Legacy Planning Law Group
Weekly Blog

Estate & Elder Law

Protect Your Family. Preserve Your Legacy

If you’re interested in learning more about our process and the solution for you and your family, please book your free 15-minute call with us today!

guardianship

How to Get Guardianship of an Elderly Parent

How to Get Guardianship of an Elderly Parent

When an older adult loses the ability to think clearly, it also affects their ability to make informed and meaningful decisions. This may occur due to Alzheimer’s disease or other related dementias, stroke, brain injury, mental illness, or other serious health issues. If the person you are caring for is unable to make rational decisions about their health care, their finances, or other aspects of their life, seeking legal guardianship may be necessary to ensure their safety and quality of life.

What Is Guardianship for Elderly Individuals?

Guardianship is an option in cases where an older adult has not appointed a power of attorney for health care or finances and is incapacitated due to advancing age, illness, or disability. Even if an individual has completed a power of attorney (POA) document, guardianship may still be necessary if their POA is not durable, meaning it ends upon their incapacitation. Courts most commonly see family caregivers seeking guardianship for adults with dementia who did not make proper legal preparations for the future.

Read: Durable vs. Springing Power of Attorney: What’s the Difference?

It is important to understand that differences in terminology exist between states. In some states, guardianship gives a person (the guardian) control over where the incapacitated individual (the ward) lives, what health care they receive, and how their day-to-day needs are met. Conservatorship, on the other hand, gives a person (the conservator) the ability to handle a conservatee’s financial decisions, such as paying bills, managing investments, and budgeting. Sometimes these terms may be used interchangeably.

An individual petitioning for guardianship and/or conservatorship must go to court to have the potential ward declared incompetent based on expert findings. If the person is ruled incompetent and the petitioner is a suitable candidate to serve as their guardian, then the court transfers the responsibility for managing finances, living arrangements, medical decisions, or any combination of these tasks to the petitioner.

This process often takes a good deal of time and money. If family members disagree about the need for guardianship or who should act as a guardian, the process can be especially painful, prolonged and costly.

What Is a Court-Appointed Guardian?

A guardian (or conservator) is a person who has court-ordered authority to handle an incapacitated person’s affairs. Guardians have a fiduciary duty to act in the best interests of the person they are appointed to serve. Sadly, it strips the ward of many rights, but it might be the only way to gain the legal authority to make crucial decisions on their behalf.

Who Can Be a Legal Guardian?

At a hearing, the court decides if the person seeking guardianship is well suited for this role. A petitioner’s criminal background, credit history, and potential conflicts of interest are typically factored into this decision.

In cases where more than one person is seeking responsibility for a ward’s needs, the court will determine who is best qualified for the position. Sometimes one person is appointed to handle the ward’s personal and medical decisions (often referred to as guardianship of the person), and another is granted responsibility for managing the ward’s financial matters (guardianship of the property). The ward’s preferences and any valid legal documents that were prepared prior to their incapacitation (e.g., non-durable POA, will, or advance directive) are factored into this decision when possible.

Many states give preference to the ward’s spouse, adult children, or other family members, since they are often most familiar with the person’s unique needs and abilities. If a relative or friend is not willing or qualified to serve in this role, then a professional guardian or public guardian may be appointed.

When Is a Guardian Appointed?

A guardian or conservator can only be appointed if a court hears evidence that the person lacks mental capacity in some or all areas of their life and determines they can no longer make informed decisions for themselves. Allegedly incapacitated people have the right to an attorney and the right to object to the appointment of a guardian or conservator.In rare cases, emergency guardianship may be granted right away if an elder’s health and/or finances are in jeopardy. However, guardianship is a very serious intervention and should only be considered a last resort.

What Does a Guardian Do?

Whenever possible, the guardian or conservator must seek the input of the ward and must only act in areas authorized by the court. Guardians can be given limited or broad authority, depending on what a court rules is needed after a thorough investigation. Sometimes the court delegates responsibilities to several parties. For example, a bank trustee might serve as a corporate guardian to oversee financial decisions while a family member handles personal decisions like living arrangements. Generally, the court requires reports and financial accounting at regular intervals or whenever important decisions are made. Prior court approval is even required for some larger decisions.

Read: What Are the Duties of a Guardian for the Elderly?

Do Guardians Receive Compensation?

All court-appointed guardians are entitled to reasonable compensation for their services. When a so-called family guardian (e.g., a spouse, family member, or friend) is appointed, they typically do not charge the ward for their services. In cases where a private guardian is appointed, these individuals are paid directly from the ward’s estate if they can afford it. In most cases, the compensation amount must be approved by the court, and the guardian must carefully account for all their services, the time these tasks require, and any associated out-of-pocket costs. Public guardians are appointed to wards who do not have friends or family to fill the role or the resources to hire a professional guardian. They are funded by public money, such as government funds and charitable contributions.

Obtaining Legal Guardianship

To learn more about the legal process of seeking guardianship or conservatorship in your state, it’s best to consult a lawyer.

Read more related articles at:

Adult Guardianship

The elder guardianship system in Florida

Also, read one of our previous Blogs at:

The Difference between Power of Attorney and Guardianship for Elderly Parents

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

Click here for a short informative video from our own Attorney Bill O’Leary.

