Articles Posted in Elder Law

For several years the VA has been working on changes to the rules for qualification of certain benefits dealing with transfers, a look back period, assets in trust,  and income.  Tomorrow the following rule change will be published, watch for some analysis on this and how it has changed in the next few days.

You can download a copy of the new rule here  2018-VA Rule Changes

Jacksonville Guardianship Lawyer Kendal Schoepfer in our office prepared this Article which may help some prevent the need for a Florida Guardianship.

Florida Guardianship Court proceedings are currently in progress regarding the Florida Guardianship of the Second Man on the Moon, Buzz Aldrin, in Florida. The proceedings were filed by two of his three children, Andrew Aldrin and Janice Aldrin, back in May.  His third child, James Michael, has remained out of the proceedings and has currently not taken a side. Andrew and Janice’s reasons for filing the guardianship of the second man on the moon is due to a claimed cognitive decline, claiming their father and the former astronaut is suffering from dementia, and Alzheimer’s which is causing paranoia, confusion, and making him susceptible to persuasion by others.

Buzz Aldrin, who is now 88 years old and who maintains he is still competent and able to make his own financial decisions, has fired back by filing his own lawsuit against his children claiming Andrew and Janice have stolen money from him and accused them of elder abuse and conspiracy. These claims are mostly surrounding their involvement in his company, Buzz Aldrin Ventures, where both Andrew and Janice hold high positions. Aldrin told Good Morning America that the day his children filed for guardianship over him was “the saddest thing that ever happened in my family” and that he “really felt that it really didn’t need to come to this.”

Exploitation of an elderly adult in Jacksonville, Florida is an all too often occurrence as well as across the entire state of Florida. Until recently, there was not much a person could do to stop it quickly when they suspected their elderly or vulnerable family member was being financially taken advantage of. This was a major problem. Before anything could be done to stop the exploitation, concrete evidence was required, and the money or asset that was taken, was too often unrecoverable by the time anything could actually be done. Thankfully, this is changing with the enactment of Florida Statute 825.1035.

Florida Statute 825.1035 allows for an injunction for the protection against the exploitation of an elderly adult or vulnerable adult. In order to get an injunction to stop the exploitation, the family member you believe is being financially exploited must be a vulnerable adult. In order to be considered a vulnerable adult for purposes of Florida Statute 825.1035, the individual must be 18 years or older, and be unable to perform normal activities required for daily living due to an impairment. The impairment can be because of a disability, injury, or aging. The Statute is meant to provide protection not only for elderly adults, but for any adult in Florida who could be financially taken advantage of due to any type of impairment. Continue reading

Most seniors do their best to prepare for the unfortunate, inevitable, outcome that one day they will pass away.  They create their will, and with painstaking detail allocate their hard-earned money and assets to spouses, children, family, friends, and charities.  But what if there is not money or assets left over to leave for loved ones?  What many do not realize is that paying taxes, helping the family, and subsiding off of what Social Security provides are not the things that typically bankrupt most seniors.  So what is?  A simple Google search into Long Term Health Care will bring up horror stories many Americans experience and will continue to face.  Hard working Americans, who have been saving for 40 years, end up penniless at the end.  It is expected that 70% of seniors over the age of 65 will need long term health care at some point in their life.  With the incoming influx of baby boomers, the problems only seem to compound.  Combine that with the fact that the estimated cost of staying in a nursing home is close to $9,500 dollars a month, one can easily see how their life-time savings can disappear.  When the average time spent in long term health care is three years, at $9,500 a month, that comes out to $342,000.  Everyone wants to ensure that their spouse, children, and family are provided for as best as possible, especially when they can no longer be an influence.  Below you can find more information on what probate is, the benefits and problems with Medicare and Medicaid, as well as some typical ways people can secure funds and assets.

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The number of people living with Alzheimer’s disease in the United States is growing rapidly. So, too, are the number of myths surrounding the disease and other forms of dementia. Let’s begin by looking at what we do know about the prevalence of Alzheimer’s before investigating some of the more common myths.

Approximately 5.5 million Americans are currently living with Alzheimer’s disease. Of these, some 5.3 million are 65 years of age or older. In addition:

 

  • One in 10 people 65 and over has Alzheimer’s disease
  • Nearly two out of three Americans with Alzheimer’s disease are women
  • African-Americans are approximately twice as likely as older Caucasians to have Alzheimer’s or other forms of dementia
  • Hispanics are about one and one-half times as likely to have Alzheimer’s or other dementias as older Caucasians
  • As the population grows older, the number of new cases of Alzheimer’s disease is expected to soar
  • Today, someone in the United States develops Alzheimer’s disease every 66 seconds. By 2050, this figure is likely to increase to one new case every 33 seconds

Now let’s look at some of the most common myths surrounding Alzheimer’s disease and other forms of dementia.

