An Advance Directive is a written statement that expresses a person’s health care wishes and is to be used should that person become incapacitated and unable to express those wishes. Essentially, they are instructions to your family, medical providers and others about what kind of medical and nursing care you would want (or not want) if you were unable to give instructions.
Frequently Asked Questions
A Living Will is simply one type of Advance Directives. A Living Will gives specific or general instructions as to the kinds of care to provide or withhold, and the type of conditions in which it should apply. Some states have specific requirements for Living Wills to be valid.
A Power of Attorney is a legal document that gives someone you choose the power to act in your place. A Health Care Power of Attorney is different from a Living Will, because it names one or more people to make medical decisions for the signer in the event of incapacity. While the Living Will gives instructions about care choices, the Health Care Power of Attorney empowers an individual to sign consents, discuss health care issues with the care team, secure second medical opinions, and similar actions. In case you ever become mentally incapacitated, you’ll need what are known as “Durable” Powers of Attorney for medical care and finances. A Durable Power of Attorney simply means that the document stays in effect if you become incapacitated and unable to handle matters on your own. (Ordinary, or “nondurable,” Powers of Attorney automatically end if the person who makes them loses mental capacity.)
Some states (like New York) use the term “Health Care Proxy” to describe a Health Care Power of Attorney. While state laws on Advance Directives differ, there is no important difference between the concept of a Health Care Proxy and a Health Care Power of Attorney.
An Advance Directive must be signed by a competent adult, must clearly indicate that it is supposed to be an Advance Directive, and must be witnessed by at least one person. There is no requirement that an Advance Directive be notarized, and notarization does not make the document more effective or powerful. Because of limitations on who can witness Advance Directives, it is advisable to have two witnesses (though usually a single witness will suffice), and not to use health care providers as witnesses. Family members can witness Advance Directives, but there must be two witnesses if either is a family member. It is important to note that these rules vary in every state, and an Advance Directive executed in another state using another’s requirements may be invalid. Consider consulting with an attorney in your state to be certain your Advance Directives are valid.
No, the procedures are simple and do not require an attorney, though you may choose to consult one.
However, an Advance Directive, whether it is a written document or an oral statement, needs to be witnessed by two individuals. At least one of the witnesses cannot be a spouse or a blood relative.
Most people should sign both documents. A handful of states formally recognize only one or the other kind of document, but 46 states including Florida expressly permit both kinds. Where it is feasible to sign both, the two types of documents complement one another nicely. One (the Health Care Power of Attorney) appoints an agent to make decisions, while the other (the Living Will) directs the agent as to what decisions he or she should make.
It is common to combine the two documents into one, allowing a single signature to satisfy the formal requirements and ensuring that health care providers see both documents at the same time.
No, there is no legal requirement to complete an Advance Directive. However, if you have not made an Advance Directive, decisions about your health care or an organ donation may be made for you by a court-appointed guardian, your wife or husband, your adult child, your parent, your adult sibling, an adult relative, or a close friend.
The person making decisions for you may or may not be aware of your wishes. When you make an advance directive, and discuss it with the significant people in your life, it will better assure that your wishes will be carried out the way you want.
Most (but not all) states provide a mechanism for a family member or concerned friend to make medical decisions for you if you become incapacitated without having signed an Advance Directive. Florida law does not give first priority to a spouse, but to a court-appointed guardian.
Anyone over the age of 18 should prepare an Advance Directive. This gives you the ability to make decisions about your medical treatment when you are unable to do so. Not stating your wishes in writing may mean they are not carried out. You may be forcing family members to make a decision they are not able to make, which could cause an emotional and financial burden to your loved ones. Signing an Advance Directive is something you can do for your loved ones, as well as for yourself. Advance Directives are for all adults, including mature minors and emancipated minors. We never know when an accident or serious illness will leave us incapable of making our own health care decisions.
If you believe you have been the victim of discrimination, the first step you should take is to file a complaint with the Equal Employment Opportunity Commission (EEOC).
The EEOC will investigate your claim and determine, based on the evidence shown, that discrimination has occurred. If the case isn’t settled, the EEOC has two options; it can give you the right to sue the employer or you can sue the employer yourself.
If you or someone you love thinks they are a victim of age discrimination, please contact us. We can sort through the situation. Call us at 1-800-ELDERLAW or (561) 750-3850.
