Ignoring the Warning Signs May Put You in Danger

Ignoring the Warning Signs May Put You in Danger

By Hillary S. Josephs, Business Development Coordinator, Stephanie L. Schneider PA

 

No, this is not the premise of a movie or novel.  It is the true story of a family that could have avoided much of the emotional turmoil, possible physical harm, and the expense and loss of privacy they now have to come to terms with as they face a guardianship proceeding for a loved one.

Tale:  A couple we’ll call Bill & Mary lived together for over 40 years. Now in their 80s and never married to each other, Bill & Mary jointly own a home together, share two investments and separately own assets and real estate.  Mary has several children from her prior marriage. Bill has one child from whom he is estranged.  During a consultation with Stephanie L. Schneider, Board Certified Elder Law Attorney in August 2015, Mary described some of Bill's recent behaviors that did not make sense to her:

•  refusing to leave the house to go to a restaurant
• accusing her of stealing his money 
•  refusing to use the air conditioner even during the hot Florida summer months
• refusing to sign checks to pay the real estate taxes on several pieces of land he owned in New York.

Although Bill was not present at the consultation, Stephanie recognized that Bill's behavior was likely related to a cognitive impairment. Stephanie recommended that Mary schedule an appointment with a neurologist.  Stephanie also suggested that Bill meet with her to determine if he was sufficiently aware to sign legal documents.  Bill would not agree to consult with any attorney so it was not an option to create an estate and long term care plan through legal documents.  Stephanie was, however, able to create estate & incapacity planning documents for Mary (i.e. a Will, durable power of attorney, designation of healthcare and living will). Stephanie created a special needs trust under Mary's Will to provide an inheritance for Bill upon her death.

Months passed and our office heard nothing from Mary.  In the interim, Bill did go to a neurologist who diagnosed him with Alzheimer's (middle stage) and prescribed medication for Bill's anxiety and anger.  Bill took the medication for two weeks and then refused to continue. In January 2016, Bill's behavior turned violent toward Mary and the police were called to the home.  Bill was Baker Acted.  

Mary consulted with Stephanie about the options for her to make Bill's medical and financial decisions.  Mary then confided in Stephanie that Bill’s cognitive decline has been going on noticeably for several years and no one had questioned it or recommended that Bill seek medical attention. 

Tip:  Due to the advanced nature of Bill's cognitive impairment it is necessary to initiate a   guardianship proceeding so that Mary will have legal authority to make Bill's medical, residential, social and financial decisions. Once Mary is appointed Guardian:

•  Florida law requires that an attorney represent the guardian.
•  Bill's assets will be placed in a restricted guardianship account. Mary will not be able to access the account without a court order including an order for a monthly budget.
• Some decisions cannot be made without first obtaining Court approval (i.e. selling assets such as real estate or a car).
• Annual accountings are filed with the Court to report how the assets are spent, income earned and the value.
•  Many of the documents in the court file are a public record resulting in the loss of Bill's privacy.
• The guardianship will continue until Bill's death (or until there is a cure for cognitive impairment) so there will be continuing legal fees.
• Seek professional advice if you notice that a loved one, family member, friend or co-worker is showing unusual behavior such as:
•  refusing to take medication, or not refilling prescriptive medication
•  not grooming themselves
•  not paying bills (i.e. real estate taxes), allowing necessary homeowner's insurance or car insurance to lapse
• refusing to seek medical attention

It may be necessary to consult with an elder law attorney, a social worker, as well as a neurologist.  Responding at the earliest possible time is critical so the person can be properly diagnosed and receive immediate medical or mental health services.  In the early stages of a cognitive impairment it is possible for the person to be sufficiently aware to execute legal documents which can be an alternative to a guardianship- if they are willing to do so.  Don't miss the window of opportunity that can save you financial expense and maintain your privacy.

Create your estate & incapacity plan before you experience physical, emotional or mental health issues. Anyone over age 18 should have legal documents that name someone they trust to make healthcare and financial decisions when you cannot do so due to illness or an accident, even temporarily. We recommend designating alternate decision-makers in case the people you name are not available or able to serve (are sick or have died).

Avoid the danger in waiting. Proper planning may create peace of mind. 

