Elder Law

What is elder law?  According to the Florida Bar, “Elder Law” means legal issues involving health and personal care planning, including: advance directives; lifetime planning; family issues; fiduciary representation; capacity; guardianship; power of attorney; financial planning; public benefits and insurance; resident rights in long-term care facilities; housing opportunities and financing; employment and retirement matters; income, estate, and gift tax matters; estate planning; probate; nursing home claims; age or disability discrimination and grandparents’ rights.

It encompasses all aspects of planning for aging, illness, and incapacity. Elder law clients are predominantly seniors, and it requires us to be particularly sensitive to the legal issues impacting seniors.

Particularly, we are involved in the following situations:

  • If you or your loved ones are concerned about long term care costs and you are inquiring about how the government could help with the costs;
  • Crisis planning to help pay for the cost of a nursing home for those who need to be admitted to a nursing home in an emergency-type situation;
  • If you or your loved ones are about to be admitted into a nursing home or assisted living facility and you have no idea about the eligibility requirements and application process;
  • If you or your loved ones have gifted assets during the last 5 years and you don’t know how that will impact your eligibility for long-term care benefits;
  • If you or your loved ones served in the military and are inquiring about Veterans Administration benefits to pay for long-term care;
  • If you or your loved ones have not recently updated basic estate planning documents such as wills, trusts, durable power of attorney, health care surrogate, and living will;
  • If you or your loved ones believe that your old durable power of attorney provides enough authority to the agent to engage in elder planning;
  • If you or your loved ones are not sure about the difference between Medicare and Medicaid and how these programs may benefit you;
  • If you or your loved ones are debating whether nursing home or assisted living is a valid option; and
  • Much more!

Our approach

Your first need to be educated on the difference between government programs for the elderly.  Medicaid is health insurance for the needy.  To qualify for Medicaid, you must be over 65, blind or disabled according to the Social Security Administration.  In addition, you must be in need of institutionalized care as determined by the State of Florida and be financially needy.  You must not exceed certain income and asset limits.  If your income or assets exceed the qualifying limits, you will not be eligible. However, even with that being said, options are available that will allow for eligibility.

Income Limits:  Florida is an income cap state.  Currently, the monthly income limit for a single individual applying for Medicaid is $2,199 per month.  If the income is above $2,199 per month, the applicant must create a Qualified Income Trust.  If the applicant is married, the applicant spouse’s income is not considered and may be unlimited.

Asset Limits:  If you are single, you are entitled to $2,000 in assets.  If you are married, your spouse can keep up to $119,220in assets.

To qualify for Medicaid, you must submit a multiple-page application and provide detailed proof of all your financial transactions (banking, CD’s, stocks, bonds, income, expenses, annuities, etc.) for the previous 60 months.

Medicare is a health care benefit provided by the federal government to individuals over age 65, or under age 65 and disabled.  Most people mistakenly believe that Medicare will cover the entire costs of nursing home stays.  However, Medicare covers for skilled nursing home care with a maximum of 100 bed days.  In addition, Medicare does not provide any coverage for custodial care, the most basic functions of life including eating, bathing, dressing, toileting, and transferring.

Second, you need to understand the importance of pre-planning for long term care.  When planning for nursing home or assisted living time is of the essence.  In the perfect world, you should have  already executed an Irrevocable Trust and have funded the trust with all allowable assets at least five years before your anticipated entrance to a nursing home or assisted living facility.  Why?  Because anything that was transferred into the trust five (5) years prior to the admittance into the nursing home cannot be scrutinized by Medicaid

Medicaid Planning involves developing a plan to reallocate your assets in such a way that Medicaid will not take them into consideration when determining your eligibility for coverage, when necessary. If proper planning takes place prior to your admittance into a nursing home you will be able to qualify for Medicaid to pay the cost of care, rather than depleting your own resources to cover these costs. We use a specialized trust that is specifically designed for Medicaid planning.  When the individual is ready to be placed into the nursing home or assisted living facility, an application must be submitted to the Department of Children and Families.

If you have not planned in advance, then planning opportunities are more limited.  Asset protection is still possible, but not to the extent that existed as if you planned in advance.  This is why we encourage families to talk about long term care, how it will be paid, and how it will affect your family personally and financially.

Third, it is essential that your estate planning documents, such as revocable trusts, durable powers of attorney, health care surrogates, and living wills are updated.  Without proper documentation, your family may lack the powers necessary to implement a plan in the event someone else needs to sign documents for you.

Finally, you must understand that Elder law is a complicated area of law and that the services of a competent elder law attorney is crucial for planning to be effective.  You should not engage a generalist as your attorney to help you obtain these important benefits.  Neither should you engage a non-attorney to fill out your application and to purchase financial products to qualify for Medicaid or VA.  Experience has shown us that engaging with a non-attorney for Medicaid or VA purposes causes more harm than good with our clients.

For more information, or to make an appointment with one of our Elder Law attorneys, please contact us at (954) 944-2855.

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