Legal Corner (31)
What is a probate and why do I want to avoid it?
Written by Laurie E. Ohall
Many times, clients come into my office stating that they need to have Last Will and Testaments done and at the same time, they tell me they want to avoid probate of their estate after they die. These clients are usually very adamant that they do not want the government to get their assets, they do not want their families to pay attorney's fees, and they do not want their estate to be tied up for months and months. The problem is that a Last Will and Testament will not avoid probate and clients are usually very surprised to hear that.
Think of a Last Will and Testament like a "love letter" to the Court. When you die, your Will gets filed with the Court. Filing the Will puts the public on notice that you have died and lets the Court know who you want to be the beneficiaries of your estate. The Will also tells the Court who you want to administer your estate – you name who you want to be the "personal representative" or "executor" (these terms are used interchangeably). However, in order for the Will to "do it's job", a probate proceeding needs to be opened. A probate proceeding is opened when someone (an "interested party" - usually one of the beneficiaries of the estate, or the person named as the personal representative in the Will) files a Petition with the Court asking the court to appoint a personal representative to administer the decedent's estate.
In most cases, the person filing the Petition is required to use an attorney to do so. Interestingly, guardianship and probate cases are the only cases in Florida where you are required to have an attorney in order to file an action. The fees and expenses of a probate administration can run from a couple thousand dollars to many thousands of dollars. It really depends on what assets are going through probate and the value of those assets.
So, the big question is - how do we avoid probate? Very simply, the way to avoid probate is to make sure that you do not have assets solely in your name or that you have beneficiaries on everything you own. For instance, a bank account can be owned jointly with another person (spouse, child, an unrelated person) or you can put a "payable on death" or "P.O.D." beneficiary designation on the account and it will transfer at death to whomever you name as the beneficiary. If you have life insurance or brokerage accounts, then you can provide for beneficiaries for those types of accounts or policies (and you should check your beneficiary designations whenever you have major life changes, such as a death or divorce).
Real estate is a tricky asset on which to avoid probate. If you add someone to the deed on your property, you have a few issues to deal with. First, you could affect the homestead tax exemptions that you receive if the joint owner is not also living in the house. Second, if the joint owner has creditor issues, and the house is not their homestead, their creditors can potentially go after their interest in your house. Third, by adding someone as a joint owner on your property, you are affecting the step-up in basis that they can receive at your death. If someone inherits property, they get a tax break from capital gains tax when they go to sell the property. For example, if you buy a house for $100,000 and your adult child inherits it and then sells it, after you die, and the house is now worth $300,000, the child would not have to pay any capital gains tax on the sale. But, if you add the child to the deed of your house, and then you die, when your child goes to sell the property, he or she will have to pay capital gains tax on $200,000 because they lost the step-up in basis when you added him/her to the deed.
Many times, financial planners will tell people that they need a revocable trust to put their house into so that they can avoid probate. While a revocable trust does avoid probate, if you are using the trust to primarily avoid probate of your homestead, your beneficiaries may be surprised that they will still have to open a probate after you die. Why is that? Even if your house is in a trust, if your beneficiaries want to sell the house within two years after your death, most title companies will require you to provide an order from the court stating that the homestead was exempt from creditors before they will write title insurance for the sale of the house. The only way to get that order is to open up a probate (and this will cost you, depending on what part of Florida you are in) a minimum of $1,500 to do.
So how do you avoid probate on the homestead? You can do an enhanced life estate deed. An enhanced life estate deed allows you to reserve a life estate in your property while giving the remainder interest to a beneficiary at your death. This type of deed allows you to reserve the right to sell, convey, mortgage, lease or otherwise dispose of your property during your lifetime without the joinder and consent of the remainder person(s). Only if you still own the house upon your death, will the property pass to the named beneficiaries (or the “remainder person(s)”). To learn more about the advantages and disadvantages of the enhanced life estate deeds, click here - http://ohalllaw.com/2016/05/enhanced-life-estate-deed/.
If you have questions about probate or other estate planning matters, please call the Law Office of Laurie E. Ohall to schedule a complimentary phone consultation with one of our knowledgeable attorneys at 813-438-8503.
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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. For 2017 Medicare coverage, open enrollment is from October 15 to December 7, 2016.