The Law Office of Stephanie L. Schneider PA ~ Your Trusted Planning Advisor through Life ^sm

When Bad Things Reflect on Good Pofessionals

When bad things reflect on good professionals

I was disheartened to learn that a Florida elder law attorney was arrested and disbarred in December 2015 for financially exploiting vulnerable clients, and for not fulfilling his responsibilities to clients who hired him to preserve their government benefits and protect their lawsuit proceeds.  

One bad apple (or in Florida we’ll say bad orange) does not mean that consumers should not work with a board certified elder law attorney when creating your estate & incapacity plan, long term care plan, or require qualified legal advice to maximize your rights and protect yourself and your loved ones. 

It is important that consumers know how to find a board certified elder law attorney and ask whether the attorney can provide the necessary services to resolve their legal issue.  There are approximately 18 areas under the umbrella of 'elder law' so it is important to inquire whether the attorney has experience in the particular type of matter.  I suggest you consider these tips shared by the National Academy of Elder Law Attorneys (NAELA) for being an informed consumer of legal services:

*         Examine the qualifications of the attorney before contacting them. It may be helpful to review the law firm's web site.  Contact the attorney's firm and request their qualifications in writing. This request should be honored by the firm without hesitation.

*         Review the Florida Bar's website (www.flabar.org) to see whether there has been any disciplinary history against the attorney you are considering.  The bar reports an attorney's disciplinary history for a period of ten years.

*         Ask whether the attorney has a consultation fee, the amount, whether the time spent with you includes a confirmation letter, and whether the consultation fee will be applied toward legal services.  Many elder law attorneys do charge such a fee, whereas personal injury attorneys do not.

*         Make sure your representation is clearly set forth in writing with a signed retainer agreement. This should describe the services the attorney will provide and the client's responsibilities.  It should also explain the fee arrangement (i.e. hourly, flat fee) and whether any retainer (i.e. deposit) is required and to what extent any portion of the fee is refundable.

*          Remember that the attorney works for you.  You have a right to request a progress report and to be updated on a reasonable basis.

*         You have a right to complain to the Florida Bar.  If you suspect that your attorney has acted unethically and want to file a complaint, you can contact the local professionalism panels which are set up across the state. The Bar has each judicial circuit's contact information. You can also contact the Bar's Attorney Consumer Assistance Program toll-free (866-352-0707).

The Law Office of Stephanie L. Schneider has been advising clients of all ages at all stages of the aging continuum for 20 years.  Board certification assures the public the attorney has substantial experience and has demonstrated special knowledge, skills and proficiency in certified areas of practice and professionalism and ethics in the practice of law.  When you contact our office we will gladly provide you with information about my qualifications.  Our staff will spend time with you on the telephone to obtain information about your legal issues and confirm that we can assist you before we schedule a consultation. Here are some important facts to know about elder law attorneys:

 There are 84,148 lawyers eligible to practice in Florida.

ü  Stephanie and 1,769 attorneys are members of the Florida Bar Elder Law Section – where Stephanie is a former Chair.

ü  Stephanie and 97 of those members are board certified in elder law.

ü  Stephanie and 97 elder law attorneys within fifty miles of our office are members of the National Academy of Elder Law Attorneys (NAELA).

ü  Stephanie and 24 Florida attorneys are also certified by the National Elder Law Foundation (NELF) - the only national certifying program for elder law and special needs attorneys.

Don’t be left uninformed. Make a New Year’s resolution to seek the advice of a board certified elder law attorney to create or review your estate plan and to help you plan for your future so you can achieve your goals and have peace of mind.

Call our office at 954-382-1997 or visit our website to schedule your consultation today.

We are your Trusted Planning Advisor through Life ^sm

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New Florida & Federal Laws Can Benefit You

New Florida & Federal Laws Can Benefit You

Florida Designation of Healthcare Surrogate Law

You may know that this document allows you to name a trusted person to make your healthcare decisions if you are temporarily or permanently incapacitated and unable to give informed medical consent. It allows your medical decisions to be made privately without court involvement.   Now you have the following choices:

1.  The authority of your medical decision-maker can start immediately or
2.  The authority of your medical decision-maker becomes effective only when your
             physician examines you and determines that you cannot give informed consent and
3. The ability of your medical decision-maker to obtain your healthcare information
             can start immediately or
4.  The ability of your medical decision-maker to obtain your healthcare information
             can start only if you are incapacitated.
5. This new law is effective October 1, 2015.  Any Designation of Healthcare Surrogate signed prior to October 1^st is still valid. If you would like to take advantage of the new law have your document updated.

