2014: New Rules; New New Year's Resolutions!

                                      NEW YEAR'S RESOLUTIONS FOR 2014

2013 introduced significant legal and social developments in our country such as:

• the United States Supreme Court's ruling in Windsor resulting in federal rights being available to married same sex couples
• individuals delaying their retirement age due to increased life expectancies, weakened retirement systems and poor financial planning Click here to read more and
• states like Pennsylvania passing laws that hold adult children financially responsible for their parents' care in a nursing home Click here to read about filial responsibility.

From my perspective as a legal advisor the 'take-away' is about planning and being accountable for creating the life we desire.  As you get ready to celebrate this New Year here are a few new years' resolutions to consider implementing now:

1. Invest in your, and your family's, future by having quality legal documents prepared before an emergency arises. Legal documents such as a Durable Power of Attorney and Designation of Healthcare Surrogate may prevent a court ordered guardianship proceeding that can be costly and time-consuming.
2. Schedule an appointment at your local Social Security Administration to learn how to maximize your retirement benefits and possibly your spouse's spousal benefit by starting and then suspending your benefit or, delaying your retirement age. Click here to read more
3. Create a team of advisors (attorney, accountant, financial advisor) early in 2014 to guide you.

We want to be your trusted legal advisor through life.  Start your new year off on the right foot by becoming an informed legal consumer:

• download our gift certificate for a 20% discount on the initial consultation and call our office to schedule your appointment;
• visit our website and sign up to receive our free e-mail newsletter containing powerful tips and important information;
• like us on Facebook.

We wish you a healthy and happy 2014!

Key Tax & Financial Figures for Estate Planning in 2014

                         Important Figures to Know As You Plan for 2014

Beginning January 1, 2014, several federal agencies will be providing cost of living increases to select government programs and tax related laws.  Be sure you have current information before you take steps to qualify for Medicaid or, make gifts and certainly discuss it with your accountant.  Here are a few of the most important changes:

1. Federal Gift Tax Exclusion: This sum will remain at $14,000.00  per person to an unlimited number of individuals. Married couples can use split-gifting and gift up to $28,000.00 per person.
2. Federal Estate Tax Exclusion: Up to $5.34 million dollars will be excluded at the death of an individual. Any sum over this amount will be taxed. Consult with your estate planning attorney and accountant on the options to reduce your estate tax.
3. Medicaid Home Equity Limit: A home is exempt in Florida up to the equity value of $543,000.00. That means the value of the home does not prevent a person from receiving Medicaid benefits.
4. Medicaid Income Limit: Florida is one of fourteen states that imposes an income limit for a Medicaid applicant. It will be set at $2,163.00 per month; this is gross before deductions.
5. Medicaid Community Spouse Resource Allowance:  When a member of a married couple becomes ill and applies for Medicaid the healthy spouse can keep up to $117,240.00 of countable resources (i.e. bank accounts, investments).  There are assets that are exempt (whose value does not count) which can be kept in addition to the countable resources.

The Medicaid rules and tax laws have many nuances so it is important to have all your advisors working together to explore the options and the consequences.  Medicaid now has  a 5 year look-back period - if you have made gifts during this period it will delay your ability to qualify for Medicaid - don't dabble, seek qualified advice.

Meet with a qualified elder law attorney and create a plan that will make the aging process easier for you and provide for the comfort and care of your loved ones.  Our firm is here to guide you. We want to be your trusted planning advisor through life.sm

PET TRUSTS

                          Your Beloved Pet Deserves a Pet Trust

Recently, more people are including their pets in their estate plan.  In 2012 a Tennessee resident died and provided for the future care of his two casts in his Last Will & Testament.  He has left $250,000.00 and his home to Frisco and Jake. The monies that remain after Frisco, the older cat, dies will be distributed to his family provided that they care for the remaining feline. Click here to read more.

Many clients have shared with me how their lives have been more meaningful by sharing their home with a pet.  It is only fitting to plan for the future of your pets after you have left this earth.  Florida and other states have laws that permit pet trusts. A pet trust can be created in your Last Will & Testament or your Revocable Trust.  Consider these preparation tips before you meet with your elder law attorney:

 

1. Identify all your intended beneficiaries (people, animals and charities).

 

2. Determine what assets and how much you would like to leave to each beneficiary. It is generally best to work with percentages and not dollar amounts. No one has a crystal ball to predict what assets will remain at your demise.  Using percentages assures that each beneficiary will receive something.

 

3. Think about whether you want your pets and other beneficiaries to receive assets at the same time or, if your priority is the animals first and then distribute remaining assets to individuals and/or charities.

 

4. Identify a trusted person or organization to care for your pets.

 

5. Create a rough estimate of the yearly cost of care for your pets.

Once you have prepared, meet with a qualified elder law attorney and create a plan that will make the aging process easier for you and provide for the comfort and care of your loved ones.  Our firm is here to guide you. We want to be your trusted planning advisor through life.sm

Lessons I Learned from my Father

                         Lessons I Learned From My Father

My father, Howard Schneider, died on November 16, 2013.  When I graduated law school my father told me that the experience would serve me well and he was right.  My father's legacy is his work ethic, the importance of one's character and credibility, and the bravery he exhibited living with Parkinson's.  I am grateful for his legacy as it has made me a better person and a caring elder law attorney. During my 20 year career as an elder law attorney I have endeavored to educate and empower clients to make informed decisions that will bring them peace of mind.  In honor of my father  I would like to share with you my top tips to help clients and their caregivers as they experience the aging process. I hope that these tips will serve you well:

  

1.  Don't Be Penny Wise and Pound Foolish:  Sometimes you can take a shortcut to get to the goal line and sometimes you can't.   Don't use an internet program, or an attorney who is not a specialist, to create your legal documents just to save a few bucks.  When it comes to your legal plan do it right the first time by hiring a qualified professional. Otherwise, you may spend more money later to fix the problem.