According to the Administration on Aging (AoA), to Age Out Loud means “having the freedom to live with dignity, choice, and opportunities.” Since 1963, Older Americans Month has celebrated the nation’s older citizens each May. Every year, the AoA and the Administration for Community Living (ACL) lead the nation’s celebration of Older Americans Month (OAM). Both work every day to promote the well-being of older adults by supporting and advocating for them through programs and services made possible by the Older Americans Act (OAA). The ACL chose the theme “Age Out Loud,” to give aging a new voice – one that reflects what today’s older adults have to say.”
In our practice, almost all of our clients want to age at home, wherever and whatever that home may be. How reasonable is this and what can be done to allow this to occur? Obviously, we stress the need to have in place a plan and the documents to accompany that plan.
We focus on the basic Terrific Triad of documents: the Will/Trust, Power of Attorney and Health Care Surrogate documents as the staples of a plan.
Here are some other points to think about as you consider the option to age at home:
- Is your home safe and able to handle your needs? This can include simple home additions such as grab bars, additional stair railings, bath chairs, stander poles, lift chairs and, possibly, assistive devices such as a cane or walker.
- Does your home pose an impediment or danger in allowing the use of these tools?
- Who will assist you with “mundane” day-to-day matters such as grass cutting, snow removal, collecting your mail and newspapers, getting your medications, cleaning your house and providing transportation?
- Do you want to consider hiring a health care advocate such as a social worker to assist you in dealing with the complexities of today’s healthcare environment?
- Finally, a key to a successful plan is what we call the three “Es:” Eating, exercise and engagement. Eating for nutrition. Exercise for both the body and the mind. Engagement with others to help minimize social isolation.
In order to protect yourself and your family from serious legal complications that may arise in the absence of written directives and to ensure your decisions regarding your person and property are implemented if you are temporarily or permanently unable to make them, you must have the following legal documents. Typically, half of the adult population does not have these documents ready in time to plan for the eventuality of long-term care or succession. We recommend that everyone have:
- Durable Power of Attorney – a documents designating someone of your choosing to manage your property and contractual rights if you are unable to do so
- Designation of Health Care Surrogate – a document designating someone of your choosing to make health care decisions for you in accordance with your wishes
- Designation of Pre-Need Guardian – a document designating someone of your choosing to be your guardian should the Court insist upon appointing a guardian for you
- Living Will – a document expressing your end-of-life wishes and directives
- Last Will and Testament – a document identifying someone of your choosing to manage your estate and identifying who shall inherit your estate and terms regarding their inheritance
- HIPAA (Health Insurance Portability and Accountability Act) consent form – a document naming individuals who you wish to receive your private health care information
- Revocable Living Trust – a document used to avoid Probate of your estate, which identifies someone of your choosing to manage your property under Trust and identifies who shall inherit your property and terms regarding their inheritance
A Trust is a legal arrangement through which one person (or an institution, such as a bank or law firm), called a “Trustee,” holds legal title to property for another person, called a “Beneficiary.”
The following are some of the benefits of Trusts:
- Allow you to avoid the costly and time-consuming Probate process;
- Protection for a person with a disability;
- Trusts allow you to detail how you want to distribute your assets after you die.
- Trusts provide protection from creditors.
- For a child with special needs, Trusts ensure eligibility for government programs is not taken away.
- Trusts reduce estate and gift taxes.
For more information about Trusts, please contact us.
Generally, you can work and earn income and be eligible for Social Security benefits up to and even past your full retirement age. According to the Social Security Administration, your full retirement age varies and is based on the year you were born. You can start receiving your retirement benefit at any point from age 62 up until age 70, but your benefit will be higher the longer you delay starting it. If you decide to keep working past your full retirement age, you can earn as much as you want and still get your full Social Security benefit payment. If you’re younger than full retirement age and if your earnings exceed certain dollar amounts, some of your benefit payments during the year will be withheld. This doesn’t mean you must try to limit your earnings. If the Social Security Administration withholds some of your benefits, you will receive a higher monthly benefit when you reach your full retirement age. So if you work and earn more than the exempt amount, it won’t, on average, decrease the total value of our lifetime benefits from Social Security, and can increase them. For more information, visit www.ssa.gov.
The four most common mistakes made when considering estate planning are listed here:
- A failure to do anything. Some people think about making a plan, are urged by spouse and children to do something, but still fail to plan or take any action.
