When we think about living in Florida, we focus on daily living and enjoying the beauty and pleasant weather. However, as someone approaches their golden years or begins to experience health issues, daily living shifts. This is especially true if you’re loved one needs long-term care. That’s why it is an important time to plan for your estate.
As you consider planning for your future and ensuring your wishes are followed, below is a guide on how to find a good elder law attorney in Florida.
How to Find a Good Elder Law Attorney
The National Academy of Elder Law Attorneys (NAELA) is a helpful resource for information about the practice of elder law. Prior to hiring an attorney, it is important to determine if your legal issues require the expertise of an elder law attorney. People who may be able to help you figure this out are a financial advisor or estate planning attorney. It is important to ensure you are utilizing the kind of attorney you need.
Should you determine you do need the expertise of an elder law attorney, the National Elder Law Foundation National Academy of Elder Law Attorneys database lists local certified elder law attorneys. Additionally, you may consider the recommendations of trusted friends and family or referrals from local agencies who regularly work with seniors.
12 Questions to Ask an Elder Law Attorney
Hiring an attorney is an important choice, one that forms a relationship over a variety of issues including some of your most important values and assets. It will also be a significant financial commitment. Due to the importance and intensity of this relationship, this list of key questions may help you decide which attorney may be the best choice for you, your family, and your needs:
- Is there a fee for the initial consultation?
- What is your ongoing fee structure if we enter into this contractual relationship?
- What do you consider to be your areas of expertise and specialization? (Ex. Long-term care planning, nursing home care, tax planning, estate plans, health insurance, estate litigation, etc.)
- Do you now, or have you ever, had any warnings, reprimands, disbarments, or sanctions while you have practiced law?
- How long have you been practicing law? What about elder law specifically?
- What percentage of your work is in the specific area of elder law?
- Will you remain with me and my family or is my case overseen by a team from the law firm? What happens if you leave the practice?
- If it becomes necessary, do you do home visits?
- What would you estimate as the total cost for people with cases similar to mine?
- What type of communication do you prefer and how quickly should I expect a response?
- Are you a member of NAELA (National Academy of Elder Law Attorneys)?
- Are you a member of AFELA (Academy of Florida Elder Law Attorneys)?
While you can’t cover every eventuality in your research of the best prospective attorneys for you and your family, you can consider these elements as a way to make a confident choice. If you would like to discuss your elder law needs with our experienced elder care attorneys in Florida, contact us today!
Probate is a word you hear often when it comes to estate planning, wills, trusts, etc., but you may not be fully aware of what it means. If you wonder about how probate matters work in Florida and what probate court is, read on for important information from our experienced attorneys below.
What Is Probate?
Probate refers to the legal process when a chosen personal representative assists in the gathering of assets, managing unpaid debts, and the distribution of assets to proper beneficiaries on behalf of a deceased person. This can be a complicated process that takes many months, sometimes over a year.
The probate court is the arm of the judicial system that oversees this process, helping to ensure that wills and trusts are followed as the deceased intended. They enforce the payment of the aforementioned outstanding debts and asset distribution and are the “stamp of approval” for all actions taken by the executor. Additionally, should there be any question or contesting of the will or trust, or if no will or trust exists, the probate court rules in that matter.
What Goes Through Probate?
In Florida, we have what is known as the “Florida Probate Code.” This provides certain protections for the decedent’s family, particularly for a surviving spouse and any minor children. The two terms associated with this code are “exempt property” and “family allowance” with the primary goal being to provide immediate assets to the beneficiaries for their needs rather than having to wait for a creditor claims period to expire.
- Exempt Property: This protection keeps designated estate property at death from going to creditors so that beneficiaries can use (or keep using) them. This may include appliances and furniture in the household as well as two vehicles. It also includes any Section 529 tuition money and death benefits for members of the school system.
- Family Allowance: Because the administrative process around the probate court can be lengthy, this money comes out of the estate and is given immediately to the survivors for support during that time.
