Kudos to Publix On Offering Legally Married Same Sex Couples Insurance

               Publix Is Helping Businesses Pave The Way for Equality in Florida 

     Kudos to Publix Supermarket for offering legally married same sex couples health insurance benefits effective January 1, 2015!  By recognizing same-sex marriages performed in a state where it is legal, regardless of the current state of residence of the employee, Publix is demonstrating it is instituting equality in the workplace.

     The next step we need to take is to have Florida implement legislation (Florida Competitive Workforce Act) that will prevent discrimination in the workplace based on gender or sexual orientation.  Currently, in Florida a person who is lesbian, gay, transgender or bisexual can be fired because of sexual orientation.  Local non-discrimination ordinances is not enough (current ordinances only protect 38% of Florida's LGBT adults).  Businesses who have a diverse workforce will likely avail themselves of better candidates in the recruitment process, retention of innovative employees and increased financial performance by enforcing non -discrimination policies and promoting equality.  A bill has been pending in Congress called the Employment Non-Discrimination Act. ENDS prohibits discrimination in the workplace based on sexual orientation or gender identity for employers with more than 15 employees (religious organizations and businesses with less than 15 employees are exempt).  It has passed the Senate but not the House.

 

     Remember to support those businesses who promote diversity and equality in Florida.  Check out the Florida Businesses for a Competitive Workforce for a list of Florida businesses.

 

Our firm supports the LGBT community as an advocate and ally.  We want to be your trusted advisor through life.  Make your 2015 New Year resolution to get your legal affairs in order and have peace of mind. Visit our firm's website for a gift certificate toward your estate planning consultation.

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.

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

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.

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.

LONG TERM CARE PLANNING: DIVORCE IS NOT YOUR FIRST OPTION

A hotly contested issue in the Florida Legislature this month concerns spousal refusal.  'Spousal refusal' is both a federal and state law that enables a married person to obtain Medicaid assistance when one spouse refuses to make their assets available to the spouse who requires long-term care.  The person applying for Medicaid must sign a form that assigns their right to support from their spouse to the state. 

 A bill was sponsored that sought to give the Department of Children & Families (DCF) the ability to deny Medicaid for anyone that did not cooperate in DCF obtaining a court order of medical support against the spouse.  The proposed bill was more restrictive than federal law which is not permitted. Thanks to an active group of Florida elder law attorneys it appears that the bill is not going to pass.  DCF will be required to publish proposed rules and hold public hearings which will allow elder law attorneys and the public to comment and have an impact on whether a proposed rule is adopted (rather than DCF trying to influence lawmakers).

In Florida, a spouse is not legally responsible for the debts of the other spouse.  Several years ago, the Florida Supreme Court made this ruling in a case where a hospital sued a patient's wife for payment of the husband's unpaid hospital bill.  Our Supreme Court ruled that the wife could not be held responsible for her husband's debts.  DCF is trying to get around the law.

Sadly, DCF may be leading the Florida Legislature to put married couples in a position where they feel their only option is to get a legal divorce so that their assets cannot be viewed or deemed available to their ill spouse. With increasing life expectancies more people are concerned about how they will pay for their own daily living and long-term care once their spouse becomes ill.  The amount of assets that the well spouse can keep is not realistic in light of the cost of living and the cost of medical care. In addition, some couples are in second or third marriages and specifically keep their wealth separate to pass onto their respective families (many have pre-nuptial agreements). The option of spousal refusal is necessary and should not be taken away. Illness and mortality, for many people, cause fear to rise to the surface.  The last thing we need is our government to take away spousal refusal.  What we need is respect for the institution of marriage and to help people finance the cost of long-term care.