This month, I am focusing my blog posts on questions I have received either over the phone or via my website (please, keep them coming!). I regularly receive questions about what to do when there is a sibling feud and a family member tells the other siblings that they are going to put mom or dad in a nursing home (or that sibling wants to control how mom and dad are spending their money, etc.). Usually, there is at least one family member who is upset by these statements. What are the kids’ rights where mom and dad are concerned?
As a child of your parent, you really have no “rights” over them as long as your parents have the ability to make their own decisions. As hard as it may be to realize, your parents are adults and they do have the right to make their own decisions, whether you agree with them or not. If a sibling (or other family member) is trying to make decisions for the parent, or you suspect they are taking advantage of the parent, this may be the time for you to step in.
If the parent has the ability and capacity to sign (or has already signed these documents) a durable power of attorney and health care surrogate designation, these documents may give you (or someone else) the authority to step in on the parent’s behalf. A durable power of attorney is a document that is signed by the parent and names someone as their agent (it could be the other spouse, an adult child, or anyone else) to make financial decisions for the parent. In Florida, this document, if signed after October 1, 2011, takes effect immediately and the agent has the authority to step into the shoes of the parent, whether the parent is incapacitated or not. If the document is signed prior to October 1, 2011, and it is a “springing” power of attorney, then it is not effective until the parent has been certified to be incapacitated by a physician.
A health care surrogate designation allows the parent to name someone to make health care decisions for them and access medical records. As of October 1, 2015, the health care surrogate designation can allow the health care surrogate to make decisions immediately or the parent can state that they do not wish for it to take effect until they are found by a doctor to be unable to provide informed consent.
If these documents are in place, this may allow an adult child to step in and help make decisions for their parents. However, even if these documents are in place, if one of the siblings is making wrong decisions or trying to take advantage of the parent, the other children may need to file for guardianship in order to control what is happening with mom or dad. A guardianship proceeding is not something that should be taken lightly – it is a court process in which someone petitions the court to find a person to be incapacitated and asks the court to take away the person’s rights (to contract, to marry, to decide where to live, etc.) and appoint a guardian to make all of those decisions. This should be the last resort of dealing with how to take care of mom or dad.
If you have questions about obtaining a durable power of attorney, healthcare surrogate or guardianship for a parent, please contact the Law Offices of Laurie E. Ohall, P.A.
It is not uncommon for a person to call my office after a loved one has died and ask if I have the loved one's original Last Will and Testament in my file. The answer is usually, "No." It is not my practice to retain client's original documents (and I think a majority of attorneys would say the same). I always provide clients with the originals and one set of copies to take with them, and if they want .pdf copies, we can provide that, too.
Losing the original will can be very costly to family members because the procedure to establish a lost will in a probate action can be complicated and time consuming. This problem may not be an issue any longer with U.S. Will Registry offering access to a national database to trace information regarding the location and custodian of a person's last will. This database does not store copies of the Wills, but information as to its location. To check out more information about the national will registry, go to www.WillsUS.com.
What are the basic estate planning documents that everyone should have?
Did you know that there are basic estate planning documents that everyone should have? For some the process is more complicated. The more assets you have, the more complicated your estate planning may be. But everyone - young adults who have just turned (18) eighteen, older adults who are ninety-eight, and everyone in between – should have, at least, the basic documents in place. So, what are the basic estate planning documents that everyone should have?
First, a Last Will and Testament – simply put, you can think of the Last Will (not the same as a “living will”) as a letter to the judge. When you die, the Will is presented to the probate court and it instructs the court who should be the executor (or personal representative – means the same thing) of your estate. This person administers the estate, gathers all the assets, pays off all the creditors, and distributes the assets to your beneficiaries. The Will also instructs the Court who you want to have your assets – i.e., your beneficiaries. The Will only applies to assets that are solely in your name at death, such as a bank account, your home, or some other asset in your name only. If you own assets jointly with someone, or have beneficiary designations on the asset (such as an IRA or life insurance), the asset will not go through probate and the Will is not applicable to those assets. If you do not have a Will, the state of Florida (or whatever state you live in upon your death) has a statute that spells out who is entitled to your assets upon your death.
