Is There a Difference between a Qualified Income Trust and a Special Needs Trust?

Santa, Is There a Difference Between a Qualified Income Trust and a Special Needs Trust?

Yes, Virginia, there is a difference and you need to consult a qualified elder law attorney to know which document you need based on your personal circumstances.

A 'Qualified Income Trust' is required if you are applying for Medicaid assistance and your gross monthly income exceeds the state limit (for 2015 the monthly income limit for a single person in Florida will be $2,199.00). The trust is a legal document that allows the amount of your excess income to be placed in a separate account. Your patient responsibility of paying your gross income (less $105.00) to the facility, each month, is still in effect.  Even though you may meet all other requirements if you don't set up a qualified income trust Virginia, your Medicaid application will be denied.

 On the other hand Virginia, a special needs trust may be right for you if your total countable assets exceed the state's resource limit for SSI (supplemental security income) or Medicaid.  If you are under age 65 a special needs trust can be created for you by your parents, grandparents, guardian or a Court.  You can place your excess assets into the trust and they will be exempt.  The assets can only be used for your sole benefit to improve your quality life and quality and the quality of your medical care.  Some examples of permissible distributions include:
•    housing expenses
•    assistive devices and technology
•    home health services
•    transportation
•    education (including tutoring)
•    alternative and/or experimental medical treatment
•    vacations

Yes,Virginia, there is a Santa Claus. If your medical needs cannot be addressed by purchasing private health insurance through the Affordable Care Act Marketplace, then you should have your situation evaluated by Stephanie L. Schneider, Board Certified Elder Law Attorney to understand your options and make an informed decision that will bring you peace of mind.

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The New ABLE Act: Is It Right for You and Your Family?

                        The New ABLE Act: Is It Right for You and Your Family?

Monday December 15, 2014, Congress passed the ABLE Act.   The goal of the ABLE (Achieving Better Life Experience) Act is to provide funding for qualified disability expenses for individuals while allowing them to receive SSI and/or Medicaid assistance, employment and money from other sources. The ABLE Act provides an account to hold assets up to $100,000.00 as an alternative to a special needs trust or a pooled trust.

      In order to qualify an ABLE account the following requirements must be met:
     The disability must have occurred prior to age 26
1.    Only the first $100,000.00 is protected
2.    Contributions to the ABLE account must be in cash and are limited to $14,000.00 per year
3.    The participant receiving the benefit of the ABLE account must be a resident of the state where the account is established
4.    Only one (1) account is permitted per participant
5.    The ABLE account must be set up and managed by the state or agency

     Some of the benefits of establishing an ABLE account include:
•    the account is exempt from taxation
•    the person with the disability may direct how the funds are invested a maximum of 2 times a year.
•    the money can be used for: 

• education
• housing
• transportation
• employment training support
• assistive technology
• administrative
• legal expenses
• funeral arrangements

 •    it may be beneficial when family members would like to make a gift (while alive) and the amount would not justify the expense of establishing and administering a special needs trust or pooled trust.

Be aware that upon the demise of the participant, the ABLE Act requires any monies remaining are first subject to repayment of the Medicaid lien (just like in a special needs trust and pooled trust).

We are waiting for the President to sign the bill into law. After it is signed by the President, we must wait to see what Florida's government does:

• will it establish an ABLE trust?
• what agency will be assigned to administer the ABLE accounts and prepare financial accountings for each account? 

Stay tuned for further updates in 2015.  If you would like to learn more about special needs planning please call my office to schedule a consultation.  We invite you to print out the gift certificate on my website and mention it when scheduling your appointment.

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Don't Make These 7 Medicaid, Long Term Care Planning Mistakes

Don’t Make these 7 Medicaid/Long-Term Care Planning Mistakes

 Proper planning is required to obtain Medicaid assistance. When people encounter chronic illnesses and face depleting financial resources, consulting with a certified elder law attorney will help you avoid long term care planning and asset preservation pitfalls:

1. Transferring the house: People who transfer their home to their children will find themselves ineligible for Medicaid. The Medicaid agency can look at your financial records and gifts for the prior 5 years. The house does not count as a resource if it is valued at under $536,000.00.

2. Making gifts: Gifting will delay you receiving Medicaid. If you make gifts after you become ill you are going to have a very difficult time convincing the Medicaid agency that you did not do it just to become eligible for Medicaid.

3. Buying an annuity: An annuity is not the right answer for everyone especially single people or widows/widowers.. Since 2008 federal law requires the annuity to name the state Medicaid agency as beneficiary (unless you have a spouse or disabled child). This means any remaining value of the annuity will be paid to the Medicaid agency, not to your family.

4. Using a family member's social security number: If you have a joint account with a family member and only use that family member's social security number, that will not avoid the account being a counted resource by Medicaid. As a joint owner either half or all of the account will be treated as yours (if the other joint owner did not contribute anything to the account you may be treated as owning 100%).