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.
Have you ever felt “sandwiched” between the pressures of caring for an older parent and raising your own family?
If so, you are part of a unique group of people known as the “Sandwich Generation.” These are adults who are juggling the roles of caring for their own families (including minor children) and aging parents at the same time.
Don’t wait until a medical crisis to help your parents plan for long-term care!
The emotional, physical and financial strains experienced by those in the Sandwich Generation can be overwhelming and paralyzing.
You may wonder…
“Will mom or dad lose their home?”
“What happens to an inheritance or remaining assets?”
“How do we choose between in-home, assisted living and nursing home care?”
“What if my mom or dad wants to stay home but takes a turn for the worse?”
“Is there a responsible way to protect any assets?”
“What can be protected for the healthy spouse still at home?”
“What happens if we run out of money?”
“How do we get public benefits and will they be enough to pay for all the help we need?”
…and perhaps you don’t know where to turn for answers.
The legal and financial strategies you will find in this guide are designed to help you plan ahead and and stay in control when facing such difficult decisions. You will discover a wide variety of options that are available for your family that will give you peace of mind and confidence during a challenging time.
While life may seem overwhelming and chaotic at the moment, turning the tables and gaining the upper hand again concerning your parents’ care is easier than you think.
Solid legal planning is the key to helping your parents receive the best care possible without sacrificing your own family’s financial security.
Get Laurie Ohall’s sandwich generation guide which will help you fill in the missing pieces of your current care plan.
When you download this free e-book, you will also discover:
- Why Medicare will not cover nursing home or in-home health care costs…and how to pay for your parents’ care without spending all of their money or paying out of pocket (expenses can run in excess of $8,000 a month!)
- How to avoid common mistakes that can jeopardize Medicaid eligibilityexpose adult children to liability for their parent’s long-term care costs.
- Legal and financial strategies to shield your parent’s assets and money from nursing homes or the state.
- Why your parents’ estate plan may not work if it has not been updated in past 5 years.
- How adding your name to a parent’s assets, such as a bank account or home, can backfirecausing serious penalties and exposure to lawsuits and creditors.
- 3 documents you need to manage mom or dad’s affairs, access medical records and maintain control in the event of sickness or incapacity.
- Key medical, financial and legal information you would never think to grab that will save you a ton of time, money and headaches in a medical crisis.
- How to give your parents the gift of aging without worry or struggle!
Remember, sickness, memory loss or incapacity from a stroke or other condition can happen without warning. Don’t wait to get a rock-solid plan in place to protect your parents and make your job as a caregiver as easy as possible.
Download your e-book absolutely free now at this link.
Also would you like additional guidance from a knowledgable attorney? Schedule a complimentary phone consultation with Attorney Laurie Ohall by calling 813.438.8503.
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With the aging of our population, elder exploitation is a growing problem in the U.S. In Florida, we have a large older population, and so this issue is even more prevalent. Many times, the exploitation occurs at the hands of a caregiver or some unrelated person, but very often, the exploitation is done at the hands of a family member. When this happens, it can be devastating to the senior and other family members.
There are different types of elder abuse and exploitation. These include physical or psychological abuse - anything that can result in bodily injury, pain, impairment, emotional or mental anguish. This also includes financial exploitation (illegally or improperly using an older person's funds or resources) and neglect where the caregiver fails to take care of the older person properly.
What are the signs that someone is being exploited? In some cases, the person doing the exploiting isolates the senior or will not allow them to communicate with other family members. There may be large withdrawals from the senior's bank account (or many smaller withdrawals on a more frequent basis or Payments to the family member to help take care of the senior of larger sums (like $500 or $1,000 per month).
Other signs of exploitation include large withdrawals of funds that can cause tax consequences, or large withdrawals that are not normal for the senior to do and transferring that money to the family member, changing beneficiaries on accounts such as life insurance policies or retirement accounts, and having the senior change their estate planning documents to leave everything to just one child where, before, everything was equal to all children. Additionally, the failure to attend to the senior's personal hygiene, making sure they have appropriate care and failing to use their money to take care of them (like paying for their care in assisted living, making sure they have their prescription medications, not taking them to the doctor when they clearly are in distress) are signs of neglect.