2.  Don't Let Rumors Determine Your Future: I see clients who listen to neighbors for legal advice and  then make decisons based on fear.  Beware! There is a lot of misinformation floating out there. Do not add your children's names onto your accounts thinking it will avoid probate. You may create a problem by exposing your accounts to your child's creditors such as in a divorce or bankruptcy.  Invest in a well drafted Durable Power of Attorney that will give your children authority to handle your financial affairs (not own your assets) during your illness or incapacity.

3. Veterans Should Avoid Becoming Victims:  The VA provides a variety of benefits (financial assistance and healthcare) to veterans and their immediate family members.  Unfortunately, there are unscrupulous people who tell veterans that they can help them apply for benefits for a small fee.  Don't be duped into buying inappropriate investments with a promise of qualifying for benefits.The VA prohibits anyone, including an accredited advisor (like myself), from charging for assisting a veteran to file an application for benefits.  First seek advice from an accredited advisor and then have the local veteran service office assist you with the application, at no charge.

4.  Medicaid and The Home: In Florida we are fortunate to have homestead laws that protect the home from creditors including Medicaid. Don't panic and transfer your home to your child. You will make yourself ineligible for Medicaid benefits.  Consult with me and I will show you how to protect your home and qualify for Medicaid in the event of a long-term illness.

5. Social Security Survivor Benefits:  Healing from the loss of a beloved spouse can be challenging.  Sometimes, we  postpone dealing with things.  The one thing you do not want to put off is meeting with the Social Security office to determine your entitlement to receive spousal or survivor benefits.  If you are divorced you are entitled to benefits if you were married for 10 years. If you are married, you must be married 1 year to be eligible. The amount of the benefit is based on several factors including the surviving spouse's age, whether the surviving spouse has begun to receive benefits and whether the decedent suspended his/her benefits. Don't wait because you may lose the right to receive monies that can help you meet your financial obligations.

Today is a new day - seize it and be proactive. Meet with a qualified elder law attorney and create a plan that will make the aging process easier.  Our firm is here to guide you. We want to be your trusted planning advisor through life.

  

How Much Does a Simple Estate Plan Cost?

                                   "How Much Do You Charge for a Simple Estate Plan?"

Ever since the United States economy tanked in 2008, along with the downturn in the Florida real estate market, I've observed that a lot of people became frozen by the fear of not having enough money and delayed seeking elder law advice to resolve important legal issues.

Many families found themselves in a legal crisis. Why? Because they didn't want to invest in their future and seek qualified legal advice at the earliest possible time.  What I refer to as the 'fear of lack' instead of abundance (the glass is half full), has caused people to take shortcuts to resolve their legal issues - these shortcuts often result in more problems and expense to fix. Unfortunately, the delays I witnessed resulted in people incurring more legal fees to fix the problem, losing the privacy in their lives (due to guardianship) and having fewer planning options. 

 A common situation is people creating their own legal documents on the internet through Legal Zoom or other service.  In many situations those documents were not properly signed (so they are not valid) or, didn't fully address their legal needs.  Sadly, this is a perfect example of being 'penny wise and pound foolish.'

Since 2008 my office receives calls from people asking "how much does it cost for a simple estate plan?" or, "how much will it cost to protect my assets and qualify for Medicaid?" Unless the caller receives a range of legal fees, the caller won't schedule a consultation.   My staff and I cannot diagnose your issues in a few minutes on the telephone in order to tell you the cost of our legal services--as qualified and experienced as I am.  Just like a doctor cannot diagnose and treat a patient's medical issue over the telephone.  We do not want to scare anyone away by quoting a range of fees that may not apply to your particular situation.  We want to motivate you to be an informed consumer. At our firm we: 

• tailor our advice and recommendations to your circumstances and needs while treating you  with compassion
• educate you about the law, your rights and planning options
• empower you to make an informed decision to achieve your goals that helps create peace of mind.

      To do this effectively, I need to meet with you to: 

1. discuss what is happening or changing in your and your spouse or partner's lives;
2. identify your concerns and goals;
3. review your finances (type of assets and income, value and ownership); and
4. determine which legal planning options will best help you achieve your goals based on your circumstances.

There is no 'one size fits all' solution to creating an estate or asset protection plan.  Each person is unique and deserves to receive a comprehensive analysis with recommendations tailored to them.  That is why when you visit my firm's website (www.fl-elderlaw.com ) you can download a gift certificate for a 20% discount for the initial consultation.  The consultation will be an investment in your future.  At the end of the consultation you will not only leave informed about your planning options you will also receive a written proposal for legal services. 

As a well known businessman suggested: Be an educated consumer. Don't make decisions that impact your future and your family based on fear.

We are pleased to work with our clients at our office, via telephone where appropriate, and we make house-calls. Our goal is to counsel people of all ages to co-create a plan that achieves your goals.

How to Find a Healthcare Advocate

                                                CHOOSING A HEALTHCARE FIDUCIARY         
Now that you are motivated to have legal documents prepared to designate a medical decision-maker in the event of your incapacity you might find yourself asking "whom should I name?"  This question is not uncommon especially for people who:

• are not married or  
• are divorced or 
• whose spouse is deceased or
• who have no children or
• are an only child

There is a solution: a healthcare fiduciary or, healthcare advocate. The healthcare fiduciary can be someone that you compensate to handle the responsibility of supervising your medical care and making healthcare decisions. This individual can be a professional with education and work experience in the fields of social work, medicine or, geriatrics.  For example:

• a social worker
• geriatric care manager
• professional guardian or
• a patient care coordinator. 