Additionally, if you elect to engage in a more thorough estate plan, you may be able to protect other assets from probate including retirement accounts, property in a trust, and joint bank accounts or joint personal property. For more on what may be exempt from probate in Florida, click here.
The Probate Court Process
Probate proceedings begin when a deceased person’s executor or family member petitions for probate with (or without) a will and a copy of the death certificate. During the initial steps, the executor is formally appointed and given Letters of Administration (or Letters of Testamentary) which gives them the authority to pay debts and distribute or sell assets, among other tasks. The final steps will establish that the estate is properly settled and close out the estate.
Some amount of involvement with the probate process is involved in many estates; however, you can significantly reduce the complication, length, and cost of probate by planning ahead. To discuss your estate planning and probate needs, contact our experienced attorneys today!
One of the major issues adults need to consider is how to manage healthcare choices and costs during the golden years. There are a lot of information and requirements to navigate, particularly with the government option of Medicaid. If you are wondering how an attorney can help with Medicaid planning in Florida, our team knows why it is important to focus on Medicaid planning. We’ll help you find the best way to go about this important application process.
What is Medicaid?
To begin, it is important to know that while Medicaid and Medicare sound similar, they are very different government assistance programs. Medicaid, the focus of this information, operates jointly with the federal government and the state to assist with medical costs. These benefits are based on income limits and follow general rules that all states must follow. However, each state also runs its own program, meaning that coverage requirements for people with Florida Medicaid may differ from other states.
Why Engage in Medicaid Planning?
Because there are specific eligibility requirements and income limits associated with Medicaid, it can be helpful to get assistance with Medicaid planning. This type of planning is anything that helps someone prepare for their Medicaid application so that they are best equipped to make the process smooth and acquire the decision and acceptance they need for their medical coverage. This may include:
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Collection and preparation of documents
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Restructuring an applicant’s financial resources
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Evaluating someone’s monthly income or resources
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Creation of Income Trusts, Miller trusts, Irrevocable Funeral Trust, or Pooled Income Trust to meet eligibility criteria
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Help to navigate difficult situations such as the division of income and assets when one spouse is living independently and the other needs home health, long-term care, or nursing home care
Why Use an Elder Care Attorney to Help with Medicaid Planning?
In addition to the reasons to engage in Medicaid planning listed above, an elder care attorney can have especially strong planning strategies for a successful application because:
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You can establish a working relationship early, establishing a plan for long-term care or nursing home care before it is needed to avoid unnecessary out-of-pocket costs.
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Elder care attorneys are experts in the financial, medical care, and estate planning needs of older adults. And, as attorneys are licensed by the state, our attorneys are uniquely aware of the eligibility rules for Florida Medicaid.
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An experienced elder care attorney can help you adjust your Medicaid plan as needed as your family, health, or estate needs or assets change over time.
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The laws around Medicaid, both federally and in Florida, can change over time. An attorney can be your expert in navigating these changes.
As you or your loved one ages, you want to be able to enjoy those precious years together, not spend them worrying or navigating the complicated nature of Medicaid planning, health care, or nursing home costs. From learning about and preparing the documents you need to restructure your financial assets, let us help you identify your best strategy for a successful Medicaid application in Florida. Contact our experienced elder care attorneys today.
Estate planning is essential to personal financial planning in Florida, albeit focused on the time after your passing. As difficult as it may be to think about, avoiding estate planning results in costly responsibilities for your loved ones. No matter how familiar you may be with this process, we offer many reasons why estate planning is important below.
What is an Estate and Estate Plan?
Before we begin, we want to define an estate and an estate plan. An estate includes everything you own at the time of your death. This includes any financial accounts, liquid or investment accounts, real estate, life insurance policies, retirement accounts, savings accounts, stocks, and personal belongings.
