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personal services contracts

Personal Services Contracts in Florida.

Personal Services Contracts in Florida.

When people are looking to protect assets from the costs of long-term care in Florida, one popular option is the concept of a personal services contract. This article discusses legal ways to protect assets in the event your elder needs long-term care Medicaid. Long-term care Medicaid can help pay for the cost of care at home, in assisted living, or in a nursing home.The goal in creating eligibility for long-term Medicaid generally involves legally reducing the assets to $2,000.00 for a single person or around $140,000 for a couple.  In creating Medicaid, we cannot give money away as this creates a Medicaid transfer penalty. So if we cannot give money away, how can we create Medicaid eligibility while protecting assets? One legal way to do this is to pay a caregiver for future services for the elder in advance.  This is generally referred to as a personal services contract.A personal service contract is an agreement between a caregiver (who can be a family member) and the elder to provide him or her with personal care services for his or her lifetime. This is a lump sum transfer of assets to the caregiver(s) in exchange for their contractual promise of care. As long as the transaction is for fair market value and is legally binding, the government cannot disqualify the applicant for Medicaid long-term care benefits as the transfer is not a gift, it is a payment for services.  Remember that we cannot give away money (or other assets) to receive Medicaid eligibility, but the applicant is allowed to hire someone to help them out within reasonable parameters.  Personal services contracts have been used for years in Florida and have been tested in the Florida appellate court as a valid tool for valid Medicaid “spend down” planning.The services provided by the caregiver generally includes bill payments, talking to doctors, grooming needs, visitation, hospital advocacy, etc., that the nursing home or assisted living facility does not generally provide. The caregiver is essentially getting paid to help the elder receive better care than he or she would receive without an advocate in such a facility.

The payment amount is calculated by the elder’s life expectancy, the amount of work expected and the hourly rate.  A typical example of this calculation is as follows:

Mom is 85 years old and in the nursing home. She has $50,000 in her bank accounts. We want to create eligibility for Medicaid and she has a caregiver who is able and willing to assist her.  Mom’s life expectancy according to the Florida Department of Children and Families is 6.62 years.  If the caregiver is able to work ten (10) hours per week advocating for Mom, which we would deem reasonable under the circumstances, we could pay the caregiver $35/hour (or less).  With this calculation, we would be able to pay a caregiver around $120,484 for his or her expected services (10 hours/week x 52 weeks/year x $35/hour x 6.62 years = $120,484.00). Since Mom only has $50,000 in assets, we could legally pay the caregiver a $50,000 lump sum to create Medicaid eligiblity and reduce her assets to less than $2,000. In this example, this is all done with assistance and guidance from a good elder law attorney.

There are a few items to note in this example:

  • It may be reasonable to pay a caregiver $35/hour in some, maybe not all cases, depending on the work the caregiver provides. The caregiver may be acting in more than just a caregiver role. For instance, the caregiver may provide physical service (checking in on the patient/elder, helping with hygiene issues) while also may provide some things that are closer to a guardianship role (such as bill paying and other legal responsibilities). So we may be able to justify a higher hourly rate in some circumstances, which is very important
  • Personal services contract are very exact and would only be done under certain circumstances with attorney consultation
  • The caregiver will have income tax issues in getting a lump-sum payment
  • The caregiver may need to get consent from Mom’s family/other children as this may disrupt Mom’s estate plan
  • The Personal Services Contract, and all spend down, is documented to the Department of Children and Families, so this is all disclosed to Medicaid as part of the application process
  • The Department of Children and Families reviews the contract, pay rate and the hours as a part of the Medicaid application
  • Each situation is different so an elder law attorney will review all options for correct Medicaid “spend down” planning

We typically look to personal services contracts as a part of spend down planning for single people. Medicaid rules are different between a married couple and a single person, so there may be other (i.e., better) legal ways to protect assets for a married couple.

Explain This Again?

