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Labor Day is a Good Day to Talk About Your Future!

Labor Day is a Good Day to Talk About Your Future!

Labor Day is a Good Day to Talk About Your Future! You’ve worked hard (labored) all your life and have accumulated an Estate. Yes, I said Estate, you have one! Everyone has an Estate, from meager to millions, everyone has an Estate. The question is: Do You Have an Estate Plan?

What is an Estate you ask?

An Estate is all of your assets. Your home, your vehicles, 401k plans, stocks, bonds, annuities, personal property, coin collections, jewelry. Perhaps you want those things to be left to specific people. Enter Estate Plans. From the most minimal, like just Powers of Attorney, to Wills, and Trusts, we are expert in asking you key questions and accumulating  key information from you that will enable us to create your own personal, unique, Estate Plan.

We are fluent in the area of Estate Planning and Elder Law. Not elderly? No problem, we cater to all ages young and older. You may think you are too young to create an Estate Plan. Do you want control over  the who, what, when, and where your assets go when you pass? Do you want all of your assets going to the court system and lawyers, and your loved ones having to go through the Probate process which averages over a years time?  Do you want doctors, and possibly the court, to make medical decisions for you, not having to listen to the people who loved and cherished you? What if you had everything laid out and the person you chose to carry out your wishes only has to follow the instruction you left behind? This is the one of the many benefits of creating an Estate Plan!

Perhaps you are approaching what we define as Elderly. You especially need an Estate Plan. Unfortunately it is not the most pleasant subject, but the older you get, the more likely it is that you will accrue some type of illness or disease. Illness and disease can cause you to eventually become incapacitated. If you are married, that may lay a heavy burden on your Spouse. Perhaps your divorced and have children, it would be your children left with the burden. No parent wants that. Nursing Homes in Florida average 8 to 10 thousand dollars a month. If you are more affluent you will be expected to pay this out of pocket. However, there are ways to protect your Legacy, and we know all of them.  You could call them tricks of the trade, we prefer to call it knowledge and experience. Being experienced and seasoned in Elder Law lends that extra element to Estate Planning for those it applies to. Do not dismay young ones, we are also adept in Business Planning, LLC creation and Asset Protection. Labor Day is a Good Day to Talk About Your Future!

At what age should you have an Estate Plan?

At what age do you want to have control over your end of life decisions? Life is not promised and is unpredictable.

At the minimum we suggest that from age 25-30 you should have:

  • Advanced Healthcare Directives, which are important should you become incapacitated. These documents include a Healthcare Surrogate Designation, also known as a Medical or Healthcare Power of Attorney.
  • HIPPA Authorization, which will enable those you list and choose to obtain medical information about you. In this time of COVID-19, hospitals and doctors are more inclined to isolate you and not allow anyone to come in and visit you. This can cause undue stress on your loved ones, further these entities do not legally have to tell your loved ones anything unless you have given express permission as defined in the HIPPA privacy laws. With a HIPPA Authorization document, you choose who has the right to know your condition, the tests which have been given you, the results, medications you are on, and  your general prognosis. Otherwise, your loved ones may be left in the dark.
  • You need a Living Will, which is active while you are still alive. A Living Will will define your wishes should you become incapacitated. There a lot of things to consider. Do you want to be a organ donor? Do you want to be resuscitated if you are in a vegetative state and continue to exist in a vegetative state because you have chosen to do so? Perhaps you do not. These are all your decisions and perhaps your loved ones do not really know your wishes as it is not something that comes up in general conversation. If you do not have these documents in place someone else will choose for you, possibly not knowing what your true wishes are. Do you want to be buried or cremated? Again, a decision that will be made for you without the proper Estate Planning documents in place.
  • A Durable Power Attorney. This is also referred to as a Financial Power of Attorney. Do you want your loved ones to be able to take over your finances effortlessly? Do you want them to be able to receive what you leave them without aggravation? Banks, Insurance Companies, Government agencies, all differ and all have  different requirements to be able to claim or collect your assets and existing accounts. Having a Durable Power Attorney gives who you chose as your Personal Representative, or Executor of your Will the power to control and settle your Estate as easily and smoothly as possible.

Age 35-60:

  • You will need everything that you should have had from 25-30. Now that you have a family, you need a Last Will and Testament at the very least to make sure a guardian is appointed to take care of your children should something happen to you. A Last Will and Testament becomes active when you pass. It enables you to have a say in what happen to your assets. For example:
      • You can leave your Estate to someone who is not a blood relative, someone who, without an Estate Plan, would not be able to inherit from you at all.
      • you can leave money to a church or other charitable organization.
      • You can disinherit a relative whom you do not want to inherit part of your Estate.
      • You can leave everything to your dog. (You would be surprised how often this happens)

Whatever you choose you get to decide. Not the State. In addition to saying who receives your Estate, a Will also states who will be in charge of your Estate during Probate-because, unlike a Trust, a Will must be probated. Probate may be a scary word and you may have heard of horror stories, but having a Will will negate a lot of those headaches. A Will clearly defines your wishes and will likely be executed exactly how you wished. If you do not have an Estate Plan state law decides who gets your assets when you die. These laws (often called “intestacy laws”) generally provide that your estate will go to your blood relatives, if you do not have an Estate plan.

Age 60+

You have saved your money over the years. Now you are thinking about the Legacy you want to leave your loved ones. You want things to pass smoothly and easily. You certainly do not want to  bog them down in the Probate court system after you pass away. Maybe you ant to protect the kids’ inheritance from divorce and law suits. A Living Trust makes sense to achieve these goals. Maybe one of your children is a spendthrift, or has a substance abuse problem. they are still your child and you especially want to leave them something that will enhance their life. with a Trust you get to choose what and when your child receives their inheritance. you can make them wait until age 30 and then dole their inheritance out in small amounts as to keep them from “blowing their inheritance”. we offer several different Living Trust plans designed to meet each clients unique needs.