An estate plan is a legal document that says what you would like done with all those assets after you pass away including beneficiary designations. Estate planning includes but is not limited to, powers of attorney (which can be used while one has capacity or in the case of incapacitation) and guardianship for minor children or special needs dependents. A comprehensive estate plan that includes all applicable estate planning documents is also a stronger choice than a will.
Why are Estate Plans Important?
- Protects Beneficiaries: The estate planning process is not just for those with a lot of wealth. Whatever is yours is what you want to protect for your beneficiaries. A major goal of estate planning is to legally identify your heirs so that the court doesn’t. It also helps them avoid a potentially lengthy and costly probate process.
- Protects Young Children: While none of us expect to pass away while our children are young, it happens sometimes. Establishing an estate plan while you still have minor children and/or special needs dependents means your children will be cared for by the guardians you feel are best for them and with the financial resources you leave behind.
- An Estate Plan Reduces Tax Bill for Heirs: Another important component of estate planning is protecting your heirs from undue tax burden for your estate. Estate planning attorneys are experts in tax planning to help you reduce federal estate taxes and state inheritance tax and estate taxes.
- Estate Plan Eliminates Family Messes: When you pass away, you want your loved ones to be able to support one another, rather than get caught up in a legal battle for the distribution of assets. Stop potential conflicts and court costs before they begin with an effective estate plan that works best for the unique makeup of your family and financial situation.
Regardless of estate size, an estate plan is an important legal step for anyone who wants to ensure their wishes are followed after their passing or incapacitation. Not only does this help protect your assets for your beneficiaries, but it also allows you peace of mind as well.
If you would like to discuss the aspects of estate planning, establish an estate planning strategy, or update an existing estate plan as your age and circumstances change, contact our expert estate planning attorneys today!
Special needs trusts (SNTs) are specific legal arrangements that have some unique elements. If you are a person who needs an SNT, has a child with an SNT, or are the trustee of this type of trust, there are some important details to understand. Read on for what you need to know about special needs trust funding in Florida.
What Is a Special Needs Trust?
A special needs trust is a legal arrangement that allows a physically or mentally disabled person or chronically ill person to maintain their ability to receive public assistance benefits even if they have access to income or assets that would disqualify their eligibility for benefits.
How a Special Needs Trust Works
This type of trust is overseen by a trustee who distributes assets to the trust beneficiary. The goal of the trust is to protect the assets and income of the disabled individual or chronically ill person, but also supplement their needs beyond their government benefits. Some of the needs that this type of trust may be used for are caretakers, medical expenses, dental expenses, living expenses, transportation costs, cooking assistance, etc.
Types of Special Needs Trusts
There are two primary types of trusts: first-party SNT and third-party SNT. A third-party special needs trust is the most common and operates similarly to a traditional trust. It is funded by someone other than the beneficiary, often a family member, who contributes their own assets to the trust. This type of trust can be either a revocable trust or irrevocable trust
First-party trusts are less common and trust assets are funded by the beneficiary. Additionally, this type of trust requires a Medicaid repayment provision so, after the beneficiary passes away, the remaining assets repay any outstanding Medicaid balances. One additional type of SNT is a pooled or community trust. The funds in these trusts typically come from a nonprofit organization and are used to support the needs of several families.
Benefits of a Special Needs Trust
An SNT can uniquely serve the interests of a disabled or chronically ill individual by:
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Providing access to government benefits for the disabled person’s long-term needs and quality of life
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Protecting any income or assets that may come to them over the course of their life
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Being able to choose a trustworthy party to serve as a trust manager and court oversight to guard against financial abuse
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The ability to help pay for a broad range of needs
When Do the Benefits of a Special Needs Trust End?
After serving the important needs of its beneficiary, an SNT typically ends as the result of one of these three circumstances: 1) There are no longer trust funds, 2) The individual no longer qualifies as disabled, or 3) the person passes away.
When someone is facing difficult life challenges due to a mental or physical disability or chronic illness, it is easy to see why establishing an SNT to protect their assets and disability benefits is necessary. If you would like to discuss establishing a special needs trust in Florida, contact our expert law firm today!