Elder Trusts

Living Trusts and How They Help Seniors

Living Trusts and How They Help Seniors

It’s unfortunate that seniors are frequently common targets for financial abuse and scams. Sadly, the elderly are often taken advantage of by strangers – and sometimes even their own family members. That’s why it’s important that planning is in place to help seniors protect themselves and their assets.
As we age, it can become increasingly difficult to manage our assets. Most of us will, at some point, need assistance with these details to help ensure that our financial and other assets aren’t depleted. If you or an aging loved one are looking for ways to safeguard assets, a Living Trust is often the best way to do so. Living Trusts allow seniors to rest assured that their finances and assets are managed by a trusted person.
What is a Living Trust?
Living Trusts help protect and manage the assets of those who cannot do so themselves due to age, illness, or disability. Many seniors assume that a will is the only protection they need. However, trusts are designed to safeguard the assets of the living, while wills only outline what happens to a person’s assets when they pass away. Furthermore, wills must go before a probate court, while Living Trusts allow beneficiaries to avoid probate after their loved one’s passing.
To establish a Living Trust the owner, or grantor, places assets within the trust. The grantor then appoints a trustee to manage it and names beneficiaries to receive the assets of the trust when the time comes.
There are different types of Living Trusts. Below are three types of trusts and the ways these trusts can benefit seniors.
1. Testamentary Trust
A Testamentary Trust protects an elderly person’s assets when a spouse dies. Assets of the deceased are transferred into a trust – enabling the appointed trustee to make all financial decisions regarding those assets. This helps a surviving spouse by protecting him or her from fraud or mismanagement of assets. Trustees can help the surviving senior generate income from remaining assets via sales or investments and take advantage of tax benefits.
2. Revocable Living Trusts
A Revocable Living Trust safeguards seniors by making it more difficult for non-trustee family members to mismanage money or assets. The grantor (senior) can amend or revoke the trust at his or her own discretion without the consent of the beneficiary. This type of trust allows the grantor to stay in control of assets by either serving as a trustee or appointing one. In this case the grantor, serving as trustee and beneficiary of the trust, appoints a successor in the event he or she becomes incapacitated or dies. This appointed person is then responsible for disposal of the trust’s assets.
3. Irrevocable Living Trusts
An Irrevocable Living Trust is one that cannot be changed or revoked by the trustmaker. This means that the grantor/trustmaker gives up his or her rights to the assets once they are transferred. Seniors over 65 who are eligible for Medicaid often choose to transfer assets into an Irrevocable Living Trust to avoid having to dispose of assets in order to remain eligible for Medicaid coverage or long-term care benefits. Once assets are in an irrevocable trust, they cannot be counted for Medicaid eligibility purposes, but there could be a penalty for transferring assets to an irrevocable trust.
An elder law attorney can assist in determining the best way to set up this type of trust and how to best transfer assets based on Medicaid stipulations. An Irrevocable Living Trust can provide income for seniors and their spouses. It also protects their property and other assets from being seized to pay for medical costs, without impacting Medicaid eligibility. This type of trust can also remain in place for a surviving spouse after the grantor’s death.
The sooner assets are placed in an Irrevocable Living Trust the better, as a penalty will be assessed by Medicaid during the first 5 years the trust is in existence (if Medicaid is required during that time).
Ultimately, Living Trusts give seniors more control over their assets than a will, allowing them to set parameters and stipulations and appoint a trusted advisor to help them make decisions.
Read more related articles at:

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

Click here for a short informative video from our own Attorney Bill O’Leary.

end of life planning

End-Of-Life Planning Is A ‘Lifetime Gift’ To Your Loved Ones

End-Of-Life Planning Is A ‘Lifetime Gift’ To Your Loved Ones

Talking about death makes most of us uncomfortable, so we don’t plan for it.

That’s a big mistake, because if you don’t have an end-of-life plan, your state’s laws decide who gets everything you own. A doctor you’ve never met could decide how you spend your last moments, and your loved ones could be saddled with untangling an expensive legal mess after you die.

Betsy Simmons Hannibal, a senior legal editor at legal website Nolo, puts it this way: Planning for the end of life isn’t about you. “You’re never going to really get the benefit of it. So you might as well think about how it’s going to be a lifetime gift that you’re giving now to your parents or your partner or your children. It really is for the people you love.”

Here are some simple, practical steps to planning for the end of life. These tips aren’t meant to be legal or medical advice, but rather a guide to ease you into getting started.

1. Name an executor.

If you’re an adult, you should have a will, says Hannibal. Estate planning is not just for the rich. “It’s not just about the value of what you own. It’s also the feelings that you and your loved ones have about what you own.”

If you own lots of valuable stuff — real estate, trust funds, yachts — you probably need a lawyer.

The first thing you do is name (in writing) a person whom you trust to take care of everything when you die. In most states that person is called an executor; in some they’re called a personal representative.

Hannibal says it’s a good idea to choose someone from your family. “The most important thing is that you have a good relationship with them — and also that they have a good attention to detail, because it’s a lot of work to be someone’s executor.”

An executor would have to, for example, find all your financial assets and communicate with everyone you’ve named in your will. It’s a big ask, so Hannibal says just be upfront. She suggests asking the person directly, “Would you be comfortable wrapping up my estate when I die?”

2. Take an inventory.

List everything you own, not just things that are financially valuable — such as your bank accounts, retirement savings or car — but also those things that have sentimental value: a music or book collection, jewelry, furniture. Then list whom you want to leave what to.