Second, a Durable Power of Attorney – where the Will takes over at death, the Durable Power of Attorney (DPOA) works while you are alive. By signing a DPOA, you are appointing someone to act as your agent to handle your financial affairs. Your agent essentially steps into your shoes and, financially, can do anything you can do. In Florida, if you signed your DPOA after October 1, 2011, then your agent has immediate ability to step into your shoes, regardless of your incapacity. If you have a DPOA that was signed before October 1, 2011, it is “grandfathered in” and should be valid (however, it is a good idea to have a knowledgeable estate planning attorney review the DPOA to make sure that it allows for all the powers you need your agent to be able to do).
Third, a Living Will and Health Care Surrogate Designation – often times, these two documents are combined into one. The Living Will states that you do not want to be kept alive by artificial means if you are in an end state condition, terminal or persistent vegetative state. The Health Care Surrogate Designation allows you to appoint someone to make health care decisions for you in the event that you are unable to do so yourself.
These “basic” documents are important, no matter what age you are, because you never know when something could happen that could render you incapacitated or dead. Anyone who is an adult should have these documents in place so that, in the event something happens, someone is appointed who can make decisions for that adult. Otherwise you may be looking at an expensive guardianship proceeding.
If you have questions about issues pertaining to estate planning, or simply obtaining a durable power of attorney, living will and health care surrogate for your child, please contact the Law Offices of Laurie E. Ohall, P.A. at 813.438.8503.
Medicare is a federal health insurance program, not a needs-based program, for most elderly Americans (over the age of 65), people under 65 who qualify for disability income and persons who are suffering from end-stage renal disorders. It was first created in 1965 as part of the Social Security Act. For those 65 and older, they may receive Medicare if they are entitled to Social Security or railroad retirement benefits. If not entitled to Social Security, any individual who is a resident citizen or permanent resident alien of the United States who may be entitled to receive Part B coverage may purchase Part A coverage as well. Monthly premiums are charged for Part A and Part B coverages. Once you reach the age of 65, you can start receiving Medicare benefits.
Part A is hospital insurance and covers inpatient hospital stays, care in a skilled nursing facility, hospice care and some home health care. Part A only pays for a limited amount of skilled nursing care. For those who have Original Medicare (Part A and B), as long as the patient has been admitted to a hospital (as an “inpatient” and not under observational status) for at least 3 days, Medicare will pay for rehabilitation at skilled nursing care at 100% for up to 20 days. During day 21 to 100, Medicare will continue to pay, however, there is a co-pay of $157.50 per day (for 2015 - this changes on an annual basis). If the patient has supplemental insurance, this will usually take care of the co-pay. Once 100 days has passed, the patient must either privately pay for skilled nursing care (at the average cost of $8,346 per month), have long term care coverage that pays for the care, or qualify for Medicaid to pay for the care.
Part B is medical insurance which covers certain doctors’ services, outpatient care, medical supplies, and preventative services.
Some people opt out of “original Medicare” and, instead, choose a Medicare Advantage Plan which is also known as Part C. This is health care that is offered my private health insurance companies and provides the beneficiary with all the Part A and Part B benefits. Medicare Advantage Plans include HMO’s, PPO’s, private fee-for service plans, special needs plans and Medicare Medical Savings Account Plans. Most services in a Part C plan are covered through the plan and not paid for through Original Medicare. Additionally, most Medicare Advantage Plans offer prescription drug coverage. It is important to note that coverage for skilled nursing care is not the same under a Part C plan as it is under Original Medicare and the amount of time the Plan will pay for in skilled nursing depends on the particular health insurance company.
Part D is prescription drug coverage that can be added to Original Medicare, some Medicare Cost Plans, some Medicare Private-Fee-For-Service plans and Medicare Medical Savings Account plans. Part D plans are offered by insurance companies or other private companies approved by Medicare.
If you have questions about the type of coverage you have, you can check your “red, white and blue” Medicare card, check the other insurance cards you have been given, check with your Medicare health or drug plan enrollment, or call Medicare at 1-800-MEDICARE (1-800-633-4227).
If you have questions about Medicare or elder law, please call the Law Offices of Laurie E. Ohall, P.A. at 813.438.8503.