5. Filing an application when you have excess resources: Your application will be denied if you have more than $2,000.00 for single people or more than $115,920.00 if married in countable resources. Learn how special needs trusts, pooled trusts, rental property, spousal refusal and other planning options can help you qualify and preserve assets.

6. Filing an application when you have too much income: Your application will be denied if your gross monthly income in Florida exceeds $2,163.00 (includes social security retirement, pensions, IRA distributions). You need an attorney to draft a qualified income trust before you apply otherwise it will delay approval and you will have to pay privately for your care.

7. Filing an application without legal representation: Don't file a Medicaid application without first having your situation reviewed by a board certified elder law attorney. I can spot potential problems and tell you how to avoid them which can save you time and money and give you peace of mind.

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Tipe for Choosing a Nursing Home for Your Loved One

Tips for Choosing a Nursing Home for Your Loved One

While no one ever envisions themselves moving to a nursing home, sometimes a change in medical condition and finances may lead to that as an option.  Whether you are shopping for a car or choosing a nursing home, you want to do your homework.  If you do not know anything about nursing homes it can be a challenge to know what questions to ask or, research. 
When looking at nursing homes here are some tips and suggestions for you to use before you sign an admissions agreement:

1.  Visiting Potential Nursing Homes: While you may want to go during normal business hours for a tour consider going back a second time later during the afternoon or early evening. Pay close attention to the number of staff compared to the number of residents (is the facility properly staffed).  Watch to see how long it takes a staff member to respond to a resident ringing the call bell.  If you see a resident's family member visiting, ask them if they would be willing to answer some questions about their loved one's experience and the quality of services provided.

2.  Avoid Financially Guaranteeing Payment: If your loved one is unable to sign the admissions agreement and you are signing beware of language that may make your personally liable for payment. Many nursing homes still use language such as 'responsible party.' If you see those words cross them out before you sign.  It is a violation of federal law for a nursing home to condition admitting a person on someone else guarantying payment.  Before signing an admissions agreement have it reviewed by an attorney for this and other reasons.

3.  Review the Facility's Ratings: You can read inspection reports that are posted by the Agency for Healthcare Administration. The reports will tell you whether a facility was cited, for what and if it was corrected, and other concerns.  Click here to run a search and compare inspection ratings.  The Center for Medicare & Medicaid Services (CMS) has also developed a rating system for nursing homes. You can access it by clicking here. CMS also has helpful tips and a checklist you can use.
Be an informed consumer so that you can make the best decision for your loved one.

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Social Security and Marriage Equality Act of 2014

                                   The Social Security and Marriage Equality Act of 2014

On May 8, 2014, Senator Patty Murray from Washington sponsored the Social Security and Marriage Equality Act of 2014 (SAME).  The objective of the bill (s. 2305) is to amend the Social Security Act so that same-sex married couples will be entitled to social security benefits based on place of celebration and not place of residence at the time the application for benefits is filed.  If passed, its proposed effective date is June 26, 2013, the same date the United States Supreme Court issued the Windsor decision finding section 3 of DOMA unconstitutional.

The Social Security Administration (SSA) is currently accepting applications for benefits from same-sex married couples.  However, if the couple is residing in a non-recognition state the application will be held and not processed.  This is because SSA law is still based on the law where the applicant resides at the time the application is filed.  So in a state like Florida that does not recognize same-sex marriage, regardless of where the marriage was performed, the social security application will not be processed. This is creating an inconsistent and unequal result for the LGBT community.  Change is necessary.

There is a similar bill (H.R. 4664) pending which you can read by clicking here.  You can track the progress of the bills at Congress' website 'GovTrack.us' .   I encourage you to read my blogs regularly to stay informed on the progress of this bill and many other important issues!

On July 17^th a Florida Keys (Monroe County) Judge Overturned the Same Sex Marriage Ban in Florida.

We want to be your trusted advisor through life. Please visit my website and sign up for our complimentary e-newsletter, check our calendar for events you may want to attend, and join me for my monthly Tele-seminar held the 4th Thursday of each month at 1pm.

Florida: The Perfect Home with the Perfect Partner

                         FLORIDA: THE PERFECT HOME WITH THE PERFECT PARTNER

     Many people are drawn to live and work in Florida because of its beautiful weather.  Other people are drawn to Florida because it has no state income tax.  If you are a married same-sex couple (SSC) or, have a domestic partnership or civil union there are several important real estate ownership issues you should consider before buying Florida real estate.

