurance to help pay for nursing home costs? I don't think so. You do need to evaluate the way in which your policy is written and how benefits are paid to avoid this type of outcome. If you would like your long-term care policy reviewed you should Contact a Florida Estate Planning Lawyer to review your policy in light of the outcome of Rosenshein v. Florida Department of Children.

This topic was covered by SeniorLaw Link on December 17, 2007 in an article by Richard Shea, a CT Estate Planning and Elder Law Attorney

Fifty-four nursing homes Located 35 states including Florida are being told by the government that they’re among the worst in their states in an effort to get them to improve patient care.

The homes in question are among more than 120 designated as a “special focus facility.” CMS began using the designation about a decade ago to identify homes that merit more oversight. For these homes, states conduct inspections at six month intervals rather than annually.

For a list of the homes that performed poorly in your state continue reading

Continue reading "Would you put your mother here?" »

When considering getting married for the second time, or to someone with a prior family it is important to consider Estate Planning, Long-Term Care, the family home, Social Security, Alimony, Survivor's Annuities, and College Financial aid as an article on Forbes has reported.

Florida Estate Planning becomes very important when there are children from outside the current marriage. A spouse in Florida is entitled to a 30% share of all assets unless there is a prenuptial or post nuptial waiver.

in addition aFlorida Revocable Trust or prenuptial agreement might not keep a spouse from being responsible for long-term care and can have an effect on Florida Medicaid Planning and Eligibility

The Florida Supreme court has said that a spouse may wave their rights to a family home, but the constitutional rights of the Florida Homestead are very strong and should be considered.

Social Security needs to be considered an the benefits from former will be affected by remarrying before the age of 60. After age 60 you may be able to collect benefits from a new spouse if those benefits are higher.

Alimony and Survivor's Annuities will likely end if you remarry.

College Financial Aid might be affected if the income of the family changes.

For more information on Florida Estate Planning Contact a Florida Estate Planning Lawyer.