If you have young children, name a guardian for them. Choose carefully, because that person will be responsible for your child’s schooling, health care decisions and value system.

Hannibal says pets are considered property under the law, so she suggests naming a new owner so that the state doesn’t do it for you.

Digital accounts are also part of your property. This includes social media accounts, online photos, everything in, say, your Google Drive or iCloud, online subscriptions, dating site profiles, credit card rewards, a business on Etsy or Amazon. Hannibal suggests keeping a secure list of all those accounts and the login and password details. Let your executor know where the list is.

Just as you write out specific instructions about your physical belongings, be clear about what you’d like to happen with your online information.

She says it’s better not to have a handwritten will, because proving you wrote it will require a handwriting expert. So keep it simple. Just type out your wishes and have two witnesses watch you sign and date it. Then have them do the same. Hannibal says by signing it, “they believe that the person who made the will is of sound mind, and that’s a pretty low bar.”

You don’t need to file your will anywhere; neither do you need to get it notarized for it to be legally binding. And don’t hide it. Hannibal says just tell your executor where you’ve kept a copy.

Remember that your decisions will change over time. So if you have a child, buy a house or fall out with a family member, update your will.

3. Think about health care decisions.

Your will takes care of what happens after you die. An advance directive is a legal document that covers health care and protects your wishes at the end of your life.

There are two parts to an advance directive. The first is giving someone your medical power of attorney so the person can make decisions for you if you can’t. The other part is called a living will. That’s a document where you can put in writing how you should be cared for by health professionals.

Jessica Zitter is an ICU and palliative care physician in Oakland, California. She says that we’ve become experts at keeping people alive but that quality of life can be forgotten.

She has seen thousands of situations of loved ones making difficult and emotional decisions around a hospital bed. It’s worse when family members disagree about a course of action.

You know the saying “The best time to plant a tree was 20 years ago. The second best time is now”? Zitter says with the coronavirus in the news every day, more people are realizing that these end-of-life conversations are important. “That tree was always important to plant. But now we really have a reason to really, really plant it. … That time is now.”

You may have heard of Five Wishes, which costs $5 and will walk you through choices, or Our Care Wishes, which is free.

4. Name a medical proxy.

Pallavi Kumar is a medical oncologist and palliative care physician at the University of Pennsylvania. Kumar says the most important medical decision you can make is to choose a person who can legally make health care decisions for you if you can’t. This person is sometimes called a medical proxy or a health care agent. Naming the person is the first part of the advance directive.

“Think about the person in your life who understands you, your goals, your values, your priorities and then is able to set aside their own wishes and be a voice for you,” she says. You want someone you trust who can handle stress, in case your loved ones disagree on what to do.

5. Fill out a living will.

After you’ve chosen your medical proxy (and named a backup), you need to think about what kind of care you want to receive. There’s no right or wrong; it’s very personal. The document that helps you do that is called a living will. It’s part two of the advance directive.

A living will addresses questions such as “Would you want pain medication?”; “Do you want to be resuscitated?”; and “Would you be OK being hooked up to a ventilator?”

Kumar says she asks her patients what’s important to them and what their goals are. For some with young children, it means trying every treatment possible for as long as possible, no matter how grueling.

“They would say, ‘If you’re telling me that a chemotherapy could give me another month, I want that month. Because that’s another month I have with my 6-year-old.’ “

Other patients might want the exact opposite. “They would say, ‘I’ve gone through a lot of treatments and I … feel I’m not having as many good days with my kids. So if the disease gets worse, I want to spend that time at home.’ ”

Kumar says even among patients who are very sick with cancer, fewer than half have had conversations about how they want to die. So talk about your wishes. Once you’ve filled out the advance directive forms, share your decisions with your medical proxy, your loved ones and your doctor.

6. Don’t forget the emotional and spiritual aspects of death.

How you want to die is personal and about much more than just the medical aspect. For some, it’s about being at peace with God; for others, it’s being kept clean. Still others don’t want to be left alone, or they want their pets close by.

Angel Grant and Michael Hebb founded the project Death Over Dinner to make it easier for people to talk about different aspects of death as they eat. “The dinner table is a very forgiving place for conversation. You’re breaking bread together. And there’s this warmth and connection,” says Grant.

Some of the emotional and spiritual questions people talk about are “You were just in a big quake and death is imminent. What are you concerned about not having done?”; “What do you want to be remembered for?”; and “If you could have any musician play at your funeral, who would it be?”

Grant says reflecting on death automatically forces you to think about your life. “That’s the magic of it,” she says.

“We think it’s going to be morbid and heavy. But what these conversations do is they narrow down our understanding of what matters most to us in this life, which then gives us actionable steps to go forward living.”

Grant doesn’t believe a “good death” is an oxymoron. “A good death is subjective, but there are some things that I have heard over and over again for many years at death dinners. … A good death is being surrounded by love, knowing you have no emotional or spiritual unfinished business.”

Read more related articles here:

What to know about end-of-life planning

Getting Your Affairs in Order

Also, read one of our previous Blogs at:

Why Estate Planning Is Crucial When Reaching End Of Life

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

Click here for a short informative video from our own Attorney Bill O’Leary.

QIT

Things to Know About a Qualified Income Trust

Things to Know About a Qualified Income Trust

An estimated 58% of men and 79% of women aged 65 and older will need long-term care at some point in their lives. Long-term care is costly. The average cost of a private nursing home room is $8,121.00 per month nationwide (and over $9,703.00 per month in Florida). Many people assume that Medicaid will cover this cost, but if your income and assets exceed the state’s threshold, you may need to set up a qualified income trust.