As an elder law attorney, I help people understand what government benefits are available to help pay for senior housing. Many times, people are confused about whether they can qualify for any help to pay for their living expenses. As part of the series for Older American’s Month, this article focuses on the benefits that are available to seniors, depending on the type of housing that they live in.
1. Independent living – Unless you are in some sort of subsidized housing through HUD (Section 8 housing), most independent living is on a private pay basis, meaning you use your own income and/or assets to help pay for your housing. For information on Section 8 housing available to low-income seniors in Florida, click here - http://portal.hud.gov/hudportal/HUD?src=/states/florida/renting
2. Home Health Care/Assisted Living/Residential Care homes – For individuals receiving assisted living care, there are many facilities that are only private pay. If you have long term care insurance, it may also help to pay for care in assisted living. Additionally, there are Medicaid waiver programs that are available to seniors whose income does not exceed $2,199/month and whose assets do not exceed $2,000/month. If the individual applying for Medicaid is married, the community spouse (person still living in the couple’s home or who is not on Medicaid themselves) can keep up to $119,220 in assets. In Florida, there is a waiting list for the programs that help pay for assisted living and home health care. In addition to Medicaid benefits, for those who are veterans or widowed spouses of a veteran, there is a benefit known as Aid and Attendance that can be used to help pay for in-home care or assisted living. As with Medicaid, there are asset and income requirements
3. Nursing home care – similar to assisted living care, there are facilities that are only private pay. The average cost of skilled nursing care is $8,000 per month in Florida. Not many people can afford private pay. Long term care insurance can also cover the cost of nursing home care, and many times, the senior’s income plus the long term care insurance, can cover the cost completely. For those who cannot afford to privately pay or who do not have long term care insurance, Medicaid benefits are available to help pay for care. Again, the Medicaid applicant’s assets must be below $2,000 and their income cannot exceed $2,199. There is no waiting list for the Medicaid program that pays for skilled nursing care.
If you have questions about whether or not you can qualify for Medicaid or VA benefits to help pay for long term care, please call the Law Offices of Laurie E. Ohall, P.A. at 813.438.8503.
What is the Cost of Senior Housing?
In my experience, most people do not know what to expect when it comes to cost of senior housing. You have to keep in mind that the cost is going to depend greatly in which part of the country you live. As a Florida attorney based in the Tampa Bay area, I can only comment on the cost in this area.
1. Independent living - usually provides apartment-like living varying from studio apartments to two bedroom apartments. Residents have access to dining packages, if they like, and usually, there are social outings and other types of entertainment. This type of living can be in 55+ communities, retirement villages, senior apartments or continuing care retirement communities. Seniors must be able to privately pay to live in most independent living communities and the costs range from $1,500 per month to $3,500 per month.
2. Assisted Living – for those seniors who require some care but not to the level of nursing home care, these communities provide assistance with taking medications, activities of daily living (bathing, dressing, eating, toileting, transferring), providing meals and housekeeping. Staff is also available 24/7 for additional safety. Assisted living facilities also provide social activities and transportation, as needed. The cost for assisted living depends on the level of assistance an individual needs and can range from $2,500 to $5,000. Facilities that are cater to Alzheimer’s patients can range from $3,500 to $6,500 per month.
3. Nursing homes – these types of facilities provide 24/7 skilled nursing care for those who are frail and require a high level of medical care and assistance. Facilities can provide rehabilitative care for those recovering from a hospital stay to long term care for those with complex medical needs that require skilled nursing care. The average cost of skilled nursing care is $7,000 to $8,000 per month.
4. Residential care homes – similar to assisted living, but a smaller, home-like environment, the cost of care ranges from $1,500 to $3,000 per month depending on the level of care needed.
5. Respite care – provides caregivers temporary break from their caregiving duties, the senior can stay in an assisted living type facility on a short term basis usually anywhere from one week to one month. The cost ranges from $75 to $100 per day.
6. Home care – having someone come into the home to help take care of the senior, the cost will depend on the needs of the individual. Companion care is different from nursing-type care and senior can expect to pay hourly for the services they need. The fees can range from $15/hour up to $40 per hour.
If you have questions about long term care and help to pay for senior housing, please call the Law Offices of Laurie E. Ohall, P.A. at 813.438.8503.
Many times, when a loved one passes away, the family is so upset and they do not know what to do next. I have listed the basic steps to take when a loved one passes away.
