A Last Will and Testament is often referred to as a “Will”.
The law of Florida that defines the rules for a valid Will. Each state has its own laws on how to create a valid Will. Florida law found in Florida Statute 733.501 to732.504.
• Florida Statute indicates that to be considered a valid Will it must be typewritten. It must be signed at the end by the maker in the presence of two subscribing witnesses. There is no requirement the signatures on the Will are acknowledged by a notary public.
• A “holographic” Will is one that is handwritten by the Testator without any witnesses. A handwritten Will is not recognized as valid in Florida.
• A “nuncupative” Will is one that is made verbally in the presence of witnesses. Such a Will is made by terminally ill individuals when a written Will is not possible. Some jurisdictions recognize nuncupative Wills in some situations, Florida does not.
The person who creates a Will is referred to as a “testator” (male) or “testatrix” ( Female). For purposes of this discussion, a testator and testatrix will be referred to as a “Maker”.
• A Will has no effect on any assets owned by the Maker during life.
• A Will can outline who inherits assets owned by the Maker titled in his/her name alone.
Assets titled jointly along with another person or legal entity as one of the owner, does not pass according to the terms of a Will. (e.g., “joint tenancy”).
A Will allows the Maker to designate who is to serve as the manager of the persons assets when he/she dies to distribute those assets according to the terms in that Will. This is referred to as the “personal representative” of the estate.
A Will allows the Maker to identify who is legally authorized to serve as guardian of a minor child upon the Maker’s death.
A Will can, but is not required, to contain clauses to create a Trust or Trusts to manage distribution of assets over time after the Maker dies. Those trusts are referred to as “Testamentary Trusts”. Testamentary Trusts are used when the Maker wants a judge to validate a Testamentary trust as being valid or to manage assets of a minor or incapacitated beneficiary who is the receive assets of the Maker’s estate. A Trust can also be created outside of the Will. This is referred to as a stand-alone trust. (See Revocable Living Trusts or Trusts section of this website for further information regarding Trusts and its purposes and use.)
A Will is deemed “legally valid” in a court proceeding referred to as Probate. Probate is the process of managing and distributing the assets and paying the debts of a person who has died. A Will is important when a Maker believes it is best to have the courts oversee management and distribution of the Maker’s estate. This is important when the Maker believes there will be arguments over who is to inherit assets of the estate.
Nine Quick Reasons to Have a Will
1. Allows property to be transferred according to the Maker’s wishes.
2. Allows the Maker to select the beneficiaries and to specifically what property each beneficiary is to receive.
3. Helps avoid disputes amongst or between family members as to who is to receive assets of the Maker’s estate.
4. Permits a parent to name a guardian for minor children or other dependents, such as a handicapped adult child.
5. Name the personal representative who is authorized by the probate court to deal with creditors of the Maker.
6. Testamentary Trust can be added to a Will to manage distributions of assets to a minor child’s until the age the Maker defines
7. Testamentary Trusts can afford protection against a child or beneficiaries creditors.
8. Allows the Maker to define certain assets to be given to specific individuals or even charities. (Specific Devise)
9. Reduces the burden on the family. At the Maker’s death, the family will most likely have to handle the Maker’s personal affairs. Without a will, this job is much more difficult. Creating a will is an act of consideration for those left behind.
Irrevocable trusts are special documents used to exclude assets from a beneficiary’s ownership and control. The document used, the “trust agreement,” designates the creator of the trust, often called the “Grantor,” and the person the trust is to benefit, called the “beneficiary.” The person or entity responsible for the administration of the trust is called the “Trustee.” Excluding assets from a person’s ownership and control may be done to preserve and protect the assets from creditor’s claims, or misuse by the beneficiary. Excluding assets can be done to help qualify the beneficiary for financial assistance under government programs, or in some cases to save on estate taxes. Assets must be transferred to the trust by changing the ownership of the assets to the trust. This is called “funding” the trust, but not all assets are suitable for a trust.
While the Grantor may not revoke the trust, such trusts can be modified and even terminated under certain circumstances depending on how they are drafted. They can also be changed by Court Orders in many cases.