Did you know that someone who is an agent under a power of attorney, a trustee or guardian, or a joint account holder can be liable for criminal and civil penalties? Florida's Exploitation statute subjects trustees, guardian's or agents who breach their fiduciary duties by the unauthorized transfer of assets to liability for criminal and civil penalties. Those who are agents under a power of attorney and abuse their powers are also subject to these penalties. Additionally, joint account holders who take money from a senior where the senior was the sole contributor of the funds can be held liable.
In Florida, the failure to report elder abuse in Florida is a second degree misdemeanor. Making a false report can cause someone to be guilty of a 3rd degree felony punishable by up to five years in prison and a fine not to exceed $10,000 for each violation.
If you feel that a loved one is being exploited, you can call the police and report the issues. In Florida you can call the Florida Abuse Hotline at 1-800-96-ABUSE (1-800-962-2873) or go to the Department of Elder Affairs website and download their form to fax in a report of abuse - http://elderaffairs.state.fl.us/doea/report_abuse.php.
Finally, you can contact an elder law attorney who specializes in elder exploitation issues. Many times, attorneys can move to freeze assets, and even proceed under the civil theft statute in order to get the senior's money returned or get treble damages (triple your money). The senior's can even have their attorney's fees paid by the exploiter under the civil statute.
Would you like additional guidance from a knowledgable attorney? Schedule a complimentary phone consultation with Attorney Laurie Ohall by calling 813.438.8503 or online.
Are you a Veteran? Benefits that you may not know about.
Written by Laurie E. Ohall
I meet with veterans every day who have served only a couple of years and think that the length of service they served was not long enough to to earn them any "perks" through the V.A. They are quite surprised when I tell them that, because they served for at least 90 days, one day of which was during a "war" time, that they or their widowed spouse may be entitled to benefits that could help pay for care in the home or care in an assisted living facility. See here for more on “Aid and Attendance” – http://ohalllaw.com/2012/02/florida-va-benefits-what-you-should-know/.
However, there are other benefits available to those who may not have served during war time or who do not meet the financial eligibility criteria. These include veterans service connected disability compensation, survivors Dependency Indemnity compensation (DIC), VA health benefits and non-taxable retirement from the Department of Defense.
Disability compensation is a tax-free benefit paid to a veteran for a service-connected disability that happened as a result of active duty, active duty for training, inactive duty training or injury from VA healthcare. Compensation can range from $130 up to $8,000 per month. Also, veterans may be entitled to other benefits such as grants for a new automobile or modifying existing vehicles, constructing or modifying homes, clothing allowances, etc. Veterans cannot receive both Aid and Attendance (known as “pension”) and compensation at the same time – they must choose which one they want to receive.
Dependency Indemnity Compensation (DIC) is for eligible survivors of a military service member who died on active duty or whose death after services resulted from a service-connected injury or disease. It is also available if a veteran received improper treatment from VA health care or rehabilitation services. If a veteran was permanently and totally disabled for 10 years or more, a surviving spouse is automatically entitled to DIC. It can pay $1,254 per month (in 2016) to a surviving spouse, and there are additional amounts available to dependent children. Also, if the surviving spouse needs the aid and attendance of another person (i.e., home care or ALF), there is additional assistance. DIC can also be available to a parent (which is defined as biological, adoptive, step parent or someone who stood in as the parent prior to the soldier's 21st birthday, and for one year prior to the time the soldier entered into active duty). Because DIC benefits do not rely on a person’s assets, a parent with higher assets could still be potentially eligible for this benefit.
The CHAMPVA health benefit is available to certain spouses, surviving spouses, and dependent children who are entitled to this free health coverage. If the veteran was 100% permanently and totally disabled, spouses and dependent children are entitled to CHAMPVA. Surviving spouses and their dependent children of veterans who were rated 100% permanently and totally disabled at the time of the veterans death or for those veterans who died from service connected disability are also entitled to the CHAMPVA benefit.
If you have other questions about Veterans’ benefits, I would encourage you to speak with your local Veteran’s service office. Click here for Hillsborough County - http://www.hillsboroughcounty.org/index.aspx?NID=284. These offices are funded by the State of Florida and their sole job is to help veterans and their families obtain all benefits available to them. Would you like additional guidance from a knowledgeable attorney? Schedule a complimentary phone consultation with Attorney Laurie Ohall by calling 813.438.8503.