The use of a personal services contract is most likely used in “crisis Medicaid planning,” where the elder is already in a nursing home or the elder needs imminent long-term care Medicaid (such as in-home or assisted living Medicaid). In the above example, Mom is in the nursing home and will be private paying for care when her Medicare/health insurance ends (if she had a 3 day qualifying hospital stay before going to rehabilitation).  Mom has money that would otherwise disappear to the cost of long-term care as the nursing home costs over $10,000/month on private pay. Since her money will be spent very quickly without Medicaid paying for long-term care, the family will want to discuss how to best spend Mom’s money to get Medicaid qualification (for Medicaid to pay for her care faster). The personal services contract will help legally spend her funds down to less than $2,000, so she will qualify for Medicaid sooner with an elder law attorney’s assistance.

Read more related articles here:

Personal Service Contracts. Medicaidplanning.org

37.104 Personal services contracts.

Also, read one of our previous Blogs at:

Personal Care Agreements

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.

Nursing Home

Plan Ahead Before Seeking Nursing Home Care: Avoid Unnecessary Debt for You and Your Family

Plan Ahead Before Seeking Nursing Home Care: Avoid Unnecessary Debt for You and Your Family

Many senior citizens may need the services of a nursing home or at-home care at some point in their life. You might assume that government assistance or health insurance will step in and cover the cost if you cannot afford these services. Unfortunately, neither health insurance nor Medicare covers long-term care. Because obtaining long-term care insurance can be very expensive, Medicaid could become your only option.

Medicaid coverage is not a given, however. If you have assets or recently transferred assets, Medicaid may determine you do not qualify for coverage until a certain amount of time has passed. If this happens, you and their family can face significant medical bills. If you cannot pay, nursing homes may take you to court to get reimbursed.

What steps can you take to avoid this? First, before applying for Medicaid, get a better understanding of the timelines in your state – known as lookback periods – that can affect your eligibility. Then you can engage in proper Medicaid or asset protection planning in advance of these timeframes. A good age to begin planning is around age 65, although everyone’s situation is different.

Individual states run Medicaid programs, and every state has different rules regarding Medicaid eligibility. These programs were designed as a payor of last resort — in other words, to qualify, you must meet strict requirements. There are two primary types of Medicaid benefits: home care and skilled nursing home care.

Lookback Periods

You must submit an application to your local Medicaid office to qualify for these benefits. As part of this process, the state will look at any money or property you may have transferred within a certain lookback period. In New York, for example, this period of time will soon be 30 months for home care and 60 months for skilled nursing care.

These lookback periods can have serious consequences. If you have not engaged in appropriate asset protection planning, you may not be able to qualify for home care or nursing home care for many months. The result is that many elderly individuals must then spend down their savings and liquidate their assets to pay privately for their home care before Medicaid starts covering anything. If a person no longer has resources and is subject to a disqualification penalty period, family members may have to step in and bear these costs on their own.

So, what can you do? The answer is to start planning as soon as is practical.

Options to Explore

Speaking with an elder law attorney can help you and your loved ones explore options available to avoid you or them being personally responsible for the costs of your care.

  • Medicaid Asset Protection Trust — One common approach is placing assets in a Medicaid Asset Protection Trust. You may be able to use this to shelter various assets such as stock accounts, savings, a home with unprotected equity, and much more.
  • Pooled Income Trust — Another option you may explore is contributing income that exceeds Medicaid allowances to a Pooled Income Trust. This can allow you to qualify for Medicaid while diverting excess income to a trust that pays qualified expenses on your behalf. This will enable you to benefit from the income and not spend it on things Medicaid could have otherwise covered.
  • Spousal Refusal — Your spouse may also have options that can help you qualify for Medicaid. One such option includes exercising a right of spousal refusal — a process available in some states by which the income and assets of your spouse can be removed from consideration in your Medicaid eligibility analysis.

Finally, an attorney can help you understand if certain transfers are permissible under Medicaid rules without triggering a penalty period.

Without proper planning, individuals with assets and income exceeding specific state-set thresholds would have to spend this income and their assets on their care or exempt items before they can receive Medicaid benefits. For assistance in planning, consult with a qualified elder law attorney in your area.

Read more related articles at:

The Sobering Cost of Long-Term Care

Nursing home debt collection

Also, read one our our previous Blogs here:

Protect Your Estate from Nursing Home Costs

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.

 

Elderly orphans

Elder Orphans. What Happens If An Elderly Person Has No One To Take Care Of Them?

What Happens If An Elderly Person Has No One To Care Of Them?