The Trustee will be responsible for the management and investment of the trust assets. In addition the Trustee must account to the beneficiary or their designated agent, usually on an annual basis. The Trustee’s duties are contained in the language of the trust agreement and in the Florida Statutes.
During the beneficiary’s life, the Trustee may pay income and principal to or for the benefit of the beneficiary. Care must be taken to make sure the Trustee’s powers to use the trust assets and income do not cause the assets to be treated as “owned” by the beneficiary. It takes knowledge and drafting skill to create a trust that will help a beneficiary without causing the assets to be available to creditors, or cause the beneficiary to lose access to government programs. In addition even if drafted correctly, if the Trustee exceeds their authority when paying income or principal to or for the benefit of a beneficiary, the assets can be considered available to the beneficiary and valuable protection and benefits can be lost. It is extremely important to use Trustees who are knowledgeable and experienced.
Irrevocable trusts are not required to pay the debts and claims of a beneficiary during life or after death. The Trustee will file a tax return for the trust, pay out what is left in the trust to the persons or entities named to receive what is left, and terminate the trust.
Consult your attorney to determine if an irrevocable trust meets your needs.
A revocable trust is a special document used to manage your assets during your lifetime, and at your death distribute those same assets without going through “probate.” The document is called a “trust agreement,” sometimes called a “declaration of trust.” The parties to the agreement are the “grantor” who creates and funds the trust, the “trustee” who manages the trust, and the “beneficiary.” This type of trust is called revocable because you can do just that, revoke the trust or amend it during your lifetime as long as you are competent. You can be the trustee, or you can appoint an individual, bank, or trust company to be the trustee.
Revocable trusts are popular planning devices because you do not give up control of your assets. You can change the beneficiaries at any time until your death or incapacity. You remain in charge of the investing and can withdraw income and principal as you wish.
Some of the reasons you may want to create a revocable trust are to avoid probate or avoid the appointment of a Guardian for your property if you are incapacitated. The Trustee managing your trust property can be given careful instructions and guidance from you on the investment and distribution of the trust property.
Revocable trusts are also called “will substitutes” because they can and usually do have the same provisions for the distribution of your estate at your death as your will. In fact it is common to combine a will, called a “pour over will” with the trust to make sure your assets are added to the trust at your death and distributed according to your wishes. Relying on a pour over will to add assets to a trust is not recommended. To avoid probate, your assets should be transferred to the trust during your life. This is called “funding” the trust. Not all assets can be transferred to a revocable trust. Consult your attorney or tax advisor before transferring assets to a trust.
The choice of a trustee is critically important. Although the trustee has strict duties under law, they largely administer your trust without court supervision. This reduces costs, but makes abuse of your trust and confidence easy to do. You simply must not appoint anyone to this role that has not demonstrated trustworthiness. It is better to appoint a Bank or Trust Company as trustee if your assets justify the added expense.
Certain trust provisions may not be in a beneficiary’s best interest and can cost them valuable support if receiving Medicaid or other benefits. A revocable trust should be prepared by an attorney with experience in estate planning and trust drafting to protect not only your wishes, but the beneficiaries of your estate.
The A, B, C’s and 1, 2, 3’s of S N T’s
(Special Needs Trusts)
Special Needs Trusts (SNT’s) come in several varieties. The primary purpose of all SNT’s is to hold assets for a beneficiary while exempting the contents of the SNT for programs like Medicaid, Supplemental Security Income (SSI), food assistance and some other public benefits. There are d4A, d4B and d4C Special Needs Trusts and there are 1st Party SNT’s and 3rd Party SNT’s…so we only left out the “2.”
1. The first category of SNT’s consists of assets of the beneficiary (from lifetime earnings, an inheritance, gift or personal injury award). These are “1st party SNT’s.” These are commonly called “self-settled” SNT’s. They are addressed in the Federal Law at 42 U.S.C. 1396 p (d)(4)(A), (B) and (C). These trusts are required to have a Medicaid payback when the beneficiary dies.
2. The second category of SNT’s are Trusts established by a spouse, for the benefit of his or her spouse, within a will and therefore only upon death. These are called Qualifying SNT’s. Generally a spouse cannot set up such a trust for his or her spouse, but there is an exception is made if the SNT is done within a Last Will and Testament. Therefore, the spouse must die to be able to fund one.