Labor Day is a Good Day to Talk About Your Future! So this Labor Day, while you are enjoying an extra day off from laboring all year to amass a Legacy to leave behind for the ones you love, and make sure they are taken care of should you pass, why not put some thought into what your own unique Estate Plan might look like. Consider passing Intestate and what that would look like for your loved ones. If your married, have that conversation you have been avoiding. it can actually be a bonding event as you can express to each other your end of life wishes knowing that your partner in life will honor your wishes to the best of their ability. Ask the hard questions and put things into perspective. If after giving it due thought, you decide you need an Estate Plan, we would be honored to help you create your own, unique to you, Estate Plan. Let us ask you the burning questions, get a clear position on what you want and need, and help you to create and protect your Legacy. you can reach one of our Team Legacy members at 904-880-5554 or e-mail:  [email protected]

Labor Day is a Good Day to Talk About Your Future!

Happy Labor Day Everyone! From Team Legacy.

Read more related articles at:

Guide to Estate Planning By Age 

8 Things You Need for an Estate Plan at Any Age

Also, read one of our previous Blogs at:

Yes, You Need an Estate Plan, Even If You Don’t Have an Estate

Click here to check out our On Demand Video about Estate Planning.

POA misconceptions

6 Misconceptions About a Power of Attorney

6 Misconceptions About a Power of Attorney

6 Misconceptions About a Power of Attorney. If you had a television in the 2000s, you are familiar with the famous right-to-die legal case involving Terri Schiavo, her parents, and husband Michael Schiavo. After falling into an irreversible vegetative state, the question became, whether to pull the plug or keep her on life support. Without a Power of Attorney addressing medical, financial, and legal concerns, and no prescribed agent to act on her behalf, a tempestuous legal battle ensued for 15 years, until her feeding tube was finally removed. In order to better protect you and your family from future uncertainty and suffering, familiarize yourself with the 6 most common misconceptions surrounding a Power of Attorney.

What is a Power of Attorney?

A Power of Attorney (POA) is a written legal document defining a legally binding relationship, between a principal, who gives financial, medical, and legal authority to an agent, to make decisions on their behalf. A POA can be used while the principal is still legally competent, in situations where they feel certain affairs are better handled by an expert or third-party, or used when they are deemed legally incompetent, to avoid the costly and time-consuming process of obtaining a court-appointed guardian to carry out their wishes. It ensures peace of mind by allowing someone you trust to take charge of important decisions, preventing future confusion amongst family members and individual suffering.

Without a Power of Attorney, you risk leaving important financial, medical, and legal decisions to the courts and a court-appointed guardian or conservator who truly may not represent or know your best interests and wishes. A 2017 CNN Money article estimates the cost of obtaining a court appointed guardian to exceed $1,000. Excess financial costs, loss of control, embarrassment, loss of time, stress, and suffering can all be prevented with some proactive thinking.

Here Are 6 of the Most Common Misconceptions About a Power of Attorney:

Misconception 1: A POA Can Be Executed When the Principal is Legally Incompetent

The most common misconception about a Power of Attorney is that a principal doesn’t have to be legally competent to execute it. Not only do they need to be legally competent to execute a POA, a person needs to be legally competent to sign and execute ALL legal documents. Legal incompetence is defined as a person who is unable to manage their affairs due to a mental deficiency, such as psychosis, lack of I.Q., illness, or deterioration of the mind. Too often, families wait until a loved one is no longer legally competent and transitioning into care, leaving a court appointed guardianship as the only viable means to enforce wishes and directives. A court appointed guardianship can be a drawn-out, time-consuming process that is costly and taxing on one’s family.

Misconception 2: A Power of Attorney Gives an Agent Unrestrained Control of a Person’s Affairs

Once a POA is signed, and an agent inherits legal authority, it doesn’t mean they have unfettered discretion to do as they please. Although not explicitly stated in a Power of Attorney document, an implication by law arises preventing an agent from freely and carelessly deciding one’s financial, legal, and medical fate. All agents have an overriding, legal, fiduciary obligation, to act in the best interests of the principal. Should an agent’s decisions jeopardize the principal’s best interest, then they will be barred from acting on such, and may be subject to court review and removal. In order to prevent potential future abuse of a principal’s wishes, it is highly recommended to appoint an agent who is trustworthy, competent, and has integrity.

Misconception 3: It’s Only for the Elderly

Accidents and unexpected illness can happen at any age. Any person over 18 who wants to ensure their wishes are followed and loved ones are protected from financial hardship, confusion, or suffering, should create a Power of Attorney. For a comprehensive directive providing for medical, legal, and financial certainty, every adult should have both a Durable Power of Attorney and a Medical Power of Attorney.

Misconception 4: There is Only One Kind of Power of Attorney

There are actually two types of Power of Attorney; a General Power of Attorney, and a Limited or Special Power of Attorney. A General Power of Attorney outlines all powers covered by a Power of Attorney, including medical, financial, and legal decisions. Think of a GPOA as a blanket document covering everything a person would ever want taken care of while alive or incapacitated and unable to communicate. On the other hand, a Limited or Special Power of Attorney encompasses everything less than full power given to an agent. For example, a Special Power of Attorney could explicitly only grant an agent authority in situations of real-estate, finances, or business decisions, while leaving out authority in situations of legal and medical matters.

