What to Consider When Appointing a Fiduciary?

A well-crafted estate plan will require a person to appoint individuals or financial institutions to represent them in the event they: need assistance with their affairs during their lifetime, lose capacity, or after death. Being a fiduciary is a very time intensive and intellectually challenging task to put upon an individual. The common fiduciary positions that your estate planning lawyer may ask you to name are as follows:

  • Personal Representative: appointed by a Court to administer your estate when you die;
  • Agent-In-Fact (under a durable power of attorney): manages your financial affairs during your lifetime;
  • Health Care Surrogate: makes health care decisions for you during your lifetime;
  • Trustee of a trust document: administers the terms of a trust that you have created;
  • Guardian: makes health care and financial decisions for you in the event that less restrictive alternatives are ever deemed insufficient by a Court during your lifetime; and
  • Guardian for your minor children: makes decisions for your children in the event you pass away or lose legal capacity before the children become legal adults.

The individuals or financial institutions that you choose to serve in these various fiduciary roles will have substantial responsibilities that will require them to make decisions  or act actions on your behalf such as follows:  apply for government benefits; make health care decisions; manage and invest your assets and income for your benefit (or others as you have chosen); decide where you will live; work with attorneys,  financial advisors, and accountants; and distribute your assets upon your passing.

Often times a person will name their spouse or their oldest child as their fiduciary because they assume that its typical for estate planning, but some more thought should go into these decisions and you should consider the following questions:

  • Does this person have the education, experience, and skillset to manage my financial affairs?
  • Is this person too busy to take the time to serve as a fiduciary for me?
  • Can this person make a difficult decision regarding my health care?
  • Would this person make the same health care decisions that I would make for myself?
  • How close does this person live to me?
  • How old is the person I am appointing and will they be around to serve as my fiduciary in the future?
  • Will appointing this person create a divide amongst other family members?
  • Does the size of my assets and income require a professional such as my accountant or a financial institution to manage?

The above are just a few items to consider about when choosing fiduciaries to name in your estate planning documents.  However, only you know who the right person(a) or financial institutions are for you in these fiduciary roles. I recommend spending a little time considering which person(s) or financial institutions are right for you prior to meeting with your estate planning attorney.

Retroactive Medicaid in Florida Has Been Eliminated: Is This Good or Bad?

By: Kevin R. Albaum, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

Medicaid is a joint federal and state health insurance program that will help many people with limited income and resources pay for their health care. For those with disabilities or illness and no funds available to pay for care, Medicaid health insurance is often the only option available to pay for their medical services.

Since 1972, Retroactive Medicaid Coverage (“RME”) has been available for individuals to receive Medicaid coverage up to three (3) months before they have even submitted an application for Medicaid benefits. The goal of RME was to protect people that were eligible for Medicaid benefits but did not know to apply for assistance until after they had received medical services or because a sudden injury or illness prevented them from applying timely for assistance. RME meant that individuals (that truly had minimal assets or income) who ended up in a health crisis would be able to receive benefits to pay providers for care they had received. However, Florida RME is no more.

The State of Florida requested and received authority from the Centers for Medicare and Medicaid Services to eliminate RME. Effective February 1, 2019 Florida has eliminated RME for most Medicaid programs in the state. RME will only remain in effect for pregnant women or children under age 21. However, everyone else that may need coverage (such as an elderly woman in a nursing home or a 30-year-old in a catastrophic car accident) will not have this option to pay for their medical services. To receive Medicaid benefits, a person must now file for benefits in the month they received medical services.

The goal of cutting RME is to save the state and federal governments substantial funds in their annual budget appropriations. It is estimated that cutting RME in Florida will save the state and federal government footing the bill for Medicaid approximately $98 million per year. However, the government’s savings will result in medical providers almost certainly not receiving any private pay or insurance payment for many services they are providing to these people (as people who need Medicaid have very limited income or resources). In turn, this may lead to higher future costs for medical services to those of us that are able to pay for our medical services.

As an elder law attorney, I often come across seniors (sometimes incapacitated seniors) with minimal or no assets that are not even aware that they need Medicaid to pay for their nursing home care. They might not find out until after their primary insurance benefits (Medicare and/or Tricare) have been fully exhausted and when insurance companies refuse to pay for any further skilled nursing care. RME is vital for these seniors to avoid discharge from the nursing home for non-payment. Only time will tell if the elimination of RME was a good thing that saved our state and federal governments (and us as taxpayers) substantial money or a bad thing that financially harmed our medical service providers (with large accounts receivable from people that cannot afford to pay their medical bills) and those people who already had no means to pay for their own medical services.