In order to qualify for Medicaid long-term care, you cannot exceed the state’s income and asset limits. A qualified income trust will reduce your income levels to below the applicable limit, allowing you to use Medicaid to cover your long-term care costs.

Not everyone will benefit from a qualified income trust (which is also commonly referred to as a “Miller Trust”). Here are seven things to know before creating one.


1. A Qualified Income Trust (QIT) Must be Managed Carefully

A QIT must be managed very carefully. Every month that Medicaid long-term care is required (whether it is for those receiving care at home, in an ALF, or in a nursing home), the income trust must be properly funded.

If your monthly income exceeds the state’s limit, funds must be deposited into the QIT every month that long-term care is required. Enough funds must be deposited to ensure your income is below the threshold, and this amount should be more than just the bare minimum needed to qualify for Medicaid.

To prevent a lapse in coverage and care, it is crucial to ensure that your QIT is funded and administered properly.


2. If Your Income Does Not Exceed the State’s Levels, a QIT May Not Be Required

If your income does not exceed the state’s limits, then a QIT may not be necessary. However, if there is a chance that your income may exceed the threshold on any given month, a QIT will help ensure that you don’t lose your Medicaid benefits.

As an example, for those who have gross incomes that are close to Florida’s Medicaid income cap, we will suggest a QIT to prepare for the possibility of increased income (annual nationwide raise in social security retirement income). To find out what is the Florida Medicaid Income Cap, click this link for Important Medicaid Numbers for Florida.


3. QIT Income May Still Go to the Nursing Home

If you are a single applicant, the funds in your QIT will be dispersed to the facility that’s administering your care. If you are married and your spouse is living at home, the income may be dispersed to him or her, depending on your spouse’s income.

In short, yes, your QIT income will still go to the nursing home if you are a single applicant.

If you are not in a nursing home, you may still need a QIT and you will not lose any of your income (funds deposited into the QIT can be withdrawn to pay for needed health and care expenses at home or in an assisted living facility).


4. A QIT May Require a Proper Durable Power of Attorney

A QIT is an important part of the Medicaid planning and estate planning process.

A proper durable power of attorney is required in order to create a QIT should the Florida Medicaid applicant become incapacitated (a little known fact is that a spouse can also create a QIT without a durable Power of Attorney. But if there is no spouse and the Medicaid applicant is incapacitated, their durable power of attorney must have the power to create the trust, and all documents must be signed properly. The ability for your agent, under a Florida POA, to create a Miller Trust is referred to as a “super power” that must be initialed. Otherwise, the power of attorney will not have the power to create the trust.


5. Income Must be Deposited Properly

Medicaid applicants can choose to deposit at least the minimum amount of income required (i.e. whatever exceeds the Florida income cap). Some choose to deposit more than what is strictly necessary (or even all of their income to a QIT).

However, it’s important to count gross income. The amount of social security that is deposited into your bank account is NOT the full income amount, because Medicare premiums are automatically deducted.  Some pensions also deduct amounts for fees, paying for life insurance, and other expenses. All of this must be added back to calculate gross income (not net).

Only income should go into a QIT, no assets.


6. Upon Death, Assets in a QIT Will be Given to the State

Upon the Medicaid applicant’s death, any remaining income in the QIT will likely be returned to the state. The state may take the income to recover the expenses paid by Medicaid for the beneficiary’s care. Any funds that remain after the state has been reimbursed will be paid to other trust beneficiaries.

Normally, all deposited income is spent each month, so most QITs are usually empty at the time of the applicant’s death. If there is some small amount left over, it will likely not wind up in the hands of heirs.


7. QITs Should be Established by an Experienced Elder Care Attorney

Anyone who may be eligible for Medicaid can establish a QIT, but the trust can only be used when long-term care is required.

With that said, the process of setting up, and properly funding/managing a QIT can be complex, and you do not want to take the risk of compromising critical long-term care. The establishment of a QIT is best handled by an experienced elder care attorney, who focuses on Medicaid planning.  This legal specialist will know how to navigate the process of establishing the income trust and ensuring that it is administered properly.

While it is possible to establish a Florida income trust on your own, one misstep or error can result in you being ineligible for Medicaid and losing valuable long-term care coverage.

If you or a loved one require long-term care or want to plan for long-term care, it is crucial to hire a Medicaid planning attorney. A qualified attorney will help you navigate the complex process of establishing a QIT to ensure you are eligible for Medicaid long-term care.

Read more related articles here:

Qualified Income Trusts.

Long Term Care of Elderly: The Qualified Income Trust

Also, read one of our previous Blogs at:

How Medicaid Planning Trusts Protect Assets and Homes from Estate Recovery

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

Click here for a short informative video from our own Attorney Bill O’Leary.

 

incapacity

What is the Process to Declare Someone Incapacitated or Incompetent in Florida?

What is the Process to Declare Someone Incapacitated or Incompetent in Florida?

The process for declaring someone incompetent or incapacitated begins with filing a Petition to Determine Incapacity with the court (Fla.Stat. §744.331(1)).

The Court will then appoint an examining committee to assess the mental and physical condition of the person who is allegedly incapacitated (Fla.Stat. §744.331(4)).