     Here are some tips for beginning the process:

1. Interview more than one person as your prospective healthcare fiduciary. Ask the person about their knowledge of medical issues and end-of-life care. Evaluate the person's communication skills and their level of compassion. 
2. Request that the person provide you with a client reference you can call.
3. Inquire how the healthcare fiduciary charges for their services (i.e. hourly rate charges).
4. Ask who will cover for that person when they are on vacation. 
5. Request a written agreement that identifies their duties and responsibilities to you and how he/she charges.
6. Determine how often you and the healthcare fiduciary will communicate and/or visit while you are healthy. If it is just a telephone call, ask if you will be charged and at what rate. 

Once you have selected a healthcare fiduciary, make an appointment to meet with me, your trusted advisor through life, to create your Designation of Healthcare Surrogate and your Declaration of Funeral Designee (that person will make and carry out your funeral arrangements in the event you have not made them prior to your demise). Remember: The benefits of having these documents is that you choose who will assist you when you are incapacitated, you maintain privacy in your life as well as avoid a court supervised guardianship. Don't delay let's create your plan today!

 

TRUSTEE OF SPECIAL NEEDS TRUST VIOLATED FIDUCIARY DUTY

TRUSTEE OF SPECIAL NEEDS TRUST VIOLATED FIDUCIARY DUTY 
All trustees face the challenge of forecasting future needs of special needs trust beneficiaries.  In order to develop an expenditure plan that is reasonable and based on realistic expectation of the beneficiary and their family requires the trustee must get to know the person.  Otherwise, the trust assets will not be used in the most effective way to improve the quality of life and quality of care for the trust beneficiary.

A New York Judge recently issued an opinion that will impact how trustees administer special needs trusts.  It is refreshing to see that there are advocates, including in the judiciary, for people with disabilities seeking to protect them and improve the quality of their lives. Judge Kristin Booth Glen is to be commended. Click here to read about Judge Kristin Booth Glen. The case Judge Glen heard involved a wealthy widow who created a trust for her two sons. One of the sons, Mark Holman, had communication skills of a toddler and could not feed or dress himself. Mark was diagnosed as autistic. He lives in a group home. Mark’s trust was valued at $3M.

The drafting attorney, Harvey Platt, Esquire, and JP Morgan served as Co-Trustees of Mark's special needs trust. Mark received Medicaid benefits. Trust monies had not been disbursed for the benefit of Mark for years but had been used to pay trustee fees. The attorney for the widow petitioned the court (after the widow’s death) to become the Guardian for Mark.  Judge Glen asked attorney Platt when he had last seen Mark. Mr. Platt had not seen Mark for years before Mark's mother's death, and this greatly bothered the Judge.  This co-trustee had no idea what Mark's needs were, his abilities or how he was being cared for by the group home.

 

Judge Glen reviewed the special needs trust accounting submitted by the Co-Trustees and found that it was lacking in several ways and ordered them to amend it. Judge Glen went so far as to rule that the compensation of the Co-Trustees should be reduced or denied for the period of time that they took no steps to spend the trust assets for Mark's benefit.  Click here to read the Mark Holman decision

Here are some tips for trustees:

1. use due diligence to learn about the trust beneficiary
2. schedule at least quarterly meeting with the trust beneficiary and their legal representative
3. employ a care manager with a medical or social work background and experience to guide you in making appropriate disbursement for the trust beneficiary.

Trustees who are asked to serve as a fiduciary of a special needs trust need to determine whether they have the education, training and resources to properly administer a special needs trust. If a potential trustee does not have the resources to make this commitment then they need to decline. Trustees need to stay alert and understand that their responsibility is not just to invest the trust assets.  On a much larger scale the Trustee must fulfill the terms of the trust and use the trust assets to improve the quality of the beneficiary's life.

 

Here are some tips for families who are considering a corporate trustee: 

• Interview more than one corporate trustee
• Ask for references you can speak with (i.e. other families whose special needs trust are being administered by this trustee)
• Have a list of questions or ask your elder law attorney to provide you with questions to pose.
• When the trust is drafted consider including language that will permit the removal of a trustee for failure to establish a rapport with the beneficiary or failure to communicate with the beneficiary.

Our firm encourages our clients to interview potential trustees. In addition, I sit with my clients while they are doing the interviews to help them understand trust administration issues.  At my law firm, we empower our clients to become informed consumers.

Yes, Virgina-You Do Need Legal Planning Documents

"I'm Not Wealthy - Do I Really Need Legal Documents?" Yes Virginia You Do.

Do you feel that you do not have enough assets to justify making a Last Will & Testament, Durable Power of Attorney or Designation of Health Care Surrogate?  You are not alone, and nothing could be further from the truth.

