Articles Posted in Elder Law

The Following limits  for Medicaid eligibility for Medicaid for Florida as of 1/1/2024 have been adjusted again. There were changed in the income criteria, maximum amount of assets, and maximum equity in your homestead property.

Florida Medicaid Income Limits as of 1/1/2024.

The Applicant’s income limits have increased  to $2,829/month if single and $2742 if you are married. If the applicant for Medicaid has income in excess of 2,7, 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 Estate planning and Florida elder law planning are two distinct areas of law that often overlap, as they both involve preparing for the future and ensuring the well-being of individuals and their families. However, they have different areas of focus.

Florida Estate planning lawyers primarily deal with the management and distribution of an individual’s assets upon their death. Key components of estate planning include:

    1. Wills: Legal documents that outline how an individual’s assets should be distributed after their death.
    2. Trusts: Legal arrangements that enable a third party (the trustee) to manage assets on behalf of the beneficiaries.
    3. Power of attorney: A document that allows someone (the agent) to make financial and legal decisions on behalf of another person (the principal).
    4. Healthcare directives: Documents that outline an individual’s medical care preferences and appoint someone to make healthcare decisions if they become incapacitated.
    5. Tax planning: Strategies to minimize estate and gift taxes.
    6. Probate: This is the legal process by which a deceased person’s estate is administered and distributed. Estate planning often aims to avoid or minimize probate, as it can be time-consuming and costly.

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How to Select a Senior Living Arrangement for Your Elderly Loved One

Moving an older loved one into a new living arrangement is an emotional process. However, feelings aside, there are many practical steps we must take before a decision is made. From how to pay for custodial services to the kinds of help they need now, and in the future, there are lots of details to sort out. This guide, presented by the Florida Estate Planning Lawyer Blog, can help you navigate this process.

Paying for long-term care

Even if your loved one is still perfectly capable of caring for themselves, there is never a wrong time to think about how money matters will play out. Medicare does not cover custodial services, only medically necessary and just for a short time. Although all states do have indigent Medicaid programs, your loved one likely does not qualify if they have any cash or liquid assets. For many seniors, the equity in their home is at least part of their nest egg. To find out how much you can expect, research local home prices (houses in Jacksonville sell for an average of $235,000). It’s also helpful to know the average cost of skilled nursing, assisted, and independent living. If you have obtained guardianship, you may need to look into selling their home if they are no longer in a position to care for it for themselves.

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The Miami Herold is reporting the there is a surge in people asking for wills to be written.

The article states:

Lawyers are being bombarded with requests to write wills, update estate plans and prepare health surrogate or “pull the plug” documents as people are confronted by the realization that they could be diagnosed with COVID-19 and dead within days.

In Florida, an estate plan provides you a plan for what happens to your assets at your death. Another crucial part of your estate plan, specifically your will, is where one nominates who will be the guardian of any minor children. Although the court will decide what’s in the best interest of the child(ren), having an estate planning document that details your preference in place will hold considerable weight. Estate planning is important for anyone who has legal capacity, whether it may just entail power of attorney or medical care or extend to a full-featured plan, which would include trust and a will.  Today with the current situation with COVID-19, it is more important than ever to have a Medical Power of Attorney that permits the use of experimental, non-FDA approved, medications for the treatment of COVID-19.

While preparing a will or a trust is essential, it is also important to consider coordinating beneficiary designations on life IRAs, insurance, retirement plans, and so forth. A will should also includes planning during your lifetime and in case of your incapacity. Often the creation of an estate plan involves an array of topics such as asset protection and qualification for public benefits for the client, or the client’s loved one. Many times, spouses will take it upon themselves to devise a plan online without the proper instruction; let’s go through a scenario.

Here we have Tyler and Debra, who have created a plan with an online package. In this package, they prepare a trust and retitle the brokerage account and house into the name of the trust.  The couple also prepares wills. While preparing, each document language states that it will include everything be left to one another at the death of the survivor and divided assets among their three children. Tyler and Debra felt as if they had a great plan in place and that they would have no concerns involving probate. One thing they did not consider is that they could not change the ownership of Debra’s IRA during her lifetime. The first mistake that was made was not checking the beneficiary designations on the IRA. Before Debra married Tyler, she had a boyfriend as a known beneficiary for her IRA. This caused Debra’s previous boyfriend to obtain a bulk of the IRA asset and not her current husband, Tyler. This situation happened even though Debra named Tyler as the primary beneficiary of all her assets in her will and trust. Situations like these happen all the time and demonstrate why it is vital to revisit your plan and make changes to previous beneficiaries.

The most important job of a Florida Guardian

The most important job of a Florida Guardian is to ALWAYS act in the Best Interests of the Ward. A Florida Guardian is a person appointed by a court to take care of someone who cannot care for himself or herself. The individual who is determined to need help by the court is called the Ward.  This term is the same regardless of age  (Guardians of adult or Guardian of a minor). A Florida Guardian can be appointed by a court to make the Ward’s health care decisions, to manage the Ward’s assets, or both. A Florida Guardian should always make decisions based on the best interests of the Ward.

Acting in the Best interests of a Ward’s Person

Can a Durable Power of Attorney be signed if a Guardianship is needed in Florida? A Durable Power of Attorney is a legal document that allows a competent adult to decide whom can make financial and healthcare decisions for them when they cannot. A competent adult can make his or her own financial and healthcare decisions, also referred to as having capacity. A Guardianship is established when an adult no longer has capacity and is set up through the Florida Court System. Through the Florida Court System, a Court decides who will make financial and healthcare decisions for an individual who no longer has capacity. The person appointed to make financial and healthcare decisions for the individual is a guardian.

Let’s take the following for example: Your mother’s doctor just informed you she is no longer has capacity. You need to become your mother’s guardian because she does not have a Durable Power of Attorney. However, can a Durable Power of Attorney be signed if a Guardianship is needed?

In Florida, the Guardianship Process begins when a Petition for Appointment of Guardianship and a Petition to Determine Incapacity are filed with a court. At the time the petitions are filed, an allegation is made that an individual no longer has capacity. Whether or not someone has capacity remains an allegation until after a court rules on the Petition to Determine Incapacity. A Judge is the only person who can determine if someone has the capacity to make their own financial and healthcare decisions. Additionally, a guardianship cannot be established until after a court makes a ruling on the Petition to Determine Incapacity.

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

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