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.