It is more imperative now than ever to have a basic understanding of Medicaid programs for senior care so that family can act quickly to gain eligibility for these benefits if they are ever needed in the future. Elder law attorneys typically specialize in this area of the law and can assist in proactive planning to pay for senior care in the future.

Kevin Albaum is a shareholder in the Elder Law Practice at Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@cclmlaw.com.

The Basics of Medicaid Financial Eligibility for Nursing Home Residents

By: Kevin R. Albaum
Clark, Campbell, Lancaster & Munson, P.A.

A person’s transition to a skilled nursing facility (a/k/a “Nursing Home”) is often a very difficult time for a family. Not only is the person’s physical or mental health often declining but the person and/or their family is often burdened with figuring out how to pay for the facility. Health insurance coverage often will pay for the first few days or months at the Nursing Home but that eventually stops and the cost of a Nursing Home once health insurance is no longer paying often gets exorbitant even for the middle-upper class (the monthly cost for a private pay resident at many Nursing Homes can often exceed $10,000.00 per month). This results in residents no longer being able to afford the Nursing Home and having only two (2) options to pay for their care: (1) qualify for Medicaid Nursing Home coverage or (2) pay the private pay rate any way possible by selling off all assets, impoverishing the spouse at home (the “Community Spouse”) or getting financial help from their children. Many decide to pursue the first option.

In order to qualify for Medicaid Nursing Home coverage in Florida, an applicant must pass a three (3) part test that looks at a person’s assets, income, and health at the time they file the Medicaid application. The scope of this article is just to discuss the basics of the asset and income eligibility tests for Medicaid Nursing Home coverage in Florida in 2019.

Income: Effective January 1, 2019, an individual can have a maximum of $2,313.00 per month in income (before deductions) in order to be eligible for Medicaid Nursing Home coverage. However, if an individual’s income is above that figure, then proper legal planning to create a qualified income trust will be often utilized in order able to make the individual eligible. However, timing is very important because if the income trust is not set up properly and funded properly, an individual will still not be eligible for Medicaid. There is a common misconception that a Community Spouse’s income being too high will limit the applicant spouse from obtaining Medicaid eligibility, however, a Community Spouse’s income can be unlimited and it does not impact a Medicaid applicant’s eligibility for Medicaid benefits.

Assets: Effective January 1, 2019, an individual can have a maximum $2,000.00 of countable assets and be eligible for Medicaid Nursing Home coverage. However, if an individual’s countable assets are above that threshold there are often a multitude of legal planning options available in order for the individual to become eligible for Medicaid Nursing Home coverage. There are two (2) types of asset classes to consider when applying for Medicaid Nursing Home coverage: Countable Assets (assets that impact Medicaid asset eligibility) and “Non-Countable Assets” (assets that are not calculated into Medicaid asset eligibility). Some Non-Countable Assets are as follows: homestead property up to $585,000.00 in value; one automobile of unlimited value; a prepaid burial contract with a nursing home (in most circumstances) and term life insurance without a cash value. Most other items such as bank accounts, investment accounts, life insurance with a cash value, CDs, annuities, etc. are considered Countable Assets. There is also a common misconception that a Community Spouse must also not have any assets in order for their spouse in the Nursing Home to be eligible for Medicaid benefits. Effective January 1, 2019, a Community Spouse can have a maximum of $126,420.00 of countable assets without impacting their spouse’s Medicaid eligibility.

Obtaining Medicaid eligibility and understanding the income and asset tests can be incredibly complex to those who are new to the subject, therefore, it is highly recommended that a qualified elder law attorney assists you in obtaining Medicaid financial eligibility before you file a Medicaid application.

Kevin Albaum is an attorney in the Elder Law Practice of the law firm Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@cclmlaw.com.

The Basics of Medicare

By: Kevin R. Albaum, Esq.