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How to Communicate with an Alzheimer's Patient
Written by Laurie E. Ohall
I work with many clients whose spouses suffer from Alzheimer's or dementia, and I have several friends and colleagues who do an excellent job taking care of individuals with these issues. I have witnessed family members who bring their parents into my office talk to their parent who is suffering from this condition, and I can immediately tell that they have not received counseling about how to handle someone with this condition. Here are some tips for dealing with an Alzheimer's patient:
- Never argue with the person, just agree. My grandmother suffered from dementia prior to her death. She would tell me, as I was sitting there with her in her bedroom, about the little guy who hides under her bed and would make her laugh. If I tried to tell her there was no one under the bed, this would upset her. Instead, it was easier just to go along with what she was saying and then we both had a good laugh. Everyone was happy.
- Never shame, instead distract – kind of same as Number 1 – telling the person that they have done something wrong or making them feel bad is not going to help matters. Try to be positive – instead of saying, “Don’t do that” try saying “Let’s try this.”
- Do not say to an Alzheimer’s patient, “remember when...?” No, they do not remember. Instead, reminisce with them about the old days and tell them stories (that might help trigger old memories).
- Never condescend. Instead, encourage them. Treat them with respect and do not talk about them as if they are not there.
- Try to keep things simple – give one step directions or ask one question at a time. Call people and things by names instead of “she” or “they” or “it”.
- Try to rephrase what you are saying instead of repeating. If the person has a hard time understanding what you are saying, try to say it in a different way.
- Most of all, try to have patience. Encourage him or her to express themselves, even if they are having a hard time. Be careful not to interrupt and try not to criticize, correct or argue with him or her.
Being a caregiver to someone who suffers from Alzheimer’s or dementia is not easy. Taking care of yourself and trying to get counseling to help you learn about how to help your loved one is also very important. If you need information about the programs in your local community, the Alzheimer’s Association can help you find a support group near you – click on - http://www.alz.org/care/alzheimers-dementia-support-groups.asp.
To schedule a complimentary phone consultation with Attorney Laurie Ohall, please contact her office at 813.438.8503.
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Whether you are young and single or a senior over the age of 65, there are different tools you need in your estate planning tool box to make sure that you have all your planning in order. As we age, circumstances change and the need to change your estate planning is also necessary.
- Young and Single – I have written about this on several occasions, and it always surprises me when people don’t realize that when a child reaches the age of 18, their parents’ rights go away because they are an adult. This means that no one has the right to make financial or health care decisions for an adult child. Therefore, it is important to have, at the very least, a Last Will and Testament, Durable Power of Attorney, Living Will and Health Care Surrogate Designation. Although you might think you do not have anything, so why do you need these documents, you may be overlooking the fact that you have life insurance, or a vehicle, or a bank account which is solely in your name. If you are involved in an accident and become incapacitated in some way, and you do not have a Durable Power of Attorney and Health Care Surrogate Designation in place, your parents or other loved ones may have to file for guardianship over your person and property in order to make financial and health care decisions for you. This is a costly process that could be avoided by having the proper documents in place. For more information about why you want to avoid guardianship, check out this blog post - http://ohalllaw.com/2011/09/why-is-a-guardianship-necessary/.
- Young and married (or in a committed relationship) – you may have just gotten married, or perhaps you do not see the need to get married, but you and your significant other are living together, sharing finances, maybe even purchased a house. Once we are in a committed relationship, we usually start acquiring assets and these may need to be allocated among two families in the event that something happens to both of you at the same time. Again, a Last Will and Testament, Durable Power of Attorney, Living Will and Health Care Surrogate Designation should be prepared for both parties so that, in the event of a sudden illness or accident, the surviving spouse/significant other and/or the parents of either party, have the proper documents in place to help make decisions for the other person or their estate. Also, it is important to note that, just because you are married to someone does not give you the right to make health care and financial decisions for the person – have you ever heard of Terry Schiavo? She was married and 26 years of age when she collapsed in her apartment from cardiac arrest and became unconscious. She was diagnosed with being in a persistent vegetative state about a year later and was on a feeding tube . Her husband and her parents fought a long and expensive battle in guardianship court over who would be her guardian, who would make health care decisions, and whether Terry would have wanted the feeding tube removed, given the state that she was in. All of this could have been avoided if Terry had a Durable Power of Attorney, Living Will and Health Care Surrogate Designation in place.
