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Practice Areas - Elder Law

Elder Law is a large field of legal advocacy for the elderly. Implicit are matters of elder abuse, housing, financing long term care, quality of life choices, right to life matters, etc.

 

  • Elder abuse is a dark mark on humanity. It is often invisible, both national and international, and will affect all of us if we are lucky enough to live long enough to become old.

  • Who is the abuser?  Family members, neighbors, friends, caregivers, medical providers, institutional workers, financial advisors, and complete strangers to name a few.

  • What types of abuse are there?  Physical, Mental, Financial, Verbal, Emotional, Abandonment and Confinement, Seclusion, Isolation.

 

REMEMBER: Abuses are under reported!  If you suspect that something is not well with the senior, it probably isn't.

Who can help with abuse issues?  Ombudsman, status attorney general, physicians, Department of Health, Sheriff/ Police, your attorney.

 
Certain key instruments are necessary for all individuals to have regardless of your age. However, entering into the last trimester of life makes their acquisition mandatory.
Will Creation

 

A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his or her estate and provides for the distribution of his property at death. This is the traditional instrument used in succession planning. 

The word "will" applies to both personal and real property. A will may also create a testamentary trust that is effective only after the death of the testator. At the time of death, the will is deposited with the court for inspection and guidance over the distribution of estate assets, a process known as probate.

 

Trust Creation

Common purposes for trusts include:

  • Privacy: Trusts may be created purely for privacy. Unlike a will which receives dominant court oversight when the document springs into action, a trust does not. Therefore, the contents of the trust do not have to be disclosed and the trust details are not a matter of public record.

  • Spendthrift protection: Trusts may be used to protect beneficiaries (for example, one's children) against their own inability to handle money. The trust provides for the love one but places oversight to make sure the assets of the trust are not squandered away.

  • Wills and estate planning: Trusts frequently appear in wills and these are referred to as testimentary trust.

  • Pension plans: Pension plans are typically set up as a trust, with the employer as settlor, and the employees and their dependents as beneficiaries.

  • Asset protection: Trusts may allow beneficiaries to protect assets from creditors.

  • Tax planning: In many cases, the tax consequences of using the trust are better than the alternative, and trusts are therefore frequently used for legal tax avoidance.

  • Co-ownership: Ownership of property by more than one person is facilitated by a trust. 

     

     

     

     

     

     

     

     

     

Living Wills and Health Care Surrogacy

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Medicaid Planning for Nursing Home affordability and Estate Planning

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           The role of the Elder attorney has shifted from sheltering assets in order to qualify for Medicaid, to figuring out how to avoid or "cure"disqualification and how to support the at-home spouse. Today, there is a 5 year look back period which will cover and a person's qualification for Medicaid long-term care benefits.  The government will examine every transfer of assets by the Medicaid application. During that look back period which includes family gifts, gifts to Charity, Trusts, and any outflow of assets for which" full value" is not received.  Such transfers are known as disqualifying transfers, and will create a period of ineligibility for Medicaid long-term care benefits.  Assembling the necessary financial back mentation is a difficult task for seniors, especially those with cognitive impairment.  This is where the elder law attorney with Medicaid planning skills, becomes critical.

 

          Disqualification does not start to run until a person has reached the point where they would be, otherwise eligible for Medicaid.  What this means is if an individual finds themselves in a nursing home. This is an example of medically qualified, and based mostly on their actions that have taken place up to 5 years earlier, there may be months or evening years of benefit ineligibility that results.  While there is an appeal process for getting a hardship way for, this takes time and is not very successful. 

Therefore, working with the Medicaid planning attorney as early as possible is critical.

 

         There is often confusion between Medicaid and Medicare as the names of the two programs sounds similar.  However, these two programs are very different.  Really, only Medicaid will pay for ongoing nursing home care.  Therefore, even now you might have Medicare, that will not provide eligibility for nursing home payment.  The average cost of nursing home care in Florida is in excess of $6000 a month, making planning for Medicaid extremely important.  Your life savings, in the form of your home or otherwise can be exhausted in a manner of the year, without any exaggeration.  Therefore, it is critical that you contact me as early as possible to begin Medicaid planning immediately.

 

PERSONS WITH SPECIAL NEEDS

 

            You may have a family member who has special needs.  Typically, this is a child who has a disability or someone who is challenged in a special way. They may or may not be receiving Social Security income, Medicaid, or some other public benefits.

 

            Sometimes, such individuals are supported from funds from an inheritance or through an insurance settlement from a lawsuit.  As a parent, it may be your intention to insulate any set aside funds against the child's bad judgment and to protect it against predators who might otherwise take advantage of this individual.

Often times, a parent who wants to look after their child knows that the child is likely to outlive them, and the parent wants to care for the child after the parent's death or incapacity.  The parent also wants this adult child to continue to benefit from public benefit programs even after the parent dies.

 Parents want their children to have access to clothing, proper specialized medical equipment, access to specialists, personal dental and medical excess out-of-pocket care, recreation, vacation, trips, hobbies, home furnishings, electronics, athletic training, physical and occupational therapy, supplemental educational technical tools, training, maintenance, dietary needs, religious services, escorts, personal care attendants, companionship, educational expenditures, etc.   Whether these are covered to public benefits programs in part or not, provisions have to be made for them to be available.

 

             In order to meet these goals, the parent should consider setting up a special needs trust on behalf of the child.  There are different types of special needs trust that can be used to accomplish specific goals.  A Medicaid attorney trained in this area must balance the interest of maintaining public benefit interest, while at the same time looking out for the specific special needs of your child.

 

              You must feel confident that your child is successfully looked after through legal planning and protection, extending well beyond the corners of a will, put into place through a special needs trust, to accomplish these goals, even though you may no longer be available.

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GuarGuardianship

Guardianship

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        Legal guardianship is the process wherein a person ("the Guardian") is assigned the authority to look after an individual ("the Ward") and that individual's assets once the Ward is found to be unable to do so for himself or herself. Guardianship is most frequently used when relative caregivers wish to provide a permanent home for a child and maintain the child's relationships with extended family members without a termination of parental rights. It is also used to protect the medical, personal, and financial interests of an adult who is no longer independently able to do so. We can help you obtain guardianship over such a person.

 

Durable Power of Attorney Creation

 

In estate planning, a durable power of attorney is often chosen as a way to plan for those times when you are incapacitated. It is a written document that remains valid even if you should later become unable to make your own decisions. With a durable power of attorney, you are able to appoint an agent to manage your financial affairs, make health care decisions, or conduct other business for you during your incapacitation.

 

Probate and Trust Administation

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What is Probate and Trust Administration?

 

       Upon death, the personal representative under the will or the trustee designated under the trust must handle the process of transferring their assets to the intended beneficiaries. This process  is referred to as administering the trust. The process for administration of the will (PROBATE) is not the same as administration of a trust. The probate process receives court oversight but the administration of a trust typically does not.  However, the administration of either involves seven phases.

1) the inventory of documents and finances.

2) valuation of assets.

3) redemption of insurance, annuities, and retirement plans.

4) payment of expenses and claims.

5) tracking of income.

6) payment of taxes.

7) distribution of assets to the beneficiaries or heirs.

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