Losing a loved one is a difficult experience and yet, in the midst of that challenge, many face legal and procedural issues related to the deceased person’s estate. One of the most challenging of these issues is navigating the probate process. Therefore, in order to make probate proceedings as smooth as possible and retain maximum assets to distribute to beneficiaries it is important to answer the question, “What assets are exempt from probate in Florida?”
What is Probate?
Before we identify assets that are exempt from probate in Florida, it is important to identify what probate is. When someone passes away, a court-supervised process begins to validate and authenticate the decedent’s will and then work with the deceased person’s personal representative to gather assets, pay creditors, and distribute the remaining estate to the beneficiaries. Thankfully, for the purposes of our discussion today, there are certain assets exempt from this probate process, which protects them for the beneficiaries.
What Assets May Be Exempt From Probate in Florida?
Florida’s probate process, which is outlined in the “Florida Probate Code”, has some protections in place for the decedent’s family. These protections are specifically in place for a surviving spouse and any children and are known as “exempt property” and “family allowance.” The overarching goal of these protections is to provide assets to beneficiaries immediately for their relief and support instead of needing to wait for the creditor claims period to pass before they can access them.
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- Exempt Property: This property cannot be transferred to creditors and can be given to the beneficiaries much more quickly than that which is subject to the probate process. This type of property includes household furniture and appliances in the decedent’s home up to $20,000 in value as well as two personal motor vehicles. Additional financial exemptions may include any Section 529 tuition monies as well as death benefits for teachers and school administrators.
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- Family Allowance: This money comes out of the estate upon time of death for the purpose of supporting the survivor’s needs during the administrative process.
Additional Options for Exempting Assets from Probate in Florida
In addition to the more typical exemptions listed above, Florida also has some legal tools in place that can help you form a strategy to protect other assets from probate. This more thorough estate planning may include retirement accounts, property that is in a trust, and bank accounts or real property under joint ownership. Florida also includes provisions for “payable-on-death-accounts,” where the decedent named a recipient to receive the funds upon the account holder’s death.
Our Experienced Probate Attorneys Can Help
While losing a loved one can be difficult, the additional legal and procedural challenges around the loss can be eased if you are familiar with and have planned for a smooth and optimized probate process. In order to best protect your assets for your beneficiaries, contact one of our knowledgeable probate attorneys to discuss your specific, valuable, and important situation today.
If you are involved in legal proceedings regarding an estate and/or going through the probate proceedings on behalf of a deceased loved one, you may need Letters of Administration. As these are essential legal documents, it is important to not only know what they are but also how to obtain Florida Letters of Administration.
What Are Letters of Administration?
When a probate judge appoints a personal representative (or executor/executrix) for a probate estate, he or she will issue legal documents to do so. These legal documents are referred to as “Letters of Administration” or “Letters Testamentary.” Once these documents have been issued, the personal representative’s official duties begin. That said, there are several steps in this formal administration process.
How to Obtain Letters of Administration in Florida
As mentioned, if you are the family member or personal representative of a deceased person’s estate in Florida, you may need letters of administration to initiate the probate process. Not having these important legal documents will prevent you from accessing financial institutions, insurance companies, tax returns, etc. These institutions are key to estate administration processes such as distributing assets to heirs, settling debts, etc. Here are the steps to obtain letters of administration in Florida:
- Florida’s probate law requires an original copy of the decedent’s will to be filed with the local circuit court clerk within 10 days of death.
- Please note, letters of administration cannot be obtained without an attorney, so you will need to hire a probate attorney in the time mentioned above to file the will as well for the steps that follow. (anyone can file the will – doesn’t have to be the attorney; however, we do file them for our clients)
- Once an attorney has been hired, the circuit court should be petitioned to “open the estate.” This involves asking the court to recognize the will as valid, formally appointing the personal representative, and filing and notarizing an oath of office. (it’s called an oath of personal representative, not an oath of office)
- You are now ready to obtain letters of administration. Your attorney will ask the probate judge to issue these necessary legal documents. In general, this process can take anywhere between one to four weeks.