- Married with young children – the next stage of financial and estate planning occurs when a couple of have children together. While the need for the other documents discussed above are still important, equally as important is the need to nominate a guardian for the minor children, and the need to nominate someone who can manage your assets for the minor children should you die. Should both parents pass away, a court will appoint a guardian over the person of the children to handle health care decisions, maintenance and welfare of the children. Many couples with minor children also have a Revocable Living Trust in place to handle the assets for the children. A revocable trust can specify that the money be used to pay for any bills realted to health, maintenance and welfare and that the money be distributed to the children as certain ages (for instance, 1/3 at age 25, 1/3 at age 30 and 1/3 at age 35) rather than giving a lump sum at one age. A revocable trust avoids probate of the assets at death whereas a Last Will and Testament presumes that assets will go through probate. Confused about what I mean? Check out this blog post - http://ohalllaw.com/2012/12/avoiding-probate-everyones-doing-it-or-are-they/. Equally important is making sure that you have life insurance in place so that, if you pass away, your spouse and/or minor children have the resources to continue on without you. Check out this blog post to understand when and why you might want to consider life insurance - http://ohalllaw.com/2016/03/do-i-need-life-insurance/
- Going through a D-I-V-O-R-C-E? You may want to consider updating your planning documents. In Florida, any reference in your Will, Durable Power of Attorney or Health Care Surrogate Designation to an ex-spouse is as if the ex-spouse died before you (so your next choice would be in line to make those decisions). However, what if you did not list a back-up to your ex-spouse? Or what if you had a trust with your ex and now you (and your assets) have gone separate ways? You should definitely consider updating your estate planning documents.
- Middle age stage of life – I hate that term, “middle age”. Makes me feel so old. But, as you reach your 40’s and 50’s, not only is it important to make sure that the estate planning documents we discussed previously are done (or are up-to-date), but you should also consider purchasing long term care insurance to help cover the cost of long term care in assisted living or nursing home. The younger you are, the less expensive the premiums. Not sure about why you need long term care insurance? Check out this blog post - http://ohalllaw.com/2012/07/why-do-i-need-long-term-care-insurance/
- Over 59 ½? Are you an empty nester? At this point, it is important to make sure you have a thorough review of your retirement planning. Each type of deferred compensation plan such as an IRA, 401(k), SEPP, etc., has rules and regulations that govern when you can withdraw money and how that money gets passed on to heirs after your death. Additionally, if you have not already done so, you should consider the basic documents – a Last Will and Testament, Durable Power of Attorney, Living Will and Health Care Surrogate Designation. You haven’t done that already? What are you waiting for??? I’ve already discussed the importance of each document and what their purpose is. Equally important is beginning the planning for future long term care – if you are still healthy, consider looking at long term care insurance. You might also have parents that you are having to take care of at this point (or maybe earlier) – both you and your parents should consider meeting with an elder law attorney to discuss asset protection planning for future long term care.
- The Golden Years – age 65 and over. As I have stated previously, everyone should have the basic documents and if you have waited this long, and haven’t had a problem, count yourself lucky. But please, go get your estate planning documents prepared. As a society, we are living longer, and there are more of us having to go into assisted living or nursing home care (or receiving care at home). Chances are, you may reach a stage where you need help with financial and health care decisions and you do not want your family having to go through the expense of filing for guardianship in order to make those decisions for you. If you already have the documents, and it’s been awhile since they were prepared, you may want to consider having them reviewed to make sure they still do what you need them to do. And finally, if you have concerns about long term care and how to pay for those expenses, you should seek the advice of a qualified elder law attorney to discuss your concerns. Not sure how to choose an elder law attorney? Click this blog post - http://ohalllaw.com/2014/10/choosing-elder-law-attorney/.