1. Look for paperwork that might indicate whether the decedent had pre-paid any funeral arrangements or had any specific burial wishes, and if you cannot find any, the family should discuss what they think the decedent might have wanted. Sometimes, the Last Will and Testament will have a statement about what the decedent wanted for their funeral arrangements. Sometimes, they will write it out or even pre-pay for their services.
2. If the decedent is receiving Social Security or pensions, notify the correct agency so that the monthly payments will stop. It is also important to know that, Social Security benefits are paid one month in arrears meaning that benefits for January are not paid until the beginning of the next month, and the recipient must be alive for the entire month in order to keep the benefits. Thus, if a recipient dies on January 31st, their February payment must be returned to Social Security pursuant to Social Security rules that require a recipient to be alive for the entire month in order to collect the payment in the following month.
3. If the decedent was employed, notify their employer. The employer should also be able to tell you if the decedent had any retirement accounts with the employer (if you are the beneficiary), and whether there are any other benefits the employer has for the family.
4. Ask the funeral home to provide you with 5 to 10 copies of the death certificate (some with the cause of death and some without the cause of death). The death certificate is the proof that you must give to life insurance companies, financial institutions, and the court, among other entities, in order to prove the person died. Some companies, like life insurance companies, may want a death certificate with the cause of death on it. Others, such as the clerk of court, will need a death certificate without cause of death (for privacy concerns) in order to open an estate.
5. You will need to determine whether the decedent had any assets that were solely in their name (and if so, talk to a Probate attorney about opening up a probate) – for more on probate, click here - http://ohalllaw.com/2014/03/florida-probate-creditors/ . You will also want to determine who the creditors are – who did the decedent owe money to (credit card bills, medical bills, utilities, mortgages, etc.)?
If you have any legal questions relating to estate planning, please call the Law Offices of Laurie E. Ohall, P.A. to set up a free 15 minute phone consultation. Contact me today if you need estate planning, elder law, probate or guardianship assistance.
Wondering about senior housing options? I’ve been hearing this set of circumstances a lot lately: Mom is not doing too well and really cannot continue to live on her own. We think she needs to be in assisted living. Where is a good place for her that is within her budget and that she will like? While I can discuss the facilities in my immediate area, my expertise is in preparing the legal documents a senior may need and advising them of the programs that are available to help them pay for care. I leave the “placement services”to people like geriatric care managers or companies like “Always Best Care”and “A Place for Mom”who can help seniors find the right place to live. However, I can give you some tips to help educate yourself on the different options for seniors.
1. Independent living –for seniors who can live independently but would like to have access to assistance, if needed, this is an ideal option. Independent living communities provide residents with access to many things such as entertainment, dining, medical care, housekeeping and laundry services.
2. Assisted living –sometimes, seniors need help with certain activities of daily living. They may need help with getting dressed in the morning, bathing, transportation or meals. At assisted living facilities, seniors can enjoy an independent lifestyle, but have the regular support of help with daily activities. Such services are included in the monthly rental (such as housekeeping, laundry, utilities, meals, and transportation). Assisted living facilities also have lots of activities, out-door trips and other social amenities. With assisted living, you have someone who can also provide limited medical care and ensure that you are taking your medication correctly and at the right times. Assisted living can be offered in communities that have apartment style housing or in a more residential setting (where there are 4 to 6 bedrooms in a home-style environment).
3. Skilled Nursing care –for those who need around-the-clock skilled nursing care, nursing homes can provide short term rehabilitative care or long term care for someone who has complex medical conditions. Seniors typically share a room with another person, but you can also have private rooms. In addition to the 24/7 medical care, meals are included along with some activities.
4. Alzheimer or Dementia care –these are very similar to assisted living in that there are usually lots of structured activities for the residents, and like skilled nursing in that there is 24/7 care available to help ensure the senior is safe and has quality of life. This type of care can also be given in a nursing home environment. Most of the facilities have secure or locked areas to ensure that residents do not wander off, although residents usually have access to outdoor walking paths and gardens.
5. In-Home care –this allows individuals to stay in their home while receiving assistance with their activities of daily living such as bathing, dressing, meal preparation. It can also include help with transportation to appointments, helping to pay bills, or companionship. In-home care can be structured however the senior needs it to be from once per week to 24/7 care.
