Elder Law / Medicaid Planning

Planning for Long Term Care will cover the basics of Elder Law in Florida, including but not limited to:

• Elder Law terms;
• Long Term Care Options; and
• Asset Protection;

A thorough and complete estate plan must take into account a significant amount of information about your assets, your family, your property, and your wishes during and after your life.  When you make your first appointment with an estate planning attorney, ask the attorney or the paralegal if they can provide a written list of important information and documents that you should bring to the meeting.  

Generally speaking, you should gather the following information before your first appointment with your estate planning lawyer.

Family Information
List the names, birth dates, death dates, and ages of all immediate family members, specifically current and former spouses, all children and stepchildren, and all grandchildren.

If you have any young or adult children with special needs, gather all information you have about their lifetime financial needs.

Property Information
For all real property you own or can reasonably expect to acquire, gather the property description, your ownership interest information, the address, market value, any outstanding mortgage balance, and the most recent tax assessment.

For any personal property of value (such as vehicles, jewelry, coins, antiques, stamps, and art), compile a list that includes a description, the physical location of each item, your ownership interest information, the market value, and any liens against the property.

Business Information
If you have an ownership interest in a business, make sure you have documents showing your ownership interest in the business, the business location, the names and contact information of other owners, and 2-3 years of past profit and loss statements.

Financial Information
Compile a list of all your financial accounts, including: checking accounts, savings accounts, investment accounts, stocks and bonds, and U.S. Treasury notes.  If any of these accounts currently have designated beneficiaries, bring that information as well.

Gather all retirement savings information, including 401(k) plans, 403(b) plans, IRAs, life insurance policies, Social Security statements, and pension information.  Make sure you have the account names, account numbers, current balances, outstanding loan balances, and currently named beneficiaries.

If any family members owe you debts, compile that information.

Questions to Think About
The following are some of the first questions your estate planning attorney will ask.  You are not required to have answers ready for all these questions, but because some of them are complex, it is a good idea to think through these issues before your appointment.

• Who will be beneficiaries of your property?
• Do you want to bequeath any specific items of property to specific individuals?
• Is there anyone you do not want to be a beneficiary of any of your property?
• Do you plan to make any bequests to any nonprofit organizations – university, church, charity, or other organization?
• Do you know who you want to act as executor of your will?
• Do you know who you want to act as trustee of any trusts you establish?
• If you have minor children, who do you want to appoint as guardian?
• Do you want to make arrangements for your health and financial well-being in the event you become unable to make decisions for yourself?
• Do you have specific wishes for your funeral?
• Are you a registered organ donor?

Call and Schedule a Free Initial Consultation Today!

During our initial consultation, we will review your family and financial situation, discuss your wishes, answer your questions and suggest strategies to protect your family, wealth and legacy.

1. The Florida Homestead:  no dollar limitation, if within municipality ½ acre; outside municipality 160 acres. Fla Const. Art X, Sect 4
2. Life Insurance: The cash surrender value of policy is exempt from insured’s creditors. Note: Without the proper planning death benefits may be reached based on how the proceeds are dispersed. Fla. Stat. § 222.14
3. Annuities: The cash surrender value of policy is exempt from insured’s creditors. Fla. Stat. § 222.14
4. Qualified Plans, IRA’s and Pension: Fully exempt if federal requirements are meet. Fla. Stat. § 222.21. Note: Fla Stat § 222.21 is being updated to also protected inherited IRAs
5. Prepaid Tuition and Medical Savings Accounts: Fla. Stat. §222.22.

For a complete list of exemptions contact the LegalJourney Law Firm or visit the Online Sunshine. 

Note: LegalJourney Blog posts are designed to provide informational summaries, but do not include all aspects, issues, statutes or legal rulings. If you have additional questions based on what you read on the LegalJourney Blog, please contact the LegalJourney Law Firm or seek the advice of another qualified Florida attorney.

Attorney Karnardo Garnett of the LegalJourney Law Firm in Tampa, FL will be hosting or participating in the following events during the month of August:

• 08/15 - “Estate Planning 101” Online Seminar: Register Today!
  
• 08/29 - “Elder Law: Planning for Long Term Care” Online Seminar: Register Today!

There are many factors to consider when deciding whether or not to implement Medicaid planning.  If you’re in good health, now would be the prime time to do this planning. The main reason is that any Medicaid planning may entail using an irrevocable trust, or perhaps gifts to your children, which would incur a five-year look back for Medicaid qualification purposes. The use of an irrevocable trust to receive these gifts would provide more protection and in some cases more control for you.