I hope that these stages of planning give you an overall idea of when it is important to see your financial and/or estate planner. An estate planning attorney can help you create and/or update your plan, advise you through issues regarding income and estate tax, and help you plan for long term care issues in the future. To schedule a complimentary phone consultation with Attorney Laurie Ohall, please contact her office at 813.438.8503.
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Sometimes, people are led to believe that, if they (as a single individual) or their spouse, go into a nursing home, the nursing home can take their house or other assets to pay for care. They ask, "Will I lose My Home to the Nursing Home?" In Florida, this does not have to be the case.
In order to qualify for Medicaid (to help pay for long term care such as a nursing home or assisted living facility), the person applying for Medicaid cannot have more than $2,000 in assets (assets are cash, investment accounts, cash value on life insurance, etc.) and you cannot have more than $2,199 (in 2016) of income. Your homestead and one vehicle are considered "exempt" and do not count toward the $2,000 assets you are allowed to have for Medicaid purposes.
As a single person, if you own a house and you go into a nursing home, you can keep your house - you do not have to sell it. However, if you have a mortgage, or you do not have someone who can help you take care of the house while you are in the nursing home, you may need to sell it. This is because your income is going to pay the nursing home and there is nothing left, in many cases, to pay a mortgage or the taxes and insurance on the home.
As a married person, if one spouse is in the nursing home, and the other spouse (community spouse) is able to live in the home, then the house is usually safe. If the community spouse has low income, and needs the income of the nursing home spouse, in many cases, it is possible to divert some of the income of the nursing home spouse to the community spouse.
Many times, people want to know whether they can rent out the house to help pay for the expenses if the owner is in a nursing home. If you do this, you will very likely lose the homestead tax exemption, and you turn the property from an “exempt” asset to income producing property. The income from income producing property counts toward the $2,199 the Medicaid applicant is allowed to have (and much of it may go toward nursing home bills). There are a few things that can be deducted from the income, such as taxes, insurance and some maintenance, but the rest is income and is used to pay the nursing home.
Also, converting the house from an “exempt” homestead to income producing property may make the house subject to a lien by Medicaid after the Medicaid recipient dies if the house goes through probate. In Florida, if your house is your homestead (as defined by the Florida Constitution), it is protected from creditors at your death, even from Medicaid, and even if it goes through probate. However, income producing property is not protected from creditors, and if it goes through probate, Medicaid will have a lien against it.
If you have questions about nursing home Medicaid, protecting your assets from spending them down on a nursing home, or probate questions, please call board certified elder law attorney, Laurie E. Ohall, PA. at 813.438.8503 for a free phone consultation.
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According to Kiplinger’s Personal Finance, only one-third of Americans have a Last Will and Testament. What does that mean? A Last Will and Testament (not to be confused with a Living Will) is a writing, signed in front of two witnesses and a notary, that states who you want to have your assets when you die, and who you want to administer your estate (i.e., be the personal representative or executor – those two terms are interchangeable). If you die without a Last Will and Testament, you die “intestate” and this means that the state of Florida decides who gets to act as the personal representative and even who receives your assets upon your death.
For instance, in Florida, if you die married to someone, and that someone is not listed on your assets (i.e., they are not on title to your house, or you have bank accounts in just your name or even with another individual), your spouse is entitled to a share of those assets if you die without a Last Will and Testament. If you have a pre-nuptial agreement (or a post-nuptial agreement), and your spouse waives their rights to your assets after you die, then your spouse may not have any rights to your assets. Without a pre or post-nuptial agreement, the state of Florida has laws that spell out who gets what.
If you have a homestead without the surviving spouse on title, the surviving spouse can elect to take a half interest in the homestead (with the other half going to your children) or the surviving spouse will receive a life estate in the property (meaning they can live there for the rest of their lives with the remainder interest going to your children at your death). With regards to other assets that go through probate, if you die without a Last Will and Testament, your spouse (if you have children from a prior relationship) would take half, and the children would receive the other half. Or, the spouse could also consider taking an elective share (which is 30%) and the elective share amount deals with assets that do not go through probate, including assets held in a revocable trust, jointly owned property, pay on death accounts, life insurance and more.