Medicare is government health insurance that is administered by the Centers for Medicare and Medicaid Services (“CMS”). As a general rule, anyone is who is sixty-five (65) years old and is either a U.S. citizen or a permanent resident (who has lived in the United States at least 5 years) may receive Medicare health insurance coverage. Additionally, individuals under age sixty-five (65) who have been receiving Social Security Disability benefits for 24 months may also be eligible for Medicare benefits. In the typical scenario, a person becomes first eligible to enroll in Medicare three (3) months before their 65th birthday and then has seven (7) months after their initial eligibility date to enroll in Medicare coverage options discussed below.

Medicare consists of 5 different types of coverages as follows:

Part A- Hospital Coverage: This coverage pays for room and board in the hospital or skilled nursing care (for a short period of time). Cost: In most instances, there is usually no premium as long as you or your spouse has worked 10 years in the U.S.

Part B- Outpatient Coverage: This coverage pays for things like lab work, doctor visits, surgeries, medical equipment, etc. Parts A and B combined are considered “Original Medicare”. Cost: The premium is generally $134 per month unless you are a “high-income earner”, in which case the premium may be higher. If you are already receiving Social Security retirement benefits, the premium may be deducted automatically from your monthly benefits.

Part C- Medicare Advantage Plans: Medicare Advantage Plans or “MA Plans” are an alternative to a combination of Original Medicare (Parts A and B). These “all-inclusive” plans are administered through private insurance companies instead of the government-run Original Medicare. They were created to provide a lower-cost alternative to Original Medicare, and MA Plans often create cost savings by offering the subscriber lower premiums along with higher shares of costs as you need medical services. There are a variety of these plans offered. Most of them are either Preferred Provider Organization Plans (“PPOs”) or Health Maintenance Organization Plans (“HMOs”). These PPOs and HMOs have health care providers “in network”, and you may be required to use in-network providers if you want to keep your co-pays and deductibles low for medical services. The benefits offered by the different plan options vary in coverage and cost, but they are required to provide at least the same level of coverage as Original Medicare. MA Plans may also offer other options for dental, vision, drug coverage and some other benefits.

Part D- Prescription Drug Coverage: If you choose Original Medicare, you will likely also want to also enroll in a prescription drug coverage plan. A prescription drug plan will be purchased from a private insurance company and will enable you to purchase prescription drug prices for much lower than retail prices. Cost: The average national premium is averages $35 per month for a Part D plan. The Medicare website allows you to search and compare available Part D plans in the region where you live. Before you choose a Part D plan, it is recommended to carefully examine the company’s formulary drug list under the plan to make sure it provides for your current drugs. If the drug is not provided under the plan, you may be subject to a higher price.

Medigap Coverage a/k/a Supplemental Plans: Medigap plans cover what Medicare Parts A and B do not cover, such as deductibles, coinsurance, copays, foreign travel emergencies, etc. The point of Medigap coverage is to pay a monthly premium to avoid being hit with an astronomically large bill as medical needs occur. Medigap plans are on average more expensive than MA Plans. because Medigap plans offer more inclusive coverage. Under Medigap plans the subscriber may not be required to pay co-pays for certain medical services. The subscriber may also have more freedom to choose providers than if they were in a MA Plan with in-network restrictions.

A retired person without any employer coverage should either have a MA Plan (from a private insurance company) that covers hospital coverage, outpatient coverage, and prescription coverage or a combination of Part A and Part B (from the Government) and Part D and a Medigap plans (from private insurance companies).

Open Enrollment

Each year there is an annual election period when you can switch your Medicare Insurance options. That period begins October 15th and ends December 7th of each year. This means that during this period you can switch MA plans, switch prescription and Medigap plans. If you miss enrolling for Medicare when first eligible, there is another general enrollment period from January 1st through March 2st1 each year. During this period, you may have to pay a late-enrollment penalty (unless you qualify for an exception such as having your employer’s insurance end).

What if I am still working?

If you are sixty-five (65) years old and still working, you will likely have options between Medicare coverage and employer insurance. You can either keep your employer insurance and incorporate Medicare coverage as well or you can drop your employer insurance and obtain solely Medicare coverage. You decide when to leave your employer’s health insurance to join Medicare. It is illegal for your employer to force you to choose Medicare versus remaining on the employer’s health insurance coverage.