When an elderly person has no one to take care of them, they may opt to take care of themselves and continue living in their own home. Programs for seniors without family are available, as are nursing homes and assisted living. Some states will enlist a guardian for seniors who can no longer keep up with daily tasks of living or make decisions for themselves.

We have a lot to unpack in this article as we explore a senior’s options when they’re old, their physical health is declining, or they have dementia or memory loss, but they have no family (and possibly no money as well). Make sure you keep reading for lots of helpful information!

What Happens To Elderly Living Alone?

According to a 2013 report from AARP called The Aging of the Baby Boom and the Growing Care Gap: A Look at Future Declines in the Availability of Family Caregivers, the AARP estimated that by 2030, a whopping 16 percent of women up to 84 years old will have never had children.

For others – well, it’s hard enough losing the people we love as we get older. But for some seniors, they may lose family members or become estranged from those who were closest to them in their younger years – their spouse, their kids, and their friends.

For other seniors, it could be that they are close to family, but their loved ones have moved to another part of the world.

Either way, these “elder orphans” only have themselves to rely on. It can be a really tough situation to be in, but there are ways to cope.

Here is what can happen to them.

They Continue Living Alone

No rule says an aging senior has to change their lifestyle just because they’re getting older.

They should consider their care options, but due to fear of the unknown or stubbornness, they might decide to continue caring for themselves like nothing is wrong.

This can be highly dangerous, as we’re sure we don’t have to tell you. If an elderly person living alone slips and falls and is not wearing a medical alert device and is out of reach of the phone, then they have no way to call for help.

NOTE: if you don’t want to wear a medical alert device, a voice-activated Amazon Echo Dot or a smart watch, such as an Apple watch, can be used instead. There is even medical alert jewelry that looks like a regular necklace.

Without anyone checking in on them, the senior would have to force themselves to get to a phone or risk being stranded.

This happened to my mom – she fell and broke her shoulder and could not get up to reach the phone that was on the counter just above her. Thankfully my dad came home and found her after a couple of hours, but I still shudder to think about what would have happened if she had lived by herself.

Sadly, many older people will go through this trauma alone (and, in some cases, their quality of life will be severely impacted or they will not survive).

 

They Move Into An Assisted Living Facility Or A Nursing Home

After a drastic change in their physical condition, such as one slip and fall without anyone to help them, a senior might change their tune and decide that they need assistance in their day-to-day lives.

They could move into an assisted living community or even a nursing home.

Usually, adult children or other family members would encourage this decision for the elderly, but not in this case.

They Enter A Conservatorship

Of course, we should note that both assisted living and nursing home care are anything but cheap.

According to Where You Live Matters, a resource for seniors, as of 2018, the yearly cost of assisted living was $48,000. We’re sure the costs have only continued to climb in the years since that data was released.

Senior Living.org states that, as of 2021, the monthly cost of nursing home care is $7,756 for a semi-private room and $8,821 for a private room. The costs would be between $93,072 and $105,852 a year.

Keep in mind too that Medicare doesn’t often pay for these services, which means a senior would have to rely on different insurance or other financial means.

That’s a lot of money to ask of anyone, let alone an elderly person who likely hasn’t worked in decades.

So what happens when a senior can’t afford to live in a facility and they have no family who can step in and help?

Well, in some states, such as California, a senior could receive assistance. The state could offer a conservatorship where someone is assigned the role of the senior’s guardian.

They likely wouldn’t know the guardian, but the guardian still makes financial, health, and medical decisions for the senior.

Usually, this only happens if a senior is unable to make decisions for themselves.

Not every state offers conservatorship services though, and even for the ones that do, it’s not easy to obtain these services. The conservators who step in on a senior’s behalf are doing so on a volunteer basis, after all.

How Do You Plan For Old Age With No Family?

Aging is inevitable. Even with a full support system of beloved family, aging can be scary. Once you remove that network, the prospect of facing old age alone is daunting.

We don’t recommend an elderly individual does it alone, for their own health, safety, and mental well being.

Instead, these should be the pillars of planning as a senior determines how they’ll proceed through the years without a spouse, partner, or adult children.

Put Your Affairs In Order

One of the best things you can do for yourself is to make sure your legal and financial affairs are in order before you have a health problem or cognitive decline. You’ll make better decisions when you aren’t under stress.