Wealth, like beauty, is in the eye of the beholder.  Everyone's life and family circumstances are unique so your plan should be tailored to you. No matter how small or large your financial worth, be responsible to plan ahead so that your family can have the comfort that only peace of mind can deliver.  Here is my top ten list of why everyone needs legal documents regardless of their level of wealth, age, or gender:

                                     Stephanie's Top Ten Reasons for Creating a Future Plan

1. Parents Cannot Make Decisions for Adult Children: Everyone at age 18 is an adult and by law and can make their own decisions (even if we think our children are immature or, fiscally irresponsible). Parents cannot make decisions for their ill adult children (including children away at college) without a Durable Power of Attorney or Designation of Health Care Surrogate. 
2. Spouses Cannot Automatically Make Decisions for Their Spouse: Because we each have legal rights under state and federal laws, being married does not mean our spouse or partner can make decisions for us when we are incapacitated.  A spouse may own assets that by law cannot name the other spouse as an owner such as an I.R.A., 401(k) or other retirement investment. If a spouse is named a beneficiary on an asset that person has no right to access that account while the owner is alive.  This can present a problem if the assets are needed to care for the incapacitated spouse. A Durable Power of Attorney can be very beneficial to allow the well spouse to make financial decisions for the incapacitated spouse.
3. The Medical Privacy Law: HIPAA is the medical privacy law. It prevents a school or healthcare provider from releasing information to someone other than the patient unless authorized by the patient. That is the reason why the hospital that treated the injured Virginia tech college students after the shooting refused to provide information to parents.
4. Avoid a Court Supervised Guardianship: Once a person lacks mental capacity it is too late for them to sign a Durable Power of Attorney or Designation of Health Care Surrogate. The option of last resort will be a guardianship. The incapacitated individual will face the loss of their privacy, and the time and expense associated with having a guardian appointed.  The Court and the attorney for the Guardian will continue to supervise the Guardian until the incapacitated person dies. A financial institution is not going to permit a family member to access an account regardless of how small the value of that account may be.
5. Avoid the Media:  If Terry Schiavo had legal documents in place naming a medical advocate and expressing her preferences for end-of-life care it could have avoided the battle that ensued in the Court for many years between her husband and her parents.  It also could have prevented the emotional turmoil experienced by her family as a result of the media making her life a forum for a hotly debated ethical issue.
6. Maintaining Family Harmony: If a person does not have a Designation of Health Care Surrogate then the Florida Health Care Proxy law provides that all children must agree on medical decisions. This can be a problem if children have differing views of what is in the parent's best interests. A hospital or, doctor will not place themselves in a position to risk liability if all the proxies cannot agree on the course of action to be taken. By having a Designation of Health Care Surrogate the healthcare providers are only required to honor the decisions made by the surrogate.
7. Making An Investment In Your Future: The cost of preparing an estate and incapacity plan is far less expensive than the cost of a guardianship which, after several years, can cost tens of thousands of dollars.  What is the value of your peace of mind? Like the Mastercard commercial said 'priceless.'
8. Special Needs Planning: You can be generous and leave an inheritance for a family member with special needs without disrupting that person's entitlement to government benefits.  The proper way to plan is by creating a special needs trust either in your Will or Revocable Trust. If you don't plan ahead and designate that relative in your Will or as a beneficiary on the asset they will lose their government benefits. It would also be a shame to disinherit that family member when they could have a better quality of life due to your properly planned generosity.
9. Avoiding Multiple Probates: It is not uncommon for families to assume that property will automatically be distributed to them upon the death of the owner without involvement of a Court.  While a Will may designate the beneficiaries to receive the property the mechanism to transfer the ownership is the Court. If you own real estate in multiple states consider a revocable trust in order to avoid multiple probate proceedings in order for your family to receive the property.
10. Just Do It: Facing the fear of mortality empowers you to be proactive and create the plan and life you desire.

If you're still not convinced, consider these quotes: Thomas Jefferson said "Never put off for tomorrow what you can do today," and Pablo Picasso said "Only put off until tomorrow what you are willing to die having left undone."

At the Law Office of Stephanie L. Schneider PA, we guide you through the estate and incapacity planning maze, so that you leave nothing left undone, and your family will have peace of mind.

MEDICAID PROTECTIONS SHOULD BE AVAILABLE TO SAME-SEX MARRIED COUPLES

MEDICAID PROTECTIONS SHOULD BE AVAILABLE TO SAME-SEX MARRIED COUPLES

Several major federal agencies have announced that they are now providing federal benefits to same-sex legally married couples.  Most recently, the Internal Revenue Service announced that same-sex legally married couples would receive all federal tax rights and responsibilities as provided to heterosexual couples Click here for I.R.S. Release. The best news is that these rights are available regardless of where the couple resides.  Living in a non-recognition state has no impact. Additionally, Health & Human Services announced that Medicare benefits would also be provided to same-sex legally married couples regardless of state of residence.   Additionally, Health & Human Services announced that Medicare benefits would also be provided to same-sex legally married couples regardless of state of residence. Click here for the HHS Press Release 

 

Medicaid is a federal program that helps pay for long-term care. Now that many federal agencies are complying with the U.S. Supreme Court's ruling in Windsor Windsor legal decision, it seems apropos that the Center for Medicare & Medicaid Services ("CMS") follow suit and provide same-sex legally married couples with federal Medicaid spousal impoverishment protections.  The goal of Medicaid spousal impoverishment protections is to enable the healthy spouse to remain in the home and to have sufficient financial resources to care for themself.  This is critical when a couple is coping with of one spouse having a chronic illness that cannot be cured.  When a married couple faces an illness together the experience is the same regardless of sexual orientation, race, color, or origin.  The couple needs and deserves financial security.  Medical spousal impoverishment protections include:

 1.  The healthy spouse keeping more financial resources than the ill spouse.  In Florida, the healthy spouse can keep up to $115,920.00.

 2.  The healthy spouse having a minimal level of income to help pay for the maintenance of the home.  In Florida, the healthy spouse should have a minimum of $1,891.25/month and if below that level is entitled to request diversion of income from the ill spouse.

 3. Permitting the couple to transfer resources to the healthy spouse with no penalty, look-back period, or delay in qualifying for Medicaid.