Misconception 5: It Can’t Be Created Orally

It is always recommended that legal documents and contracts are entered in writing and meet the Statue of Frauds. However, an oral POA may carry equal weight as one etched in writing, and hold up in court. Note that some jurisdictions may differ on this. You should also familiarize yourself with your state’s practices, and which institutions will and will not honor it. Some institutions, such as nursing homes, banks, hospitals, and the IRS, require a POA be in writing before they honor it.

Misconception 6: A Power of Attorney Survives Death

All Powers of Attorney terminate upon the death of the principal, and thus the agent’s authority also terminates. When drafting a POA, one should familiarize themselves with the differences between a Regular Power of Attorney and a Durable Power of Attorney. A Power of Attorney can be used when you want to appoint an expert to handle affairs you, even when you aren’t deemed legally incompetent. A Regular POA terminates upon incapacity or death of the principal, meaning an agent’s authority exists so long as the principal is alive, invalidated upon death or incapacity. A Durable Power of Attorney is as it name indicates, is durable through mental incapacity, allowing an agent to act on the principal’s behalf even when the agent is incapacitated or unable to communicate.

Familiarize yourself with these common misconceptions concerning a Power of Attorney document to spare yourself and family members from potentially distressing, confusing, and embarrassing future situations where they unsure of how to act and resolve your personal, legal, medical, and financial matters.

Read more related articles at:

The Top Misconceptions About a Power of Attorney

5 Power of Attorney Myths

Also, read one of our previous Blogs at:

Why Do I Need a Power of Attorney?

Click here to check out our On Demand Video about Estate Planning.

Nursing home costs

Nursing Home Costs And Ways to Pay

Nursing Home Costs And Ways to Pay

 

By Merritt Whitley
June 7, 2021
Nursing Home Costs And Ways to Pay.  Your loved one is at a point in their life when they need help with day-to-day activities and functions, and you want to secure the best possible care to support their health and well-being.

Nursing homes — sometimes called skilled nursing facilities or convalescent homes — are one senior care option to explore. Nursing homes offer the highest level of care to adults who have chronic, debilitating physical or mental health conditions and require round-the-clock supervision. They provide more specialized resources than assisted living or memory care communities, typically administered by licensed professionals. These services include wound care, feeding assistance, injections, and physical therapy. In addition to meeting medical needs, nursing home staff also provide help with activities of daily living (ADLs), such as bathing and grooming, and activities to promote social interaction.

Because nursing homes provide this high level of care, they tend to cost more than other senior care types. As of January 2021, the average cost of a shared room in a nursing home was $255 a day, or $7,650 a month, according to the American Council on Aging. If your loved one’s doctor has determined they require nursing home care, you’ll want to start planning how your family will cover nursing home costs.

 

Paying for nursing home care through federal and state programs

Who pays for nursing home care? While most families use a combination of personal savings, private insurance, and assets to cover senior living, some federal and state programs offer assistance to seniors paying for nursing homes. Resources vary by location, care needs, and financial eligibility.

Medicare. Nursing homes often offer short-term inpatient rehab in addition to longer-term senior housing and care. Medicare — a federal program that provides health coverage to seniors age 65 and older — covers short-term stays. It doesn’t cover long-term care.

This is helpful for older adults recovering from an injury or other health event, but it’s not a lifelong solution.

“Medicare pays full coverage for the first 20 days and partial payment for days 21 to 100,” says Michael Leitson, senior data manager at the American Health Care Association. “After day 100, they don’t pay anything.”

Learn more about Medicare’s coverage and some additional benefits of the program.

One of our expert Senior Living Advisors will be reaching out to support your search. Need urgent assistance? Call us at (866) 205-8671.

Most, but not all, nursing homes accept Medicaid. To learn more about how to pay for nursing home care with Medicaid benefits, contact your state’s Medicaid office.

VA benefits. The U.S. Department of Veterans Affairs does provide senior care to veterans who require long-term medical assistance. Senior living covered by the VA is often determined by a senior’s individual health care needs and may include paying for nursing homes. Veterans and their spouses must already be signed up for VA health care and meet enrollment and eligibility requirements based on income, disability level, and location. Learn more about how to secure nursing home payments through the VA here.

 

Paying for nursing home care with private pay options

In addition to state and federal programs, many families pay for nursing homes using personal resources. Consider the following options, and consult your loved one about their savings and funds.

Savings. Personal savings, or out-of-pocket payments, are the primary way seniors fund nursing home care, according to the National Institute on Aging.

Pensions. A pension is a sum of money paid monthly by a retiree’s former employer. Pension amounts are generally based on position, years of service, and age of retirement.

Retirement income. Retirement income can include social security benefits, benefits from annuities, retirement or profit sharing plans, insurance contracts, or IRAs. Retirement income is often taxable. Speak with an accountant about potential tax breaks and credits for using retirement income to pay for nursing home care.

Stocks. Stock portfolios can be sold to pay for nursing home care. Speak with your loved one’s portfolio advisor to determine the best course of action.

Read more related articles at:

Nursing Home Costs and Ways to Pay

How to Pay for Nursing Home Costs

Also, read one of our previous Blogs at:

Protect Your Estate from Nursing Home Costs

Click here to check out our On Demand Video about Estate Planning.

Covid Children

Children hospitalized with COVID-19 in U.S. hits record number

Children hospitalized with COVID-19 in U.S. hits record number

Children hospitalized with COVID-19 in U.S. hits record number. Aug 14 (Reuters) – The number of children hospitalized with COVID-19 in the United States hit a record high of just over 1,900 on Saturday, as hospitals across the South were stretched to capacity fighting outbreaks caused by the highly transmissible Delta variant.

