Articles Posted in Elder Law

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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Elder law is one of the most important legal fields in Florida because it helps address the unique needs of this state’s large elderly population.  One of the growing concerns in the legal community is the rise of elder abuse.   The abuse is frequently under-reported, and worse, the abusers are the persons that often benefit from the abuse.

The elder law attorneys at The Law Office of David M. Goldman PLLC frequently come across older clients that have suffered some form of physical or emotional abuse that allows the abuser to exploit the client.  Tragically, the abuser is often a person close to the client such as a family member or a close friend.   Studies show that elder abuse is a growing problem in Florida and areas like Jacksonville and Ponte Vedra.

Why Are The Current Laws Not Enough?
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As a Jacksonville elder law attorney we often run across phone scams that target the elderly.  Besides the typical IRS and credit card scams the Department of Elder Affairs is warning Florida residents to watch out for scam artists who are allegedly making calls pretending to be the Department or an organization they refer to as Senior Services. These callers are using a method known as “spoofing” to make it appear on Caller ID as if the call is coming from a number belonging to the Florida Department of Elder Affairs’ fax line – (850) 414-2004.
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I have recently become acquainted with a bank who does business very different than traditional banks.  As we do Trust funding for many of our estate planning, elder law, and asset protection packages, we have the opportunity to interact with many banks around the area.  One of the recent banks that I have been impressed with because of their understanding of revocable and irrevocable trusts is Seacoast Bank.  There interest rates much higher than many of the local banks and offer trust services at a good value.  They recently interviewed me about Florida estate planning and asset protection and here is the link to the interview.

Should Seniors Enroll In A Medicare Advantage Plan Or Stick With Traditional Medicare?

A recent article by Wendell Potter on medicareresources.org discusses the advantages and disadvantages of Medicare Advantage plans versus traditional Medicare in providing adequate
care to seniors. For some people, particularly those without serious illnesses, Medicare Advantage may be the best choice. This is because some Medicare Advantage plans offer
benefits not provided by original Medicare, such as dental coverage, vision coverage, hearing aids, gym memberships and more.

However, elderly Americans with serious ailments might be better off sticking with Medicare. Similarly, people who are already enrolled in a Medicare Advantage plan and develop a
serious ailment might want to drop the Medicare Advantage plan and return to traditional Medicare. Why? Medicare provides what the article refers to as “unfettered access” to
treatments and physicians. That is, people on Medicare have greater access to doctors and facilities of their own choosing.

Another potential problem with Medicare Advantage plans is they empower Utilization Management nurses to make decisions about the type of care received by patients. These nurses
work for the Medicare Advantage plan provider. They likely have no direct contact with the patient and do not fully understand his or her specific needs. Utilization Management
nurses have the authority to deny coverage for treatments desired by patients and recommended by their attending physicians.

In the article, Potter quotes Judith Stein, Executive Director of the Center for Medicare Advocacy in Connecticut. Stein summarizes the issue this way:

“Private Medicare Advantage plans work for people when they are relatively well, but fall short of traditional Medicare when they are sick or disabled. This is particularly true for
our clients with long-term and chronic conditions, many of whom also have low incomes. They are often denied coverage for necessary skilled care, or it is terminated before it
should be, while the same coverage would be available in traditional Medicare.”

Given the high cost of medical care and the shortcomings of Medicare Advantage plans, an  approach might be to choose traditional Medicare and supplement with a Medigap
plan. Visit https://www.medicareresources.org/blog/2015/11/19/why-mom-went-back-to-traditional-medicare/ to
read the entire article.