If you have anyquestions about housing options or estate planning, please call the Law Offices ofLaurie E. Ohall, P.A. 813.438.8503 to set up a free 15 minute phone consultation.Contactme today if you needestate planning,elder law,probateorguardianshipassistance.
7 Worst Medicaid Planning Mistakes
It never fails – someone comes into my office concerned about their spouse or their parent who needs to qualify for Medicaid (to help pay for nursing home care), and they want confirmation that the action they took that was recommended to them by their neighbor, friend, financial planner….was the right thing to do, only to have me tell them – nope, that won’t work. And then I hear, “But, my neighbor said they did this for their parent…” or “But, my friend at church said I could do this…” or “But, my financial planner said….” and so on. This has prompted me to write about the six worst planning mistakes one can make with regards to Medicaid in Florida.
Adding a child or children on title to the homestead (i.e., quitclaiming an interest to your child)- why would you do that? Because, you want to make sure the property doesn’t go through probate at your death? Because, you want to make sure the nursing home doesn’t take the house? Well, adding a child to the deed is a gift and this will disqualify you from nursing home Medicaid benefits if it was done within the last five years prior to filing the Medicaid application. The exception to that is if your child has lived in the home with you and has taken care of you for at least two years and, but for your care, you were able to stay out of a nursing home. If that is the case, under federal and state law, you can transfer the home to a caregiver child without incurring a penalty. In Florida, however, this is rarely necessary to do because Medicaid will never have a lien against your homestead (nor will any other creditor), if it is your homestead and it is passing to your heirs under Florida law (spouse, children, etc.). If you are interested in avoiding probate of the homestead, there are other ways to do that - and I've discussed that previously – see my article on enhanced life estate deeds – http://ohalllaw.com/2014/04/avoid-probate-homestead-real-estate/
Giving away money to one or more children (or grandchildren, or anyone else for that matter). If you are giving your money to your children, and they are married, you might as well have given it to their spouse, or their creditors, or their children…..take your pick. The key thing to understand is, if you give it away, you gave it away. Gifts (that includes monetary gifts, gifting real estate or other property, taking your name off of a bank or investment account and leaving their name on it, etc.), for Medicaid purposes, incur a penalty and there is a five year look-back period for giving money or other assets away. If you can get the family member who you gave the money to, to give it back to you, then you can cure the gift problem.
Leaving the nursing home before a Medicaid application is filed. Many times, clients want to have help in the home or help to pay for an assisted living facility. They think that Medicaid will help pay for that. Yes, there are Medicaid programs that can help pay for that, however, there is a long waiting list in Florida (30,000 or more people) to obtain benefits for those “home and community based” programs (there is not a waiting list for skilled nursing care). If you are in a skilled nursing facility for at least 60 days, and can obtain Medicaid benefits while you are there, then you can transition back into the community (either assisted living or home) and you can by-pass the waiting list.
Asking your friends, neighbors or family members for legal advice on Medicaid planning. This is a pet peeve for me. You go to an attorney to review your legal issues and rely on their expertise to help you with the problem, just like you go to a doctor to diagnose what your medical issue is and help you to feel better. Your attorney has studied the rules of law and has experience in the particular issues you are seeing him or her for. If they do not appear to have experience, then you should find someone else. However, your friends, neighbors and family members do not have legal expertise and most likely do not understand the intricacies of the law (especially when it comes to something as complicated as Medicaid or Estate planning). Chances are, they are giving you “bad” advice.
Not having done your basic estate planning. What is basic estate planning? Documents which include a Last Will and Testament, Durable Power of Attorney, Living Will and Health Care Surrogate are the basic documents that all adults should have. Many people think that they do not need these documents until they are much older. However, as I have said before, Terri Schiavo is the perfect example why anyone who is 18 or older should have their estate planning documents in order. You never know when you will become incapacitated and need someone to make financial or health care decisions for you. You should be prepared for that time and name the people you trust to make the right decisions.
Forgetting to make your children beneficiaries on your accounts. In Florida, Medicaid can only have a lien against assets that go through probate. If you have beneficiaries (“P.O.D. – payable on death for bank accounts, or beneficiaries listed on life insurance or other investment accounts) listed on your accounts, these assets do not go through probate and creditors, including Medicaid, cannot get at these assets.
