Lessons I Learned from my Father

                         Lessons I Learned From My Father

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

  

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

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

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

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

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

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

  

How Much Does a Simple Estate Plan Cost?

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

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

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

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

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

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

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

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

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

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

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

How to Find a Healthcare Advocate

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

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

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

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

     Here are some tips for beginning the process:

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

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

 

TRUSTEE OF SPECIAL NEEDS TRUST VIOLATED FIDUCIARY DUTY

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

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

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

 

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

Here are some tips for trustees:

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

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

 

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

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

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

Yes, Virgina-You Do Need Legal Planning Documents

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

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

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

                                     Stephanie's Top Ten Reasons for Creating a Future Plan

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

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

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

MEDICAID PROTECTIONS SHOULD BE AVAILABLE TO SAME-SEX MARRIED COUPLES

MEDICAID PROTECTIONS SHOULD BE AVAILABLE TO SAME-SEX MARRIED COUPLES

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

 

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

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

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

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

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

 

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

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

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

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

 

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

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

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

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

 

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

 

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