The Delta variant, which is rapidly spreading among mostly the unvaccinated portion of the U.S. population, has caused hospitalizations to spike in recent weeks, driving up the number of confirmed and suspected pediatric COVID-19 hospitalizations to 1,902 on Saturday, according to data from the U.S. Department of Health and Human Services.

Reuters includes confirmed and suspected COVID-19 cases for hospitalization, case and death data.

Children currently make up about 2.4% of the nation’s COVID-19 hospitalizations. Kids under 12 are not eligible to receive the vaccine, leaving them more vulnerable to infection from the new, highly transmissible variant.

The numbers of newly hospitalized COVID-19 patients aged 18-29, 30-39 and 40-49 also hit record highs this week, according to data from the U.S. Centers of Disease Control and Prevention (CDC).

The spike in new cases has ramped up tension between conservative state leaders and local districts over whether school children should be required to wear masks as they head back to the classroom this month.

School districts in Florida, Texas and Arizona have mandated that masks be worn in schools, defying orders from their Republican state governors that ban districts from imposing such rules. The administration of Florida Governor Ron DeSantis has threatened to withhold funding from districts that impose mask requirements, and Texas Governor Greg Abbott is appealing to the state Supreme Court to overturn Dallas County’s mask mandate, the Dallas Morning News reported on Friday.

The nation’s largest teachers union, the National Education Association, came out in support of mandatory vaccination for its members this week. NEA President Becky Pringle said on Saturday that schools should employ every mitigation strategy, from vaccines to masks, to ensure that students can come back to their classrooms safely this school year.

“Our students under 12 can’t get vaccinated. It’s our responsibility to keep them safe. Keeping them safe means that everyone who can be vaccinated should be vaccinated,” Pringle told CNN.

Arkansas, Florida, Louisiana, Mississippi, and Oregon have reported record numbers of COVID-19 hospitalizations this month, according to a Reuters tally, pushing healthcare systems to operate beyond their capacity.

“Our hospitals are working to maximize their available staff and beds, including the use of conference rooms and cafeterias,” Florida Hospital Association President Mary Mayhew said in a statement on Friday.

In Oregon, Governor Kate Brown said on Friday that she was sending 500 National Guard members to assist overwhelmed hospitals, with 1,500 members in total available to help.

In Jackson, Mississippi, federal medical workers are assisting understaffed local teams at a 20-bed triage center in the parking garage of the University of Mississippi Medical Center (UMMC) to accommodate the overflow of COVID-19 patients.

Fifteen children and 99 adults were hospitalized with COVID-19 at UMMC as of Saturday morning, the hospital said. More than 77% of those patients were unvaccinated.

(Refiling Aug 14 story to make clear in the second paragraph that the 1,902 hospitalizations includes both confirmed and suspected cases)

Read more related articles at:

Florida school mask controversy continues as COVID-19 cases and hospitalizations surge

US sees record number of children in hospital with COVID

Also, read our previous Blog at:

Florida Student’s Return Back to School Amidst the New COVID 19 Surge

Click here to check out our On Demand Video about Estate Planning.

Baby Boomers

WILL BABY BOOMERS HAVE ANYTHING LEFT TO PASS DOWN?

WILL BABY BOOMERS HAVE ANYTHING LEFT TO PASS DOWN?

Written By: The American Academy of Estate Planning Attorneys

The Baby Boomer generation – the largest generation in American history to date – is heading into retirement, but are they prepared? More importantly for their children and grandchildren – and possibly the economy as a whole – will there be anything left to bequeath when they pass away? It appears some Baby Boomers have planned for their retirement, however, estate planning is not a priority for many. As a result, this may be the first generation where the transfer of wealth cannot be predicted.

Boomers Begin to Retire

The oldest of the Baby Boomer generation began to retire just a few years ago, in 2011. It is estimated that just over 65 million Baby Boomers are currently in or heading for retirement. How they will fare during their “Golden Years” remains to be seen based on evidence that indicates many failed to plan ahead for their retirement years. Worse still, those who did plan for their retirement years may not have estate planning in place.

Why Didn’t Boomers Plan for Retirement?

The obvious question is why didn’t Baby Boomers focus as much on retirement planning as generations before them did? Several factors appear to have caused this lack of planning phenomenon, the first of which is the Boomers’ spending habits. The generation that gave birth to the Boomers, lived through the Great Depression, World War II, and the Korean War. Not only was the economy far from stable, but the entire world was frequently unstable for that generation. Consequently, they learned to be frugal, plan ahead, and depend only on themselves. By contrast, the Baby Boomers grew up during the Cold War, which was a time of relative peace and a more predictable economy. The result was what is often referred to as the “Me-Generation.” Boomers embraced the idea of spending on credit and, consequently, racked up mountains of debt that many are bringing with them into retirement. Instead of saving every dollar that wasn’t absolutely needed for necessities like the previous generation, the Boomers are notorious for spending now and worrying about saving later. The problem is that later, is now.

Another reason why many Baby Boomers did not save for retirement is they are counting on a sizeable inheritance that will create the cushion they need for their retirement years. Over 20 years ago, a study compiled by Robert Avery and Michael Rendall for Cornell University, concluded the generation that gave birth to the Boomers will pass on to their children and grandchildren an inheritance worth more than $10.4 trillion. That’s a sizeable amount, however, what if that inheritance doesn’t come through as expected? Poor estate planning, long-term care costs, or simply living longer than expected could all cause a long-awaited inheritance to dwindle to almost nothing by the time it gets passed down.