 

     Florida is currently a non-recognition state despite last year's U.S. Supreme Court decision in Windsor that section 3 of the Defense of Marriage Act (DOMA) is unconstitutional.  Even if a SSC is married in a recognition state and then resides in Florida they will not receive all of the state benefits as a heterosexual married couple who buys real estate.  While many people are confident that either the state or federal courts will strike down the Florida DOMA statute here is what you need to know now to properly plan ahead:

 

1. Avoiding a Large Real Estate Tax Bill: Without proper planning, the surviving same-sex partner will get hit with a large real estate tax bill when their spouse or, partner dies.  One way to avoid this is to title the ownership in both spouses/partners names as "joint tenants with rights of survivorship (JTWROS)." One benefit of doing this will be to avoid the court process called probate when one co-owner dies.
2. Homestead Exemption: If the property is titled as JTWROS be sure that both of you file an application for Florida Homestead Tax Exemption. The benefit is that the surviving owner will receive the Save Our Homes protection click here to learn more and avoid a tax hike when the co-owner dies. 
3. Strengthen Your Legal Plan: Even if your home is titled jointly with your spouse or partner it is still important that you have a well-drafted Durable Power of Attorney that gives your spouse or partner legal permission to make real estate decisions for you if you become physically or cognitively incapacitated.  Being a joint owner (regardless of sexual orientation) does not give you permission to sign a deed to sell the property, or sign a mortgage or note to obtain a loan or refinance a loan on behalf of your incapacitated loved one.  Be sure to include this document when creating a life care plan.

There are many different options when it comes to ownership of Florida real estate.  Each type of ownership has different benefits and limitations.  Be sure to receive legal advice that is tailored to you and your spouse/partner's goals.

VA Pension Should Not Impede Medicaid Eligibility

Veteran's Aid & Attendance Income Should Not Impede Medicaid Eligibility

 If you, your spouse or your parent have recently qualified for a VA Improved Pension (VAIP) read about pension benefits and are also applying for or receiving Medicaid assistance you need to know your rights. 

A portion of the benefit may represent Aid & Attendance (A&A) which under the federal and Florida Medicaid rules is not countable income.  Veterans or their spouses who need the aid and assistance of another individual and who have limited assets and limited income (which can be reduced by showing payment of unreimbursable medical expenses) may be eligible to receive benefits.  'Unreimbursable medical expenses' (UMEs) are not paid for by insurance.  They can include:

1.    co-pays

2.    deductibles

3.     rent at an assisted living facility

4.    the cost of a home health aide

5.    adult garments

6.    over-the-counter (non-prescriptive) supplies or vitamins

7.    therapies (i.e. acupuncture); and much more. 

 Why is this so important? Without proper documentation from the Veteran's Administration (VA) learn more, the Department of Children & Families (DCF) may improperly tell you that you have too much income to qualify for Medicaid unless you agree to create a qualified income trust (QIT) and transfer the pension into the trust.  Do not assume that DCF is correct - it can cost you time, money and loss of your Medicaid benefits and your room at the assisted living facility.

Florida is one of a few states that impose a monthly gross income limit in order to qualify for Medicaid assistance.  Currently, the monthly gross income limit is $2,163.00 for an individual. Click here to learn more 'Gross income' includes sources such as: Social Security retirement; Social Security Disability Income; I.R.A. distribution; 401(k) distribution; pensions from employment.  If an applicant's monthly gross income exceeds the limit, that person will not qualify for Medicaid unless an attorney prepares a QIT and it is properly funded each month (with the amount of income exceeding the state limit).  There is a fee for an attorney to prepare the QIT.  Why spend money if you don't have to? 

It is important that you advocate for having the VA issue a letter stating what portion of the check represents reimbursement for medical expenses.  The portion of the payment that represents unreimbursed medical expenses (UME) is not countable income. That letter must then be submitted to DCF as proof that your income or your loved one's income is below the Medicaid monthly income limit.  If you do not obtain a letter detailing the breakdown between the different VA programs then DCF will assume that the full amount of the check is countable income and decide that you do not qualify for Medicaid.

 If you find yourself running into a road block call our firm to assist you.  We will be happy to advocate on your behalf with the VA and DCF. 

We want to be your trusted advisor through life.

PLANNING TIPS FROM THE ALZHEIMER'S CONFERENCE

                                        Planning Tips from the Alzheimer's Conference

I had the pleasure of sitting on a panel at The Annual Southeast Florida Alzheimer's Education Conference on May 15, 2014 at Florida International University. Click here for more information about the SE Florida Alzheimer's Association.  The panel included David Treece, Financial Advisor http://www.davidtreece.com/, Juan Ceballos an insurance counselor helping Florida consumers with the new Medicaid Managed Care Program, and Dora Gonzalez with the Dade County Alliance for Aging, Inc. http://www.allianceforaging.org/.  The panel provided information and tips on legal and financial planning and navigating the new Florida Medicaid system.