 4. Protecting the home while the ill spouse is alive as well as after the ill spouse has died. 

 

While the issue of federal benefits being available to same-sex legally married couples is a politically sensitive issue, the reality is that federal benefits must be made available to everyone equally and fairly.  This morning I sent a letter to Cynthia Mann, Deputy Director of CMS. My request is supported by the National Academy of Elder Law Attorneys (NAELA). NAELA.  Click here to read the NAELA letter I will keep my readers posted on the outcome of the request.  In the meantime, be an informed and prepared consumer. Schedule a consultation today and be on your way to creating an effective estate and long-term care plan. Discount coupon for consultation.

U.S. Treasury recognizes Same Sex Marriage based on 'Place of Celebration'

  FINALLY - I.R.S. RECOGNIZES SAME-SEX MARRIAGES FOR TAX PURPOSES

While there have been many positive developments for the LGBT community since the Supreme Court issued its opinion in Windsor on June 26, 2013, I think the most notable is the U.S. Treasury's  press release of August 29, 2013.  

 

There is no more uncertainty when it comes to married same-sex couples deciding whether to file a joint or single federal tax return.  Nor is there discrimination based on whether the taxpayer resides in a recognition state (such as New York) or, a non-recognition state (such as Florida).  The U.S. Treasury and I.R.S. will now treat same-sex married couples as married as long as they were married in a jurisdiction (U.S. or foreign country) that recognized their marriage. Click here to read the I.R.S. Revenue Ruling 2013-17 effective September 16, 2013.

During my recent speaking engagements and blogs I have stressed that with new rights also comes responsibility.  It may or may not be beneficial for a legally married same-sex couple to file a joint married federal income tax return.  Before deciding, I recommend you become an informed consumer by consulting with a certified public accountant to review your personal tax situation.  Request that the accountant perform an analysis that compares the tax result if you file separate returns compared to the tax result of filing a joint return by looking at: 

• personal and dependent exemptions
• employee benefits such as the purchase of same-sex spouse health insurance the premiums of which were deducted pre-tax
• I.R.A. and 401k retirement plan contributions
• child tax credit, and
• earned income tax credit, just to name a few. 

 In addition, be sure to ask the accountant to review both spouses' tax information and returns that were filed in the last three (3) years to determine whether you should amend those returns and/or request a credit or, refund. There is a three (3) year statute of limitation for filing a refund claim calculated from the date the return was filed or, two (2) years from when the tax was paid, whichever is later.

 

If you are not married to your life partner, having this important tax analysis done may help you to decide whether to get married. Even if you reside in a non-recognition state you are eligible for married benefits under federal tax laws.  This is very important in the event you or your partner are relocated due to employment.  Remember that these benefits are not available to same-sex couples who entered into a civil union or, domestic partnership agreement.

 

There are more revenue rulings expected concerning retroactive application of this new rule to employer sponsored benefits.  Stay in close communication with your accountant and be sure to have a team of professionals working with you including an elder law attorney and a financial advisor.

 

Don't do as Celebrites Do - Make an Effective Estate Plan

                  
   Don't Do as Celebrities Do  - Make An Effective Estate Plan 

We are hearing that many recently deceased celebrities, like James Gandolfini, didn't take the time to make a clear and effective estate plan. The unfortunate results are:

¨      Expensive litigation

¨      Broken families

¨      Loss of privacy.   

Here are some simple tips you can follow so that your estate plan does not become the topic of conversation in the media: 

1.      Update Your Documents: Update your Will or Trust when there is a major life change (i.e. birth, death, marriage, divorce). Anna Nicole Smith did not update her estate plan after her adult son died months before her new baby was born. This created confusion in determining who should inherit her estate.

2.      Disinheriting a Family member: While there is no requirement in Florida to leave an inheritance for a family member it is recommended that your Will or Trust specifically state that you are intentionally not providing for that person. You may even want to designate a token amount such as $10.00.

3.      Providing for Your Spouse: In Florida, you cannot disinherit your spouse. Florida law provides for an 'elective share' which is one-third of everything you own whether it goes through probate or by-passes probate (i.e. revocable trust assets). The exceptions to this are if you and your spouse entered into a pre-nuptial agreement or post-nuptial agreement where you waive your right to inherit.

4.      Digital Assets: In today's age of technology, many important documents and information are in a digital format. These include passwords, photos, social media, etc. Be sure to designate in your Will or Trust the beneficiary of your digital assets. 

Tale: NFL Quarterback Steve McNair died without any estate plan and left behind a wife, minor children and his mother.  The absence of a plan left his wife having to ask the Court for money to live on while the probate was pending. His mother had to move out of a house he built for her since she could not afford to pay rent.

Tip: Understand the impact of no estate plan: If you die without a Will or a Trust the state laws dictate who inherits and how much. This is called dying 'intestate.' Dying intestate may not be what you really want.