The Great Wealth Transfer

Despite the lack of retirement planning, Boomers are retiring in huge numbers. They will be passing down what is left of their estates over the next several decades. Financial experts are bracing for what they predict will be the largest transfer of wealth in history. Those same experts tell us that roughly $30 trillion will change hands over the next few decades as Baby Boomers pass down their estates to Gen-Xers and Millennials. The problem, however, is that while Baby Boomers took a somewhat lackadaisical approach to retirement planning, many of them ignored estate planning altogether. A recent article by Forbes magazine suggests that 51 percent of Americans aged 55-64 and 62 percent aged 45-54 don’t have Wills. Consequently, a significant portion of that wealth could be lost prior to, or during, the wealth transfer unless Boomers start focusing on their estate plans.

Why Is Estate Planning So Important for Baby Boomers?

One of the biggest factors affecting Baby Boomers and the transfer of their wealth, is the double-edged sword of longevity. Americans are living, on average, almost twice as long at the beginning of the 21st century as they did at the beginning of the 20th century. While a longer life is certainly something to look forward to, it also raises practical and financial concerns. Baby Boomers are expected to spend considerably more time and money in long-term care before they pass. Nationwide, the average cost of a month in long-term care is over $6,800 and the average length of stay is 2.5 years. Without a plan to pay for that care, a substantial portion of a retiree’s nest egg can be lost to nursing home costs. Boomers will also waste a considerable amount of money on probate if they continue to shrug off the need for comprehensive estate planning. The end result is that unless Boomers start to pay attention to the need for estate planning, the Great Wealth Transfer might not be so “Great” after all.

The Good News – It Isn’t Too Late for Baby Boomers to Focus on Estate Planning

Although it is always best to start estate planning early on in life, it is never too late to benefit from a well-thought-out estate plan. For Baby Boomers heading into retirement, there are several important ways in which estate planning can help them hold onto their wealth. Incorporating Medicaid planning into an estate plan is imperative for anyone who is close to, or in, retirement. When added into an estate plan far enough ahead of time, Medicaid planning can protect estate assets and ensure eligibility for Medicaid benefits that will help cover the cost of long-term care. Probate avoidance strategies can also save an estate both time and money. Using a Trust instead of a Will to transfer major assets can save fees and costs associated with probate and ensure that beneficiaries have access to assets immediately after death. A Trust is also a great way to prepare for incapacity, which affects most Americans during their lifetime.

For Baby Boomers, it is not too late to protect your assets and focus on estate planning. The key is to consult with an experienced estate planning attorney sooner rather than later.

Read more related articles at:

Baby Boomers May Be the First Generation Not to Pass Wealth On to Children, Survey Says.

Millions of baby boomers are getting caught in the country’s broken retirement system

Also, read one of our previous Blogs at:

The Aging of America: Will the Baby Boom Be Ready for Retirement?

Click here to check out our On Demand Video about Estate Planning.

What is Elder Law

What Is Elder Law?

What Is Elder Law?

Definition & Examples of Elder Law?

Elder law is a field of law dealing with the unique legal issues that affect older adults. Understand how elder law works through an example, what areas of law the field covers, and how to get a lawyer for your legal needs.

What Is Elder Law?

The broad definition of elder law is the specialized field of law that addresses the diverse legal needs of aging populations. It focuses on the legal issues affecting baby boomers and their elderly parents. Lawyers who are versed in these issues are known as elder law attorneys.

How Elder Law Works

Legal issues affecting seniors are governed by complex regulations and laws that vary by state. They’re also multifaceted, often requiring a unique understanding of the personal impacts of aging, which can make a person more physically, financially, and socially vulnerable. Elder law addresses the various life decisions and circumstances that arise during this time of life as well as how estate plans will be executed after your death. Elder law attorneys who focus their legal practice on these issues take a holistic approach when working with seniors and their family members, helping them navigate legal matters in conjunction with a network of professionals including health and social workers and psychologists. Many people erroneously assume that elder law is only a concern for those with complex life situations, such as a disability or special needs, a second marriage, a high-value estate, or financially reckless adult children. Although the field is of particular importance to seniors in such circumstances, it’s vital for all seniors to familiarize themselves with elder law and enlist an attorney when needed in order to protect themselves and their assets from what may befall them in their golden years and beyond. For example, let’s say that your health is waning or you expect it to as you approach your senior years. You can work with an elder law attorney who specializes in disability planning to complete an advance medical directive with a durable power of attorney for health care, a document that allows you to name a health care proxy to make medical decisions on your behalf when you can no longer do so. Doing so can avoid the need for health care providers to later administer treatments or make other decisions about your health that you may not agree with. Not all issues relating to aging require the expertise of an elder law attorney, and hiring one when you don’t need one can come with unnecessary and high costs. For example, interpersonal or health issues may call for a social worker, psychologist, or doctor instead. When in doubt, consult a family member, friend, clergyman, or your physician to help determine the scope of the concern and potential alternatives to a lawyer.

Types of Elder Law

Most elder law attorneys are not versed in all areas of the law, making it important to seek out the right type of elder law attorney when you or your family members need legal assistance. Major areas of elder law include:

  • Disability and special needs planning
  • Long-term care planning
  • Estate planning and settlement
  • Guardianship or conservatorship
  • Elder abuse1

Disability and Special Needs Planning

This area of elder law focuses on the support systems that the aging put in place to protect themselves in the event that they become physically or mentally incapacitated. There are some key legal documents that you may want to prepare in advance of such a scenario; these include a durable  power of attorney which allows you to appoint someone else as a legal agent to make certain financial decisions for you when you can’t, and an advance medical directive including a durable power of attorney for health care and a living will that sets out which treatments you do and don’t want.  Without these documents, the court may leave these decisions up to a guardian (discussed below) who may not be of your choosing. In many cases, individuals with disabilities or special needs and their family members will be eligible to receive government benefits (Social Security disability benefits, for example). But you’ll still need to do planning to ensure that the individual qualifies for and will receive adequate assistance for their needs.