If you work for an employer with 20 or more employees, your employer insurance will be primary and Medicare will be secondary coverage. Part A is free if you worked 10-plus years Therefore, there would be no reason not to enroll in Part A upon turning age sixty-five (65). Part B has a premium of around $134 a month, so it may make sense to contact CMS and delay enrolling in Part B if your employer insurance coverage is sufficient for outpatient services. Part D also has a premium, and therefore, if your employer insurance has suitable prescription drug coverage, you may wish to delay enrolling in Part D. Once you retire and are sixty-five (65) and older, your employer’s insurance plan will mail you a credible coverage letter allowing you to enroll in Parts B and D without any penalty.

If you work for an employer with less than 20 employees, Medicare is your primary insurance coverage when you become eligible to apply you will need to enroll in Medicare Parts A and B and your employer coverage will become secondary coverage. In this case, people often decide to drop their employer coverage (if it is not paid for by the employer) and have Medicare only. If you elect to keep your employer coverage, however, you need to consider whether your employer’s insurance offers suitable drug coverage. If so, you may wish to delay enrolling in Part D until you retire as you are required to only enroll in Parts A and B in this scenario.

Kevin Albaum is an attorney in the Elder Law Practice at Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@cclmlaw.com.

Supreme Court: Sports Betting is No Longer Prohibited Under Federal Law, it is Time for Each State to Decide for Themselves

By: Kevin R. Albaum, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

On May 14, 2018, the United States Supreme Court (USSC) struck down the Professional and Amateur Sports Protection Act of 1992 (the “Act”) by ruling that the entire Act was unconstitutional. Since the Act was enacted in 1992, it implemented a federal ban on all sports betting throughout the United States (with only a few exemptions from the Act such as the gaming industry in Nevada). The USSC’s ruling was based on the belief that the Act violated the Tenth Amendment of the United States Constitution which states that “The Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”. USSC’s ruling is saying that Congress had unconstitutionally abused their power by passing the Act and that each state should be responsible for deciding for themselves how their state should regulate sports betting. It is likely that the same line of reasoning (violation of Tenth Amendment) will be argued by the pro-marijuana side if the USSC decides to review a case in the near future regarding the legality of the federal ban on Marijuana.

Now that the USSC has handed down a decision, each state is able to regulate their own sports betting laws. Some states are acting fast as Delaware implemented legal sports betting on June 5, 2018, and Delaware Governor, John Carney, placed the first bet ($10.00 on the Philadelphia Phillies to win that day’s game) and on June 7, 2018, New Jersey had a bill pass allowing for legal sports betting. Other states (Connecticut, Mississippi, and West Virginia) are all expected to legalize sports betting by this fall in time for football season. California, Illinois, Michigan and New York all currently have bills or constitutional amendments pending that may pass before the end of 2018 as well. The legalization of sports betting is supposed to help cut down on a black-market industry where it is believed that Americans illegally wager over $150 Billion per year either through local bookies and offshore sports books. New Jersey will tax all gambling at a 9.75% tax rate with hopes to stimulate their revenue and to revive the dying tourist industry in Atlantic City. As many as twenty (20) other states are either considering or expected to consider legalization of sports betting by 2019 with more states likely to follow (especially if they see their neighboring states generating substantial revenue due to legalizing sports betting).

In Florida, sports betting remains illegal and that seems unlikely to change in the near future. This is due to a proposed constitutional amendment and an existing agreement with the Seminole Indian Tribe that both currently stand in the way of clarity to the legalization of sports betting in Florida. Amendment 3 will be on all Florida ballots this November and if passed will require that all casino gambling decisions in Florida would require an amendment to Florida’s Constitution in order to become law in Florida. If Amendment 3 passes, Florida’s legislature would no longer have the authority to create legislation related to casino gambling. The presence of Amendment 3 and the fact that this year’s session has already concluded makes is very unlikely for sports betting to become legal in Florida this year. Native American tribe agreements with the state of Florida will not be impacted by Amendment 3 (nor will pari-mutuel wagering on horse racing and dog racing).

About one-half of the states in U.S. have gaming agreements known as “Compacts” with Native American tribes which gives tribes the ability to conduct legal gambling operations. Currently, the Seminole Indian Tribe has a Compact with Florida and they pays the state more than $300 million a year for exclusive right to many card games and slot machine operations in the state in all counties besides Miami Dade and Broward. A renegotiation between the Seminole Tribe and the State of Florida is likely also needed before legal sports betting makes its way to Florida.