If you live alone, this is especially important, as there may be no one else who knows your wishes or how to access your accounts.

Good legal planning with the help of an elder care lawyer is an important part of ensuring that your wishes are carried out in the event that you are unable to make or communicate decisions on your own behalf.

Here are some key elements of legal planning to keep in mind:

  • First, take inventory of existing legal documents, such as your will, power of attorney, and health care directive. Review these documents and make any necessary updates.
  • Second, make legal plans for your finances and property. For example, you may want to consider establishing a trust or setting up a beneficiary designation.
  • Third, put plans in place for enacting your future health care and long-term care preferences. This may include making decisions about end-of-life care, guardianship, and long-term care insurance.
  • Finally, name another person to make decisions on your behalf when you no longer can. This person, known as your agent or proxy, will be responsible for carrying out your wishes according to the terms of your legal documents. In order to do this, start by designating someone you trust as your power of attorney. This person will be able to make financial decisions on your behalf if you become incapacitated.

Many people don’t think about appointing a power of attorney until it’s too late.

Whether you’re dealing with an illness, injury, or just the natural aging process, there may come a time when you can no longer make your own decisions. That’s why it’s so important to have a power of attorney document in place.

This document allows you to appoint someone you trust to handle your financial and other affairs if you’re ever unable to do so yourself. You can also name successor agents in case your original choice is unavailable or unwilling to serve.

And it’s important to remember that power of attorney does not give the person you appoint complete control over your life. You still have the right to make your own decisions, as long as you have the legal capacity to do so.

So don’t put off appoint a power of attorney – it could be one of the most important decisions you ever make.

You should also write a will or talk to an attorney who can help with estate planning to outline how you would like your assets to be distributed after your death.

While these may not be pleasant topics to think about, making these plans now will give you peace of mind knowing that your affairs are in order.

End Of Life Wishes

Many people choose to avoid thinking about end-of-life care or funeral arrangements, but it’s an important topic to consider. End-of-life care can encompass a wide range of issues, from medical treatment to funeral arrangements.

Ideally, it’s best to express your wishes now while you are able to make decisions for yourself.

Addressing your wishes with your care team or a legal professional will ensure that your expressed requests will be followed when appropriate.

By taking the time to plan ahead, you can ensure that your wishes will be respected and that others will not have to make difficult decisions on your behalf.

Build Social Bonds

If you thought it was hard to find friends after college, it can be even more difficult in one’s senior years, but it has to be done!

A senior can find new friends in all sorts of places, from the doctor’s office waiting room to the post office.

Talk to neighbors, too, especially younger neighbors or neighbors with families. Explain the situation to them.

The point of being sociable is to build a support network. A senior should have people around them who will notice if they don’t pick up their phone. They need someone or several people who know the senior’s routine and can thus determine if they’re not following it.

These people will check in on the senior so that if, goodness forbid, a situation transpires where a senior has fallen and can’t get help or is otherwise unresponsive, the support network can step in and get the senior the proper medical care they need.

Mail carriers are also helpful if you ask them to keep an eye out for trouble. There are plenty of stories about mail carriers who asked for a home welfare check after someone who regularly picked up their mail stopped doing so. You can actually register to get this service.

Move Into A Joint Household

Assisted living can be expensive, but an informal joint household is usually a lot more affordable.

What is a joint household? This housing arrangement includes friends or extended family members of the senior who live under one roof. Collectively, they provide care for the senior.

This is a win-win-win situation. A senior doesn’t have to deal with the isolation of living alone, they’re surrounded by people they love, and they’re receiving care.

Find Other Family

Families are often bigger than we give them credit for and sometimes just need to reconnect. A senior should look into their family lineage if they’re fearing the years ahead without any care.

They just may have extended family in the area that they never realized were so close! For example, when I moved to Colorado, I was able to reunite with an elderly uncle who had been estranged from the family for several years.

Programs For Seniors Without Family

Another option for an older person is to seek the assistance of social services and programs designed for seniors without families. Here are some programs to look into.

Senior Centers

According to the National Council On Aging, a senior center serves “as a gateway to the nation’s aging network—connecting older adults to vital community services that can help them stay healthy and independent.”

They can put you in touch with your local Area Agency On Aging for things like meal delivery, financial assistance and help with personal needs.