Depending on the report presented to the Court, a hearing will be conducted wherein testimony and other evidence is heard, and the Court decides if the alleged incapacitated person is actually incapacitated and then whether a guardian is necessary.

How Do Courts Decide Who to Appoint as a Guardian?

When a person is declared incompetent by a Florida court, the judge often is presented with conflicting applications by different persons, often family members of the incompetent person, who propose to be the guardian and look after the financial and medical affairs of the incompetent.

Although Florida judges are afforded wide discretion in these difficult decisions, there are some statutory guidelines regarding the considerations in the appointment of guardians.

Florida law directs that a person related by blood or marriage receives preferential treatment.

The law also directs courts to consider the following:

  • “(1) Subject to the provisions of subsection (4), the court may appoint any person who is fit and proper and qualified to act as guardian, whether related to the ward or not.
  • (2) The court shall give preference to the appointment of a person who:
  • (a) Is related by blood or marriage to the ward;
  • (b) Has educational, professional, or business experience relevant to the nature of the services sought to be provided;
  • (c) Has the capacity to manage the financial resources involved; or
  • (d) Has the ability to meet the requirements of the law and the unique needs of the individual case.
  • (3) The court shall also:
  • (a) Consider the wishes expressed by an incapacitated person as to who shall be appointed guardian;
  • (b) Consider the preference of a minor who is age 14 or over as to who should be appointed guardian;
  • (c) Consider any person designated as guardian in any will in which the ward is a beneficiary.
  • (4) If the person designated is qualified to serve pursuant to s. 744.309, the court shall appoint any standby guardian or preneed guardian, unless the court determines that appointing such person is contrary to the best interests of the ward.” Fla. Stat. § 744.312.

Even though the statute directs that “a person who is related by blood or marriage to the ward” receives preference in the appointment; the inquiry does not end there. The court also has the discretion to give preference to a non-relative who possesses particular experience or ability to serve as guardian. See, e.g., Treloar v. Smith, 791 So. 2d 1195 (Fla. 5th DCA 2001) (finding that while next of kin are given first consideration, the statute does not mandatorily require that such an appointment be made; rather, the statute specifically provides that court may appoint any person who is qualified, whether related to the ward or not).

Moreover, it is the best interest of the ward that trumps other considerations in the appointment of a guardian. See, e.g., In re Guardianship of Stephens, 965 So. 2d at 852 (“The best interests of the Ward — which include choosing a qualified guardian for the Ward — come first. Family member preference in and of itself is secondary, regardless of how well qualified the family members are.”).

Third District Upholds Palm Beach Probate Court’s Appointment of Guardian Not Related to the Ward by Blood or Marriage

These principals were recently examined by the Florida Third District Court of Appeals when it reviewed the decision of a Palm Beach County Probate Judge in Morris v. Knight, 34 Fla.L.Weekly D321a; –So.2d–; 2009 WL 321586, February 11, 2009 (Fla.3rd DCA) which involved an appeal of Judge Karen Martin’s decision to appoint a guardian over Estelle Pratt Barker, a ninety-seven-year-old woman who was found to be incapacitated.

Judge Martin of the Palm Beach County Probate Court was faced with three individuals who petitioned for guardianship and control of Ms. Barker’s person and property: Ms. Glinton, who is Barker’s first cousin; Ms. Morris, whose mother is Barker’s first cousin; and Mr. Knight, who is a neighbor and friend of Barker. A hearing was held on the three competing petitions.

The testimony revealed that Glinton and Morris were related to Ms. Barker, however, there was also testimony from Barker’s attorney that in the thirty years that he served Barker, she never talked about or came in with any family member except Ms. Morris.

Regarding Knight, Glinton asserted that he used Barker’s money to purchase a new car for himself and that he had been Baker Acted for mental illness. Glinton, however, could not offer any evidence of such allegations during her testimony, and the court thus found them to be false. The court also determined that Glinton made other representations not supported by evidence and ultimately found her unfit to serve as guardian.

The testimony revealed that Mr. Knight had known Barker since he was a child visiting his grandmother who lived across the street from Barker in the 1960s. “Knight is a former U.S. Marine and retired sanitation worker for the City of West Palm Beach. He has also worked as a mental health technician and as an aide in a nursing home. He now receives both Veteran’s Administration benefits and a pension from the City of West Palm Beach. At trial, Knight stated that from about 1999 to 2002, Barker’s family did not visit her much. Knight would see Barker come out on the porch of her home around 7:00 a.m. each day and sit alone all day. Knight began stopping by to bring Barker coffee and food, to visit with her, and to wash her clothes and clean her house. When Barker’s doctor made the decision to place Barker in a nursing home, Knight continued to visit her there six days a week for two hours each day. Knight testified that he intends to continue visiting Barker, washing her clothes, and bringing her snacks whether he is appointed guardian or not.”

“Grace Morrow (“Morrow”), an adult protective investigator with the Department of Children and Families, described Barker and Knight’s relationship as being “like a mother-son relationship.” Morrow also added that Knight was always there for anything that she or Barker needed and that Barker was happy with Knight’s care and companionship.”

Judge Martin of the Palm Beach County Court denied Morris and Glinton’s petitions for guardianship and appointed Knight as Barker’s guardian. The court considered the fact that Morris and Glinton are related to Barker, but did not find that fact to be dispositive. Instead, based on Knight’s fitness to serve as guardian and Barker’s demonstrated wish to entrust her care to Knight, the court determined Knight to be the most appropriate person to serve Barker’s best interests.