- Some people don’t even think about planning. They’re living their lives and it just doesn’t occur to them to plan for what will happen when they are no longer here.
- A third group is aware of the need to do something, but are not sure what. Surprisingly, they do not consult with an estate planning attorney to talk about goals or objectives and to find out what it would take to implement their plan.
- Some people go so far as to meet with a lawyer, find out what they can do and yet still choose not to go forward. This is frustrating to their family and their lawyer who can see the negatives surrounding not writing and administering an estate plan.
It’s a fifth group, the doers, the people who find out what they should do and set their plan into action, that are the ones that benefit from a well-thought-out estate plan. They make life for their heirs easier and more seamless when they are no longer here. In our opinion, this is the greatest gift of all to leave to their loved ones.
Legal forms do not come with an attorney’s advice. The form is merely a means to an end – a lawyer’s tool. The primary reason to consult with and retain a lawyer is to provide resolutions to broad family and legal issues. In the elder law, estate and special needs law planning areas, the lawyer is your advisor, your problem solver, your social worker, your hand holder, and your counselor.
Either way, we at Elder Law Associates PA love what we do, and we are eager to help you navigate your elder law, estate planning, and special needs law planning issues. Contact us to schedule an appointment with an attorney today.
Elder law is the practice of specially-trained attorneys who can help you protect your assets in the event of illness and dispose of your assets upon your demise, with a minimum of taxes and problems. Elder law attorneys address the long-term care and estate planning needs of each individual based on his or her unique situation.
You may have heard the terms “Special Needs Trust” and “Supplemental Needs Trust” and wondered what the difference is.
Two decades ago, when the field of special needs planning began, Trusts were created for people with disabilities. These were generally called Supplemental Needs Trusts. The thinking was that the purpose of the trusts was to supplement the assistance provided by Medicaid, Medicare, Social Security, Supplemental Security Income and other public benefit programs, whose level of support is often meager.
Special Needs Trust refers to the purpose of the trust — to pay for the beneficiary’s unique or special needs. In short, the name Special Needs Trust is focused more on the beneficiary, while a Supplemental Needs Trust addresses the shortfalls of our public benefits programs.
The reference to the trusts as Supplemental Needs Trusts rather than Special Needs Trusts is something of a survival. Whether supplemental or special, the trusts serve the same purpose of helping meet the needs of individuals with disabilities, while still permitting them to qualify for vital public benefits programs.
Elder Law Associates PA’s attorneys participate nationally and on the state level in public policy issues affecting our clients. By doing so we keep abreast of all major changes in the law. Check out our News and Resources section for updated information. You may also schedule a follow-up meeting to review your situation at a discounted fee, which will include a summary letter of the meeting.
If you are the executor or representative of the will, you should meet with an attorney to review the steps necessary to administer the will. While the exact rules of estate planning differ from state to state, the key actions include:
- File the will, and file a petition in probate court to be appointed executor.
- Collect the assets. This means that you need to find out about everything the deceased owned and file a list of inventory with the court.
- Pay the bills and taxes. If an estate tax return is due, it must be filed within nine months of the date of death.
- Distribute property to the heirs. Generally, executors do not pay out all of the estate assets until the period for creditors to make claims runs out which can be as long as a year.
- Finally, you must file an account with the court listing all expenses and estate distributions as well as any income to the estate since the date of death.
Contact us to clarify the details of this process.
All U.S. citizens have a federally guaranteed right to vote, but those under guardianship (or conservatorship) may not have that right. Many people with special needs who are perfectly capable of voting have appointed guardians – usually their parents – so that they can continue to be cared for into adulthood. But, depending on the state, being under guardianship may mean that in the eyes of the law they lack mental capacity and can’t vote.
It is common for a parent to want to be named as trustee of a Special Needs Trust benefitting her child, especially when the parent is the one creating or funding the trust. It positions the parent to have complete control over trust distributions. It is also very unlikely that anyone else can match the loyalty and dedication that comes from the strong filial bond between a parent and child. The parent is almost always the individual most familiar with the child’s specific, unique needs that the trust must seek to fulfill in its administration. Another advantage is that the parent will usually work without compensation.
Contact us to clarify the details of this process.
