Last Sunday April 13, Dateline NBC had a story on tricks insurance agents use to sell insurance policies to our nations seniors. Insurance is a $14 trillion dollar business. They used hidden cameras. For those of you who missed it, here is a link to the transcript of the show. Here is a link ot a video of some of the interviews on the show.
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.
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 Healthcare 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.
Florida and The Medicaid Look Back Period -"Why you Can't Just Give It All Away"
Many people simply try to give their assets away to their children in an attempt to safeguard their estate. The Medicaid people have caught on to this. Many years ago, a popular planning technique was to transfer your assets into an irrevocable Medicaid Trust. This technique attempted to move your assets out of your name and control so that the would not be counted towards the asset test. Now any transfer to a Florida Revocable Trust is a disqualifying transfer for Medicaid purposes.
In 1993, the federal government partially closed this loop hole. Prior to February 2006, there were "look back" periods of 36 months or 60 months. Florida implemented these guidelines as of November 2007. This means is that if you have transferred assets to anyone other than your spouse (for less than value) within 36 months of applying for Medicaid, you will be denied Medicaid benefits and subject to an exclusionary period. The exclusionary period is equal, in months, to the dollar amount of the transfers divided by the average cost of a month of nursing home care (currently $3,300.00 in Florida). It is important to note that this number was rounded down and the exclusionary period was calculated from the date of the gift.
In February of 2006, the law changed! The Federal government has radically altered Medicaid qualification with the passage of the Debt Reduction Act of 2005 (DRA 2005). This law only applies to any transfer of assets after February 8, 2006 though the Department of Children and Families will enforce these and the other provisions of DRA 2005 only on asset transfers after November 2007. The "look back" period is now five years (60 months) for everyone. If you have transferred any assets for less than fair market value after November 2007, they will sum up the total of the transfers and divide by $3300. The resulting number is the number of months that you are disqualified from receiving Medicaid benefits from the time you apply for Medicaid. While it is impossible to know who will have a long term care event five years before it happens, do not transfer any assets after February 8, 2006. This includes gifts to your children, a charity or a church. You could be in a nursing home and private pay for three years (roughly $220,000) and still be denied benefits because you gave your church $5,000 four and a half years ago! Furthermore, DCF will no longer round down. This means any gift, no matter the value, will result in a disqualification period!
Gifts or transfers prior to November 2007 can be remedied by time. The current rate is $5000 for each month. You should Contact a Florida Estate Planning Lawyer to discuss how your specific needs are affected by any transfers.
Transfers include adding children's names to the title of assets such as deeds or bank accounts, removing your name from the title of an asset, or simply giving your children a check.
* Example: John adds his adult children, Beth and David, to the deed to his house within five years (60 months) of applying for Medicaid. The house is worth $132,000. Providing John remains on the deed as well and resides in the house, his portion would be exempt (Homestead). However, the portion transferred ($99,000 or 2/3 of $132,000) would not be exempt providing that the children did not reside with her and provide care for her. Thus, John would be denied benefits for a period of 30 months ($99,000/$3,300) from the time of application. Remember, the homestead is not counted. It is exempt. So there is no need to transfer it to your children.
Often clients do these types of transfers to avoid probate. There are other ways of accomplishing the goal of avoiding Florida Probate without risking the Medicaid ineligibility.
If you are a concerned relative or friend of an elderly person and need help with Florida Estate Planning, Elder Law, or Medicaid and are in the Jacksonville, Orange Park, St. Augustine, Fernandina Beach areas of North Florida, you should Contact a Florida Estate Planning Lawyer to discuss your Medicaid and Florida Estate Planning needs.
If you qualify under the income test or can create a Qualified Income Trust (QIT) you must still pass the Medicaid asset test. This test can be the most daunting and confusing. First, you must know the asset test limits. These vary between single and married individuals. The reason for this is so that a survivor of a Medicaid recipient is not left destitute by the spend down (more on this in a moment). The asset test level for an individual is $2,000 in countable assets and $104,000 (2008) in countable assets for a community spouse who not in a nursing home facility. For married couples, both persons must qualify under the asset test.