While you may be uncomfortable initially facing the reality of your eventual demise, taking the time to be informed and creating an estate plan shows courage and respect for loved ones left behind.
 Learn more at http://www.fl-elderlaw.com

 

 

 

LGBT Federal Employee Benefits Deadline - File Today for Your Benefits

Deadline: File Today for Your LGBT Federal Employee Benefits

As a result of the United States Supreme Court's opinion in Windsor, the Office of Personnel Management announced on July 3, 2013 that same-sex spouses and children of married LGBT federal employees and annuitants will now be eligible for federal benefits (if married prior to June 26, 2013).  August 26, 2013 is the last day to enroll their spouse and children in  the programs. Don't miss the deadline or you will need to wait until open enrollment on November 1st (benefits may not be effective until January 1, 2014).  Here is what you need to know:

1. Benefits are available regardless of the current state of residence.
2. This is not available for federal employees or annuitants who entered into civil unions or registered as domestic partners.
3. Legally married same sex spouses are now eligible family members under self and family enrollment for employee health benefits (FEHB).
4. Children, as well as stepchildren, are included in the benefits.
5. Same-sex spouses of the federal employee and children are now covered under group life insurance (FEGLI).
6. Coverage for dental and vision is now available for same-sex spouses and children.
7. Same-sex spouses are now eligible to apply for federal long term care insurance.
8. The LGBT federal employee can request reimbursement from their flexible spending account for eligible health care expenses for their spouse and children

While the memos issued by the Office of  Program Management state that the employing offices should be flexible in allowing late enrollment please do not delay.

Protect your rights today. Consult with our office about your aging and long term care planning needs.

Protect Yourself From Receiving Bad Medicaid Advice From a Non-Attorney

                   THE UNAUTHORIZED PRACTICE OF LAW: DON'T BECOME A
                          VICTIM OF MEDICAID OR VETERAN BENEFIT PLANNING

     These days scams are rampant and those who take advantage of unsuspecting consumers are very sleek in their approach.  You might receive a flyer in the mail or, see a car wrapped in an patriotic-looking advertisement that says 'qualify for veteran benefits.'  Don't become a victim!  Any non-lawyer who says they can qualify you for Medicaid or, veteran benefits for a nominal fee is committing the unauthorized practice of law and are acting in their own best interests - not your best interests.  Here is what you need to know to be an informed consumer:

1. The Veteran Administration only allows individuals who are accredited by the V.A. to prepare, present and prosecute claims for veteran benefits;
2. No person, including an accredited individual, may charge a veteran for preparing an application for benefits.  An accredited individual may charge for providing advice and for handling an appeal of a denial of benefits;
3. Simply being a veteran or, a spouse of a veteran does not automatically mean you are entitled to Aid & Attendance benefits. You must meet income, asset and unreimbursable medical expense eligibility requirements;
4. Don't be fooled into purchasing an annuity (insurance product) to qualify for Aid & Attendance or, Medicaid benefits.  Anyone who tries to sell you an annuity may not be informing you that they will earn a very high commission on the sale;
5. Under the Medicaid laws, if you do not have a spouse or disabled child you must name the State Medicaid agency as the first beneficiary on the annuity to receive any remaining payments at your demise.   An annuity is not your only option to obtain long term care benefits.
6. There are many nuances to Medicaid law as well as recent changes. If all eligibility requirements (i.e. income trust for people over the income limit; special needs trust for people who have a disability) are not met your application will be denied.  Don't be conned into having a non-lawyer (even a social worker or case manager) prepare a personal service agreement for you. 

Being penny wise and pound foolish does not get you Medicaid benefits. Consult with a Board Certified Elder Law Attorney today.

 

                               NEWS UPDATE: MEDICAID MANAGED CARE IS HERE

 

     Florida has begun implementing its statewide Medicaid managed care program.  Broward County is one of the first in the state to begin enrolling Medicaid recipients with managed care providers. The purpose is to create a long term care system that focuses on patient centered care, personal responsibility through active patient participation and implement new reimbursement methodologies. Click here for an informative two page handout on the AHCA website that identifies services provided and identifies the plans.   While the Medicaid budget is not being reduced the goal is to reduce the growth of Medicaid expenditures and promote Home & Community Based Service programs (where people receive services while residing in the community instead of a long-term care facility). Physician services are not covered under the managed care program. Recipients of the developmental disability waiver program (under the Agency for Persons With Disabilities) are not required to enroll.

 

     Once a person is approved for long-term care Medicaid they will receive a notice advising them to select a managed care organization.  You have a limited time frame to make your selection- if you don't make a selection one will be made for you.  You can speak to a choice counselor at 1-877-711-3662 to help you decide. If you don't like the plan you have 90 days to change to another MCO plan. After 90 days you may switch plans only for good cause or, during open enrollment.

To access the 88 page Frequently Asked Questions click on this link: www.flmedicaidmanagedcare.com

  To obtain a list of the managed care plans go to: www.ahca.myflorida.com/Medicaid/statewide_mc/index.shtml#LTCMC .

To access the state's preferred drug list click on this link:

 

www.ahca.myflorida.com/Medicaid/Prescribed_Drug/pharm_thera/fmpdl.shtml 

 

 

PA Judge Declares LGBT Surviving Spouse Entitled to Pension Death Benefit

 PA Judge Declares LGBT Surviving Spouse Entitled to Pension Death Benefit

Bob Dylan sang 'the times they are a changing.'  Now is definitely one of those times.  Since the United States Supreme Court issued its decision in Windsor (holding that the Defense of Marriage Act violates the equal protection clause of the Constitution and is unconstitutional) there has been change afoot to provide federal rights to LGBT individuals regardless of where they reside.

 
On July 29, 2013 a federal district court in Pennsylvania issued a decision that the same sex spouse legally married to a deceased employee qualified as a 'surviving spouse' and was entitled to the pension benefits.  This is the first reported decision on the topic of ERISA benefits since Windsor was decided and the facts are very important!  ERISA is the Employee Retirement Income Security Act. ERISA:

· Protects pension funds of employees of private businesses

· Sets standards for an employee participating in a plan as well as whether a spouse has a right to part of the pension upon the employee's death.

When a plan complies with ERISA it receives tax preferences such as deferred income taxation while the plan assets grow.