AmeriCorps Senior Companion Program

The AmeriCorps Senior Companion Program provides companionship to nearby seniors living on their own. The companion program is about building friendships between volunteers and the elderly.

The goal is to “keep seniors independent longer.”

No Wrong Door

No Wrong Door in association with the Centers for Medicare and Medicaid Services, the Veterans Health Administration, and the Administration for Community Living offers seniors and others in need community-based support.

Equality Conversion Mortgage

The Home Equality Conversion Mortgage or HECM  through the U.S. Department of Housing and Urban Development allows a senior to use some of their home equity, none of which accrues interest or has to be repaid as long as they live in their home.

To be eligible for the HECM program, a senior must be at least 62 years old and have significant equity.

What Happens To Dementia Patients With No Family

After a diagnosis of Alzheimer’s or other dementia, it’s natural to feel overwhelmed. Suddenly, there are a lot of decisions to be made and new challenges to face.

If you have dementia, or are caring for someone with the condition, you may be worried about what will happen if you have no family members who can help you if you can no longer care for yourself.

After all, you may be able to manage perfectly well in the mild / beginning stages of the disease, but dementia is a progressive condition and it can lead to a decline in physical and mental abilities over time.

This can make it difficult to do everyday tasks and may eventually make it impossible for you to continue to live independently.

If you don’t have any family or friends who are able to help you, there are still options available to you. There are also many support services available for people with dementia.

Housing Options

One option is to move into a dementia-specific care facility. These facilities provide 24-hour care and support, and the various programs in this type of community can help to delay the progression of the condition.

The goal is to receive in-home support. This can include help with cooking, cleaning, and personal care.

Financial Considerations

The sooner you start planning, the more control you will have over your finances and the less stress you will feel. There are a few key things to keep in mind when financial planning with dementia.

Begin by collecting all of your important financial documents in one place. This should include bank statements, investment accounts, insurance policies, and wills or trusts.

Once you have gathered everything together, sit down with a trusted friend or accountant to review your finances and make a plan for the future. It may seem daunting at first, but taking these steps will help to ease your anxiety during an uncertain time.

Financially, consider the cost of the type of care you may need for memory care issues (such as home health aides or nursing home care) which can be extremely high. Even informal care, such as help from friends, can come with a significant financial cost, as it often requires hiring outside help to cover regular tasks like cooking or cleaning.

To help ease the financial burden:

  • Investigate any long-term care insurance that may be in place.
  • Also, if you are a veteran, you may be eligible for benefits that can help.
  • If you are younger than age 65, SSI (Supplemental Social Security) or Social Security Disability Insurance (SSDI) may be able to help.
  • You may also qualify to get help from Medicaid (there are income and asset qualifications to meet).
  • If you own a home, a reverse mortgage may be of assistance.

Put A Care Team Into Place

A care team is the group of people who you’ll partner with and rely on to provide you help, care, support and connection throughout the course of the disease.

The team may include your friends, co-workers or trusted neighbors. It also may include your doctor, nurses, social workers, geriatric care managers, clergy or therapist.

The goal of the care team is to provide physical, emotional and spiritual support. The care team also can provide important practical assistance, such as transportation to doctor’s appointments or help with household chores.

Begin to assemble a care team by making a list of everyone you can think of who may be willing to help.

Then, tell them about your diagnosis and let them know what you might need in the future (transportation to the grocery store or medical appointments, help preparing food, etc).

If they agree to help, add their names and contact information to your care team list.

Legal Paperwork

Put legal paperwork into place so that your wishes are carried out for both medical care and end of life care.

It is crucial to do this before you begin to experience cognitive decline, so if you have a family history of dementia or Alzheimer’s disease, it’s a good idea to put plans into place “just in case” you are ever diagnosed.

Regardless of a dementia diagnosis, you’ll need to appoint a power of attorney for both your financial and medical needs.

A power of attorney is a document that allows you to appoint someone to make decisions on your behalf. This can be useful in a variety of situations, such as if you become incapacitated or are unable to make decisions for yourself.

The person you appoint is called an attorney-in-fact or agent. It’s important to choose someone you trust, as they will have a lot of responsibility.

You should also name a successor agent, in case the person you originally choose is unable or unwilling to serve.

