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.

VA Pension Should Not Impede Medicaid Eligibility

Veteran's Aid & Attendance Income Should Not Impede Medicaid Eligibility

 If you, your spouse or your parent have recently qualified for a VA Improved Pension (VAIP) read about pension benefits and are also applying for or receiving Medicaid assistance you need to know your rights. 

A portion of the benefit may represent Aid & Attendance (A&A) which under the federal and Florida Medicaid rules is not countable income.  Veterans or their spouses who need the aid and assistance of another individual and who have limited assets and limited income (which can be reduced by showing payment of unreimbursable medical expenses) may be eligible to receive benefits.  'Unreimbursable medical expenses' (UMEs) are not paid for by insurance.  They can include:

1.    co-pays

2.    deductibles

3.     rent at an assisted living facility

4.    the cost of a home health aide

5.    adult garments

6.    over-the-counter (non-prescriptive) supplies or vitamins

7.    therapies (i.e. acupuncture); and much more. 

 Why is this so important? Without proper documentation from the Veteran's Administration (VA) learn more, the Department of Children & Families (DCF) may improperly tell you that you have too much income to qualify for Medicaid unless you agree to create a qualified income trust (QIT) and transfer the pension into the trust.  Do not assume that DCF is correct - it can cost you time, money and loss of your Medicaid benefits and your room at the assisted living facility.

Florida is one of a few states that impose a monthly gross income limit in order to qualify for Medicaid assistance.  Currently, the monthly gross income limit is $2,163.00 for an individual. Click here to learn more 'Gross income' includes sources such as: Social Security retirement; Social Security Disability Income; I.R.A. distribution; 401(k) distribution; pensions from employment.  If an applicant's monthly gross income exceeds the limit, that person will not qualify for Medicaid unless an attorney prepares a QIT and it is properly funded each month (with the amount of income exceeding the state limit).  There is a fee for an attorney to prepare the QIT.  Why spend money if you don't have to? 

It is important that you advocate for having the VA issue a letter stating what portion of the check represents reimbursement for medical expenses.  The portion of the payment that represents unreimbursed medical expenses (UME) is not countable income. That letter must then be submitted to DCF as proof that your income or your loved one's income is below the Medicaid monthly income limit.  If you do not obtain a letter detailing the breakdown between the different VA programs then DCF will assume that the full amount of the check is countable income and decide that you do not qualify for Medicaid.

 If you find yourself running into a road block call our firm to assist you.  We will be happy to advocate on your behalf with the VA and DCF. 

We want to be your trusted advisor through life.

PLANNING TIPS FROM THE ALZHEIMER'S CONFERENCE

                                        Planning Tips from the Alzheimer's Conference

I had the pleasure of sitting on a panel at The Annual Southeast Florida Alzheimer's Education Conference on May 15, 2014 at Florida International University. Click here for more information about the SE Florida Alzheimer's Association.  The panel included David Treece, Financial Advisor http://www.davidtreece.com/, Juan Ceballos an insurance counselor helping Florida consumers with the new Medicaid Managed Care Program, and Dora Gonzalez with the Dade County Alliance for Aging, Inc. http://www.allianceforaging.org/.  The panel provided information and tips on legal and financial planning and navigating the new Florida Medicaid system.

 

      Here are the legal planning tips I shared with the conference attendees: 