Ms. Farley worked for a law firm in Pennsylvania, a non-recognition state. She and her wife married in Canada in 2006. Ms. Farley passed away in 2010.  Ms. Farley participated in a profit sharing plan at the law firm.  The plan provided a survivor annuity upon the employee’s demise.  The plan permitted naming a beneficiary who is not the spouse, with the spouses consent, and if no beneficiary was named, benefits were awarded to the spouse. The pension plan document stated it was to be interpreted based on ERISA law and the laws of Pennsylvania.

The parents of the deceased employee submitted to the court a notarized Designation of Beneficiary form, naming them beneficiary, allegedly signed by their daughter the day prior to her demise.  The Court questioned the authenticity of the form.  Regardless, the wife had never waived her right to be the beneficiary.  Both the parents and the wife claimed they were each entitled to the death benefits.

Because of the Windsor decision, the word spouse is no longer limited to meaning a person of the opposite gender and includes same-sex spouses in a valid legal marriage. For that reason, the Court decided that the plan complied with federal law. It was to be interpreted under federal, not state law and Ms. Tobits qualified as the surviving spouse and is to be awarded pension benefits of $41,000. Click here to view Court document.

Tip: Obtain a valid marriage license and complete, date and sign a designation of beneficiary form for all your pension plans. Provide the completed form and a copy of your marriage license to your employer.

                                                     Local News

I had the pleasure of meeting and speaking with many individuals and couples about how the Windsor decision impacts them, when I spoke at The Richardson House at an event hosted by the Fort Lauderdale Gay Chamber of Commerce last week. Click here to see GFLGLCC event on Steve Rothhaus’ blog: Gay South Florida.

 

A couple shared with me their experience of changing the new spouse's surname to that of her wife. She was told to apply for a name change through the local circuit court (which would necessitate the payment of a filing fee).  Instead, she went to the local Social Security Administration office with her marriage license from Massachusetts and her passport and was able to apply for a new social security card that would use her wife's surname.

The application was processed and she was advised to expect to receive a new card in 7-10 business days.  Once she receives the new social security card she intends to take it to the Department of Motor Vehicles to apply for a new license with the new surname, and obtain an updated passport with the new surname. I will keep you posted on their progress as they pursue name changes on their documents.

 

Personal Care Agreements and Medicaid Planning

PERSONAL CARE AGREEMENTS: DON'T TRY THIS WITHOUT AN ELDER LAW ATTORNEY

You might have received a flyer or, seen a newspaper ad advertising Medicaid planning for a very low fee. It catches your eye. You maybe go so far as to meet with the person (a non-attorney) and they tell you "Yes. We can prepare a personal care agreement, a qualified income trust and the Medicaid application."  What should you do?

If it sounds too good to be true, it is.  

 

Be an informed consumer. Avoid persons who do not have a law license. . You could find yourself a victim, paying the fee and still not qualifying for Florida Medicaid assistance.  Even if a social worker or other professional tells you they have been doing this a long time, the reality is they don’t know the law, the exceptions or the nuances involved. 

 

A personal care agreement can help a family qualify a loved one for Medicaid to pay for long-term care, if it is done correctly. When the right set of facts exists in a family and a personal care agreement is properly drafted, it can preserve assets that can be used to maintain a home or supplement the quality of care that the person receives.  A family member caregiver can be compensated for legitimately performing services such as: maintenance of the home, vehicle; bookkeeping, bill paying, tax return services; overseeing and coordinating the elder's care. There are other services that are not compensable such as visiting a parent.     

When you meet with a qualified elder law attorney such as myself, we'll analyze the pros and the cons of this planning option, among others options. We will discuss the tax consequences as well. I will have you maintain a time log for several weeks which we use to calculate the value of your services (using a reasonable generally accepted hourly rate) over the course of your family member's life expectancy. Together we'll determine and implement the best course of action for long-term care planning.     

The State of Florida Medicaid agency is looking to limit the ability of families to use personal care agreements in order to prevent abuse.  We expect personal care agreements to be more closely scrutinized by Medicaid's attorneys.  That is why you should only consult with a qualified elder law attorney.  When a personal care agreement is not done properly or, cannot be justified, your loved one may be disqualified for Medicaid and be forced to use diminishing assets for their care.  Don't be penny wise and pound foolish when you need competent legal guidance. Do it right the first time!

 

Stephanie Schneider was quoted in the Wall Street Journal MarketWatch article: The Quality Gap at Elder Care Homes. Click here to read the article.

UNITED STATES SUPREME COURT RULES DOMA UNCONSTITUTIONAL!

                                                HOT OFF THE PRESS - SCOTUS RULES - IT'S OFFICIAL

 

At 10:15 a.m. today the United States Supreme Court published its opinion in U.S. v. Windsor ruling that "DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment."  It is a historic day in our nation's history and growth.

Even though the District Court ruled against the United States and ordered the Treasury to refund to Mrs. Windsor the estate tax payment of $363,000.00 with interest, the government did not comply.  Now, Mrs. Windsor will finally receive her refund.

                      PRACTICALITIES: WHAT DOES THIS MEAN FOR SAME-SEX COUPLES?

     The Court's opinion states that its holding is confined to those lawful marriages.  This means:

1. that a same-sex couple must be married in a state that legalizes gay marriage in order for the couple to receive federal benefits and protections;
2. a civil union ceremony will be insufficient to apply for and receive federal benefits;
3. the marriage certificate is required in order to apply for and receive federal benefits;
4. states will still have the option of not permitting gay marriages or civil unions to be performed in that state;
5. same-sex couples can travel to a state that performs same-sex marriages (meeting the necessary requirements), get married and then return to the state where they live (which could be a non-recognition state such as Florida) and receive federal benefits.