If you do not have a spouse, then the Florida statutes look to whether you have children. If you do, they inherit if you do not have a Last Will and Testament stating otherwise. If you have no children, then the next in line is grandchildren; if no grandchildren, then the statute looks to see if your parents are still alive, brothers and sisters, and so on and so forth down the family tree line. If there is someone along those lines that you absolutely do not want to inherit from you, having a Last Will and Testament will allow you to spell out who you want to disinherit and who you want to have your assets.
Sometimes, a Last Will and Testament may not be needed. It really is on a case-by-case basis. If you have an only child and you want that child to have everything, you could make them the beneficiary of your assets (or put them on title on such assets like bank accounts), and they would automatically receive those assets at your death. However, I do not recommend adding individuals to assets (such as with a homestead) until you have had a chance to speak to an attorney and understand the pros and cons of doing so.
If you have questions and would like guidance about preparing a Last Will & Testament, please call the law office of Laurie E. Ohall, PA. at 813.438.8503.
Worried about Mom & Dad around the holidays?
Written by Laurie E. Ohall
The holidays are upon us, and many will be traveling to spend time with their families. Living in Florida, we have a lot of "snowbirds" who winter here and, consequently, their families come visit during the holidays (presumably to spend time with their loved ones, but also to get away from the cold weather). This tends to be a time where, if the kids haven't seen mom or dad in a while, they might be a little surprised at the changes that are taking place. They might notice that mom is somewhat forgetful (more so than the last time they saw her). Or, they might notice that dad has lost a lot of weight and looks very frail (because he has no one cooking for him and he's not able to cook much for himself). This can be a scary wake-up call to see your parents frail before your eyes and you do not know what to do about it. So how do you handle this?
- Do not panic. Showing your parents that you are worried and concerned is not necessarily a good thing.
- Look for resources in your area. In Florida, you can call the Elder Helpline at 1-866-96-ELDER to figure out what resources are available in your area. They can direct you to a Meals-On-Wheels program, or perhaps they can help you find someone who can come in a couple of hours a week to visit with Mom or Dad, do some light housecleaning, or some cooking.
- Do talk to Mom and Dad about whether they have their basic estate planning documents in order. You might want to even ask to see copies of the documents and ask them how long it has been since they had their legal documents reviewed. Why is this important? If your parents do not have a Durable Power of Attorney and a Health Care Designation in place, no one has the authority to make financial or health care decisions for them. If you wait until it is too late (i.e., when they no longer have the capacity to sign these documents), you could be faced with an expensive guardianship. You may have to go to court to have your parent declared incapacitated and have a guardian appointed - this is an emotionally exhaustive procedure, not to mention expensive way to handle things. The cost to do a Durable Power of Attorney and Health Care Surrogate designation (depending on where you live) may cost $450 to $650 versus a guardianship which could run well over $5,000. If your parents do not have these documents, I cannot stress how important it is to get those documents in place and you should do so by visiting an Elder Law attorney.
- If your parent agrees, arrange to have a doctor visit with your parent's treating physician while you are in town and go to the appointment with your parent. You can get a better idea of what your parent's medication needs are, whether the doctor feels there are any medical issues that need to be addressed, etc.
- If your parent is really bad, you may need to have a conversation with him or her about moving closer to family or perhaps moving in to assisted living. I come from a family where the children took care of the parents - my grandfather lived with my parents for about 7 years prior to his death and it was just assumed he would live with my parents when he could no longer live on his own. Not all families are that lucky and it would be a good idea to be aware of the costs of assisted living. There are companies that can help you find suitable assisted living accommodations, or you could talk to a geriatric care manager about what is appropriate for your parent's needs.
- Please do not forget that your parents are adults - until someone says that they do not have the capacity to decide where they want to live or to make financial decisions, they have the right to make their own decisions. It is a fine line that we walk when we tell them what they must do versus suggesting what might be best. They raised you. They did a good job of raising you - don't forget that.
If you have need legal advice about your aging parents and elder law planning, please call the Law Offices of Laurie E. Ohall, P.A. at 813.438.8503.
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Sibling Feud: What to do when Brothers and Sisters are Fighting over Mom or Dad’s Care
Written by Laurie E. Ohall
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.
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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.
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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.
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What Government Benefits Are Available To Help Pay For Senior Housing?
Written by Laurie E. Ohall
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.
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