 

      Here are the legal planning tips I shared with the conference attendees: 

1. Take Responsibility: When diagnosed with a cognitive impairment, or even a medical condition, it can feel as if your life is out of your control.  There are things you can control and choices you can make that determine how you experience this change in your life.  If you have existing legal documents have them reviewed right away to make sure they are up-to-date and continue to meet your goals.  If you do not have any legal documents schedule a consultation with a qualified elder law attorney and create a legal plan to manage your financial and medical affairs.  If you are a family member or, a caregiver and you think that the patient lacks capacity take the initiative to obtain legal advice about becoming a guardian.
2. Do Not Delay:   Delay only results in fewer planning options and possibly more expense.  No one has a crystal ball where we can predict how long the 'window of opportunity' will remain open when a person has a cognitive impairment.  A person must have a certain level of understanding and awareness (competency) in order to sign legal documents.  It has nothing to do with whether the person can hold a pen and sign their name. This is why planning at the earliest possible time is recommended.
3. Be An Informed Consumer:  Beware non-lawyers that hold themselves out to the public as being able to counsel you about qualifying for government benefits such as Medicaid and Veteran Benefits. Scammers can be very convincing in their appearance and advertising by using pictures such as the American flag or the American eagle which give the appearance that they are trustworthy or somehow connected to a government agency.  Do not entrust your finances or your decisions to them.  The Veterans Administration requires individuals to be 'accredited' in order to counsel veterans and assist them in filing a claim.   VA Accreditation  No one including accredited individuals are permitted to charge a fee for assisting a veteran in applying for benefits; a fee may only be charged for counseling and appealing once the VA has issued a notice denying the application.
4. Social Security Compassionate Allowances: If a person under age 65 finds themselves unable to work due to a disability consider applying for Social Security Disability Insurance (SSDI).   Click here.  SSA has developed a list of illnesses called "Compassionate Allowances" and if an applicant has a diagnosis on the list the application is processed immediately.  Alzheimer's is now a condition on this list.Click here for a list of compassionate allowance conditions.
5. Obtain advice tailored to your needs:  Avoid seeking advice from neighbors or friends.  Do not look to cut corners by going on the Internet or, to a stationary store to create your legal documents.  Invest the time and money in having a qualified elder law attorney create a plan to help you achieve your goals.
   
   We would like to be your trusted advisor through life and guide you through the process of creating a plan to help make the aging process easier including should you or your loved one have a chronic illness.

 

 

 

DIY Legal Planning? Don't Try This at Home

                   D.I.Y.?  Don't Try This Yourself At Home

The death of a loved one is a life-changing event filled with emotion and can be traumatic.  Is there anything that can help ease the pain and promote the healing process? Absolutely - proper advance legal planning can make all the difference.

Imagine that someone close to you decided to write their own Last Will & Testament rather than seek the advice of a skilled and experience estate planning attorney.  The old adage "penny-wise and pound-foolish" would apply.  Relying on a stationary store form, Legal Zoom or, an internet site frequently results in creating a problem for the beneficiaries.

Look no further than your backyard.  A Florida woman used an E-Z Legal Form to create a Last Will & Testament.  Ms. Aldrich was very specific in identifying the type of assets (i.e. her house, car, life insurance, bank accounts) she wanted distributed to her sister or, if her sister predeceased her then to her brother.  However, her Last Will & Testament failed to contain a paragraph (known as a residuary clause) directing the disposition of all her other property.  Before Ms. Aldrich died, her sister died and left Ms. Aldrich $122,000.00 in cash and land.  Ms. Aldrich opened a new bank account and deposited the cash into it.  Ms. Aldrich did not revise her Will to include the property she inherited from her sister. Sometime during the last year of her life she wrote a hand-written note stating that all her worldly possessions should pass to her brother. We can see that Ms. Aldrich recognized the need to take action to devise (bequeath) the cash and land. This note did not meet the legal standards to be recognized as a 'codicil' to her Will.

The family became divided. Her brother believed that he should inherit all Ms. Aldrich's assets. Ms. Aldirch's nieces (children of a deceased brother) argued that they should receive a portion of the cash and land. The case went to the Florida Supreme Court read the case who decided that the property Ms. Aldrich inherited from her sister was to be distributed based on the Florida law of intestacy (dying without a Will).    That property would be distributed to her heirs who included both her living brother and nieces. If Ms. Aldrich had taken the time to consult with a lawyer after she inherited from her sister's estate, a proper Last Will & Testament could have been prepared and signed.  The cost of the 'form' Will may have been less expensive than a Will prepared by a qualified attorney, but the long run it cost more due to the legal fees incurred in the litigation as well as the dissension it created in the extended family. This is a real life danger of using a pre-printed form with no legal advice. It is not tailored to each person's unique situation.

One very important lesson to learn from Ms. Aldrich is to seek the advice of a skilled attorney and update your estate plan when there are major life changes such as:

1. a marriage

2. a divorce

3. a birth

4. a death

5. receipt of an inheritance

6. receipt of a lawsuit settlement

Our firm counsels people of all ages through the aging process. Young people over age 18 are legally adults and should have incapacity and estate planning documents so they and their families may have peace of mind.

We want to be your Trusted Advisor Through Life.

