Elder Law

February 3, 2017

The Importance of a Durable Power of Attorney

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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January 23, 2017

Warning Signs of Financial Abuse of the Elderly

by David M. Goldman

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.

January 16, 2017

How To Protect Against Elder Abuse

by David M. Goldman

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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December 29, 2016

The Consequences of Changing A Trust into a Gift

by David M. Goldman

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.

December 28, 2016

The 5 Most Common Medicaid Myths

by David M. Goldman

In Florida, Medicaid is a federal and state level program that offers health care assistance to members of the program. Medicaid is a complicated program that is administered differently on a state-by-state basis. There are many common misunderstandings regarding Medicaid. This article will help to debunk some common myths and set the record right.

1) Status of a Home in Florida

FALSE. One common myth is that Florida residents cannot own a home and also qualify for Medicaid. This is not true. Florida does place a cap on the amount of gross income and assets a person can own and qualify for Medicaid. A person with too many assets or income is ineligible to receive Medicaid benefits.

December 23, 2016

Guardianship Fraud in Florida

by David M. Goldman

According to recent censuses and polls, experts project Americans that are 65-and-older will double over the next three decades due to a large number of baby boomers. This means the current population of 65 and older persons should explode from the current rate of 48 million to almost 90 million by 2050. This is an impressive statistic, but also a worrying statistic because as the population of elders increases, so does the potential for elder abuse.

Florida has one of the highest percentages of elderly residents in the United States, which also means there are more older people that can be abused.

So how does fraud against the elderly occur in Florida?

December 21, 2016

Reverse Mortgage Firms Fined For Deceptive Ads

by David M. Goldman

Several reverse mortgage companies were fined a collective amount of $790,000 for using deceptive advertising that claimed consumers could never lose their homes through a reverse mortgage.

The reverse mortgage firms fined were American Advisors Group, Reverse Mortgage Solutions, and Aegean Financial. The three firms reached a consent agreement with the Consumer Financial Protection Bureau. The regulators for the Consumer Financial Protection Bureau found the ads used by the companies misled consumers.

Specifically, the ads used statements that implied a person could never lose his or her home with a reverse mortgage. Another ad promised, “ I can show you how to use a government-insured program that allows you to save money, get cash and live payment-free as long as you live in your home.”

December 19, 2016

Changes available to Jacksonville Special Needs Trust Lawyers

by David M. Goldman

Many Jacksonville Special Needs Trust Lawyers and estate planning lawyers are rejoicing at the fact that the law concerning special needs trusts is about to change for the better. In Jacksonville, a special needs trust can be of the best tools available for many clients of Jacksonville Special Need Trust Lawyers because it gives a great number of benefits to those that suffer from a disability.

Congress and the president are on the verge of passing The Special Needs Trust Fairness Act. This act will allow a disabled person to create a special needs trust for himself (a First Person Special Needs Trust). Previously, the law did not permit a disabled person to form their own special needs trust.

Under the old law, the only way a person could receive a benefit of special needs trust was if he or she had a parent or grandparent, or court order to create the special needs trust. In Jacksonville, special needs trust lawyers had to jump through costly hoops for those clients without living parents or grandparents. The only way for these disabled persons to receive this trust is by giving another person guardianship rights or petitioning the court to create the trust.

December 12, 2016

Estate and Gift Tax Updates for 2017

by David M. Goldman

The American Taxpayer Relief Act of 2012 is still going strong, and there are some changes to the tax code in store for this New Year. For those who are not familiar with the law, this act made the following permanent: the reunification of the estate and gift tax regimes, the $5 million estate along with the generation skipping transfer tax exemptions, and the portability of the federal estate tax exemption between spouses at death.

The great aspect of The American Taxpayer Relief Act of 2012 is that the gift tax exemptions adjust for inflation each year. In 2017, the federal estate tax exemption will be increased to $5,490,000. The exemption was $5,450,000 in 2016. Further, the generation skipping transfer tax exemption has also been increased to $5,490,000.

The more commonly used exemptions are the lifetime gift tax exemption. The lifetime exemption is the amount a person can give throughout his or her life without paying any federal gift taxes. In 2017, the rate will now be $5,490,000, which was also increased from $5,450,000 in 2016. Further, a married couple may combine their lifetime exemptions so the combined estate can give up to $10,980,00.
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December 7, 2016

The Cost of Long Term Care Continues To Rise

by David M. Goldman

What many of our clients do not realize is that long-term health care is expensive, and will only get more expensive with time. Many people are shocked when they learn about the actual costs of long-term health and feel helpless because they cannot afford it. The good news is that long-term health care can be affordable with careful estate planning.

So just how expensive is long-term health care? Lets look at the average costs both in the United States and in Florida. The median cost of a private nursing home in the United States as a whole increased by 1.24 percent from 2015 to $92,378 a year according to studies performed by genworth.com

The median cost of living has also grown in Florida. The cost of private nursing home care has also risen significantly in the past few years. The median cost of a semi-private room is $89,060, while the median cost of a private room is $100,375. Nationwide, Genworth reports that the median cost of a semi-private room in a nursing home is $82,125, which is up 2.27 percent from 2015.