Keep in mind that even though you are giving the person you designate as your power of attorney the authority to make decisions, you still have the final say. They are there to help you, not override your decisions.

Power of attorney is a valuable tool that can give you peace of mind knowing that your affairs are in good hands.

How Do You Help An Elderly Person Who Lives Alone?

It can be tough for elderly people to get by without any family nearby. They might not have anyone to help them with yard work, grocery shopping, or even just keeping the house clean. And if they live alone, it can be easy for them to become isolated and lonely.

But there are some things you can do to help.

Check On Them

Just a quick check-in every now and then can make a world of difference in their lives. Something as simple as a phone call, a cup of coffee, or even simply waving to them from the sidewalk can help them feel connected and valued.

Checking in also gives you an opportunity to make sure that they are safe and comfortable. If you notice any problems, you can alert the proper authorities or provide assistance yourself.

Help Them Out

You could also offer to help out with practical tasks like grocery shopping or yard work.

If they don’t have transportation, you could give them a ride to appointments, social events, grocery shopping or medical appointments.

Visit Often

Solo seniors who struggle with mobility or age-related conditions like dementia probably don’t have the biggest social circle. They may not see or speak to anyone for days especially if they’re living alone.

By visiting the senior several times per week and spending companionable hours with them, you could improve their mental health and well being just through your presence.

Listen

Considering that a senior who lives alone might not have many people to talk to, they likely will have a lot to say when you two talk.

Sometimes, the senior may use you as a sounding board whereas other times, they’ll want to have an everyday conversation.

Let the senior talk, as this could be their only opportunity. Listen to them and respond thoughtfully and helpfully if you can.

Do Activities Together

Making your time together meaningful will have a senior looking forward to seeing you again.

You can engage in senior-friendly arts and crafts, watch old films or listen to old music together (which can invoke memories for dementia patients), or even get outside and take a walk if the senior is able to leave the house while under your care.

Conclusion

More seniors today are facing the prospect of getting older with no one to care for them.

Whether they never married and are childless, or divorced and childless, or their family moved away, or a tragic loss occurred, these seniors have to go through their most difficult years without family.

This never means that a senior is alone though. Through programs, conservatorships, community volunteers, friends and neighbors, and even long-distance family, a senior can almost always find a way to have someone looking out for them!

Read  more related articles here:

‘Elder orphans,’ without kids or spouses, face old age alone.

Elder Orphans Hiding in Plain Sight: A Growing Vulnerable Population

The Rise of Elder Orphans: What You Should Know

Also, read one of our previous Blogs here:

When Do I Need an Elder Law Attorney?

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.

 

 

assisted living facility

Another Inflation Stress: Rising Costs of Senior-Living Homes Strain Families

Another Inflation Stress: Rising Costs of Senior-Living Homes Strain Families

Inflation is fueling cost increases at nursing homes and assisted-living and independent-living facilities, which is tough for seniors on fixed incomes.

 

Eldercare facilities are raising prices and adding new fees, straining older Americans and their families who step in to help.

Dan Gallo recently received a letter saying a new inflation-related daily fee of $25 will be added to his 92-year-old mother’s bill at Sunrise Senior Living for the remainder of the year.

“How many seniors can afford an immediate $750 a month additional to their monthly fixed budget?” says Mr. Gallo, whose mother, Vera Gallo, has dementia and lives in a Sunrise memory-care unit in Wheaton, Ill.

Dan Gallo visits his mother frequently and says her caregivers are wonderful, but he is concerned about rising rates and fees.

The new fee, announced in a letter he received in late August and effective Sept. 15, comes on top of a 10.2% increase in this year’s monthly bill for his mother’s care, he says, and another 9.7% rise slated for 2023.

Rates at many long-term-care providers, which include nursing homes and assisted-living and independent-living facilities, surged this year as providers dealt with higher costs of food, utilities, insurance, wages and supplies for managing and preventing Covid-19. The increases varied by region and type of care, but in some cases exceeded 10%, above recent annual rises of 3% to 5%, according to family members and service providers, who themselves have seen costs rise by double digits.

One recent study concluded that by 2033more than 11 million middle-income seniors age 75 and older might not be able to pay for assisted living and are also unlikely to qualify for Medicaid, according to the research organization NORC at the University of Chicago. That would leave them more dependent on family, care experts say.

