Florida Estate Planning Lawyer Blog

Many of our clients and readers in Florida are caregivers of elderly parents; they have chosen to take responsibility for their parents--whether it be physical responsibility, financial, or other. But what if instead of making that choice, you had responsibility for your aging parents thrust upon you? This is exactly what happened in the case of Health Care & Retirement Corporation of America v. Pittas, recently brought before the Pennsylvania appeals court.

This particular case states that "On or about September 24, 2007, after completing rehabilitation for injuries sustained in a car accident, Appellant's [John Pitta's] mother was transferred to a HCR facility for skilled nursing care and treatment. Appellant's mother resided in the facility and was treated by HCR until March of 2008. In March of 2008 Appellant's mother withdrew from the HCR facility and relocated to Greece."

Following Pittas' mother's relocation, a large portion of her bill at the nursing home went unpaid. Mr. Pittas' mother applied to Medicaid to cover her care, but while that application was still pending, the nursing home sought to hold Mr. Pittas responsible for the debt under the state's filial responsibility law. Although the case went to an arbitration panel which initially ruled in favor of Mr. Pittas, eventually the Pennsylvania trial court ruled in favor of the nursing home, holding Pittas responsible for nearly $93,000 of his mother's nursing expenses.

At this time Florida does not have these issues, but Florida residents should be careful if their parents live in other states.

So far this has only happened in one state, but there are many other states which still have filial responsibility laws on the books. These laws have rarely been enforced thus far, but this ruling by the Pennsylvania Supreme Court does not bode well for children of aging parents throughout the U.S., many of whom are finding themselves caught between caring for elderly parents and for grown children who have not yet left the nest.

Perhaps one of the most disturbing things about this case is that the nursing home was given so much leeway. The Pennsylvania Supreme Court found that "Nothing in [Pennsylvania Law] requires a movant or a court to consider other sources of income [for the elderly parent] or to stay its determination pending the resolution of a claim for medical assistance." Furthermore, the court also stated that it was the nursing home's right to choose which family members to pursue for the money owed.

This would seem to condone (if not encourage) a litigious mind-set among nursing homes; and if you are one of many siblings with an elderly parent you could find yourself involved in a lawsuit merely because you live the closest, are the wealthiest, or called mom more often than your brothers or sisters.

The best way to guard against yourself or your family becoming embroiled in a similar lawsuit is to ensure that you (or your elderly parents) have a plan in place to pay for long-term care. Talk to your
parents about what plans (if any) they have to pay for their future long-term care needs, and contact our office to explore your options.

To read more on Elder Law download our Elder Law Update.

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 applicant for Medicaid has income in excess of $2094, they may use a Qualified Income Trust or Miller Trust to help the applicant 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 annuities to allow you to qualify even if you have significantly 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 member 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 someone who is familiar with Elder law and estate planning because many of the techniques used for estate planning can cause problems when applying for Florida Medicaid Benefits

Most people who receive payments for Social Security, Social Security Disability Insurance (SSDI), Supplemental Security Income (SSI), or a Railroad Retirement or Veterans Administration disability pension, will receive $250 as part of the American Recovery and Reinvestment Act of 2009. The extra payment is scheduled to arrive by the end of May.

Those who live in a nursing home and receive SSI are not eligible for the payment.

Medicaid-eligible long-term care facility residents and their families should know that the stimulus payment is not considered income and will not be counted as a resource for 10 months (including the month of receipt) in calculating benefits under Medicaid (or any other federal program or state program with some federal financing). The $250 will also not count as gross income for tax purposes. Recipients can save the payment if they want to, but they should make sure that it will not put their savings over the asset limit for any program benefits they may receive as of February 2010.

Medicaid-eligible long-term care facility residents and their families should know that the stimulus payment is not considered income and will not be counted as a resource for 10 months (including the month of receipt) in calculating benefits under Medicaid (or any other federal program or state program with some federal financing). The $250 will also not count as gross income for tax purposes. Recipients can save the payment if they want to, but they should make sure that it will not put their savings over the asset limit for any program benefits they may receive as of February 2010.

Because the $250 payment will not be counted as income, it will not put a Medicaid-eligible resident over the state's income limit. In addition, a Medicaid nursing facility resident should not see an increase in his or her patient pay for the month the payment is received.

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.

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

Professor Gerry W. Beyer author of the Wills, Trusts, & Estates Professors Blog, as reported on a mistake in estate planning where a Another Self-Help Estate Plan Gone Awry. In this case a man decided not to consult with anestate planning lawyer. He transferred the family home to his stepchildren son and $150,000 of securities to his son.