As an example, if you were to gift assets directly to a child, that child could be sued or could go through a divorce, and those assets could be lost to a creditor or a divorcing spouse even though the child had intended to hold those assets intact in case they needed to be returned to you. If instead, you had used an irrevocable trust to receive the gifted assets, those assets would not have been considered the child’s and therefore would not have been lost to the child’s creditor or a divorcing spouse. You need to understand that doing this type of planning, and using the irrevocable trust, may mean that those assets are not available to you and therefore you need to be comfortable with that structure.

Depending upon the size of your estate, and your sources of income, perhaps you have sufficient assets to pay for your own care for quite some time. You should work closely with an attorney knowledgeable about Medicaid planning as well as a financial planner that can help identify your sources of income should you need long-term care. Also, you should look into whether or not you could qualify for long-term care insurance, and how much the premiums would be on that type of insurance.

Attorney Karnardo Garnett of the LegalJourney Law Firm in Tampa, FL will be hosting or participating in the following events during the month of April: 

• 04/7 - Lunch & Learn: “Top 5 Documents Everyone Needs To Have”at 12:00PM. Lunch to be served. Lake Seminole Square 8333 Seminole Blvd, Seminole, FL 33772. Please RSVP by calling 727-392-3932.
• 04/18 -“Estate Planning 101” Online Seminar: Register Today!

If you are not following the firm online, visit the www.legaljourney.com website and connect with the LegalJourney Law Firm PLLC today.

Should you withdraw your Social Security benefits early?

You don’t have to be retired to dip into your Social Security benefits which are available to you as early as age 62.  But is the early withdrawal worth the costs?

A quick visit to the U.S. Social Security Administration Retirement Planner website can help you figure out just how much money you’ll receive if you withdraw early. The benefits you will collect before reaching the full retirement age of 66 will be less than your full potential amount.

The reduction of benefits in early withdrawal is based upon the amount of time you currently are from full retirement age. If you withdraw at the earliest point of age 62, you will receive 25% less than your full benefits.  If you were born after 1960, that amount is 30%. At 63, the reduction is around 20%, and it continues to decrease as you approach the age of 66.

Withdrawing early also presents a risk if you think there is a chance you may go back to work. Excess earnings may be cause for the Social Security Administration to withhold some benefits. Though a special rule is in existence that withholding cannot be applied for one year during retired months, regardless of yearly earnings, extended working periods can result in decreased benefits. The withheld benefits, however, will be taken into consideration and recalculated once you reach full retirement age.

If you are considering withdrawing early from your retirement accounts, it is important to consider both age and your particular benefits. If you are unsure of how much you will receive, you can look to your yearly statement from Social Security. Social Security Statements are sent out to everyone over the age of 25 once a year, and should come in the mail about three months before your birthday. You can also request a copy of the form by phone or the web, or calculate your benefits yourself through programs that are available online at www.ssa.gov/retire.

The more you know about your benefits, the easier it will be to make a well-educated decision about when to withdraw. If you can afford to, it’s often worth it to wait. Ideally, if you have enough savings from other sources of income to put off withdrawing until after age 66, you will be rewarded with your full eligible benefits.
 

Fran Hawthorne (NYTimes.com) has an article published entitled “When Boomers Inherit, Complications May Follow” (Feb10, 2014). Provided below is a summary of the article from NYTimes.com:

When Boomers Inherit, Complications May Follow

There have never been as many heirs with as much money as now, thanks to the intersection of two demographics: the 79 million baby boomers and the general thriftiness of their Depression-raised parents.

"Inherited money is sacred money," said Rick Kagawa, 61, a financial planner in California who inherited money and property when his mother died in 2010.

"Whatever you do with that money, you should think about your parents and what they would think of what you did."

Often, as with Ms. Cornell, emotional ties make heirs reluctant to alter a penny of their parents' investment strategy or shed a single inch of property.

"We've had clients who wanted to keep a stock that was part of the family's wealth in memory of their parents, even if it's causing a lack of diversification in the portfolio," said Charles D. Haines Jr., chief executive of Kinsight, a financial advisory firm based in Birmingham, Ala., with $500 million under management.

Ms. Bradley of the Sudden Money Institute suggests that instead of trying to memorialize parents by hanging onto their stock portfolio, offspring should "Do something with the money to create a lasting memory." One client, she said, uses the interest from her inheritance to host an annual family reunion.

A picture caption on Tuesday with an article about baby boomers' inheriting their parents' estates misstated the name of the university where the photograph of a Japanese garden was taken.

To read the full article go to "When Boomers Inherit, Complications May Follow" By Fran Hawthorne (NYTimes.com).  