The Court of Appeals agreed with Judge Martin. Applying the abuse of discretion standard of review, the appellate court confirmed Judge Martin’s decision.

Read more related articles at:

How to Get Power of Attorney for Your Elderly Parents in Florida

Guardianship in Florida

Also, read one of our previous Blogs here:

No One Knows The Time Or Hour…Incapacity Planning

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

Click here for a short informative video from our own Attorney Bill O’Leary.

What Prince Philip’s Death Shows Us About The Importance Of End-Of-Life Planning

What Prince Philip’s Death Shows Us About The Importance Of End-Of-Life Planning

What Prince Philip’s Death Shows Us About The Importance Of End-Of-Life Planning Since his death , Prince Philip has been remembered around the world as a model of service and a loyal and loving husband. His over 70 years in the public arena as a member of the Royal Family has many feeling that a beloved member of their own family has passed.

While memorials and tributes continue to pour in, one thing is clear:  Prince Philip had clearly defined wishes regarding how he wished to pass as well as his funeral plan. In his case, as an important state figure, it was a requirement. In many ways the ritualistic nature of that plan is allowing many to remember the Prince and all he accomplished.

While this type of planning might only seem fit for royalty, it is actually something that all of us can accomplish with our estate planning documents. Specifically, our health care directives can help us with end-of-life planning and funeral planning, and the process is quite simple.

Despite the importance of these documents, The Palliative and Advanced Illness Research Center at Penn Medicine found in a 2017 study that only one-third of all Americans have such a document for end-of-life care. Further, there is a higher level of engagement for older Americans versus younger individuals. For such an important decision, there is room for greater improvement in obtaining these documents.

A health care directive is a legal document that allows an individual to name an agent to make medical decisions for them if incapacitated. Upon death, it gives the agent the ability to manage the decisions regarding the body.

When most people think of health care directives, they typically think of pain relief and interventions. The circumstances of Prince Philip’s passing serve as an example of additional features that can be added to a health care directive.

Prince Philip was able to pass away at home in Windsor Castle. In the final two months of his life, he spent a significant amount of time in hospital. After his death, it was revealed that his final wish was to die at home. Fortunately, that wish was fulfilled.

But Philip’s wish is not unique to royalty. Many do not want to end their lives in hospital if it can be avoided, and the health care directive is a powerful way to express this. An individual can add to their directive that they wish to die in their home rather than in the hospital. While fulfilling this wish might not be possible depending on the circumstances, for the agent, it is helpful to have a clear directive about what an individual wants as they pass away.

Creation of A Funeral Plan

Further the health care directive can help design a funeral plan. Funeral planning has been around for centuries, but in modern day estate planning, one’s wishes have often been relegated to a simple directive of burial or cremation within the health care directive.

For many people, these directions are not adequate. Today, individuals are embracing the idea of giving more detailed plans for their funeral. These directions can include a variety of instructions. Some  people may choose to identify the type of religious service, hymns and speakers at the funeral. Others may choose to lay out details for the final event they will plan for their loved ones. As a result, funeral plans can consist of elaborate parties and ceremonies that an individual would want to have as their final goodbye.

Finally, for those who are socially conscious, funeral plans can be the last chance to embrace their ideals. From being buried in an environmentally friendly mushroom suit that will disintegrate back into the earth to having ashes spread among the trees in a beautiful setting, many are choosing these more thoughtful funeral arrangements.

Regardless of the wishes, having these detailed plans can help the family grieve and honor the deceased’s last wishes. They can also alleviate potential family tensions about what the plans should be.

Straightforward Process

Obtaining a health care directive is a straightforward process. Since groundbreaking cases in the 1990s and 2000s, all fifty states offer a form for residents to fill out to state their wishes for end-of-life planning. They are often downloadable from the state website.

As the pomp and pageantry of Prince Philip’s funeral unfold over the next week, it might be a good time to complete and sign a health care directive to help detail how you’d like your end-of-life and funeral plans to play out.

Medicaid

MEDICAID ALERT: New Medicaid Community Care Look Back Rules Start October 1, 2022

MEDICAID ALERT: New Medicaid Community Care Look Back Rules Start October 1, 2022

 

New Medicaid Look Back Rules

If this sounds familiar, you’re right—recent years have seen many extensions of rules regarding Medicaid. But for New Yorkers, this most recent change to Medicaid Community Based Care is a result of a New York State’s 2022-2023 budget and not the pandemic.

There has always been a five-year lookback period for Medicaid applicants seeking coverage for long-term nursing home care. Any transfer or sale of assets within a five year makes an applicant ineligible and nursing home costs have to be paid by the person or the family until the person spends down enough of their assets to become eligible.

The look-back is now being applied to Medicaid Community or Home Care. This is a first for New York State, and it requires seniors to do advance planning if they wish to receive Medicaid Community and Home Care services and protect their assets.

After October 1, 2022, anyone applying for Medicaid Home Care benefits will be subject to at least a 15-month lookback. It’s also possible the person and their spouses will have to provide records of up to 2.5 years before the application date.

The lookback period is not as long as for long-term nursing care, but this will still have a negative impact on those who need Medicaid Home Care.

We can’t stress this enough: As of right now, there is NO look-back or penalty period for Medicaid Home Care benefits. This includes home health aides, adult day care and community based services.