                          WHAT SHOULD SAME-SEX COUPLES DO NEXT?

       After celebrating the decision, same-sex couples need to take important affirmative steps:

1. if you are not legally married make and implement arrangements to get married.
2. meet with an experienced elder law attorney to have legal documents prepared to create a management plan for your and your partner's potential incapacity (to avoid guardianship and protect your privacy) as well as an estate plan.
3. discuss with your elder law attorney how to protect and preserve assets should one spouse become ill and require long-term care so you know your rights under the Medicaid law.
4. discuss with your elder law attorney your and your childrens' right to Social Security survivor and dependent benefits, veteran and military benefits and a host of other benefits.
5. meet with your accountant to discuss how to file your tax returns going forward, and your options for retirement tax planning (i.e. I.R.A.s, 401(k)s).
6. meet with your financial advisor to review your retirement plan beneficiary designations and discuss revising those designations and providing the plan administrator with your marriage certificate in order to maximize your surviving spouse's inheritance.

                             UNDERSTANDING THE COURT'S OPINION

The Court in its opinion explained that in determining whether DOMA could validly intervene in same-sex relationships it looked at the history of state authority over marriage.  Historically, regulation of domestic relations has been exclusively decided by the States.  However, state laws that define and regulate marriage must respect the constitutional rights of its citizens.  DOMA has prevented same-sex couples from obtaining approximately 1,000 government benefits including, but not limited to:

• government healthcare benefits
• bankruptcy code's special protections for domestic-support obligations
• being buried together in a veteran's cemetery
• receiving spousal impoverishment protections under Medicaid law
• filing a joint federal and/or state tax return
• social security survivor benefits
• financial benefits to children of same-sex couples such as social security survivor benefits.

The Court eloquently wrote "[t]he liberty protected by the Fifth Amendment's Due Process Clause contains within it the prohibition against denying  to any person the equal protection of the laws."  The Court has determined that DOMA has no legitimate purpose (or connection to any particular area of federal law) and only served to disparage and injure those whom the State of New York (which permits marriages between same-sex couples) and other states who legalize gay marriage sought to protect.  "This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution."

My law firm is committed to counseling individuals, couples and families about these issues.  We are happy to collaborate with your other professionals to create a comprehensive and balanced plan for your future.  Please visit my website www.fl-elderlaw.com and continue to read my blog for additional information about this legal development and attend our presentations in the community to be an educated consumer!

June is Gay Pride Month

June is Gay Pride Month

On Thursday June 6, 2013 I presented at The Pride Center in Wilton Manors for National Gay Pride Month.  I spoke about important legal developments for the LGBT community.  In case you were not able to attend here's a recap:

February 2013  The Department of Defense issues a memo stating that military departments will now begin to offer certain family and dependent benefits to same sex partners of military service members and their children.  The military  is changing its policy to ensure fairness and equality.  The service member and their partner will be required to sign a declaration attesting to their committed relationship. Implementation is expected by August 2013.

June 6, 2012 Windsor v. U.S. America, United States District Court Southern District of New York Court decides that the same-sex surviving partner of the decedent is entitled to the marital tax deduction from federal estate taxes (and should receive a refund of $353,000.00 paid in estate taxes). The basis of the decision is that the Defense Of Marriage Act deprives gays equal protection of law and has no rational relationship to achieving tax benefits.

May 31, 2012 First Circuit Court of Appeals (Boston, MA) rules that Section 3 of the Defense of Marriage Act (DOMA) which denies federal benefits such as tax, health and pension to same-sex couples is unconstitutional because it has a disparate impact. Massachusetts v. Dept. Health & Human Services

September 7, 2011 CMS issues a memorandum to State Survey Agency Directors regarding standards for patient visitation regulation. Hospitals that accept Medicare or Medicaid may not deny patient visitation rights based on the sexual orientation of the patient.  A violation of this rule will result in a monetary fine and loss of Medicare or Medicaid funding.

June 10, 2011 CMS issues a Survey & Certification Memorandum to State Medicaid Directors: States have the option of applying Medicaid lien, transfers of assets and estate recovery laws to same sex partners. Under current law married couples receive favorable treatment when one spouse becomes ill and applies for Medicaid.  The ill spouse can transfer assets to the healthy spouse without it affecting the Medicaid application.  Additionally, the healthy spouse is permitted to retain approximately $115,000.00 in countable resources.  Furthermore, at the death of the Medicaid spouse the Medicaid agency cannot seek to impose its lien against assets of the healthy spouse such as the homestead.  As of 2013, the State of Washington has implemented the option of offering these spousal protections to same sex couples.

September 22, 2010 Florida Third District Court of Appeals upheld a judgment of adoption of two children by a homosexual man. The Court ruled that Florida Statute 63.042(3) which prohibits homosexuals from adopting is unconstitutional because it violates the equal protection clause, right to privacy and due process under the Florida Constitution. DCF v. In Re Matter of Adoption of X.X.G. and N.R.G., 45 So.3d 79 (Fla. 3d DCA 2010).

April 15, 2010 President Obama issues a memo to the Secretary of Health & Human services to create a rule that prohibits Medicare and Medicaid hospitals from denying visitation privileges based on sexual orientation of the patient.

Stephanie Schneider, Esq. with Robert Boo, CEO Pride Center, Wilton Manors, Fl &
Co-presenter James Senior, Financial Advisor, Edward Jones

     Stay tuned to my blog and my website for up-to-date information when the United States Supreme Court issues its opinions in the two DOMA cases at the end of this month.