Long-Term Care Planning

This type of elder law focuses on the services that seniors often use to live safely when they cannot take care of themselves. These include nursing homes or assisted-living facilities and long-term health insurance, along with the means by which they get these benefits (Medicaid or the Department of Veterans Affairs, for example). Medicaid planning involves repositioning and transferring assets to qualify for Medicaid nursing-home benefits. Veterans benefits concerning elder law encompass providing for the long-term health care needs of veterans of the U.S. military.

Estate Planning and Settlement

Estate planning is the systematic approach to deciding who will receive your property after you die and who will be in charge of making sure your final wishes are carried out. It includes disability planning, as discussed above, as well as planning to avoid probate, minimize estate taxes,  and ensure that your beneficiaries are protected from bad decisions and outside influences. A comprehensive estate plan might include the last will, durable power of attorney, an advance medical directive, and if needed, a revocable living trust. Also known as a living trust, a revocable living trust allows you to appoint someone else to make decisions about assets held in a trust. Probate is the court-supervised process for settling a deceased persons estate, and it may or may not be necessary depending on how your assets are titled at the time of your death. If you have a revocable living trust, the estate may be settled without the supervision of a probate court.

Guardianship or Conservatorship

If a person becomes incapacitated and did not put in place durable power of attorney or advance medical directive, a family member, friend, or, in some cases, a stranger, will have to go to court and petition for a guardian or conservator be appointed on behalf of the incapacitated person.3 Guardianship, also referred to as conservatorship in some states, is sometimes referred to as “living probate” as it is the court-supervised process of administering an incapacitated person’s estate. In contrast, if the person took the time to create a disability plan with the help of an estate lawyer versed in guardianship, then he or she would have the right legal documents in place to dictate who will make financial and health care decisions on their behalf.

Elder Abuse

As people age, they, unfortunately, become more prone to personal or financial abuse. This mistreatment can range from Social Security fraud (for example, a non-spouse family member continues to receive benefits after the person has died) to the outright theft of assets. Financial elder abuse can also occur through the use of a durable power of attorney or by undue influence, such as wrongfully coercing an older adult to give away their assets or change their will or revocable living trust. Such abuse has led to this specialized area of litigation aimed at preserving, and, if needed, recovering, an older person’s assets. Watch out for elder abuse scams that dupe seniors out of their money through fake IRS calls or “gramma scams” involving desperate pleas for money from people pretending to be grandchildren.

How to Get a Lawyer Specializing In Elder Law

The best place to find a lawyer is through the National Academy of Elder Law Attorneys, a non-profit association founded in 1987 whose lawyers are trained and experienced in the nuances of elder law and adhere to a set of what it calls “aspirational standards” that hold them to a high bar of professional conduct. The “Find a Lawyer” page on their website allows you to search for an attorney by name, location, area of practice, or other criteria.

Read more related articles at:

6 Things an Elder Law Attorney Can Do to Help Family Caregivers

Elder Law: Elder Law in Florida

Also, read one of our previous Blogs at:

5 SMART TIPS FOR HIRING AN ELDER LAW ATTORNEY

Click here to check out our On Demand Video about Estate Planning.

Dying Intestate

WHAT HAPPENS WHEN SOMEONE DIES WITHOUT A WILL?

WHAT HAPPENS WHEN SOMEONE DIES WITHOUT A WILL?

A Will gives Seniors Peace of Mind

If your older adult wants to be sure that their assets and property will be given to certain people or organizations after they pass away, they must have a will.

A will is especially important if your older adult plans to give assets to their unmarried partner, close friends, or charities.

Otherwise, the court decides what happens to their property – and certain people or groups will be left out because of the current laws.

What is a will used for?

A will is a simple, inexpensive legal document that states someone’s final wishes.

It’s used by the county court to make sure those wishes are carried out.

Some people also use a will to:

  • Name an executor to carry out the terms of the will
  • Name someone to manage property left to minor children
  • Decide how debts and taxes will be paid
  • Provide for pets
  • Serve as a backup to a living trust

A will does not cover every situation,  but it’s much better than having nothing in place. Plus, a will saves family the headache and costs of a prolonged probate.

For more complex situations or to accomplish things that cannot be included in a will, it’s best to talk with a lawyer to see if a trust or estate plan would work better.

What happens when someone doesn’t have a will?

When someone dies without a will, it’s called dying “intestate.”

When that happens, none of the potential heirs has any say over who gets the estate (the assets and property).

When there’s no will, the estate goes into probate.

Probate is a legal process in which the probate court uses the laws of the state to decide who inherits what.

Probate can take anywhere from a few months to a few years, depending on how complicated the estate is.

Legal fees are paid out of the estate and it often gets expensive.

What happens when an estate without a will goes into probate?

The intestate succession laws that decide who will inherit are different in every state.

Usually, the estate will be split between the surviving spouse and children.

If someone is single with no kids, the state will decide which relatives will inherit. If no relatives can be found, the entire estate goes to the state.

Usually, only spouses, registered domestic partners, and blood relatives can inherit under intestate laws. Unmarried partners, friends, and charities get nothing.

Read more related articles at:

How Does Dying Intestate Affect Your Estate?

Inheritance Laws in Florida

Also, read one of our previous Blogs at:

What Does it Mean to Die Intestate?

Click here to check out our On Demand Video about Estate Planning.

Medicaid Crisis

Medicaid “Crisis” Planning

Medicaid “Crisis” Planning

Medicaid “Crisis” Planning is defined as when an individual is already in a skilled nursing facility or will be entering within a short time-period and needs to qualify for Medicaid benefits immediately. This event may also involve failing to qualify for Medicaid benefits because of either too much income or too many assets, or both.