Medicare to Pay for End of Life Planning Discussions with Your Physician

Starting Jan. 1, Medicare will reimburse physician discussions with patients about end-of-life treatment options.

• The new regulation requires only that Medicare cover end-of-life consultations for      patients who want it.
• The "voluntary advance care planning" as it referred to will take place during   annual wellness visits.
• The new Medicare rule will pay for elective annual discussions about end-of-life          plans, which can, in turn, be used to prepare an advance directive stating what     treatments a patient would want and treatments they would not want.

Maintain privacy, avoid guardianship and probate. Call our office at 954-382-1997 to schedule a consultation to discuss your estate and healthcare planning goals. Properly drafter estate & incapacity documents and advance directives will give you peace of mind.

We are your trusted planning advisor through life ^sm

"I Do": Now All Marriages Are Created Equally

                          "I Do": Now All Marriages Are Created Equally

      On June 25, 2015 (exactly two years after the U.S. Supreme Court decided Windsor and held that part of the Defense of Marriage Act was unconstitutional) the Supreme Court of the United States issued its opinion in Obergefell and ruled that same-sex marriage is legal in all states.  Now, same-sex married couples are entitled to receive the same federal benefits given to heterosexual married couples regardless of where they reside.

 

      Same-sex couples need to know that the resources (i.e. bank accounts, investments, real estate) owned by their spouse can be counted toward their resource limit when applying for financially sensitive programs such as  SSI (supplemental security income) and Medicaid.  SSI provides a monthly cash benefit and Medicaid can pay for nursing home services and community based services (such as home healthcare).  If the spouse's resources causes the spouse who is applying for benefits to exceed the resource limit it will be necessary to consult with an elder law attorney on the legal planning options to maximize preserving assets.

 

      If same-sex married couples have not yet applied for benefits they could be entitled to:

• social security benefits, such as spousal or survivor benefits, 
• Medicare Part A (hospitalization coverage) on your spouse's work record even if you did not have enough work credits, or you possibly will not have to pay for it.
• or Medicaid.

     It is important to apply as soon as possible - to begin eligibility at the earliest possible time. Any delay could mean a loss of benefits or health coverage. Do your best to apply by June 30, 2015.  Request that you receive a copy of the application date stamped.

 

     I want to be your trusted advisor through life.  Call me at 954-382-1997 to schedule a consultation and let's discuss your new legal rights and the benefits to which you may be entitled.

Avoid Being Denied Medicaid Due to Improper Transfers

                       Improper Transfers Can Cause Your Loved One to Be Denied Medicaid

Are you a caregiver to an aging parent or grandparent?  Have you quit your job in order to help care for a relative?  Are you being paid for caring for an elder?  If you answered 'yes' to any of these questions you need to continue reading.

 

Federal Medicaid law looks back five (5) years at transfers of assets from a Medicaid applicant to a person other than their spouse.  Those transfers of assets can result in a delay in Medicaid approval.  What this means to you is that being paid as a caregiver can cause a Medicaid denial if you and the elder do not have a written personal service agreement.  A personal service agreement details: 



1. the services being provided by the caregiver to the elder;
2. the amount of time spent each month providing each type of service;
3. the hourly rate of payment for each type of service calculated over the actuarial life expectancy of the elder; and
4. other important terms.

In order for the Medicaid agency to accept a personal service agreement as a legitimate transaction the right set of facts must exist in your working relationship with the elder and it must be properly documented.  The Florida Department of Children & Families is closely scrutinizing personal service agreements so don't leave your relative's future long-term care plan to chance.  Consult with me a Board Certified Elder Law Attorney so that you can create peace of mind for your family.

 

Join me for my monthly public teleseminar on important aging issues and legal solutions.  Visit my website or call our office at 954-382-1997 for the date, time, and dial in. It's FREE.

 

                                We Want to Be Your Trusted Advisor Through Life.