3. The third category of SNT’s consists of assets of others (not the beneficiary or his or her spouse) set aside for a disabled person, either during life or upon death of the person setting up the Trust. These are called “3rd party” SNT’s. These trusts are very common in the estate plans of parents and grandparents where there is a child or grandchild with a disability. The funds can be held for the individual with a disability without jeopardizing public benefits.
Special Needs Trusts can help individuals with a disability of any age. SNT’s can help them qualify for programs to assist with medical and long term care expenses as well as possibly get a monthly income stream from Social Security, even when the individual may have never worked. If know someone with medical bills that are out of control and has little or insufficient medical coverage you should think of a SNT. If you know someone who faces long term care, either in an institutional setting or out in the community, you should think of a SNT.
SNT’s are tools. They will work well for some individuals with a disability and possibly not for others. An Elder Law Attorney or Special Needs Lawyer can consider all of the tools and determine whether a SNT should be part of the solution to protect resources and to supplement public assistance programs.
Here is your cheat-sheet on the types of SNT’s.
SNT with beneficiary’s funds – under 42 U.S.C. 1396 p (d)(4)(A), (B) and (C) d4A – Under age 65, Medicaid payback, works for SSI and Medicaid, works for income and assets d4B – Qualified Income Trust, only income deposited, only works for some Medicaid programs, not SSI d4C – Pooled Trust, works for all ages for Medicaid but under age 65 for SSI, works for income and assets
SNT with the funds of others
Spouse can set up a trust under their will (must die), no Medicaid payback
Anybody other than the beneficiary or spouse can set up a stand-alone SNT, establish one upon death in a will or in a trust or participate in an existing SNT. No Medicaid payback upon the death of the primary beneficiary, can go to others.
Specifically authorized by Florida Statutes, a Durable Power of Attorney (“DPOA”) is one of the most important legal documents a person (known as the “Principal”) may create for their lifetime legal planning. Under a DPOA, one or more persons known as an “Agent” or “Attorney-in-Fact” are appointed by the Principal and granted broad and general powers within the document to act on behalf of the Principal. By statute, a DPOA expressly survives the incapacity of the Principal, and serves as a cost effective, convenient legal, financial management, and planning tool for the Principal’s lifetime. The powers and authorities granted to an Agent under a DPOA apply to the Principal’s current and after acquired assets, and the authorized actions taken by an Agent under a DPOA bind the Principal and the Principal’s successors in interest. Use of a DPOA by an Agent for a Principal no longer able to manage the Principal’s own affairs is a less restrictive alternative to a court-ordered and court-supervised guardianship of the property over the Principal. If, however, a formal filing is made for a legal determination of the incapacity of the Principal by the Circuit Court in conjunction with a guardianship proceeding, then the authority of the Agent to act thereafter under an otherwise valid DPOA may be suspended in certain instances, pending further hearing and discretion of the court. A DPOA always terminates upon the Principal’s death, and also may be terminated earlier upon its revocation by the Principal, in accordance with its own terms (i.e., an expiration date), and otherwise as provided by Florida law.
Capacity to create a Durable Power of Attorney: A Principal cannot create a DPOA unless he/she has a level of understanding of the broad and general powers that are being granted to the Agent. If the individual proposed to grant the DPOA to the Agent in fact does not have the requisite mental capacity to enter into a contract, then a DPOA may not be granted, and a formal filing for a legal incapacity determination and guardianship of the property in Circuit Court, Probate Division, may be required.
Does a Durable Power of Attorney need witnesses or a notary? A DPOA must be signed by the Principal and by two witnesses to the Principal’s signature, and a notary must acknowledge the Principal’s signature for the DPOA to be properly executed and valid under Florida law. If the Principal has mental capacity, but not the physical ability to sign, then the Principal may direct the notary to sign for the Principal. There are exceptions for military Powers of Attorney and for DPOAs created under the laws of another state.