Fill out our “Request A Consultation” page. Once you submit the form, someone from will our office will contact you as soon as an appropriate meeting time can be confirmed. Or, simply call us directly at 1-800-ELDERLAW or 561-750-3850 and someone in our office will assist you in scheduling your appointment. We look forward to hearing from you.
Visit our Contact Us page for our office locations.
Trusts can accomplish a range of goals, including avoiding Probate, minimizing estate taxes, and making sure your heirs receive as much of your money as possible as quickly as possible. The type of Trust you set up will depend on what your goals are.
Contact us for advice on the right type of Trust to fulfill your goals.
Our office hours are Monday through Friday from 8:30 a.m. to 5 p.m.
Yes, a gift tax return should have been filed, but no, the gift tax itself almost certainly wasn’t triggered. In 2007, each of your parents would have had to give away more than $1 million in their lifetimes before gift tax would be owed. The gift tax exemption limit has since been raised to more than $5 million.
A tax professional can help you file the overdue return. Then you should consult an attorney about what to do next.
If your parents’ intent was to avoid taxes by transferring the home to you, they probably made a mistake. By giving the house to you, they also gave their tax basis. That means that when you sell the house, you would have to pay capital gains taxes on the difference between the sale price and what they paid for it, perhaps many years ago. The capital gains would be decreased by any improvements made in the subsequent years and by selling costs, but you still could face a substantial tax bill.
If you’d inherited the home after their deaths, on the other hand, you would get a new tax basis that essentially makes those gains tax-free. You could undo the gift by transferring the deed back to your mother and filing another gift tax return. (Again, no tax probably would be owed.) But that’s probably not something you’d want to do if your mother will qualify for Medicaid, the government program that pays nursing home expenses for the poor, said Howard Krooks, an attorney with Elder Law Associates PA in Boca Raton, Fla., and president of the National Academy of Elder Law Attorneys.
‘Medicaid looks back at the previous five years to see if the family transferred assets for less than fair-market value and delays eligibility if such transfers are found. Since you’re outside the five-year mark, you may want to leave things the way they are if Medicaid is in your mom’s future,” Krooks said. An elder law attorney can help you sort through the options. You can get referrals from the National Academy of Elder Law Attorneys.
Long-term care creates a huge financial burden on the family unit, whether it is provided by family members or not. Caregivers (usually women) may not be able to remain in the workforce for an adequate number of years to help fund their own retirement. The caregiver might not qualify for retirement benefits for themselves if they are not able to work outside the home for enough hours per week. According to an AARP report, family caregivers spend about $7,000 annually in out-of-pocket costs.
Here are some more reasons to start planning sooner rather than later:
- Care typically falls on family members, who either do not have sufficient time or funds to fully support themselves over the long term.
- The most common family member providing the care is a full-time working woman.
- Most people end up needing long-term care services.
- Long-term care can create a huge financial burden.
To avoid a Medicaid transfer penalty, the annuity must meet the following criteria:
- The annuity must pay back the entire investment. When interest rates were higher, it was possible to purchase annuities for as little time as two years. Currently, short annuities usually won’t be enough to pay back the full purchase price.
- The payment period must be shorter than the owner’s actuarial life expectancy. For instance, if the spouse’s life expectancy is only four years, the purchase of an annuity with a five-year payback period would be deemed a transfer of assets.
- The annuity must be irrevocable and non-transferable, meaning that the owner may not have the option of cashing it out and selling it to a third party.
- The annuity has to name the state as the beneficiary if the annuitant dies before all the payments have been made.
Please contact us if you have any questions regarding the above.
Careful planning in advance or in response to an unanticipated need for care can help protect your estate for your spouse or for your children. In order to plan for these unexpected outcomes, make sure you receive the benefits to which you are entitled under Medicare and Medicaid programs. You can also achieve this by purchasing long-term care insurance.
Giving general rules for so-called “Medicaid planning” is difficult because every client’s case is different. Some clients have more savings than others, are married while others are single, and some have family support while others do not. Some clients who are not in immediate need of long-term care may be able to distribute or protect their assets in advance, thereby ensuring that they quickly qualify for Medicaid benefits when the need arises.
Here are some of the new rules now in effect:
Visitors: New nursing home rules allow residents to have visitors of the resident’s choosing and at the time the resident wants, meaning the facility cannot impose visiting hours. There are also rules about who must have immediate access to a resident, including a resident’s representative.
