Florida Estate Planning Lawyer Blog

March 24, 2008

Florida Medicaid Asset Test

The Medicaid Asset Test

If you qualify under the income test or can create a Qualified Income Trust (QIT) you must still pass the Medicaid asset test. This test can be the most daunting and confusing. First, you must know the asset test limits. These vary between single and married individuals. The reason for this is so that a survivor of a Medicaid recipient is not left destitute by the spend down (more on this in a moment). The asset test level for an individual is $2,000 in countable assets and $104,000 (2008) in countable assets for a community spouse who not in a nursing home facility. For married couples, both persons must qualify under the asset test.

Second, you must understand the difference between exempt (countable) and non-exempt assets (non-countable). Exempt assets do not count towards the asset test limits and non-exempt assets do count towards the asset test limits. The following are exempt assets:

* Homestead of any value (with some limitations)

March 24, 2008

Florida Elective Share Held Constitutional

by David M. Goldman

Magee v. Magee, 32 Fla. L. Weekly 02307 (Fla. 2d DCA September 26, 2007)

In a challenge to the constitutionality of Florida’s elective share statutes, the Second District Court of Appeal upheld a lower court ruling that the statute is constitutional. The Court applied a test of whether there is “any reasonable relationship between the act and the furtherance of a valid governmental objective,” and rejected the challenger’s argument that the “far more rigorous analysis” of whether the statute is “reasonably necessary to protect the public.” The Court found that the state has a strong public policy concerning protection of the surviving spouse about
marriage in existence at the time of the decedent’s death and that, therefore, the provisions of the elected chair statutes serve a legitimate legislative purpose. On February 20, 2008, the Florida Supreme Court refused to accept jurisdiction for an appeal of this decision.

March 24, 2008

Response from RocketLawyer about Defective Durable Power of Attorney

by David M. Goldman

Today, I received a response from RocketLawyer about the article I wrote on using a Free Durable Power of Attorney and potential problems. The good news is they are asking for help to fix the problems. As noted in their email, they do encourage visitors to seek legal counsel from attorneys like me when they are unsure of doing something for themselves. My only question which I shall pose to them, is how is a consumer who is uneducated in legal matters supposed to determine when they are unsure of how to do something. Isn’t the point of using a service like theirs to rely on their expertise to help create legal documents?

Below is a copy of their email

Dear David,

I recently read your critique of our Florida Durable Power of Attorney form on your blog. We strive to offer the best legal help to consumers online and we take criticism like yours seriously.

March 23, 2008

Florida Land Owner Dies prior to sale of Property

by David M. Goldman

Vazpuez v. Bvrski, 32 Fla. L. Weekly D2415 (Fla. 2d DCA October 10, 2007)

Prior to his death, a decedent entered a contract to sell real property. The decedent died prior to closing on the contract. The purchaser filed a Petition for Administration in which he expressly alleged the obligation based upon the purchase and sale agreement. The purchaser subsequently filed a Petition for Appointment of Guardian Ad Litem to represent the interests of unidentified heirs, and again alleged the obligation based upon the purchase and sale agreement. The personal representative of the estate subsequently filed a petition for authorization to sell the real property pursuant to the contract.

The guardian ad litem objected claiming, inter alia, the purchaser had failed to file a claim in the estate. The trial court agreed and denied the request for authorization to sell the property.

March 22, 2008

Blogging from China

by David M. Goldman

I am currently in Shanghai China for the next 5 days and then heading to Osaka and Tokyo for 3 nights each. I am planning to keep posting new issues to my blog while I am gone. In addition, I will be responding to emails and will be available over my VOIP number for calls or issues that need immediate attention. Feel free to continue to send in your questions. I wanted to apologize upfront for any additional delay in responses. Please be conscientious that it is 12 hours ahead of EST and this along with being on vacation means I will typically respond to any issues between 8AM – 12 PM EST or 8PM to -12AM my time.