Powers typically granted: When broadly and correctly drafted and executed in compliance with Florida law, the DPOA may authorize the Agent to exercise, among other things, expanded gift powers, expanded trust and trust modification powers, the power to provide for rights of survivorship, the naming of beneficiaries effective upon the Principal’s death, waiver of benefits under a joint and survivor annuity or retirement plan, and planning for eligibility and applying for government and public assistance benefits to reduce the Principal’s out-of-pocket cost of long term care and health care needs.
Other designations and authorizations: In addition to DPOAs covered by the Florida Power of Attorney Act (“Florida POA Act”), consumers may often grant and sign specific governmental power of attorneys or designated representative authorizations on promulgated, standardized forms, which are not covered by the Florida POA Act. Examples include IRS Form 2848, FDOR Form DR-835, FDMVHS Form HSMV 82053, and FDCF Form CF-ES 2505. In addition, service members of the United States Armed Forces often execute general or specific military powers of attorney, including deployment contingent powers of attorney, which are authorized and governed by federal law, and which accordingly are given effect by Florida courts, as confirmed by the Florida POA Act.
Limitations on the use of a Durable Power of Attorney: The Agent under a valid DPOA would never have the authority to perform duties under a contract requiring the exercise of personal services of the Principal. Examples of their limited authority include the ability to appear and perform for a professional athlete, signing an affidavit made to the “personal knowledge” of the Principal, voting in a public election for the Principal, signing or revoking a Last Will and Testament or a Codicil for the Principal, or exercising power or authority granted to the Principal as a trustee or court-appointed fiduciary (e.g., where the Principal is serving as someone else’s legal Guardian). The Principal may specifically limit powers and authorities granted to the Agent under a DPOA to fit the Principal’s specific planning goals. In addition, a Principal with mental capacity may revoke or amend a previously granted DPOA at any time.
Agent’s liability as a fiduciary: The Agent has responsibilities as a “fiduciary” and is required to account to the Principal for the Agent’s exercise of the DPOA. An Agent should never act against the best interests of the Principal, even if the Principal becomes incapacitated. Because of the fact that DPOAs usually are very broad in scope, and do not terminate with the Principal’s incapacity, they are prone to misuse and abuse by unscrupulous Agents. As such, the Florida POA Act allows for a civil action against an Agent for breach of fiduciary duty. If the Principal is a vulnerable adult (an elderly or disabled person impaired due to a mental, emotional, sensory, long-term physical or developmental disability or brain damage), an Agent who causes a misappropriation, sale or transfer of the Principal’s property may be criminally prosecuted for a felony. Despite the potential for liability exposure to the Agent, DPOAs remain a very popular, flexible, and affordable legal tool to be used for addressing a Principal’s lifetime planning needs.
What is the role of my Elder Law Attorney in creating a Durable Power of Attorney? Elder Law Attorneys have specific experience in drafting and enforcing DPOAs. An Elder Law Attorney should be familiar with the significant changes to Florida POA Act and related Florida law which have occurred in the last four (4) years. If the DPOA is not drafted in accordance with the changes in the Florida POA Act, your DPOA may be an ineffective, if not defective, legal planning tool. For example, the current statute no longer allows for a “springing POA” (which only takes effect if you become incapacitated). Old DPOA’s are “grandfathered in” but a DPOA signed after October 1, 2011, can no longer have “springing” language in it. Additionally, it is presumed that all DPOA’s are “executory” in nature, meaning, the powers and authorities granted to the Agent are effective immediately upon the Principal’s signing of the DPOA. Given all the changes to the statute, it is imperative that your DPOA be in compliance, otherwise, it may be considered defective and not meet the objective of avoiding guardianship.
Can I use a form off the internet? One should be careful about using forms found on the Internet. The form may not meet specific legal and technical requirements of the current Florida POA Act. You certainly don’t want a situation where the legitimacy of your DPOA form is questioned after it is too late to make changes.
Would a Durable Power of Attorney designee be of assistance to you? If so, click here to search for a helpful Elder Law Attorney in your area.
Authority: S. 117.05(14); Chapter 709, Part II, ss. 709.2101 – 709.2402; and Chapter 825, ss. 825.101, 825.102, 825.103 – 825.106, Florida Statutes (2015). 10 U.S.C. s. 1044b.