In the case of a married couple, an applicant may be able to also increase the well spouse’s Community Spouse Resource Allowance or redirect some of the nursing home spouse’s income away from nursing home costs, and back towards the well spouse, using the Minimum Monthly Maintenance Income Allowance.

A large percentage of Florida seniors will require long-term care at some point in their lives.  To be able to pay the enormous expense, most will need to rely on Medicaid for help. Unfortunately, many residents in this state did not take prior steps to ensure they will qualify for the program. In such cases, there are some Medicaid “Crisis” solutions that can be used even at the last minute to help seniors become eligible.

Nursing homes in Florida can cost up to $10,000 per month or more. And typically, Medicare will not pay for it. For most families, this means they need to either qualify for Medicaid or try to come up with the money out of their own pocket

 

Medicaid Crisis Planning Strategies

When a senior has an immediate need for long-term care, the government does not intend for you to transfer your assets one day, enter the nursing home the next day, and apply for Medicaid benefits the following day. Therefore, there is a five-year “look back” period for most asset transfers. If you transfer assets within the “look back” period, you are subject to a penalty.

Fortunately, there are certain types of asset transfers that are exempt from the “look back” period, and thus can be employed as last-minute solutions to qualify for Medicaid. These include assets transferred to:

  • Your spouse (or another person if it is for your spouse’s benefit)
  • A child who is blind or disabled
  • A trust for the benefit of a child who is blind or disabled
  • A trust for the sole benefit of someone who is disabled and under age 65

If the asset you are transferring is your home, there are a few added exemptions in addition to those mentioned above, including transfers to:

  • A child who is under age 21
  • A sibling who has equity in the home and has lived in it at least a year prior to the applicant entering a nursing facility
  • A child who lived in the home at least two years prior to the applicant entering a nursing facility, and who provided care that helped keep the applicant living at home

If any of these situations apply to you, it may be possible to transfer your assets and qualify for Medicaid without penalty.

Qualified Income Trusts

Also known as a Florida Medicaid trust, Miller trust, or d4B trust, a qualified income trust is an irrevocable living trust that is set up to divert excess income and allow the creator to qualify for Medicaid. While the Medicaid recipient is alive, assets in the trust can be accumulated, invested, or spent.

Upon death, any remaining assets in the trust must be paid back to the state up to the total amount the state paid the recipient for long-term care (minus applicable taxes and trust administration fees). While this is a less than ideal scenario, a qualified income trust can help you qualify for Medicaid while giving you control of your assets while you are alive.

Other strategies that can be taken last-minute to help qualify for Medicaid include:

  • “Spend downs” of excess countable assets into exempt assets such as home improvements and automobiles
  • Medicaid pooled trusts in which excess funds are put into a group trust with leftover funds remaining in the trust after you die and being used to help others in the pool
  • Medicaid-compliant annuities that irrevocably convert countable assets into an income stream

There are several other strategies that may be available depending on your situation. A qualified Elder Law Attorney can fully review your needs to determine the best solutions for your specific circumstance.

Read more related articles at:

Florida Medicaid (SMMC-LTC) Income & Assets Limits for Nursing Homes & Long Term Care

Medicaid Eligibility Test / Pre-Screen for Long Term Care

Also, read one of our previous Blogs at:

WHAT IS MEDICAID’S 5 YEAR LOOK BACK, AND HOW CAN IT AFFECT ME?

Click here to check out our On Demand Video about Estate Planning.

 

 

 

Trustee

The Role of a Successor Trustee After the Trust Creator Dies

The Role of a Successor Trustee After the Trust Creator Dies

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The Role of a Successor Trustee After the Trust Creator Dies. When you set up your revocable living Trust, you must name a successor trustee—someone to step in and administer and settle  your Trust for you after your death. This person would also be called upon to serve should you become mentally incapacitated. The person making a revocable trust often acts as the trustee of their accounts. This is in contrast to an irrevocable trust, where someone else must be appointed to this position.  A successor trustee waits in the wings to take over when you can no longer manage the trust yourself.

Trust Formation Documents

Your successor trustee is responsible for settling your trust or continuing to manage it for you after your death. The exact duties would depend on the terms you set for your trust in its formation documents. These documents are called the trust agreement. As an example, you could direct that all assets and property held in the trust be transferred to beneficiaries when you die. You may further state that the trust should then be closed. Your successor trustee is obligated to follow these and any other directives you establish. In some cases, you might want your trust to remain up and running after your death. This is often done in cases where it’s holding a property for the benefit of your minor children. Minors can’t legally own property, so your trust would continue to hold it for them until they reach an age you specify. Your successor trustee would make distributions to their guardian for their care per your instructions. They would oversee these distributions and manage the assets held in your trust to ensure that they continue to generate sufficient income.

 

Naming a Successor

When you choose someone as a successor you should make sure they are capable of carrying out these duties. Serving as a successor trustee is a huge responsibility, and it’s often a time-consuming burden. You should be able to choose the right person—or name an institution like a bank—for the job. It is best to work with an estate planning attorney. It’s important to name one or more “backup” trustees as well in case your first choice isn’t available to serve. Don’t name someone without speaking with him first so you can be sure he’s willing to accept the job.