I Have the Letters of Administration, Now What?
After going through the steps to obtain the Letters of Administration, the personal representative now has the power to act on behalf of the estate. It is important to consult with your attorney to ensure that you take the steps necessary to protect the assets of the estate for the beneficiaries and heirs. This is known as your “fiduciary duty” to act on their behalf. Depending on the size and/or complexity of the estate, you may be involved in processes that include property, real estate, bank accounts, vehicles, insurance policies, etc.
Remember, anyone who is a personal representative over an estate must obtain Letters of Administration to have the authority to act on behalf of that estate. While this is a common process in Florida courts, the law does require the involvement of a probate attorney. If you need an attorney to help with Letters of Administration in Florida, contact our knowledgeable staff today.
Medicare and Medicaid are two essential ways that people obtain health coverage and other important financial coverage. But, because they are both government health insurance programs and sound similar, it can be hard to remember which is which. If you or your loved one is planning for their golden years in Florida, it is important to know the differences in Medicare and Medicaid.
What is Medicaid?
Medicaid is a government program that operates jointly between the federal government and the state. The purpose of Medicaid is to help with medical costs for those who qualify based on limited income. The reason it is a joint federal and state program is that the federal government has general rules that all states must follow, however, each state is responsible for running its own program. Coverage for people here in Florida may differ from those in other states.
Medicaid Eligibility, Costs, and Benefits
As mentioned, the Medicaid programs in each state differ and, they can change each enrollment period. If you are interested in considering the eligibility requirements in Florida you can view the current standards here. If an individual is eligible for Medicaid, they will have no out-of-pocket costs for covered services. This includes inpatient and outpatient hospital care, doctor visits, prescription drugs, preventive care, diagnostic, and screening services, and coverage for nursing home facilities.
Upon the 65th birthday, individuals who are eligible for Medicaid can then become dually eligible for both Medicaid and Medicare.
What is Medicare?
Medicare is a federal government health care program. The purpose of Medicare is to provide health insurance for individuals 65 years of age or older regardless of household income, as well as people under age 65 who have certain conditions or disabilities. Unlike Medicaid, where health care costs and coverage may vary from state to state, Medicare coverage is the same in every state.
The 4 Parts of Medicare
Medicare is a broad term that covers four plan options for medical care that may be needed. Note, Medicaid Parts A and B are often referred to as “Original Medicare.”
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Medicare Part A: Hospital insurance or inpatient care
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Medicare Part B: Medical insurance or outpatient care
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Medicare Advantage Parts C: Voluntary private insurance
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Medicare Part D: Private prescription drug coverage
Can I Have Medicaid and Medicare at the Same Time?
Yes! A person who has both Medicaid and Medicare for health care needs is known as being “dual eligible.” When this occurs, Medicare is typically the primary health insurance with Medicaid providing subsidized benefits through Medicare Savings Programs.
Medicaid and Medicare are similar to one another in both name and purpose but they also have some key differences regarding age, income eligibility, state differences, etc. If you or your loved one are seeking to understand how Medicaid and/or Medicare may be able to help you obtain the healthcare coverage you need, contact our knowledgeable elder care lawyers today.
After a lifetime of working for personal savings, possibly losing your financial assets to pay for expensive long-term care costs can be daunting. However, as expensive as the cost of a nursing home can be, you or your loved one may simply need care in nursing homes. If you are wondering about how to pay for nursing home care in Florida, we can help.
What Types of Nursing Home Care Options Are There?
Depending on one’s needs, there is a range of nursing care options. For each of these, our experienced elder care attorneys can help you plan. Below are some of the choices to consider for you or your loved one.
- In-Home Care: The individual can manage daily living in many ways but may need skilled nursing care for some personal care (i.e. bathing).