A Designation of Health Care Surrogate is an advance directive by you, effective during your lifetime unless revoked, by which you express your instructions or desires concerning any aspect of your health care or health information. Effective October 1, 2015 and thereafter, the person selected by you to serve as your Health Care Surrogate may be authorized to act immediately by assisting in making health care decisions for you, and by accessing your health care information. As long as you are capable of making your own health care decisions, your own health care decisions take precedence over decisions made by the surrogate that present a material conflict. Alternatively, you may limit your surrogate to act only in the event that you are incapacitated or incompetent to make your own health care decisions and to direct your own health care treatment (i.e., your inability to communicate a health care decision or to provide informed consent), as determined by your physician.
Signature and witness requirements: This planning document must be signed by you, or on your behalf, in the presence of two subscribing witnesses. If you have the mental capacity but not the physical ability to sign, you may direct another person to sign the Designation of Health Care Surrogate for you. The designated surrogate you name may not act as a witness, and at least one witness may not be either your spouse or blood relative.
Are Alternate Health Care Surrogate(s) permitted? You may wish to designate one or more alternate surrogates, who would be authorized to act if your named surrogate is not able, is not willing, or is not reasonably available to act.
What if I do not have a Designation of Health Care Surrogate? If you do not designate a Health Care Surrogate, and you can no longer make health care decisions for yourself, a health care proxy decision maker will be assigned that task by your health care provider’s bioethics committee. That person is selected in order of statutory priority giving your Guardian, then your spouse, first priority, and then other family members under Florida’s laws.
What is the difference between a Living Will and a Designation of Health Care Surrogate? While your Designation of Health Care Surrogate can cover any health care decision or release of your health information, your Living Will is the recognized advance directive which authorizes and evidences your consent to the withholding or withdrawal of life-prolonging procedures.
What is the role of my Elder Law Attorney in helping designate my Health Care Surrogate? With your Living Will, the Designation of Health Care Surrogate is an advance directive that has huge implications on who will make health care decisions for you, and how the end of your life occurs. A qualified Elder Law Attorney can help you to be sure those advance directives are consistent with your wishes, and thereby help reduce the risk that any court determination of your incapacity and appointment of a legal guardian for your person is required.
Authority: Chapter 765, Parts I – IV, ss. 765.101 – 765.404, Florida Statutes (2015).
Probate is the court process for passing ownership of a deceased person’s assets to the beneficiaries. It is also necessary to wind up the decedent’s financial affairs and make sure all the decedent’s creditors are paid.
Probate assets are property (real and personal) that the decedent owned in his or her sole name on the date of death. They do not include bank or investment accounts that are held jointly with right of survivorship with another individual or accounts that are payable or transferable on death to another. They also do not include a life insurance policy or retirement account that is payable to a specific beneficiary.
There are two types of probate administration under Florida law: formal administration and summary administration. There is also an informal proceeding called “Disposition of Personal Property Without Administration.” This applies only in limited circumstances when the amount of the assets is very small.
In a formal probate administration, the required documents are filed with the Clerk of the circuit court in the county where the decedent lived at the time of his or her death. The Circuit Court judge assigned to the case signs all Probate Orders and presides over hearings in the matter. If there is a Will, the judge approves the Will and appoints the Personal Representative named in the Will. If there is no Will (this is called “intestacy”), the judge appoints the surviving spouse or another family member to be the Personal Representative.
The Personal Representative is in charge of the administration of the decedent’s probate estate and has a legal duty to administer the probate estate pursuant to Florida law. In most cases the Personal Representative will be required to be represented by an Attorney who will provide legal advice throughout the process. Many legal issues arise, even in the simplest probate estate administration, and most of these issues will be unfamiliar to non-attorneys. The attorney for the personal representative is not the attorney for any of the beneficiaries of the decedent’s probate estate.
“Summary Administration” is generally available only if the value of the estate subject to probate in Florida is not more than $75,000, and if the decedent’s debts are paid. Summary administration is also available if the decedent has been dead for more than two years and there has been no prior administration.
