Articles Posted in Elder Law

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.

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.

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?

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.”

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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.

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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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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.

Estate planning is important to prepare for potential memory loss. Studies show that memory loss is one of the most common ailments that an older person experiences as they begin to age.  Memory loss is often a sign of early dementia, and those that suffer from dementia may not be legally competent to make financial or legal decisions. The best way to prepare for life with dementia is to plan for it through estate planning.

It is imperative to start estate planning when the early signs of memory loss begin.  At this point, the person should consider their healthcare and financial future.  The client should begin to think of who would be a suitable person to name in a power of attorney, whether or not the client wishes to live on life support during a coma with little chance of recovery, and where the client’s assets should go once he or she passes away.

Further, the client needs to start gathering documents to bring to an estate planning attorney.  The client should create an itemized list of assets, and store copies of deeds and titles of assets, copies of tax returns, and copies of health insurance policies.  This will allow the Jacksonville estate planning lawyers at The Law Office of David M. Goldman to create an estate plan that caters to the client’s unique needs.

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Can a Marriage be Prevented in Florida? We often get questions about whether the Fundamental Right to Marry Extends beyond Incapacity?

The state constitution of Florida offers every citizen basic fundamental rights.  One of the most important of these rights is a Florida resident’s fundamental right to marry.  The right to marry in Florida is strong and has grown ever stronger recently due to the U.S. Supreme Court’s holding that same-sex marriage is a right.

However, this right to marry in Florida is not without its limits.  Under the current state laws, an incapacitated person cannot marry without court approval.  When a person is deemed incapacitated by a court, he or she loses the ability to contract with others.  As unromantic as it sounds, marriage is a contract between two people.  Two people cannot get married if one of the persons to the marriage no longer has the ability to enter into a contract.

If an incapacitated person marries then the marriage may not be valid.  So what is a valid marriage?  According to the court in Goldman v. Dithrich, 179 So. 715 (Fla. 1938), “To constitute a valid marriage, the marital contract must be voluntarily entered into in good faith for the purposes actuating such contracts, the parties must be legally eligible to make the contract, and their status must be such that the union will not be contrary to public policy or obnoxious to the prevailing social mores.”
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