National Healthcare Decisions Day with Thoughts from Nadine Smith, Executive Director, Equality Florida

National Healthcare Decisions Day Affects Everyone Including the LGBT Community

 

Last night I had the pleasure of listening to and speaking with Nadine Smith the CEO of Equality Florida at the Sunshine Cathedral in Fort Lauderdale in observance of National Healthcare Decisions Day.  Nadine is an inspiring and motivating advocate for all people.  She helped our law firm - encourage attendees to complete written advance directives to make their wishes known so that their wishes will be honored in the future.  Nadine shared with us that she and her wife Andrea took personal responsibility to complete advance directives shortly after getting married as they approached the birth of their first child.  Thank you Nadine for being a role model! 

Everyone regardless of age, marital status, gender identity or sexual orientation can benefit from taking the time to complete an advance directive.  Benefits include:  

1.    maintaining your privacy

2.    choosing the person you trust to make healthcare decisions for you if you are incapacitated

3.    avoiding a court guardianship proceeding which is time-consuming, expensive and results in a loss of privacy.

Since Florida is a “non-recognition” state for same sex marriage at the time of this writing, I firmly believe that it is crucial for LGBT individuals to have advance directives. Inroads have certainly been made to remove personal bias and discrimination in a hospital setting (Medicare or Medicaid funded) when LGBT persons or domestic partners choose who can visit them thanks to the 2011 federal Patient Visitation Rule.  It is still important to select a medical advocate and make your healthcare wishes known.   The Patient Visitation Rule prohibits hospitals and acute care facilities from discriminating against patients by refusing visitation rights based upon sexual identity and gender orientation.  This Rule permits all patients to designate a 'support person' to determine who is allowed visitation as well as who is prohibited from visiting the patient.

If you were unable to join us last evening, here are some of the highlights of Nadine's presentation: 

Nadine Smith, Executive Director, Equality Florida



·     Since the 2008 constitutional amendment that defined 'marriage' as being between a man and a woman, polls show that 57% of Floridians now want marriage equality. 

·      When marriage equality is achieved in Florida it will still be important for counties to have domestic partnership registrations. Couples (straight or gay) who choose not to marry need basic legal protections such as freedom from discrimination, public or private benefits provided through employment, and to be recognized as their partner's support person.

·     Corporations are a considerable force in bringing marriage equality to non-recognition states.  Companies are realizing that in order to retain the best and brightest employees (and avoid the costs associated with turnover) they must provide a work environment that is safe from discrimination, that acknowledges domestic partners, same sex partners as along with their blended families. This means that corporations have a vested interest in seeing that Florida and other states accept marriage equality so that when a company relocates an employee to Florida for example,  it will be a welcoming and inclusive place to live and work.

·     The City of Pembroke Pines Commission voted unanimously last night to create a domestic partnership benefits ordinance for its city employees which would provide health insurance to partners of its employees and other benefits.

I want to especially thank our sponsors and collaborators who made these educational events possible: Fred Hunters Memorial Services, Vitas Innovative Hospice, Hospice of Palm Beach County and Hospice of Broward County, Memorial Hospital Pembroke CARES (formerly Leeza's Place), Avante, ValueCare at Home, Embassy Suites- 17th St.,  and to our co-presenters for sharing valuable information about hospice and pre-need planning.  Thank you to all the organizations who assisted in publicizing these events and to Keith Blackburn for his support of our efforts to create change.  Please visit our website and click Join our Mailing List to receive our complimentary e-newsletter with important tips and pearls of wisdom to help you achieve your goals and create peace of mind.





 

Melanie McMillion, Hospice of Broward County



Scott Cummings, Mark Van Reese-Fred Hunters





Henley Ambrose - Vitas, Keith Blackburn- GFLGLCC, Stephanie Schneider, CELA







Stephanie speaking at Memorial Hospital Pembroke- April 16th, National Healthcare Decisions Day



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Planning For After Divorce

                                                         Planning For After Divorce
Divorce can take its toll on a person's physical, emotional, mental and financial well-being.  Even after the divorce is final, moving forward and starting anew can seem daunting especially when there are minor children of the marriage.  While keeping up the daily routines of preparing the family for school, going to work, team sports and household chores, it is easy to forget, or neglect to make  creating a new legal plan a priority.

Here are some suggestions for implementing a legal life care plan after a divorce:

 

1. Declaration of Preneed Guardian of a Minor. While your ex-spouse would have the legal right to care for the child in the event of your incapacity or unexpected demise he/she would not necessarily be entitled to handle any assets your child inherits from you. You can choose who administers your child's inheritance and a Court is required to appoint that person as financial guardian absent some disqualifying event (i.e. convicted of a felony).
2. Durable Power of Attorney: Designate a trusted person to handle your financial affairs in the event you are temporarily incapacitated. It can happen to anyone of any age (look at Terry Schiavo).  This document can help you avoid a legal guardianship proceeding which can be time consuming, expensive and result in a loss of your privacy.
3. Designation of Healthcare Surrogate: Designate a trusted person to make your healthcare decisions in the event something affects your ability to comprehend and give informed consent. This document helps you avoid a guardianship for medical decision-making.