The house was highly appreciated and as such was a poor asset to select to use as a lifetime gift. Because it was transferred during life, the children had to use the father's basis instead of the price of the home at the death of the father. This resulted in over $80,000 in capital gains liability.

In addition the house, because it was transferred within 3 years of death, was still included in the father's estate value and did not reduce his estate taxes.

The moral of the story: Spontaneous self-help by a Testator / Grantor can backfire and deprive heirs of large percentages of an estate and prompt family tensions. Professional planning would have made a huge difference to this man's family.

Some other examples of Do it your self wills and bad news are covered in my articles listed below

Do it Yourself Wills? More bad news and
Do it Yourself Wills? a Good Idea or Not?
Do it yourself Estate Planning: Bad News Part 3
Do it yourself Estate Planning: Bad News Part 4

If you have used software, a form, or an online service to prepare your will, you should have it reviewed by a Florida Estate planning Attorney for potential problems.

Professor Gerry W. Beyer author of the Wills, Trusts, & Estates Professors Blog, as reported on a mistake in estate planning where a "Do it Yourself" Estate Plan Backfires. In this case a mother who did not hire her own estate planning lawyer made a number a big mistake that ended up causing problems withe Medicaid eligibility.

The mother, a widow, was worth 500K. Her home is worth 400K and has 4 children. After her daughter and son-in-law declared bankruptcy and moved in with her, they suggest buying her home. Unfortunately the home was not transfered at fair market value, and the mother made part of the purchase a gift. Mom ended up not having assets to split between the children like she had intended, and if she needs to qualify for medicaid within 5 years she will be disqualified.

Some other examples of Do it your self wills and bad news are covered in my articles listed below

Do it Yourself Wills? More bad news and
Do it Yourself Wills? a Good Idea or Not?
Do it yourself Estate Planning: Bad News Part 3

If you have used software, a form, or an online service to prepare your will, you should have it reviewed by a Florida Estate planning Attorney for potential problems.

As a Florida medicaid Planning Lawyer, clients often ask about coverage, eligibility, and benefits in other states. I ran across an article entitled A Ranking of State Medicaid Programs on the Public Citizen website.

Here is a link to the overall ranking of states by Score Florida Ranks 26th If you would prefer this is a ranking by state name.Use this link for some details on Florida . You might be surprised to know that Florida ranks 4th on Quality of care.

Florida Estate Planning Lawyers and Florida Elder Law Lawyers often use Ladybird Deeds to help transfer property upon death while allowing the owner to retain the full rights to sell, mortgage, convey, or change the future owner.

Florida, Texas, Ohio, California, Kansas and several other states now allow aLadybird Deed (named after Lady Bird Johnson) or Enhanced Life Estate Deed. With an enhanced life estate deed, a person can deed their property to another while reserving for themselves a life estate with the right to sell, convey, mortgage, or change who the property will pass to upon their death.

Quitclaim Deed v. Lady Bird Deed (Enhanced Life Estate Deed)
Often people use a Quitclaim Deeds to avoid probate. A Quitclaim Deed use to make things easier for beneficiaries. The problem with the Quitclaim Deed to avoid probate is that owner would not be able to sell or mortgage his/her property without the consent of her beneficiaries.

In some states a life estate or quitclaim deed could invalidate your homestead protection. If you are elderly or wanting to reduce potential probate costs it is important to speak to attorney in your state, who is practices in Elder law and Estate planning.

Florida residents or those owning property in Florida who have questions about how a recent or future deed transfer might affect them or their family can use the contact form to ask questions.

Jacksonville Estate Planning Law Firm will continue it community service project by adding 3 Living Will Seminars in the month of September. This program provides Free information and the chance to create a free Florida Living Wills, Florida Designation of Health care Surrogate, and a Hipaa Release.

On September 11, 2007 at 11 A.M.
Riverview Center
Attn Ms Annie Henderson
9620 Water Street
Jacksonville, Florida 32208
(904) 765-7511

On September 18, 2007 at 11 A.M.
Wallace Small Center
Attn: Ms. Gloria Gregg
1083 Line Street
Jacksonville, Florida 32209
(904) 630-0724

On September 26, 2007 at 11 A.M.
Longbranch Center
Attn: Ms. Margaret Hampton
4110 Franklin Street
Jacksonville, Florida 32206
(904) 630-0893

NOTE: Check with your Florida Estate Planning Attorney or one from your state on the effects of a reverse mortgage on your estate planning goals.

Today, many financial planners and insurance agents are advising seniors to consider reverse mortgage as a way to pay for healthcare and/or home exspense.

Reverse mortgages allow seniors to use the equity in their homes to pay expenses and still live in their home. The money can either be paid in a lump sum payment or montly payments or be available as they need the funds. Some reverse mortgages can even be setup as a combination of the options.