Second, you must understand the difference between exempt (countable) and non-exempt assets (non-countable). Exempt assets do not count towards the asset test limits and non-exempt assets do count towards the asset test limits. The following are exempt assets:
* Homestead of any value (with some limitations)There are some other non-countable assets but for the most part this is it. What this means is that checking and savings accounts, stocks, bonds, mutual funds, IRAs, 401(k)s, 403(b)s and trust assets are all counted towards the asset test. In short, any asset that is not exempt and can be turned into cash is counted. Please see the Florida Administrative Code Section 65A-1.712 (SSI ¬Related Medicaid Resource Eligibility Criteria) for a more technical analysis.
* First Car of any value
* Second car if >7 years old but <25 years old. (Cannot be a luxury car)
* Life Insurance up to $2500 or cash value of Life insurance if in face value is in excess of $2,500
* Burial Plots for you and your spouse and others in your name ($2,500 each)
* Household and personal belongings
* Irrevocable Burial Contracts
* The principal in certain annuities and IRAs or other qualified plans
What happens if you (and your spouse's assets) are over the asset test limits? You will have to "spend down" until you qualify. In other words, you will have to spend your own assets on you or your spouse's nursing home care until such time as they are below the asset test limits and you can qualify. Some call this the "Pre-Death Tax".
However, there still are some things that you can do. Just as the income test had planning alternatives, so does the asset test. But first you need to know some other rules concerning the asset test.
If you are a concerned relative or friend of an elderly person and need help with Estate Planning, Elder Law, or Medicaid and are in the Jacksonville, Orange Park, St. Augustine, Fernandina Beach, you should Contact a Florida Estate Planning Lawyer or Florida Elder Law Lawyer.
I am currently in Shanghai China for the next 5 days and then heading to Osaka and Tokyo for 3 nights each. I am planning to keep posting new issues to my blog while I am gone. In addition, I will be responding to emails and will be available over my VOIP number for calls or issues that need immediate attention. Feel free to continue to send in your questions. I wanted to apologize upfront for any additional delay in responses. Please be conscientious that it is 12 hours ahead of EST and this along with being on vacation means I will typically respond to any issues between 8AM - 12 PM EST or 8PM to -12AM my time.
Miller v. Goodall, 958 So. 2d 952 (Fla. 4th DCA April 25, 2007)
A daughter filed a petition to determine her mother’s incapacity and be appointed as guardian.
The ward’s sister (daughter's aunt) also filed a petition seeking to be appointed as plenary guardian.
The court denied the sister’s petition and instead appointed a third party attorney as plenary guardian.
The sister appealed the case on two grounds, arguing:
1) the court lacked personal jurisdiction over the ward, andThe appellate court affirmed, ruling the lower court had personal jurisdiction over the ward because the ward’s attorney had consulted with her and obtained her consent to jurisdiction. The trial judge found the presumption of appointment of the designated preneed guardian had been overcome.
2) the court erred by not complying with the ward’s preneed guardianship declaration that named the sister as guardian.
The appellate court noted the trial judge had also considered section 744.3124, Florida Statutes which states the court shall appoint a preneed guardian "unless the court determines that appointing such person is contrary to the best interests of the ward" and had specifically found it was contrary to the ward’s best interests to appoint her sister.
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
Recently we have notice that Hospice organizations are refusing to allow people to visit relatives or friends while under the care of Hospice.
In these cases, the people were turned away because someone with a Power of Attorney was able to state that the person was not wanted.
It is important to remember that a Power of Attorney or Durable Power of Attorney give an agent the right to act in certain circumstances. In Florida, a Power of Attorney does not give someone the right to make decisions regarding where they are located, who they can visit, or who they can talk to.
It is possible to make these decisions for an individual, but only when someone has been appointed as their Florida Guardianship. Even if someone is the Florida Guardian they may not have these rights.
If you have a loved one and you are being prevented from seeing them because of a Power of Attorney you should Contact a Florida Estate Planning Lawyer to discuss your situation.
Florida judge who presided over the Terri Schiavo case until her death, has a new assignment. He no longer judges Florida Guardianship cases. He judges divorce cases.