These documents form the foundation. Your plan should be tailored to meet your needs and future goals and may warrant additional documents created such as: a Last Will & Testament; Revocable Trust; Living Will; Declaration of Designee for Funeral Arrangements, just to name a few. 

 

Realize too that your "children" over the age of 18 are legally adults and need to have their own legal documents, where you, the parent, can make decisions should the young adult become incapacitated, even temporarily. Learn more here.

 

 It is an investment in the new future you are creating.

 

     We want to be your trusted advisor through life.

The Law Should Change As Medical Technology Develops

                        
The Law Should Change As Medical Technology Develops

In the past ten to fifteen years medical technology has changed in leaps and bounds.  The law has not necessarily kept pace with new technological developments.  No clearer example can be found than the inheritance rights of children conceived through in vitro fertilization. 

More people are conceiving children with medical assistance than ever before, thanks to the process of in vitro fertilization.  Often a couple may choose to have sperm, eggs or even embryos frozen upon learning that one of the spouses or partners is diagnosed with a condition that may be terminal or have a detrimental effect on fertility.  Certainly, one can understand and empathize with the couple wanting to have a child notwithstanding the impending death of one of the future parents.

An appellate court ruled in, July 2012, that children conceived through in vitro fertilization after the death of the father whose sperm were frozen were not entitled to social security survivor benefits.  The decision was based upon Florida law which did not permit the children to inherit under the intestacy law (dying without a Last Will & Testament).  Social security reasoned that its laws are intended to help children who were supported by the deceased parent (wage earner) during the parent's life time. Under the facts of this case, the deceased parent had never supported the children as they were technically conceived and born after the father's demise.

Since there was no dispute that the decedent's sperm had been used to fertilize the wife's egg, that the couple were legally married, and that the children were his, it seems only fitting that our state inheritance statutes should change with the times.  Currently, Florida Statute 732.106 (Click here) says that an heir of the decedent who is conceived before his/her death, but born after the death, inherits as if the child was born during the decedent's lifetime. This statute was last amended in 1997 and is now archaic. It needs to be updated to include children who are conceived after the decedent's death.   Similarly, the Social Security regulations need to be updated to accommodate these children.

Until the state and federal laws change, it is recommended that anyone who is in the process of conceiving meet with a qualified elder law attorney to have a Last Will & Testament prepared and executed even if it is done prior to the birth of the child.  While you may not be able to reference the child by name, you can provide that all children whether conceived or born before or after your death, inherit.

                                 We want to be your Trusted Advisor Through Life.

 

STOP! DON'T DISINHERIT YOUR SPOUSE WHO NEEDS LONG TERM CARE

STOP! DON'T DISINHERIT YOUR SPOUSE JUST BECAUSE THEY REQUIRE LONG-TERM CARE

Today we see more chronic illnesses (i.e. Alzheimer's disease; Parkinson's disease; dementia) that are causing people to provide care or seek long-term care services for an incapacitated spouse.  Chronic illness can trigger the fear of impoverishment or the fear of outliving one's money.  When couples and families consider applying for Medicaid assistance it is not uncommon for them to think that the healthy spouse must disinherit the ill spouse.  Nothing is further from the truth.

Many years ago Florida passed the elective share law.  This means that you cannot disinherit your spouse (unless you have a pre-nuptial or post-nuptial agreement).  Your spouse is entitled to 30% of your assets.  If your spouse is seeking to qualify for Medicaid assistance it is important that your estate plan include a special needs trust to receive your spouse's inheritance.  That way if you pass away first your assets will not be distributed directly to the Medicaid spouse causing a loss of Medicaid due to excess resources.

The special needs trust will allow your spouse to continue to receive Medicaid and the trust assets can be used to provide your spouse with quality of care and quality of life.  The special needs trust assets can be used to purchase goods and services not covered by Medicaid such as: 

1. a private room
2. private duty nursing or, home health aide services
3. special equipment
4. additional therapies, and much more

The elective share special needs trust must be created in your Last Will & Testament while you are alive.  Remember that as a caregiver you need to take care of yourself. This includes making the time to have a qualified elder law attorney prepare your documents. Forbes magazine recently published an article on the importance of having proper legal documents. The National Academy of Elder Law Attorneys has compiled a list of the most important documents every person should have.  Click here to read the article.