Kevin Albaum is an attorney in the Elder Law Practice at Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@cclmlaw.com.

HOW TO AFFORD LONG TERM CARE

By Kevin R. Albaum, Esq.
A transition from a senior’s home to an assisted living facility or nursing home is never easy for a family. What makes matters even more difficult is for the senior’s spouse or children to have to bear this new large monthly expense for an unknown amount of time. My best advice is to explore your options to help pay for care immediately before continuing to cut check after check to pay for the senior’s care. Alternative options to pay for care are as follows: Long Term Care Insurance, Medicare, Medicaid, and Veteran’s benefits.

Long Term Care Insurance: Ask the Senior if they have long-term care insurance. If they say no, then ask about life insurance (as sometimes life insurance policies have a rider added to them which can cover long-term care needs). Be sure to review all such policies in depth to see if benefits are available and if so, what the triggering event is for the insurance company to begin paying out the benefits. Long Term Care benefits usually do not begin to pay out until a person can prove with medical records that they are in need of assistance with activities of daily living (“ADLs”). ADLs are used to gauge a person’s level of functioning and generally include the following: bathing, getting dressed, transferring, eating, continence and toileting. If assistance is needed with enough ADLs, an insurance company will then begin paying out benefits in accordance with the insurance policy guidelines. The benefits can often be used to pay for home care, assisted living care, or nursing home care.

Medicare: Medicare does not generally pay for assisted living care. However, if a person requires skilled nursing care, Medicare part A generally covers up to 100 days of skilled nursing care for any new benefit period (A person gets a new benefit period if at least 60 days has passed since the person last received care in hospital or skilled nursing facility). For a person to receive the full 100 days of Medicare coverage, they also must be able and willing to participate in the prescribed therapies and must be progressing in treatment. The first 20 days (of the 100 total days) are paid by Medicare in full. Days 21-100 will require a co-pay around $165 daily and Medicare will pay the rest (the co-pay amount varies if a person has a Medicare Advantage plan or supplemental plan). After day 100, Medicare skilled nursing care benefits end and the senior (or their family) will have to pay the entire cost of skilled nursing care with no further help from Medicare. Therefore, Medicare is not a long term solution to paying for long term care.

Medicaid: Medicaid benefits can help to pay for home care, assisted living, and nursing home benefits in Florida. An applicant must be assessed and determined to be disabled and in need for the benefits they are requesting. To become financially eligible for benefits, generally, a person must have countable assets under $2,000 and a monthly income under $2,250. Some assets are non-countable for Medicaid purposes such as the applicant’s home, one (1) car, and prepaid burial arrangements. There are restrictions on the applicant’s spouse’s assets as well. If a person has questions regarding their eligibility or how to apply for the different Medicaid programs, an elder law attorney should be consulted.

There is usually a waiting list before a person can apply for home care and assisted living benefits in Florida, however, there is no wait if a person needs to apply for nursing home benefits.

Medicaid benefits are only retroactive for up to a maximum of three (3) months before application date, so it is important to move quickly to apply for benefits if a person expects to reside in assisted living or nursing home indefinitely. All nursing homes take Medicaid nursing home benefits, however, only about fifty percent (50%) of home care companies and assisted living facilities in Polk County, take Medicaid benefits. Applying for and being granted benefits for either Medicaid program often leads to substantial monthly saving for the senior.

Veterans Benefits: A Veteran, their spouse, or surviving spouse may be eligible to receive Aid & Attendance through the Department of Veterans Affairs (“VA”). To be eligible for this pension program, a person must have limited assets and income, and be permanently or completely disabled according to the VA’s disability requirements. To be eligible for this pension, the veteran must also have been discharged under a condition that was non-dishonorable and served ninety (90) days of service with at least one (1) day in one of the following wars: WWI, WWII, Korean War, Vietnam War, or Persian Gulf War.

The pension comes in the form of additional income each month to the senior and is direct deposited into the recipient’s bank account and can be used to pay a caregiver in the home, assisted living facility, or for skilled nursing care. There are also State Veterans Home that provide nursing home and other services to Veterans. It is important to contact the VA to determine eligibility and availability for such programs.

If you or a family member wants to further explore options to pay for long-term care, it is recommended to discuss your options with an elder law attorney who can help identify possible housing options and benefit programs that may be available in your specific situation.