The Americans with Disabilities Act (ADA), signed into law in 1990, recognized the civil rights of a large class of citizens with physical and mental disabilities by making it illegal to discriminate against them in employment, transportation or public services and accommodations. Since its enactment, much progress has been made, enabling people with disabilities to obtain an education, pursue a career, live independent lives and fulfill their dreams. 

Despite this progress, people with disabilities who have children are more likely to have their parental rights terminated or lose custody after a divorce. 

Discrimination in the Courts

These discriminatory actions are often justified on the grounds that the courts are protecting the best interests of the child, but there is little research to support the assumption that someone who is disabled is incapable of being a good parent. In fact, according to advocacy groups there are likely more than 4 million parents with physical disabilities currently raising children. 

Most family courts work diligently to provide services and support to ensure that children maintain contact with their parents whenever possible. This is not always the case when disability is involved. There have been cases where disabled parents have not been allowed to bring their newborns home and the state subsequently filed to have their parental rights revoked, even in the absence of evidence of abuse or maltreatment. The presumption is that the disability endangers the welfare of the child. Currently, two thirds of the states have laws permitting the removal of children based on the disabled status of the parent.

Disadvantage in Custody Cases

Parents with disabilities are also at a disadvantage in custody cases, particularly if the ex-spouse does not have a disability. Competent parents with special disabilities require knowledgeable advocates who can demonstrate that they are able to effectively carry out their parenting duties in their own adaptive ways.

Fighting Discriminatory Practices

Advocates for the legal rights of parents with disabilities are waiting for a landmark trial that halts the discrimination suffered by parents with disabilities and protects their rights to have and raise children. While everyone agrees that children should not be exposed to a hazardous environment, decisions to remove children from homes where a parent is deaf or has a low IQ are often made by individuals who fail to grasp the remarkable capabilities of such parents despite their significant handicaps. More education on disability issues is needed at all levels of the child welfare and family court systems. At the same time, parents with disabilities must have better access to fair legal representation and support services. 

The Tampa Tribune has published an editorial article entitled “Editorial: Confronting Alzheimer's Horrors” (June 26, 2014). Provided below is a summary of the article from TBO.com.

Alzheimer’s Horrors

Gov. Rick Scott and state lawmakers launched an Alzheimer’s research program with $3 million available for research this year, however this represents just a fraction of what is needed to combat a disease that robs individuals of their memory and one that creates enormous hardships and expenses for family members.

Statistics show that one in 40 Floridians suffers from Alzheimer’s, the state currently holds 10% of the U.S total of 5.4 million individuals suffering from this disease. The number of Alzheimer cases in Florida is expected to grow 40% by the year 2025.

The cost in the state of Florida for dementia is estimated to be more than $15 billion. A study last year found that the cost range for dementia was from $157 billion to $215 billion a year, which is more than the costs of cancer or heart disease.

David Morgan, CEO of USF Health Byrd Alzheimer’s Institute in Tampa says “Alzheimer’s research is an investment that will save us from the growing astronomical costs of this disease on Florida’s families and the state’s economy.”

To read the full article go to "Editorial: Confronting Alzheimer's Horrors" from The Tampa Tribune.  

A Pooled Income Trust is a special type of trust that allows individuals of any age (typically over 65) to become financially eligible for public assistance benefits (such as Medicaid home care and Supplemental Security Income), while preserving their monthly income in trust for living expenses and supplemental needs. All income received by the beneficiary must be deposited into the Pooled Income Trust which is set up and managed by a not-for-profit organization.

In order to be eligible to deposit your income into a Pooled Income Trust, you must be disabled as defined by law. For purposes of the Trust, "disabled" typically includes age-related infirmities. The Trust may only be established by a parent, a grandparent, a legal guardian, the individual beneficiary (you), or by a court order.

Typical individuals who use a Pool Income Trust are: (a) elderly persons living at home who would like to protect their income while accessing Medicaid home care; (2) recipients of public benefit programs such as Supplemental Security Income (SSI) and Medicaid; (3) persons living in an Assisted Living Community under a Medicaid program who would like to protect their income while receiving Medicaid coverage.

Medicaid recipients who deposit their income into a Pool Income Trust will not be subject to the rules that normally apply to "excess income," meaning that the Trust income will not be considered as available income to be spent down each month. Supplemental payments for the benefit of the Medicaid recipient include: living expenses, including food and clothing; homeowner expenses including real estate taxes, utilities and insurance, rental expenses, supplemental home care services, geriatric care services, entertainment and travel expenses, medical procedures not provided through government assistance, attorney and guardian fees, and any other expense not provided by government assistance programs.

As with all long term care planning tools, it’s imperative that you consult a qualified estate planning attorney who can make sure that you are in compliance with all local and federal laws.