What You Need To Know About Financial Elder Abuse

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Let’s start with a definition. Financial elder abuse, also known as material exploitation, is the illegal or improper use of an elderly person’s funds, property, or assets. Examples
of this type of abuse include, but are not limited to:

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  • Cashing an elderly person’s checks without authorization or permission
  • Forging an older person’s signature
  • Misuse or theft of an older person’s money or possessions
  • Deceiving or coercing an older person into signing any document,
    such as a contract, will, title, etc.
  • Telemarketing scams. This can involve making exaggerated claims
    about investment returns, scare tactics and other fraudulent acts to get seniors to send the perpetrator money or credit card information
  • The improper use of conservatorship or power of attorney

It is estimated that every year some five million seniors fall victim to financial elder abuse. The number of victims may well be considerably higher. Many seniors are unaware that
the financial abuse is taking place, while others are unwilling to report it out of embarrassment or fear for their safety.

Maybe you suspect that an elderly family member or loved one is being subjected to some form of financial abuse but are not sure. Here are a few signs to look for:

  • Sudden changes in bank account balances or banking practices, particularly
    unexplained withdrawal of large sums of money when the older person is accompanied by another individual
  • Additional names being included on bank signature cards
  • Unauthorized withdrawal of the elder’s funds using his or her ATM card
  • Sudden changes to a will, trust, power of attorney, or other financial
    document
  • Disappearance of funds or valuable possessions that the elder
    person can’t explain or refuses to discuss (perhaps out of fear)
  • The elder person receives substandard care or accumulates unpaid bills
    even though adequate financial resources are available
  • Discovery of a forged signature for financial transactions or the titles
    of the elder person’s possessions
  • Sudden appearance of previously uninvolved relatives who claim to have
    rights to the elder person’s affairs and possessions
  • Sudden transfer of assets to a family member or someone outside the family
    that the elder person can’t or won’t explain
  • Provision of services to an elder person that do not seem to be necessary

Sadly, financial elder abuse is often perpetrated by the senior’s own family, including sons, daughters, grandchildren and spouses. Abusers also include predators, such as people
professing to have fallen in love with the elderly person or marketing themselves as personal caretakers. Unscrupulous professionals and business owners often take advantage of
the elderly by charging more for services, recommending unnecessary services or taking money up front for services that are never provided.

To learn more about financial and other forms of elder abuse, visit http://www.preventelderabuse.org/elderabuse/fin_abuse.html.

One Of The Most Important Conversations You Should Have With Your Family

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As an estate planning and elder law firm, we strive to provide all of our clients with the tools and strategies they need to prepare for whatever comes along, including wills, trusts, advanced directives, and more. While it is vitally important for you to have these documents, it is equally important to talk to your family about them.

It is entirely possible that your children and other loved ones would like to know, for example, how you want to be cared for in the event of incapacity or an end of life situation.
But do your loved ones know that you have made your wishes clear through advanced directives and the thinking behind the choices you made? Do they know that you have created a power of attorney that allows a person of your choosing to make medical and/or financial decisions on your behalf? Even if they understand that you have done so, do they know where the
documents can be found? If the documents are on your computer, do your loved ones know what file name or password must be used to access them?

Similarly, your children may wonder about your financial situation. Is your house paid for, or are you carrying a mortgage that will need to be covered if you pass away suddenly?
What about your automobile? Have you created a will or trust, and if so, do your children stand to inherent any assets? Your children may be hesitant to ask questions such as these for fear of appearing greedy or insensitive. Yet they may also need this information to do proper estate planning of their own.

We understand how difficult it is to begin a conversation of this nature, and can help you find the best ways to begin one with your loved ones. Experience tells us that families who are able to open up in this manner draw closer together and feel a sense of relief afterwards.

 

 

Florida Asset Protection Trusts: Can they be changed?

In Florida, both revocable and irrevocable trusts are valuable estate planning tools that permit individuals to organize and protect their assets from creditors.  The Florida Asset Protection trust is not used by many estate planning lawyers.  Asset Protection is an important part of estate planning in Florida. While the name irrevocable would seem to indicate that the trust cannot be revoked, there are many ways of accomplishing the same effect as revoking a trust.

Generally when one discusses revoking a trust, they are referring to doing one of the following:

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