The length of time it takes to complete the probate process depends on the facts of each case; some probate administrations take longer than others. For example, the personal representative may need to sell real estate prior to settling the probate estate, or to resolve a disputed claim filed by a creditor or a lawsuit filed to challenge the validity of the will. Any of these circumstances, if present, would tend to lengthen the process of administration. Even the simplest of probate estates must be open for at least the three-month creditor claim period; it is reasonable to expect that a simple probate estate will take about five or six months to properly handle.
What is Guardianship? Guardianship is the process designed to protect and exercise the legal rights of individuals who lack the capacity to make their own decisions for their care or property, and who have not made plans to address what happens when they become incapacitated. Guardianship in Florida is governed by the Florida Guardianship Law and The Florida Probate Rules
How is a Guardian Appointed? A Petition to Determine Incapacity is filed with the court to determine if a person lacks the capacity to take care of his or her self and property (assets). A Petition to Appoint a Guardian is usually filed at the same time. The court appoints an attorney to represent the alleged incapacitated person (the AIP). The attorney meets with the individual, makes an assessment in that person’s best interests and files a report with the court. The court also appoints a committee of three members to conduct an evaluation and report back to the court. This committee consists of one physician, one psychiatrist, and either another physician or psychiatrist, a nurse, a social worker, or a lay person qualified to make such an evaluation. The court holds a hearing to review all relevant evidence, including the reports of the examining committee. If the AIP is found to be incapacitated, the court must determine if there is a less restrictive alternative to guardianship. If there is not, the court appoints a guardian and issues an Order that states which personal and property rights are to be taken away and exercised by the guardian. An individual or corporation can be appointed by the court to manage some or all of the personal and property affairs of a person.
Can Guardianship be Avoided? Advance Directives such as a Durable Power of Attorney, a Designation of Health Care Surrogate, and a Revocable Trust (Living Trust), executed while having capacity, can give powers to an Agent (usually a relative or friend) who can act on behalf of a person if they are unable, physically or cognitively, to take care of their well-being or income and assets.
Pre-Need Guardianship You can name a person who you wish to serve as your guardian should you become incapacitated in the future. The writing must be signed in the presence of two attesting witnesses. When a Petition for Incapacity is filed, this written declaration creates a rebuttable presumption that the person named is entitled to serve as your guardian.
What is a Professional Guardian? A Professional Guardian completes a course approved by the Statewide Public Guardianship Office (SPGO) and must pass an exam. Non-attorney Guardians must also post a bond and be represented by an attorney. Professional Guardians register each year with the SPGO and must take a minimum of 16 hours of continuing education every two calendar years. They are appointed by the court when no family members or friends are available or willing to serve.
What is a Public Guardian? A Public Guardian may be appointed by the court when there are no family members or friends able or willing to act as Guardian, and the incapacitated person does not have sufficient assets to pay a Professional Guardian.
A Living Will is a written document, effective during your lifetime until revoked, that expresses your desire regarding the withholding or withdrawal of life prolonging procedures in the event you have a terminal condition, an end-stage condition, or you are in a persistent vegetative state. It must be signed by you in the presence of two witnesses, one of whom is neither your spouse nor blood relative. If you have the mental capacity but not the physical ability to sign, you may direct one of the witnesses to sign the Living Will for you. You may, but are not required to, designate a surrogate to help carry out and enforce your Living Will. A Living Will creates a rebuttable presumption of “clear and convincing evidence” of your wishes. The existence, reliance upon, and use of a Living Will is widespread and consistent with hospice and palliative care practices.
What happens if I do not have a Living Will? Your Health Care Surrogate, if any, would be authorized to provide express and informed consent regarding the withholding, withdrawal, or continuation of life-prolonging procedures. In the absence of a Designation of Health Care Surrogate, or if that advance directive expressly limited the authority of the Health Care Surrogate to act in the absence of a Living Will, then a proxy would be appointed for you by your health care provider’s bioethics committee, with priority given to your Guardian, if any, then your spouse, if any, then adult child, if any, then adult sibling, and thereafter as otherwise provided by Florida law.
Not Mercy Killing or Euthanasia: Compliance with your wishes as expressed in your Living Will, or as otherwise undertaken by your Health Care Surrogate or proxy under Florida law, regarding the withholding or withdrawal of life prolonging procedures in the event you have a terminal condition, an end-stage condition, or you are in a persistent vegetative state, does not constitute nor authorize any act or omission to end life other than to permit the natural process of dying.