Read more related articles here:

Assisted Living Rates Grew 4.65% in 2021 as Operators Grappled With Expenses

How Much Does Assisted Living Cost? A Breakdown By State

Also, read one of our previous Blogs at:

How Should I Go about Researching Assisted Living Facilities?

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.

Medicaid Look Back Period

Medicaid Look Back Period 2022

Medicaid Look Back Period 2022

The majority of nursing home residents receive some Medicaid assistance. When considering nursing home care or other senior living decisions, knowing about the Medicaid look-back period helps reduce the possibility of penalties or disqualification from Medicaid for a period of time.

Learn about the Medicaid look-back period and how it potentially affects you or your loved one considering senior care or senior living options.

What Is The Medicaid Look Back Period?

The Medicaid look back period likely seems confusing for some individuals, particularly with changes made in recent years.

If you or your family member needs nursing home care, the individual must meet requirements for limited income and assets to qualify for Medicaid coverage for nursing home costs. Medicaid, a “last-resort” means of paying for nursing home costs, requires that a nursing home resident first use other means of paying for care before Medicaid begins providing coverage.

Medicaid helps make sure money and assets are not simply transferred to avoid paying out-of-pocket when a person has the means to pay at least some of the costs associated with nursing home senior care and senior living services. Medicaid does this in part by using the “Medicaid look-back period” to determine if there are violations of rules regarding transfer of assets.

The agency considers or “Looks back” over the previous five years to see if any assets were sold for less than true asset value, given away or otherwise transferred within the same time period when determining eligibility for Medicaid coverage and any violations that restrict or delay eligibility.

How Does The Medicaid Look Back Period Work?

The Centers for Medicare & Medicaid Services (CMS) explains that when applying for Medicaid to pay for nursing home care and other services associated with senior care while in a nursing home, the Medicaid eligibility worker asks if the individual recently gave away any assets such as vehicles or money. The representative also asks if the person sold property for less than its fair market value at the time of the sale within the past five years.

This transferring of assets usually results in a penalty, meaning that the person seeking senior living at a nursing home is ineligible for Medicaid, “For as long as the value of the asset should have been used” to pay for the nursing home care.

The site uses the example that if nursing home care costs $5,000 per month and the individual transferred $10,000, then the person is ineligible for Medicaid for two months. The penalty begins the month of the Medicaid application, not the month the individual transferred the property.

The individual then potentially qualifies for Medicaid benefits after the Medicaid look back penalty ends. That qualification is contingent upon the person not transferring any assets in any months while serving the initial look-back period penalty.

What Happened To The Three Year Medicaid Look Back Period?

It is true that the Medicaid look-back period was initially three years in most states. The CMS reported on the new regulations, effective February 2006, after the passing of the Deficit Reduction Act of 2005.

The DRA brought about several changes to the Medicaid look-back period. California, which still abides by its 30-month look-back period, became the only state not to extend the look-back period from three years to five years.

This potentially affects many people seeking nursing home senior care paid for by Medicaid, perhaps leaving some individuals to consider other means of paying for senior living options.

Another rule that changed is the fact that the Medicaid look-back period previously started with the day you transferred your assets. Now it begins 60 months prior to the date the person applies for Medicaid.

Are There Ways To Avoid Medicaid Look Back Period Penalties?

There are several exceptions to penalties for transferring assets during the Medicaid look-back period. If your transferred asset is a home and you transferred title to your spouse, there is no penalty. If your child lived with you for at least two years before you enter the nursing home and that child provided care to you during that period so you could continue living at home, you also avoid the penalty. If you have a child under age 21 who is blind or totally and permanently disabled under state-specific guidelines or if you transferred the home to your sibling who has an equity interest in that home and lived there for at least a year prior to your entering a nursing home there is no penalty.

NOLO points out that other exempt assets include household goods, personal effects, one automobile and some pre-paid funeral plans.

When considering nursing home senior care and senior living, make sure you avoid improper transfer of assets and know other guidelines of the Medicaid look-back period.

Read more related articles at:

Understanding the Medicaid Look-Back Period and Penalty Period

Understand Medicaid’s Look-Back Period; Penalties, Exceptions & State Variances

Also, read one of our previous Blogs at:

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

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.

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