Kevin Albaum is an attorney in the Elder Law Practice at Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@cclmlaw.com.

Easier Access to Special Needs Trusts Finally Arrives for Disabled Individuals

By: Kevin R. Albaum, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

A bill known as the Special Needs Trust Fairness Act (the “Act”) has been working its way through the legislative process for a couple years now.  Finally, on December 17, 2016, President Obama signed the Act into Federal Law. The law became effective immediately.

A first party special needs trust is a special type of trust created and funded with a disabled person’s assets in order to maintain eligibility for means based government benefits such as Medicaid and Supplemental Security Income (“SSI”).  While a first party special needs trust has restrictions on how the money in the trust may be used, it can generally be used for the benefit of the disabled individual. The trust can be used to purchase most items for the beneficiary as long as the purchase of such items does not cause the person to lose eligibility for their government benefits by accumulating too many countable assets under Medicaid and SSI rules.  However, the trust’s funds cannot be used to purchase food, pay for routine shelter costs like rent, mortgage, basic utilities, or to purchase items for someone other than the trust beneficiary.

The Act was designed to revise the prior law requiring individuals with disabilities to use a parent, grandparent, guardian, or court of competent jurisdiction to create a first party special needs trust.  Under the old law, a person could be disabled and still be competent to create a trust (such as a victim of an accident or a blind individual), but this individual still would not be able to establish the trust without the assistance of a third party.  Under the new Act, individuals with disabilities, who have the requisite level of capacity, can now create a first party special needs trust for themselves rather than depending on others to do so for them.

Special needs trusts exist because the federal government decided that they do not want to penalize disabled individuals by requiring them to spend down their limited assets on health care and essential living expenses before they can become eligible to receive government benefits to help pay for the disabled individual’s health care and essential living expenses. Once the trust is implemented and funded with a disabled individual’s assets, the individual can immediately apply for or become eligible to receive governmental benefits and will be able to continue to use the trust for their personal benefit during their lifetime.  Preserving assets in a special needs trust allows a disabled individual an incredible opportunity to extend the use of the trust assets over their lifetime without preventing them from obtaining and receiving governmental benefits.

It’s important to consult a legal professional with experience in elder law when considering creating and funding a special needs trust to ensure governmental benefits are preserved.

Kevin Albaum is an Elder Law Attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland.  Questions can be submitted to thelaw@cclmlaw.com.

Proactive Planning for Senior Medicaid Programs Makes the Process Easier and Saves Money

By: Kevin R. Albaum, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

Medicaid programs are often available to senior citizens in Florida to help pay for home care, assisted living, and nursing home expenses.  However, there are complex rules regarding eligibility to qualify for these Medicaid programs.  Knowing the eligibility rules of these programs prior to needing to apply is helpful, not only for the individual or couple, but also for the attorney that often assists with legal planning to preserve assets for a spouse or family.  Regardless of the urgency for the need for senior care, taking the time to confer with an elder law attorney helps seniors and their families understand what Medicaid programs are available, who qualifies for them and why an individual may qualify for some programs and not others.

Q. When is it recommended to meet with an elder law attorney to discuss Medicaid issues and planning?

While personal situations differ, below are two examples of common situations when a person may consider contacting an elder law attorney to discuss Medicaid needs.

Example Client #1:  My husband and I are both in our sixties and we know we may need Medicaid in the future.  Could we meet to learn more about the available Medicaid programs that may help us pay for any future assisted living or nursing home care costs?  In this situation, I generally meet with individuals to discuss, assess, and plan their current situation and their future health care and financial needs.  We also look to identify potential future roadblocks to obtaining Medicaid benefits and we further explain the programs that potentially might be available based on the current and future situation.   Finally, we discuss and analyze the “what ifs” such as the event of an unforeseen crisis and the need to become eligible for appropriate benefits as quickly as possible.

Example Client #2My 90-year-old dad is out of money and he has dementia.  He is in a nursing home and he needs financial assistance as soon as possible.  Can you help me get Medicaid benefits for Dad?  When I receive calls like this example, not only are the family and lawyer dealing with the same complex legal subject matter as the client in Example 1, but we also are dealing with a loved one who is either already in or is in the process of moving to a nursing home.  Additionally, due to the high cost of care and lack of available funds to pay for care, we now have a built-in deadline to complete any necessary legal planning and to resolve any unexpected disqualifying issues.  In this type of “crisis” scenario, becoming eligible for benefits is still possible; however, the ability to proactively plan and the options for planning are often more limited than they might have been a few years prior to the crisis.

