Task Force Initiatives
Below, you will see a sampling of issues that the Task Force work on monthly. To be updated on a regular basis, please consider contributing to the Task Force. You may contribute online by clicking here or click here to download a printable Contribution Form.
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** Meetings occur weekly on Thursday mornings from 8am to 9am.
- Bills which passed the 2020 Legislative Session are starting to go to the Governor’s office. Those had previously been held while the state assessed the economic impact of COVID-19 on the state’s 2020 sales tax revenues. The preliminary numbers have the state down in sales tax revenues more than $700 million in March and $800 million in April. Tourism is also expected to be off about 11%. As a result, anticipate the Governor vetoing many spending bills and line items in the state budget, including those which were previously supported by the administration. The Task Force previously circulated a report of the 2020 bills that passed, and those that did not pass. Our lobbyists will update that list after the Governor is done so that we will all have a clear picture of the final word on the 2020 Florida Legislative Session. Just a reminder, the state’s fiscal year starts on July 1.
- The ELS Legislative Committee and Executive Committee have approved two legislative initiatives for the 2021 Legislative Session. The first is a glitch bill to fix s. 835.1035, the Injunction for Protection Against Exploitation of a Vulnerable Adult, primarily to (i) expand the 15-day initial injunction or “freeze” period, and (ii) expressly add an agent under a Durable Power of Attorney as a petitioner on behalf of the vulnerable adult. Collett Small and Shannon Miller have the point on this. The second initiative is to enact an exploiter disinheritance bill, to be headed up by Ellen Morris. The Task Force expects to monitor and support these initiatives, and to follow, review, and appropriately respond to any separate RPPTL 2021 legislative initiatives.
- The Task Force provided free webinars to all concerned on April 3, 2020 regarding the Families First Coronavirus Response Act (Employment Law) by Ria Chattergoon, Esq., and on April 9, 2020, with a repeat on April 16, 2020, on Executing Estate Planning, Power of Attorney and Advance Directive Documents in the Age of Coronavirus, by Twyla Sketchley, Emma Hemness, Howard Krooks, and Travis Finchum. Also, last Friday, May 29, the Task Force offered a free PPP eligibility and forgiveness webinar to Task Force contributors by Michael Cholos, CEO of Monolith Strategic, and a former SBA administrator.
- Lauchlin Waldoch and Emma Hemness have traditionally maintained close informal contacts with the DCF General Counsel’s office. As personnel has changed there, that has become a challenge. Lauchlin, with the help of ELS Medicaid Committee Chair John Clardy, will be attempting to re-establish those informal contacts in coming months. There are a few pending issues, such as nonsensical denials on NOCAs, and QIT execution requirements in the context of COVID-19 considerations, which need to be better addressed and clarified by DCF. Administrative rule challenges under s. 120.56 are not out of the question in the future to improve the dialogue between DCF and the Elder Law bar.
- The practice of asking for appointment of a “Medicaid Authorized Representative” (“MAR”) by the Probate/Guardianship Court as a standalone petition and order is under great scrutiny. The concern is that the federal regulation cited in these “petitions” is alleged to give broad authority to individuals to accomplish certain necessary tasks to gain Medicaid eligibility. However, the “MAR” is really only permitted to deal with the Medicaid agency on behalf of an individual, as the cited regulation does not contemplate handling a person’s finances or conducting any planning strategies whatsoever. Concern exists over exploitation and lack of due process protections in the use of this practice as an alternative to guardianship (voluntary, temporary, and/or permanent), in the absence of a previously executed Durable Power of Attorney. Travis Finchum and other members of the Task Force have written the Probate/Guardianship Judges in the various Judicial Circuits to advise of this concern and as a warning. The ELS Medicaid Committee is drafting a White Paper for review and circulation.
- Bonus Coverage: The ELS Guardianship Committee is working on input and response to the U.S. GAO Report on Abuse by Guardians, which will be coordinated back through Prof. Rebecca Morgan. The Guardianship Committee also will be available to provide additional input and review of any 2021 Elder Care Coordination legislation in connection with Florida guardianship practice. Although there are stakeholders in that potential legislation, there is no current sponsor, and it is not an ELS legislative priority for 2021.
- Follow Up Report: Mary Wakeman, B.C.S. of Heuler-Wakeman Law Group, appeared at oral arguments before the 5th DCA on December 10, 2019, as counsel for AFELA in an Amicus Curiae role in J.N. vs. Department of Children and Families (Case No. 5D18-3084), supporting DCF’s position that a Medicaid applicant’s conversion of cash into a security offered by Coastal Income Properties-Zachary Taylor, LLC, should result in imposition of a penalty against applicant’s eligibility for Medicaid benefits. The court’s decision was favorable, affirming with a written opinion on March 6, 2020, that DCF’s conclusion that a $100,000 transfer to Coastal was not intended to be in exchange for fair market value was supported by substantial, competent evidence.