March 22, 2008

Real Estate Titled wrong prior to Death and Probate

by David M. Goldman

Fernandez-Fox v. Estate of David P. Lindsay, 33 Fla. L. Weekly D259 (5th DCA January 18, 2008)

Fox and the Decedent had owned real property they had intended to have titled joint with rights of survivorship. Because of an error, the title was not correctly designated in the public records and the decedent died before the error could be corrected. Fox initiated probate proceedings and filed claims for storage fees, funeral expenses, and maintenance of the property. One of the beneficiaries of the decedent’s Florida Will filed a Motion to Strike the claims, which was denied. In the interim, Fox initiated a quiet title action against the Estate and the estate beneficiaries. A personal representative was appointed, and the PR filed objections to the Fox claims nine months after being appointed.

Fox petitioned for an extension of time to file independent action on her claims. The Florida Probate Court denied the motion, ruling that the earlier Motion to Strike was an objection requiring filing of an independent action within 30 days.

March 21, 2008

Family Member Disqualified as Guardian Because ofr Conduct

by David M. Goldman

Major v. Rowe, 965 So. 2d 847 (Fla. 2nd DCA September 28, 2007)

Appointment of a professional non-family Florida Guardian is appropriate even though a family member is willing to serve as a Florida Guardian for the ward. The court noted that “family members, if otherwise qualified, are generally entitled to preference in appointment as guardian over strangers, [but] that preference can be overcome if they, intentionally or unintentionally, engage in conduct detrimental to a ward’s best interests. Moreover, even when a family member has acted with the best interests of the ward in mind, there may well be instances where it would not be an abuse of discretion for the Florida Probate court to nevertheless appoint a non-family member guardian.”

March 20, 2008

Contempt Overtruned for Son Hiding Incapacitated Mother

by David M. Goldman

Graham v. Florida Dept of Children and Families (Graham II), 970 So.2d 438 (Fla. 4th DCA December 5, 2007)

This is the continuing saga of the battle between Luke and Laurence over their mother Betty, who DCF had determined was in need of guardianship after determining “Luke is the son who most has Betty’s interests in mind.” After Laurence failed to comply with the guardianship court order to disclose the out-of-state location to which he had moved his mother, the court held him in civil contempt. The Court also appointed Luke as temporary plenary guardian of Betty’s person and property, electing to disregard an advance directive Betty had executed over 8 months after the guardianship proceedings had been initiated.

On appeal, the finding of contempt was reversed for failure to properly serve the order to show cause. The appellate court also reversed the order appointing temporary guardian, holding the trial court had failed to properly determine and indicate the specific grounds upon which the advance directive was revoked by the court. The court further noted that the surrogate under an advance directive is not under any duty to prove the validity of the advance directive. Finally, the court noted two of the examining committee reports were filed over two months before the final hearing and, relying upon two physicians’ affidavits filed before and after the hearing to determine incapacity use the wrong burden of proof – the correct burden of proof in a hearing to determine incapacity of a alleged incapacitated person (AIG) is by clear and convincing evidence. Thus the Court ordered the proceedings be dismissed.

March 19, 2008

Nebraska NFA Gun Trust Lawyer®

by David M. Goldman

Nebraska has joined the growing list of states in which we have a relationship with a lawyer who is familiar with the (NFA) National Firearms Act’s requirements relating to the formation of trusts to purchase Title II Firearms (sold by Class 3 SOT dealers). These include silencers, short barrel rifles, and machine guns.

If you are looking to create a Nebraska NFA Gun Trust, please Contact us and we can help make sure your trust deals with the many unique issues surrounding owning these firearms in a Revocable Trust.

If you live in Indiana or another state and wish to create a NFA trust to protect your family and purchase NFA firearms (Title II) or Title I firearms Contact a NFA Gun Trust Lawyer® in your state.

March 19, 2008

Florida Court Maintains Jurisdiction when Ward is Moved to Another State

by David M. Goldman

Weissenbom v. Graham (Graham 1), 963 So. 2d 275 (Fla. 4th DCA August 1, 2007)

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During the course of a Florida Guardianship Dispute between the wards two sons, one of the sons moved the ward from Florida to a “secret location” in another state.