- Assisted Living Facilities: A lower level of care than a nursing home. This allows residents to live semi-independently on a property where housing units are often part of a larger system with a wide range of medical services, activities, dining, and other kinds of services.
- Skilled Nursing Facility: The highest level of long-term care facility. This offers health care for people who require 24-hour skilled medical care or memory care due to physical and/or mental incapacitation.
How Can I Pay for the Type of Nursing Care I Need?
Once you have determined the level of care needed, it is important to consider the costs of care. The average cost of a nursing home can drain one’s personal funds without proper planning. Below are some tips for managing that cost while maintaining the level of care needed for quality of life.
- Federal laws prohibit discrimination of admittance or level of care based on ability to pay. Some enter a facility from their current living situation while others enter a facility straight after a medical event that put them in the hospital.
- If you enter a facility as a private pay resident, you can switch to a “Medicaid bed” at a later date. This ability is based on meeting the criteria for Medicaid eligibility. Our elder care attorneys can help guide you through this process using various strategies of pre-planning or crisis planning to protect your personal wealth, such as creating a trust that addresses the “look-back period” on your estate or caregiver agreements with caregiver children.
- The majority of nursing home care is covered through government programs like Medicare and Medicaid. It is in the government’s best interest to keep individuals in the lowest level of care necessary. Due to the varied medical costs of skilled nursing homes, many states have financial assistance programs that help keep people either in assisted living homes and/or in-home care. There are also programs for care for veterans.
- Some supplemental insurance plans and a long-term care insurance policy may also help with long-term nursing home care costs.
Making decisions about long-term care needs for your loved one is difficult enough without also worrying about the thousands of dollars per month a nursing home costs. Your or your loved one’s life savings do not have to drain into a skilled nursing facility. Please contact our experienced elder care attorneys to help you plan for the care you need, the protection of your assets, and the peace of mind you desire.
When it comes to protecting your assets and wishes as you age, establishing a power of attorney is an important step. This is something you can, and should, establish early on as you consider your retirement preferences. If you are interested in knowing more about a power of attorney or how to obtain a power of attorney in Florida, we can help.
What is a Power of Attorney (POA)?
A power of attorney (POA) is a legal document that gives someone else the ability to make decisions for you. It is important to make this kind of decision when you are healthy as a POA must be established without coercion by a mentally competent person who is of sound mind.
The Function and Types of POAs
Establishing a POA is an important part of ensuring your wishes are followed. You can decide what types of power you want your agent to have even while you are still well and/or during possible subsequent incapacity. In this way, POAs are a powerful part of your estate plan because you can allow specific needs to be handled by others at the stages you want.
As you move forward to establish a POA, you have choices in the “type” of POA that is best.
- Durable POA: This type of POA has broad authority over financial matters, allowing your agent to make finance decisions, real estate transactions, investments, pay bills, etc.
- Limited POA: This is the most specific and limited POA option, where you establish only certain roles and/or periods of time when your agent is allowed to act on your behalf.
- Medical POA: (also known as a Healthcare Surrogate) This type allows your agent to make medical and healthcare decisions on your behalf.
When creating a POA, there is the option to have two people sharing decision-making authority over important matters like finances, medical care, signing documents on one’s behalf, etc.
How to Obtain a Power of Attorney in Florida
Now that you have information on the different types of POA in Florida, it is time to take the steps to obtain one:
- Consider the POA options above and determine which fits your needs best.
- Decide whether your POA should be durable, long-lasting, or limited to a certain condition/time frame.
- Discuss with your agent the powers you have given him/her and the responsibilities he/she has.
- Contact our office to assist in preparation of the POA. Note, Florida statutes indicate a POA must be witnessed and notarized.
- Make both digital and hard copies of your POA and keep them in a safe location.
Determining the right POA for your situation and following the proper legal process is important. For peace of mind while you are pursuing the POA process, please contact our office for a consultation.