Not a “Last Will and Testament”: A Living Will states your intent regarding the delivery of life prolonging procedures if you have a terminal condition, end stage condition or you are in a persistent vegetative state. In contrast, a Will states your intent with respect to distribution of assets after you pass, and allows you to nominate a Personal Representative responsible for enforcing the terms of the Last Will at Testament through a court supervised estate administration (i.e., “probate”). Also, a Last Will and Testament is only effective upon your death.
What is the role of my Elder Law Attorney with a Living Will? A Living Will is one important part of your overall legal planning and a qualified Elder Law attorney can ensure that all such legal planning documents are fully explained to you, and properly prepared and executed, ensuring your wishes are clearly defined and followed.
Have you and your family members created your Living Will? If not, click here to search for a helpful Elder Law Attorney in your area.
Authority: Chapter 765, Parts I – IV, ss. 765.101 – 765.404, Florida Statutes (2015).
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 Medicare 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.
Medicare Part A is hospital insurance and covers inpatient hospital stays, care in a skilled nursing facility, hospice care and some home health care. Medicare 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.
Medicare 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 Medicare 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 Be 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.
Medicare Part D is prescription drug coverage that can be added to Original Medicare, some Medicare Cost Plans, some Medicare Private-Fee-For-Serive 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).
There are numerous assistance programs that fall under the term “Medicaid”. Florida Elder Law Attorneys are often called upon to assist individuals and their families with Florida Medicaid programs for those desiring and needing long term care in nursing home facilities, assisted living facilities, or in their own homes.
To be eligible for Florida’s Medicaid programs, an individual must meet basic requirements. (Some Medicaid programs may have exceptions or additional criteria.) These basic requirements are:
• Be a resident of Florida
• Be 65 or older; if under 65, must be disabled or blind
• Be a U.S. citizen or qualified non-citizen; and proof of identity
• Have a Social Security Number
• Be medically needy (must meet the level of care required for the particular program)
• Must apply for any other benefits for which the applicant may be eligible such as veteran’s benefits and disability benefits
• Give the State of Florida the right to collect private insurance benefits
• Meet the program’s income test
• Meet the programs’ asset test
Elder Law Attorneys assist their clients and advocate on their behalf to ensure that all requirements are met prior to applying for benefits. It is important to seek out the assistance of an Elder Law attorney before transferring any assets. The asset test is extremely technical; if transfers are not done timely and properly, the transfer can actually defeat Medicaid eligibility for a long period of time.
Additionally, Elder Law Attorneys can assist clients who have excess income or assist those seeking benefits but need some of their income to be paid to their healthy spouse. Elder Law Attorneys can also facilitate the process of satisfying the level of care requirement necessary for Medicaid qualification.
Medicaid planning is a highly technical area of practice. Elder Law Attorneys rely on the Social Security Act, the Federal Code and Regulations, the Florida Statutes and Code, case law, and many other sources of knowledge and are continually updating their legal education. The attorney members of the Florida Academy of Elder Law Attorneys are well qualified to assist clients seeking information and assistance in Medicaid planning and eligibility.
Elder abuse is any willful act or threatened act by a caregiver that causes, or is likely to cause, significant impairment to a vulnerable adult’s physical, mental, or emotional health. It includes both acts and omissions. Elder abuse includes financial exploitation of a vulnerable adult’s funds, assets, or property with the intent to temporarily or permanently deprive that adult of its use. It may also take the form of deception by misrepresentation or concealment of a material fact relating to services rendered the disposition of property, or the use of property that is intended to benefit a vulnerable adult. Intimidation by word or act to a vulnerable adult that the person will be deprived of food, nutrition, clothing, shelter, supervision, medicine, medical treatment, money or financial support is elder abuse. It may also take the form of neglect by the failure or omission on the part of the caregiver to provide the care, supervision, and services necessary to maintain the physical and mental health of the vulnerable adult, including food, clothing, medicine, shelter, supervision, and medical services.
Remedies. Florida statutes provide several solutions when there has been abuse, which include Protective Services, civil actions for recovering assets, and criminal sanctions by the State.