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The following article by the Senior Directory is aimed at helping you learn options regarding the various payment options for Long-Term Care in a Nursing Home. It is not a Do-It-Yourself guide.  Before doing anything drastic with your assets, consult a Florida Elder Law Attorney who can work out the particulars for your individual situation and make sure everything is filed correctly.

How much does Long Term Care at a Nursing Home cost?

National averages price long-term care facilities at about $250 a day. That comes out to $90,000 a year, which is just for basic care.  Start adding in amenities, like Memory Care for Alzheimer’s patients, and that number quickly starts to rise.  In North Florida the average cost can quickly increase from around $9,700 a month to $20,000 or even $30,000 a month.

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A Durable Power of Attorney is an important document, but sometimes having one can cause problems.

A recent Florida court ruling scored a major win in the fight against elder abuse. The case established that a health care proxy does not have the authority to waive the right to jury trial and bind a person to a contract.

The case is Hugh Moen v. Bradenton Council on Aging LLC, where the defendants, the nursing home, filed motions to dismiss and to compel binding arbitration.  The plaintiff, Moen, was the personal representative of the estate of Norma Silverthrone, appealed the order granting the motions to dismiss.  The appeals court sided with the personal representative.

Background on The Case

Norma Silverthorne was admitted to a nursing home in 2013.  Her daughter, Susan Moen, accepted a health care proxy designation on her mother’s behalf. Norma never executed a durable power of attorney in her daughter’s favor.  Susan signed the nursing home’s admission agreement, which contained a “Voluntary Arbitration Agreement.”
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Warning Signs of Financial Abuse of the Elderly

Studies show that financial abuse of the elderly is a growing problem throughout the United States and especially here in Florida.  The overall population is aging, and persons over 65 years old control about one-third of the wealth in the United States.   This creates a big problem when you consider this group is much more susceptible to abuse due to health problems like dementia.

Estimates show that Americans loose nearly $3 billion a year due to financial abuse of the elderly from friends, loved ones, or even strangers.  This abuse comes in the form of financial abuse, scams, and other types of exploitation. The worst part is this type of financial abuse of the elderly is that it usually goes undiscovered until all an elder’s money is gone.

How To Protect Against Elder Abuse

A Senate Special Committee on Aging had a hearing in November of 2016, which allowed experts to testify that elder abuse is still a growing problem in the United States.  The experts testified that over 5 million elders, or one in ten seniors, that live at home experience some elder abuse, neglect, or exploitation.

Jaye Martin, the executive director of Maine Legal Services for the Elderly, testified that not only is financial abuse (elder abuse) running rampant, but that the elder abuse is most often perpetrated by family members who are guardians.  This information regarding financial elder abuse was further supported by a report issued by the Government Accountability Office.
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Trusts are one of the most commonly used estate planning tools by Jacksonville estate planning lawyers for a good reason.  A Trust can permit an asset to bypass probate while allowing the original owner the power to control and manage the assets.  A trust can also provide asset protection and make assets exempt from the Medicaid qualification process.  Our Jacksonville estate planning attorneys are often asked about differences between using a trust and an outright gift to a beneficiary.

In most cases, the answer is that it is it better to keep the asset in a trust to reduce income taxes, protect the asset from creditors, and prevent penalties in the case long-term care is needed. We will attempt to explain why in this article   A major purpose of a trust, which can be irrevocable or revocable, is to provide an easy way to transfer ownership of a property when the owner passes away and permit an unlimited step-up in basis without income taxes to the person who receives the items.  Some trusts also provide asset protection or can be designed to protect assets in the case long-term care is needed.  As a person begins to age it can be dangerous and costly to make large outright gifts.  The risks are often specific to the individual and should be discussed with an estate planning or elder law attorney.

One example may be a 65-year-old client who owns a rental home or multiple rental homes.  The homes are primarily rented out to generate income while they appreciate in value.  The client can transfer the property into an asset protection trust.  The trust becomes the owner of the rental property, and the rent and value of the properties can, over time be excluded if the client needs long-term care.  The client can be in charge of their trust and determine how the assets are invested and to whom the funds are given to.

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