If you are considering applying for Medicaid for a loved one or for yourself, you need to act now. Once these rules change, you or your loved one may lose their eligibility. The time to plan for this care is today. Not tomorrow, not next week.

In time, the Medicaid Home Care lookback period will increase to 30 months, and an additional month will be added until the period for asset transfer records reaches 2.5 years.

Read more related articles at:

Medicaid’s Look-Back Period Explained: Exceptions & Penalties

What is Florida Medicaid?

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

Click here for a short informative video from our own Attorney Bill O’Leary.

 

special needs senior

Caring for Seniors with Special Needs

Caring for Seniors with Special Needs

Seniors with disabilities make up about 72 percent of the population of people over the age of 80 in the U.S. Some of these disabilities may be lifelong issues, such as intellectual or physical disabilities they’ve had from birth. Others may be the result of illness or injury, while others are related to advanced age. Home care and assisted living care providers need to be aware of seniors’ disabilities and how to accommodate them:

  • Discuss their senior’s condition with the senior’s physician to determine how best to meet his or her needs.
  • Have the same discussion with the senior’s family to learn how they’ve cared for the senior over the years. Find out what works and what doesn’t, and what the senior is accustomed to.
  • Develop an individualized care plan for that senior that addresses his or her individual rehabilitation or maintenance needs.
  • Work to include the senior in activities and social events as much as possible. Adults with disabilities often feel excluded, and this feeling often compounds as they age and the limitations of growing old cause further isolation.

Read more related articles at:

What services are available to the disabled elderly?

Program of All-Inclusive Care for the Elderly

Also, read one of our previous Blogs here:

Special Needs Trusts and How They Can Benefit Seniors

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

Click here for a short informative video from our own Attorney Bill O’Leary.

 

death taxes

Where Not To Die In 2022: The Greediest Death Tax States

Where Not To Die In 2022: The Greediest Death Tax States

Where Not To Die In 2022: The Greediest Death Tax States. Should death be taxing? Amid budget surpluses, states started slashing income taxes last year. But only two have made significant changes to their estate or inheritance taxes so far. Last year Iowa legislators decided to phase out the state’s inheritance tax by January 1, 2025. And this year Nebraska legislators made pro-taxpayer tweaks to its inheritance tax for deaths occurring on or after January 1, 2023.

Other jurisdictions have lessened the tax bite for dying in 2022—through previously scheduled changes or inflation adjustments. But some, without inflation adjustments, are still taxing estates at levels that haven’t budged for years, meaning more families are getting surprise death tax bills. In one of those states—Massachusetts—Democratic legislators are pushing for changes to spare more estates from the tax as part of a broader tax reform package this summer.

In all, 17 states and the District of Columbia levy estate and/or inheritance taxes. Maryland is the outlier that levies both. If you live in one of these states—or might retire to one—pay attention.

These taxes operate separately from the federal estate tax, which applies only to a couple of thousand estates a year valued at over $12.06 million per person. (That number is set to drop roughly in half on January 1, 2026, when the Trump tax cuts that temporarily doubled the base exemption from $5 million to $10 million expire.) While few individuals need to plan around the federal estate tax, the state levies all kick in at much lower dollar levels, often making it a middle-class problem.

Consider the current state estate tax in Massachusetts. The $1 million estate tax exemption hasn’t been adjusted for inflation since 2006, so it can hit the heirs of middle-class folks who have seen their houses and retirement accounts appreciate. “You can be real estate rich with a modest home, and your estate could be subject to this,” says Scott Cashman, a tax manager with Bowditch & Dewey in Worcester, Massachusetts. “It’s becoming more of an issue every year.” If the $1 million exemption amount set in 2006 had been adjusted for inflation, it would be closer to $1.5 million today.

Say a widow or widower died with a house worth $535,000, a $200,000 bank account, a $350,000 retirement account, and a $15,000 car, for a $1.1 million gross estate. Assuming $50,000 in deductions, the estate tax would be $20,500, he calculates. (There’s no estate tax when assets are left to a spouse, but in this case the heirs are children.) If the house is worth $1 million, however, the tax would be $65,360— one third of the cash in the bank. Adding to the pain is what’s known as the cliff: Once the $1 million mark is crossed, the estate tax applies to everything over $40,000. “I don’t know if most legislators understand that,” he says.

A bill introduced by Democratic state senators would double the Massachusetts exemption amount to $2 million and only levy tax above that amount, removing the dreaded cliff. “We have such a surplus now, this is the time to do it,” says Cashman. “There’s broad-based support for reform.”

Inheritance taxes—levied in six states—can kick in at far lower levels, with the exemption and tax rate depending on the heir’s relationship to the deceased. In New Jersey, for example, if you leave your estate to a Class D beneficiary—including a nephew or non-civil-union partner—they’re taxed at 15% on assets up to $700,000 and 16% on assets above $700,000.

In Nebraska, lawmakers this year fell short of inheritance tax repeal but succeeded in chipping away at the state’s inheritance tax. The new law, effective January 1, 2023, cuts the top tax rates (from 18% to 15%, for example) and increases the exemption amounts (from $10,000 to $25,000, for example). It also eliminates inheritance taxes for heirs under 22, and it makes unadopted step-relatives taxed at the lower rate for nearer family members and not the higher rate for unrelated heirs. “Lawmakers wouldn’t agree to a general phasedown of the tax at this point that would apply to everyone, but they were willing to accept that if a younger person were to inherit property or cash (and we can use a lot more young residents and entrepreneurs in Nebraska) that it’s not in the state’s economic interest to take any of it away from them,” says Adam Weinberg, communications director with the Platte Institute, which is continuing its effort to repeal the inheritance tax in Nebraska.