Proactively planning, not only often saves clients time but also can reduce the future costs of senior care and legal expenses.

Kevin Albaum is an attorney in the Elder Law Practice at Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@cclmlaw.com.

Guardian Advocacy

By: Kevin R. Albaum
Clark, Campbell, Lancaster & Munson, P.A.

Q: My child has a developmental disability and is about to turn eighteen years old. How do I protect and continue to care for him?

A: The proper legal mechanism to safeguard your child depends on a variety of factors to be discussed between loved ones and an elder law attorney, including vulnerability to exploitation, autonomy, the need to protect or remove legal rights, assistance provided by family, and mental capacity exists to sign legal documents. After this initial discussion, you may determine that the best option is for one or both parents to apply to become a Guardian Advocate over the child and/or his property upon him turning eighteen.

The approach varies from child to child, as Florida law requires using the least restrictive alternative to Guardianship or Guardian Advocacy whenever possible. Some less restrictive alternatives include implementing a Durable Power of Attorney, Health Care Surrogate, Living Will, or Trust.

Appointment of a Guardian Advocate is appropriate under Florida law if a developmentally disabled person lacks decision-making ability to do some, but not all, of the tasks necessary to provide for himself and/or his property. The process usually begins with an attorney filing a petition for a Guardian Advocate to be appointed and providing notification to all of the disabled individual’s next of kin. The Court appoints an attorney to meet with the alleged developmentally disabled individual to ensure that a need for a Guardian Advocate exists and that the individual’s rights are protected. If, at a hearing shortly after the filing of the petition, the court determines that evidence supports Guardian Advocacy, a Guardian Advocate is appointed and some, but not all, rights are removed and delegated to the Guardian Advocate.

The appointed Guardian Advocate is required to file reports and accountings to the Court for annual review. The Court continues to oversee the Guardian Advocacy for the life of the Guardian Advocacy unless it is determined that a Guardian Advocate is no longer necessary for the individual, in which case the Guardian Advocacy would be terminated by the Court.

 

The September 24th edition of “The Law” will cover whether land surveys are needed when purchasing a home.

 Kevin Albaum is an estate planning and elder law attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@clarkcampbell-law.com.

Probate

By: Kevin R. Albaum
Clark, Campbell, Lancaster & Munson, P.A.

Q: What is probate, and should I craft an estate plan to avoid it?

A: Probate is a court-supervised process of transferring assets after a person dies. Assets subject to probate do not include those that were payable to a named beneficiary (e.g., life insurance), owned by a trust, or owned jointly with rights of survivorship (e.g., joint bank account between spouses). Anything not directed to another person upon death may become subject to probate. Formal administration, which is the most common probate proceeding, typically takes approximately one year to resolve. Due to the time and legal expenses involved, it is advisable to craft an estate plan that avoids probate.

To avoid probate, an individual planning his or her estate should discuss with an attorney the proper way to title assets in multiple names or placing assets within a living trust. By titling all assets with multiple names (in the proper manner, so as to provide automatic transfer to the second owner upon death of the first), probate can be avoided. A properly funded living trust can hold a person’s assets and often can be administered without court intervention. The process is technical, and you are encouraged to get counsel to assist so as to best ensure avoiding a probate proceeding.

Although many dread probate proceedings, there may be advantages to court supervision. For example, the Florida probate process allows for an estate to clarify what creditor claims exist and cut off claims of lazy or careless creditors. In the court proceeding, a “notice to creditors” is filed, allowing a 90-day period for creditors to file claims against the decedent’s assets. If claims are not filed within the 90-day window, they are forever barred.

 

The June 4th edition of “The Law” will discuss liability issues of concern to nonprofit boards of directors.

Kevin Albaum is an estate planning and elder law attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. and a proud member of the National Academy of Elder Law Attorneys (NAELA). NAELA has designated May as National Elder Law Month to focus on educating seniors about legal options. NAELA and its member attorneys provide legal advocacy, guidance, and services to enhance the lives of seniors and people with disabilities. Questions can be submitted online to thelaw@clarkcampbell-law.com.