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.

 

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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.

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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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