Meanwhile, Connecticut, the least taxing of the estate tax states, is on schedule to increase its exemption to $9.1 million in 2022, and then to match the federal exemption for deaths on or after January 1, 2023. In an unusual nod designed to keep the richest taxpayers in the state, Connecticut has a $15 million cap on state estate and gift taxes (which represents the tax due on an estate of approximately $129 million).

Other states with 2022 changes: Washington, D.C., reduced its estate tax exemption amount to $4 million in 2021, but then adjusted that amount for inflation beginning this year, bringing the 2022 exemption amount to $4,254,800. Several states, which all have set their exemption amounts at different base levels, also see inflation adjustments for 2022. Maine’s is $6,010,000, while New York’s is $6,110,000. In Rhode Island, the 2022 exemption amount is $1,648,611.

elderly and money

Social dissatisfaction predicts vulnerability to financial exploitation in older adults

Social dissatisfaction predicts vulnerability to financial exploitation in older adults

Researchers at the Keck School of Medicine of USC led the first study linking interpersonal problems to financial vulnerability over time.

Researchers who study elder abuse have long believed that when older adults face loneliness or relationship problems, they are more likely to fall victim to monetary scams and exploitation. But the field has only studied the link retrospectively, looking back in time to see whether a connection exists, and has yet to establish a firm link.

Now, a team of researchers at the Keck School of Medicine of USC has collected longitudinal data showing that an increase in interpersonal dysfunction, defined as loneliness or dissatisfaction with relationships, predicts subsequent vulnerability to financial exploitation. The results were just published in the journal Aging & Mental Health.

“To our knowledge, this is the first study showing that the quality of older adults’ interpersonal relationships has an impact on their financial vulnerability at a later time,” said the study’s senior author, Duke Han, PhD, director of neuropsychology in the Department of Family Medicine and a professor of family medicine, neurology, psychology and gerontology at the Keck School of Medicine.

The findings underscore that social connectedness, which is already known to enhance physical health and psychological wellbeing among older adults, may also be a key protector against financial abuse.

“This study points to a specific factor—social functioning—that could allow us to predict, and ultimately prevent, vulnerability to financial exploitation before it happens,” said Aaron Lim, PhD, a postdoctoral fellow in Han’s research lab and first author of the study.

A spike in vulnerability

The participants included 26 adults, aged 50 and older, with an average age of 65. At the beginning of the study, researchers evaluated each participant’s overall health, cognitive functioning, depression and anxiety symptoms and prior history of financial exploitation and controlled for these factors in their statistical analyses.

Then, for six months, the researchers collected data at two-week intervals. They measured each participant’s interpersonal dysfunction by asking how frequently they had argued with someone, felt rejected, felt lonely, wished their relationships were better and wished they had more friends. They also assessed participants’ vulnerability to financial exploitation during the past two weeks with questions such as “how confident are you in making big financial decisions?” and “how often has someone talked you into a decision to spend or donate money that you did not initially want to do?”

“When a person reported a spike in problems within their social circle or increased feelings of loneliness, we were much more likely to see a corresponding spike in their psychological vulnerability to being financially exploited two weeks later,” Lim said.

In addition to the effects within individuals, there was also a significant effect between participants: Those who had higher interpersonal dysfunction compared to other participants tended to report greater vulnerability to financial exploitation.

Preventing exploitation

The study’s results offer insight into how to counteract common financial scams that target older adults, including phishing emails, investment schemes and the “grandparent scam,” where an older adult receives a call from someone about a grandchild in urgent need of money.

At the individual level, Lim suggests that people watch for social upsets in their parents’ and grandparents’ lives—such as the death of a close friend or an argument with a family member—as risk factors for financial vulnerability in the immediate future. At the community level, organizations that support seniors can also provide additional opportunities for social connection.

Because the study’s sample was small, the results need to be replicated in larger and more diverse samples, Han said. The research team also plans to build on the findings with a follow-up study to investigate the connection between social dysfunction and actual incidents of financial exploitation, not just vulnerability.

About this study

In addition to Han and Lim, the study’s other authors are Laura Mosqueda and Annie L. Nguyen from the Department of Family Medicine, Keck School of Medicine of USC; Tyler B. Mason from the Department of Population and Public Health Science, Keck School of Medicine of USC; Laura Fenton from the Department of Psychology, USC Dornsife College of Letters, Arts and Sciences; Gali H. Weissberger from the Interdisciplinary Department of Social Sciences, Bar-Ilan University; and Peter Lichtenberg from the Department of Psychology, Wayne State University.

This work was supported by the National Institute on Aging [1RF1AG068166, T32AG000037, K01AG064986] and the Elder Justice Foundation.

Read more related articles at:

Interpersonal dysfunction predicts subsequent financial exploitation vulnerability in a sample of adults over 50: a prospective observational study

Loneliness, social isolation, and financial exploitation can go hand in hand for older adults

Also, read one of our previous Blogs at:

Social Interaction Study Highlights Loneliness and Isolation as Heath Risks for Elders

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

Click here for a short informative video from our own Attorney Bill O’Leary.

 

 

Join Our eNews

Categories