 

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Federal Rights for LGBTQ Are Advancing

                          Federal Rights for LGBTQ Are Advancing

  Attorney General Holder announced this week that more federal rights will be available to married same-sex couples (SSC) as a result of the Windsor decision.  Click here to watch Attorney General Holder's inspiring speech.  These new rights will include:

1. Services for LGBT survivors of abuse by their partner under the Violence Against Women Act
2. Stronger civil rights protections for those who are the victims of hate crimes simply because of their sexual orientation or gender identity (Matthew Shepard & James Byrd, Jr. Hate Crimes Prevention Act) 
3. Same sex spouses of individuals charged in a civil or criminal will have the right to refuse to testify under the marital privilege
4. Same sex couples are eligible to file jointly for bankruptcy
5. Federal inmates in same sex marriages are entitled to visitation with their spouse, escorted trips to attend a spouse's funeral, to receive correspondence from a spouse
6. Death benefits and educational benefits to surviving spouses of public safety officers (police, firefighters) who are killed in the line of duty.

     Attorney General Holder issued a written memorandum on February 17, 2014 detailing the new protections.  Stay tuned to my blog for updates.

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Social Security Disability (SSDI) - Expedite Your Application

       

How To Obtain Expedited Approval of Your Social Security Disability Application

The Social Security Administration (SSA) may take a long time to process applications for disability benefits (SSDI) sometimes upward of one year.  The delay puts many people in financial hardship unable to pay their bills and help pay for medical care.  In order to qualify for SSDI benefits (a monthly cash benefit) a person must have:

• worked 40 quarters in the prior 10 years and
• have a qualifying disability (physical, cognitive, mental health) that prevents the person from being substantially gainfully employed and is expected to last 12 months or end in death.  Read more about how to apply online.

Now, the SSA has created 'compassionate allowances' that help to expedite obtaining approval for SSDI in limited situations.  'Compassionate allowances' are specific illnesses and conditions.  If an individual has a condition that is on the compassionate allowances list, the SSA can expedite the process so the individual can begin receiving benefits within days rather than months.    Click here to read the full list of compassionate allowances.

Some of the new conditions now qualifying for a compassionate allowance include: 

• prostate cancer
• angiosarcoma
• several types of cancers

 If you are diagnosed with a condition that prevents you from working, apply as soon as possible for SSDI.  You do not need an attorney to apply for SSDI. It is recommended that you seek advice from an attorney with social security law experience. If you are denied benefits  Furthermore, it is recommended that you create a legal plan that will allow someone you trust to make financial and medical decisions for you during your incapacity.

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Deadline Approaching for Gay Married Retired Military to Enroll In Survivor Benefit Plan

        
Deadline Approaching for Gay Married Retired Military to Enroll In Survivor Benefit Plan 

Retired and active military are entitled to designate their surviving spouse to receive the pension upon the veteran's death.  This is called the 'survivor benefit plan.' This benefit plan provides up to 55% of the veteran's pension and helps many widows and widowers avoid financial hardship.  As a result of the United States Supreme Court's ruling in Windsor (that the Defense of Marriage Act is unconstitutional), married gay retired military are entitled as of June 25, 2013 to this same federal benefit.  Please note that the decision only benefits married same sex couples.  Federal benefits are not available to LGBT couples who have entered into a civil union or, domestic partnership.

It is the responsibility of the retired military personnel to notify the Department of Defense and enroll in the Spousal Benefit Plan - it is not automatic. If the retired or active military person was married before June 25, 2013, then he/she must make the election by June 26, 2014. 

Congratulations to the Department of Defense for taking a lead role in providing equal benefits to married men and women in the military, and to their families. To read more about the Defense Finance and Accounting Service's new rules Click Here. To stay up to date on new developments for the LGBT community, read our blog and the Department of Defense releases.

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Medicare Rehabilitation Standard Finally Revised

                

  Medicare Rehabilitation Standard Finally Revised

The long awaited update for Medicare rehabilitative services coverage is finally here. The Center for Medicare & Medicaid Services (CMS) has finally updated its Medicare manual regarding coverage for patients receiving rehabilitative services.  This necessary change will help patients and their families advocate for additional Medicare covered services. 

Under traditional Medicare, the first twenty (20) days in rehab are covered one hundred percent; days twenty-one (21) through day one hundred are paid at eighty percent (80%) by Medicare and the patient is responsible for the remaining twenty percent.  Usually around day 20 the rehab facility would re-assess a patient and in many situations stop providing rehab services on the basis that "the patient is not likely to improve" or "has plateaued." 

Now, there is no longer an 'improvement standard' to determine whether Medicare will provide coverage for a patient needing skilled nursing care.  Medicare now recognizes that skilled care or rehab services may be necessary to maintain the level reached by the patient (and prevent further decline).  The new standard applies to skilled nursing services, home health services and out-patient therapy.  Click here to read the transmittal on the CMS website.

Here is a helpful tip: if a rehabilitative facility tells a patient they are terminating rehabilitative services, the patient can request that services continue and that the facility bill Medicare. If Medicare agrees with the patient it will pay the facility; if Medicare disagrees with the patient and denies the claim then the patient is responsible for payment. This is referred to as 'demand billing.'