The successor has several responsibilities they must carry out after the death of the creator of the trust. These responsibilities may be broken down into the following duties:

    • Locating and protecting your trust assets
    • Collecting life insurance policies, annuities, and retirement accounts on which your revocable living trust has been named the primary beneficiary
    • Coordinating with the personal representative or executor of your estate if probate is necessary
    • Obtaining the date of death values for your trust assets, including appraisals of real estate and business interests
    • Identifying your creditors and paying off these debts
    • Determining your income tax or estate tax liabilities
  • Preparing and filing all required income tax and estate tax returns
  • Paying the ongoing expenses of administering your trust until it is terminated and its remaining property can be distributed to your beneficiaries
  • Raising the cash necessary to pay off your debts, the ongoing expenses of administering the trust and income tax and estate tax liabilities
  • Investing and managing your trust assets until they can be distributed to your beneficiaries

 

Probate Issues

Revocable living trusts are one way that you may avoid probate. Probate is a lengthy and costly court proceeding that determines the deposition of your assets after your death. However, you might have to create a pour-over will to move assets not in the trust into your trust at the time of your death. This process would require probate. Each state has specific rules for probate, so, an estate attorney can help you in this regard.

Read more related articles at: 

Successor Trustee: Duties, Powers and More

What is a successor trustee?

Also, read one of our previous Blogs at:

Do You Know Your Job as Executor, Agent or Trustee?

Click here to check out our On Demand Video about Estate Planning.

 

Special Needs

Special Needs Trust Options

Special Needs Trust Options

A special needs trust (sometimes called a supplemental needs trust), is a trust designed to hold assets for the benefit of a person with disabilities or special needs. The trust is designed so that the beneficiary can retain eligibility for government benefits such as Medicaid and SSI, while still allowing the trust assets to be used for the beneficiary’s supplemental needs.

A special needs trust differs from an ABLE, or Achieving a Better Life Experience, account for the living expenses of people with disabilities.

There are two different types of special needs trusts: the self-settled trust and the third party trust:

Self-Settled Special Needs Trust

The first type of trust, a self-settled special needs trust, is funded with the disabled beneficiary’s own assets, rather than the assets of a third party. This can include when damages are to be paid to an injured person. This trust is created and funded with assets belonging to the beneficiary. Sometimes the personal injury settlement or verdict arose out of the incident that created the disability, but not necessarily. Holding the settlement or judgment in a special needs trust permits the beneficiary to live with more dignity and comfort. The self settled trust allows individuals to avoid spending down their own assets before qualifying for needs-based government benefits. The funds in the trust can be used to supplement benefits received from various governmental assistance programs including Supplemental Security Income (SSI) and Medicaid. The beneficiary must be under 65 years old when the trust is created and must be established by the individual’s parent, grandparent, legal guardian, or the court. The beneficiary does not have direct control or access to funds in the trust. It is managed by a trustee who has broad discretion to make distributions on behalf of the beneficiary to provide for superior care options, opportunities for treatment and rehabilitation, housing, electronic equipment, computers, job training, vacations, and so on. In order for a self-settled special needs trust to be exempt as an asset for benefits qualification, it must pay back the government for services provided if there is anything left in the trust when the beneficiary with a disability or special needs dies, up to the amount paid under the Medicaid program for the disabled person’s care.  Another type of self-settled special needs trust is a “pooled” trust. This is a trust created and administered by a nonprofit organization. Assets of many individuals that are disabled are contributed to the trust and separate accounts are maintained for each individual. At the death of the individual with a disability, if the account’s funds have not been exhausted, the remaining funds must either stay in the pooled trust to benefit the other trust beneficiaries, or must be used to pay back the state for amounts expended for care. Pooled trusts can be advantageous for individuals with disabilities that have modest assets. A third type of self settle special needs trust is a Miller trust. A Miller trust is structured to be utilized in a state that uses income cap requirements for Medicaid eligibility. This self settle special needs trust is different from the the previous two as it can be created by an individual over age 65. It is designed to receive all the beneficiaries income and would not be treated as the beneficiary’s income for the purpose of the Medicaid income test. Trust disperse only up to the income qualification limit of Medicaid and retain excess income.  At the beneficiaries death, Medicaid is fully reimbursed for expenditures. It is important to note that not all states allow Miller trusts.

Third-Party Special Needs Trust

The second type of special needs trust is one that is created for the beneficiary by others. This trust is created by someone else (i.e., a third party) for the benefit of the child or disabled person, usually by a parent or grandparent, or other close family members that care for the minors covered in the trust. If you are a parent of a child with special needs, how you leave your child’s inheritance to him/her can greatly affect the child’s quality of life after your death. An outright inheritance will immediately cause all government benefits to stop. Your child will have to pay 100% of medical care expenses, medicines, personal care attendants, therapy, doctor visits, and room and board wherever they are living. This will continue until the entire inheritance is exhausted. Then your disabled child will re-qualify for benefits. If the inheritance is exhausted because it had to be spent down to re-qualify for benefits, there will no longer be additional funds to pay for education, over-the-counter medicines, trips to see family members, reading materials, basic supplies, or other expenses. Government benefits do not cover these types of expenses. Rather than giving the inheritance outright (or even worse, disinheriting the child with special needs), these parents should include special needs trusts in their estate plans. The special needs trust does not provide funding for basic food, clothing, or shelter. However, a wide variety of supplemental needs can be paid for. The trust might be able to buy a house for your disabled child to live in or could pay for an advocate that will make sure that your child receives the services they need. Grandparents and other relatives can add to the trust. When the child with special needs dies, the balance remaining in the trust can be distributed to other family members. It is important to note that this type of trust requires advance planning. It is important to talk to your estate planning attorney now to include it in your estate plan.

Read more related articles at:

Special Needs Trusts

Special Needs Trusts: What They Do And How They Work

Also, read one of our previous Blogs at:

Can My Family Benefit From A Special Needs Trust?

Click here to check out our On Demand Video about Estate Planning.

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