You are talked into purchasing a tax-deferred annuity….and you are 80 or older. If you are 80, it is very likely that your life expectancy will not exceed the penalty period for making withdrawals on a deferred annuity. If you need to cash it in (because you have bills to pay, such as nursing home bills), you will have a penalty to pay. Also, deferred annuities count against you as an asset for Medicaid purposes so be very leery of a financial advisor who tells you that you can qualify for Medicaid with a deferred annuity. There are annuities that will be allowed by Medicaid but there are strict rules that must be followed in order for the annuity to be allowed, including naming the state of Florida as a beneficiary of the annuity to the extent Medicaid has provided benefits on behalf of the annuitant.
In an AARP blog (http://blog.aarp.org/2014/08/18/a-tale-of-two-americas/?sf30153338=1)
last month, I read about the fact that almost 20% of adults age 55 to 64 have no retirement savings. None. Nada. Zilch. That is a pretty scary statistic.
What is the plan for these people – are they going to be working until they die (or worse, until they become disabled and can no longer work)? The AARP blog post also discussed the fact that, even among those who have saved, many will outlive their retirement savings. In my practice, I run into this all the time – clients who bemoan the fact that they never thought they would outlive their savings.
The number of baby boomers who have no retirement savings is scary because every month, more than a quarter-million Americans turn 65. Those that were in a position to save saw their savings depleted with the most recent financial crisis which took billions in retirement savings and forced many Americans to work longer than they had planned.
We need to be concerned about this because, as these individuals stop working, their contributions to the economy will also diminish, and they will become more dependent on their children and grandchildren. I am an advocate for educating people about the importance of making sure they have their basic documents in place regardless of how old they are. Yes, it is important to have a Will, a Durable Power of Attorney, a Living Will and a Health Care Surrogate Designation, but even more important is making sure that we have enough funds to take care of ourselves into our later years.
Not only do we need to encourage people to save for retirement, but we need to encourage them to plan for their long term care needs. One of the ways to do this is through the use of long term care insurance which can help pay for care in the home, respite care, adult day care, and care in an assisted living facility or nursing home. To learn more about long term care considerations, check out www.longtermcare.gov which will give you the basics about what long term care is, as well as the costs involved, and it also provides information about what benefits are provided by Medicare, Medicaid, and the V.A.
Laurie Ohall is a Florida Board Certified Elder Law Attorney based in Brandon, Florida. Contact Ms. Ohall today if you need estate planning, elder law, probate, or guardianship assistance. Her office number is 813.438.8503. www.OhallLaw.com
I think one of the biggest reasons people do not do their estate planning is because they do not want to think about how life will go on after they are gone. Okay. I understand the hesitation. After all, who really wants to think about their mortality? But, if you do not plan for how things will be administered after you are gone, are you alright with the state of Florida doing it for you?
According to Florida law, if you do not have a Will naming an executor (in Florida, this is also referred to as the “personal representative”) of your estate, then certain people have the right to act as the executor. First, the court looks to whether or not you have a spouse – if you do, that person has the priority to serve as executor. If you do not have a spouse, than a majority of the heirs must agree on who is selected to serve as executor.
So, if you are moving forward and doing your estate plan, who should you name as your personal representative? One attorney I know jokingly tells his clients to name their least favorite child. Why would he say that? Because acting as the personal representative of an estate is a thankless job – it takes a lot of time, the beneficiaries are usually wanting their money yesterday, and the personal representative is the one that has to make that happen (with the help of their attorney, of course).
One thing I definitely recommend against – appointing all children as co-executors of your estate because you are scared to upset one by appointing another. That will definitely cost the estate time and money, and probably a lot of fighting. Appoint someone who has an accounting background (because they will have to report to the beneficiaries an inventory of the assets and probably have to file an accounting with the court). The person does not have to have a legal or accounting background (but it does help if the person is good with numbers). Obviously, you want to appoint someone who will act responsibly and understand the fiduciary duty they have to the beneficiaries of the estate.
Laurie Ohall is a board certified elder law attorney practicing in Brandon, Florida. Contact Ms. Ohall today if you are in need of elder law, probate, or guardianship assistance.
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