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Beware Arbitration Clauses Hidden in Nursing Home Admission Contracts

          Beware Arbitration Clauses Hidden in Nursing Home Admission Contracts

You have seen in my blogs and articles I always say, "Do not sign a nursing home admission agreement that makes you the 'responsible party'."  That language creates a legal obligation to financially pay for the care if the resident does not pay the facility.  If a person other than the resident is signing the admission agreement (perhaps using a Durable Power of Attorney or, Designation of Health Care Surrogate) I suggest that that you cross out that language and initial it. Be sure to include your title after your signature (i.e. POA, DHCS) so that you do not create personal liability. Watch out for an arbitration clause when reading a nursing home or assisted living facility admission agreement. 'Arbitration' is a legal process used for resolving disputes (i.e. non-payment of rent) that does not involve a court proceeding.  The decision made by the arbitrator is final and binds you!  More and more facilities are including an arbitration clause in their admission agreements. This is not always beneficial to the resident.  An arbitration clause can limit the resident's right to recover damages against a facility for negligence or abuse.

In two cases The Massachusetts Supreme Court just ruled that an agent named in a health care proxy does not have the authority to sign an arbitration agreement on behalf of a nursing home resident. Click here to read the cases. The Court looked at the intention of the law that permits a health care surrogate to make informed medical choices for an incapacitated person.  The Court reasoned that the scope of a health care surrogate's duties does not include waiving the resident's right of access to the courts and to a trial by a jury.  Florida law has a similar intention - by naming a health care surrogate a person can select a trusted individual to make informed health medical decisions during that person's incapacity. Click here to read the Florida law's intent.

Before you sign an admission agreement schedule a consultation with a certified elder law attorney to review the agreement with you and inform you of your rights.  At our firm, we want to be your trusted advisor through life.

The Affordable Care Act Benefits the LGBTQ Community

      HOW THE AFFORDABLE CARE ACT BENEFITS THE LGBTQ COMMUNITY

 During his two terms in office President Obama has supported the LGBTQ community in a myriad of ways including: the Patient Visitation Act, repealing Don't Ask Don't Tell in the military, and supporting the repeal of DOMA.  The Affordable Care Act (ACA) click here which debuts January 1, 2014, provides several benefits and protections to the LGBTQ community.  Not only will the ACA benefits promote equality but hopefully it will encourage LGBTQ individuals to seek preventive medical services. Here are a few examples of how the ACA will provide equal access to healthcare for LGBTQ individuals:

1. Health insurance plans purchased through the marketplace cannot discriminate based on sexual orientation or gender identity
2. An LGBTQ consumer cannot be charged a higher premium due to his/her sexual orientation
3. An LGBTQ consumer cannot be denied coverage due to a pre-existing condition such as HIV/AIDS or a mental health diagnosis
4. Legally married same-sex couples are treated equally as heterosexual couples for financial assistance regardless of where they reside (living in a non-recognition state such as Florida is not an impediment)
5. There are no financial lifetime limits on coverage for a chronic illnesses such as HIV/AIDS.
   
   
   

   Meet with a qualified elder law attorney to learn more 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 

LGBTQ Rights Continue to Advance

                              RIGHTS FOR LGBTQ INDIVIDUALS CONTINUE TO ADVANCE

On Monday December 23, 2013, a federal judge in Ohio ruled that the state must recognize gay marriages by identifying the surviving spouse on a death certificate.  The ruling was based on two lawsuits filed in July 2013 by two surviving gay spouses.  Ohio does not recognize same-sex marriages performed in other states.  When the U.S. Supreme Court ruled in Windsor that same sex married couples are entitled to receive all federal rights, the states continued to have authority to decide whether to legalize same-sex marriage and whether to recognize same-sex marriage performed in another state.

One of the benefits to the Ohio same-sex surviving spouses being identified on the death certificate is the potential entitlement to social security spousal survivor benefits (as well as the one-time payment for funeral expenses).  Currently, the Social Security Administration is accepting but not processing applications for same-sex spousal survivor benefits filed in non-recognition states.  We are waiting for SSA and the Department of Justice to announce whether social security benefits for same-sex spouses, and their surviving children, will be based upon place of celebration or, domicile.

Last week the highest court in New Mexico issued its ruling ending the state's ban on same-sex marriage.  A court in Utah refused to put a stay on same-sex marriages being performed while there is an appeal being taken on the marriage ban. These decisions may mark the beginning of a new wave of federal decisions holding that state laws that ban same-sex marriages violate the federal constitution which guarantees Americans the right to equality and non-discrimination. Click here to read more about these recent developments
Note: Although the U.S. Supreme Court ruled to hold off on Utah decision, a memo from the Department of Justice said to recognize couples rights to federal benefits for marriages performed in Utah to date.

 

To ensure your domestic partner or same sex spouse and you are protected and your legal planning wishes are honored, do register as a domestic partner where available and 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