Adult Protective Services Act
Fla. Stat. 415.101 states “The Legislature recognizes that there are many persons in this state who, because of age or disability, are in need of protective services. Such services should allow such an individual the same rights as other citizens and, at the same time, protect the individual from abuse, neglect, and exploitation. It is the intent of the Legislature to provide for the detection and correction of abuse, neglect, and exploitation through social services and criminal investigations and to establish a program of protective services for all disabled adults or elderly persons in need of them. It is intended that the mandatory reporting of such cases will cause the protective services of the state to be brought to bear in an effort to prevent further abuse, neglect, and exploitation of disabled adults or elderly persons. In taking this action, the Legislature intends to place the fewest possible restrictions on personal liberty and the exercise of constitutional rights, consistent with due process and protection from abuse, neglect, and exploitation. Further, the Legislature intends to encourage the constructive involvement of families in the care and protection of vulnerable adults.” The purpose of Protective Services is to ensure that the vulnerable adult is provided assistance to stay at home and stay safe. If the person lacks the capacity to consent to Protective Services, a judge may order such services to be provided.
Offenses Against Vulnerable Persons—criminal penalties. Fla. Stat. 825.101 “Definitions” & 825.103 “Exploitation of an elderly person or disabled adult; penalties” This part of the Florida statutes defines exploitation, neglect, abuse and sexually inappropriate conduct and provides criminal penalties.
Fla. Stat. 825.103 provides penalties for exploitation of an elderly person or disabled adult. Breach of a fiduciary duty by a guardian, trustee, or agent under a power of attorney occurs when that individual engages in an unauthorized appropriation of property, abuses their power, intentionally mismanages assets, fraudulently obtains their appointment, or acts contrary to a principal’s best interest. This includes misappropriating, misusing, or transferring without authorization money belonging to an elderly or disabled person from an account in which that individual placed funds, owned the funds, or was the sole contributor of funds, including joint accounts established essentially for convenience. It is also a crime for a caregiver or any person who stands in a position of trust and confidence to intentionally or negligently fail to effectively use an elderly or disabled person’s income and assets for the necessities they require for their support and maintenance. Transfers of property valued in excess of $10,000.00, whether in single or multiple transactions, by a person 65 years or older to a nonrelative whom the elderly person knew for less than 2 years, where he or she did not receive equivalent financial value in goods or services, creates a permissive presumption that the transfer was the result of exploitation. It is a third degree felony where the funds, assets or property involved is valued at less than $10,000.00; a second degree felony if more than $10,000.00 but less than $50,000.00; and a first degree felony if valued at more than $50,000.00.
Fla. Stat. 415.1111
A vulnerable adult who has been abused, neglected, or exploited may also bring a civil action against the perpetrator for actual and punitive damages, and may be entitled to attorney’s fees. This is in addition to criminal and administrative remedies that are available to the vulnerable adult.
Mandatory Reporting Fla. Stat. 415.1034 requires physicians, nurses, paramedics, hospital personnel, health and mental health professionals, spiritual healers, nursing home, assisted living and adult day care staff, social workers, adult family-care home staff, state, county, or municipal criminal justice employees, law enforcement officers, employees of the Department of Business and Professional Regulation, Florida advocacy or long-term care ombudsman council members, as well as bank, savings and loan, or credit union officers, trustees and employees who know, or have reasonable cause to suspect, that a vulnerable adult has been or is being abused, neglected, or exploited to immediately report such knowledge or suspicion to the central abuse hotline.
How Do You Report Elder Abuse? Elder abuse can be reported to the Florida Department of Children and Families (DCF), either by calling their hotline at 1(800) -96ABUSE, or by filing a report on-line at their website www.dcf.state.fl.us/programs/abuse/report.shtml
Immunity Fla. Stat. 415.1036 states that any person making a report of elder abuse, or participating in a judicial proceeding resulting therefrom is presumed to be acting in good faith, and is immune from civil and criminal liability, unless lack of good faith is shown by clear and convincing evidence. Any person making such a report has a cause of action for compensatory and punitive damages against anyone who causes detrimental changes to the reporting party’s residency or employment.