Meals: Nursing homes must make meals and snacks available when residents want to eat, not just at designated meal times.
Roommates: Residents can choose their roommates as long as both parties agree.
Grievances: Each nursing home must designate a grievance official whose job it is to make sure grievances are properly resolved. In addition, residents must be free from the fear of discrimination for filing a grievance. The nursing home also has to put grievance decisions in writing.
Transfer and Discharge: The new rules require more documentation from a resident’s physician before the nursing home can transfer or discharge a resident based on an inability to meet the resident’s needs. The nursing home also cannot discharge a patient for nonpayment if Medicaid is considering a payment claim.
In November 2017, rules regarding facility assessment, psychotropic drugs and medication review, and care plans, among others, went into effect. The final set of regulations covering infection control and ethics programs took effect in November 2019.
Elder Law Associates PA provides the following services:
- Medicaid & Long-Term Care Planning
- Long-Term Care Insurance
- Medicaid Applications
- Long-Term Care Diversion Programs
- Nursing Home Benefits
- Spousal Refusal Applications
- Medicaid Fair Hearings & Appeals
- Nursing Home & Assisted Living Facility Residents’ Rights
- Asset Preservation Planning
- Deficit Reduction Act of 2005 (DRA)
- Personal Service Agreements
- Promissory Notes
- Disability Planning
- Special Needs Trusts
- Estate Planning
- Wills & Trusts
- Advance Directives
- Trust & Estate Administration
During your first consultation, a well-trained Elder Law Associates PA attorney skilled in all areas of elder law will analyze the facts. After extensive evaluation of your situation, our experienced attorneys will offer suggestions and solutions and propose steps you should take to achieve your goals, including Medicaid eligibility, asset preservation, incapacity resolutions, and estate administration, among others.
You should bring the completed checklist of documentation along with the completed questionnaire that will be sent with a confirmation letter regarding your appointment or planning session.
Yes, there is a charge for the planning session which pays for the attorney’s time, review of your situation and legal advice.
No. There is a separate fee for the preparation of all documents, including estate planning documents, court motions and administrative procedures.
For most of our services, the fee is based upon an amount set forth in a retainer agreement. In most cases, we are able to offer our clients a flat fee to perform the requested services. In some situations, there can be an agreement for an hourly charge.
Our fee for the initial planning session is $550, which includes a scheduled appointment and a review of any and all documents.
If a Medicaid applicant’s income exceeds the lawful amount for Medicaid eligibility ($2,350 as of Jan. 1, 2020), a Qualified Income Trust must be created with the applicant’s income in order to create eligibility for long-term nursing home care benefits. This instrument is also called a Miller Trust. This is an irrevocable trust.
The income of the Medicaid applicant which exceeds the eligibility criteria, is placed in the trust, and someone other than the applicant is the trustee. The trust income will be disposed of in accordance with the directive of the Florida Department of Children and Family Services, after the applicant has applied and been approved for Medicaid . Generally, the applicant will be allowed to retain $35 per month of the income; may be entitled to divert some of the income to the community spouse if the spouse’s income falls below $1,822.00 per month; and pay a fixed amount towards his patient’s responsibility for nursing home care.
The Qualified Income Trust may be created by the applicant, if the applicant is competent to do so; by the applicant’s spouse, if there is one and if the spouse is competent to do so; or by the attorney-in-fact pursuant to the applicant’s Durable Power of Attorney, if the Durable Power of Attorney authorizes the agent to do so. If none of the above conditions exist, a court proceeding would be necessary to secure the authority to create a Qualified Income Trust.
The Qualified Income Trust must be properly managed and payments must be made each month to maintain eligibility. There are very specific rules that must be followed for the trust. Contact us for assistance and more detailed information.
The following veterans qualify automatically for unlimited nursing home care:
- People who seek nursing home care for service-related conditions.
- Those with a service-connected disability rating of 70%, based on the VA rating system for service-connected disabilities.
- Individuals who have a service-connected disability rating of 60% and are unemployable.
A service-connected disability is a disability that the Department of Veterans Affairs has officially ruled was incurred or aggravated while on active duty in the military and in the line of duty.
Once the VA rules that your illness and/or condition is directly related to your active military service, it assigns a rating to each disability. The ratings are established by VA regional offices around the country.
Please contact us if you have any questions regarding the above.
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