The Judges transfer from Florida Probate and Florida Guardianship court to family court should allow Judge Greer who is now 65 to serve the next three years in obscurity before his retirement.
Judge Greer is nationally famous and has 20 honors displayed in his chambers. The largest is the 2005 President's Award of Merit from the Florida Bar, "for your unswerving commitment to the rule of law, the independence of the judiciary and the fundamentals of American democracy."
With the recent cases like Britney Spears competency hearing, many have found the need for a Durable Power of Attorney and the Schiavo case is a good reason people need a Florida Living Will. After all if Schiavo had a Florida Living Will she and Judge Greer would not have had the national spotlight. The fight was only because Schiavo did not have a Florida Living Will.
If you would like a Power of Attorney or Florida Living Will please Contact a Florida Estate Planning Lawyer to discuss your needs.
All Florida Enhanced Life Estate Deed or Florida LadyBird Deed are not created Equal.
In the past, I have had clients come to me for help when a title company would not accept the language on an Florida Enhanced Life Estate Deed or Florida LadyBird Deed. Each title company has specific language that they look for in the deed. As as result we have had several title companies review our deeds and make recommendations. We took these and complied them into a single form that satisfied all of their requirements.
If the title company is not happy with your current deed, they can refuse to write title insurance. As title insurance is required by every commercial lender in Florida when a home is sold, this can create a problem when you want to sell your home. In some cases, we have had to open or reopen a probate case to get the judge to issue an order to clear up the title concerns.
Often these deeds are used to avoid the delays and expenses of Florida Probate, not create ineligibility periods for medicaid, allow for stepped up basis, and not create unnecessary gift tax. If you would like to create an Florida Enhanced Life Estate Deed or Florida LadyBird Deed or have your deed reviewed please Contact a Florida Estate Planning Lawyer.
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.
Although there are no current verdicts against Florida Companies, many states have taken action against living Trust Scams / Trust Mills / and Elder Law Planning Seminars. Michael Bonasera of Buckingham Doolittle & Burroughs, LLP and author of the The Ohio Trust & Estate Blog wrote an article titled Living Trust Scams/Trust Mills/Elderlaw Planning Seminars - STAY AWAY! where he mentions a previous posting on this Blog, Florida Estate Planning Lawyers Blog, on a similar topic dealing with a Texarkana Arkansas class action suit.
I thought I would start a list of Living Trust Scam Articles and resources on my blog.
1. Texarkana Arkansas Living Trust Seminar Class Action suit
2. California Living Trust Mill Judgment
3.Texas Bar story reported by Professor Beyer of Wills, Trusts & Estates Prof Blog- Living trust Scams and Senior Consumer
4. Michael Bonasera wrote an article titledLiving Trust Scams/Trust Mills/Elderlaw Planning Seminars - STAY AWAY! where he Ohio's history with Trust Mills and cites a case Ohio Trust Mill Case of Cleveland Bar v Sharp Estate Services, Inc. which seems to have ended Trust Mills in Ohio.
5. Beware of Trust Mills when Estate Planning - by Randall Armour, CA Lawyer- reported on by Florida Estate Planning Lawyer Blog
A number of Texarkana residents have filed suit against sellers of living trust documents in a class action accusing the salesmen of exploiting senior citizens. This is similar to what I reported happening in California in December.
A Plaintiff says he purchased a living trust after attending a lunch presentation at a restaurant. He states the document was misrepresented and that if he dies with only these estate-planning documents, his estate will still need to be probated because the living trust failed to factor in his real property in Arkansas.
The living trust sellers are facing allegations of "masquerading as qualified financial advisers, estate planners, lawyers, and paralegals" to "exploit and prey" upon senior citizens with the creation and selling of "unnecessary and often useless" living trusts.
Defendants are accused of fraud, unauthorized practice of law, negligence, breach of fiduciary duty and conspiracy. The suit alleges that the defendants created and sold the living trusts as part of a scheme to gain access to senior citizens' financial information in order to sell annuities and other financial products.
According to the original complaint, the scheme begins with advertisem