1. Take Responsibility: When diagnosed with a cognitive impairment, or even a medical condition, it can feel as if your life is out of your control.  There are things you can control and choices you can make that determine how you experience this change in your life.  If you have existing legal documents have them reviewed right away to make sure they are up-to-date and continue to meet your goals.  If you do not have any legal documents schedule a consultation with a qualified elder law attorney and create a legal plan to manage your financial and medical affairs.  If you are a family member or, a caregiver and you think that the patient lacks capacity take the initiative to obtain legal advice about becoming a guardian.
2. Do Not Delay:   Delay only results in fewer planning options and possibly more expense.  No one has a crystal ball where we can predict how long the 'window of opportunity' will remain open when a person has a cognitive impairment.  A person must have a certain level of understanding and awareness (competency) in order to sign legal documents.  It has nothing to do with whether the person can hold a pen and sign their name. This is why planning at the earliest possible time is recommended.
3. Be An Informed Consumer:  Beware non-lawyers that hold themselves out to the public as being able to counsel you about qualifying for government benefits such as Medicaid and Veteran Benefits. Scammers can be very convincing in their appearance and advertising by using pictures such as the American flag or the American eagle which give the appearance that they are trustworthy or somehow connected to a government agency.  Do not entrust your finances or your decisions to them.  The Veterans Administration requires individuals to be 'accredited' in order to counsel veterans and assist them in filing a claim.   VA Accreditation  No one including accredited individuals are permitted to charge a fee for assisting a veteran in applying for benefits; a fee may only be charged for counseling and appealing once the VA has issued a notice denying the application.
4. Social Security Compassionate Allowances: If a person under age 65 finds themselves unable to work due to a disability consider applying for Social Security Disability Insurance (SSDI).   Click here.  SSA has developed a list of illnesses called "Compassionate Allowances" and if an applicant has a diagnosis on the list the application is processed immediately.  Alzheimer's is now a condition on this list.Click here for a list of compassionate allowance conditions.
5. Obtain advice tailored to your needs:  Avoid seeking advice from neighbors or friends.  Do not look to cut corners by going on the Internet or, to a stationary store to create your legal documents.  Invest the time and money in having a qualified elder law attorney create a plan to help you achieve your goals.
   
   We would like to be your trusted advisor through life and guide you through the process of creating a plan to help make the aging process easier including should you or your loved one have a chronic illness.

 

 

 

DIY Legal Planning? Don't Try This at Home

                   D.I.Y.?  Don't Try This Yourself At Home

The death of a loved one is a life-changing event filled with emotion and can be traumatic.  Is there anything that can help ease the pain and promote the healing process? Absolutely - proper advance legal planning can make all the difference.

Imagine that someone close to you decided to write their own Last Will & Testament rather than seek the advice of a skilled and experience estate planning attorney.  The old adage "penny-wise and pound-foolish" would apply.  Relying on a stationary store form, Legal Zoom or, an internet site frequently results in creating a problem for the beneficiaries.

Look no further than your backyard.  A Florida woman used an E-Z Legal Form to create a Last Will & Testament.  Ms. Aldrich was very specific in identifying the type of assets (i.e. her house, car, life insurance, bank accounts) she wanted distributed to her sister or, if her sister predeceased her then to her brother.  However, her Last Will & Testament failed to contain a paragraph (known as a residuary clause) directing the disposition of all her other property.  Before Ms. Aldrich died, her sister died and left Ms. Aldrich $122,000.00 in cash and land.  Ms. Aldrich opened a new bank account and deposited the cash into it.  Ms. Aldrich did not revise her Will to include the property she inherited from her sister. Sometime during the last year of her life she wrote a hand-written note stating that all her worldly possessions should pass to her brother. We can see that Ms. Aldrich recognized the need to take action to devise (bequeath) the cash and land. This note did not meet the legal standards to be recognized as a 'codicil' to her Will.

The family became divided. Her brother believed that he should inherit all Ms. Aldrich's assets. Ms. Aldirch's nieces (children of a deceased brother) argued that they should receive a portion of the cash and land. The case went to the Florida Supreme Court read the case who decided that the property Ms. Aldrich inherited from her sister was to be distributed based on the Florida law of intestacy (dying without a Will).    That property would be distributed to her heirs who included both her living brother and nieces. If Ms. Aldrich had taken the time to consult with a lawyer after she inherited from her sister's estate, a proper Last Will & Testament could have been prepared and signed.  The cost of the 'form' Will may have been less expensive than a Will prepared by a qualified attorney, but the long run it cost more due to the legal fees incurred in the litigation as well as the dissension it created in the extended family. This is a real life danger of using a pre-printed form with no legal advice. It is not tailored to each person's unique situation.

One very important lesson to learn from Ms. Aldrich is to seek the advice of a skilled attorney and update your estate plan when there are major life changes such as:

1. a marriage

2. a divorce

3. a birth

4. a death

5. receipt of an inheritance

6. receipt of a lawsuit settlement

Our firm counsels people of all ages through the aging process. Young people over age 18 are legally adults and should have incapacity and estate planning documents so they and their families may have peace of mind.

We want to be your Trusted Advisor Through Life.

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.

 

     We want to be your trusted advisor through life.

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.

                                 We want to be your Trusted Advisor Through Life.