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.

Have We Forgotten Terry Schiavo?

     April 16th is National Healthcare Decisions Day (NHDD) and I wonder how many people still have not signed medical advance directives since Terry Schiavo died.  The answer would probably shock many of us.  The one lesson we all should have taken from the Terry Schiavo case was that life altering events can happen at any age and if we don't put our wishes in writing it can create unnecessary emotional turmoil for the people we love.
     Making an advance directive does not mean that you refuse to receive life sustaining treatment if you are diagnosed with a terminal illness.  It does mean that:

• You choose who makes your medical decisions if you cannot communicate;
• You choose the type of care you want to receive especially if you have very specific religious views (i.e. Orthodox Jew; Jehovah's witness);
• Your loved ones can hopefully avoid a guardianship proceeding and the loss of privacy and expense it entails.

     Who should make a medical advance directive? Everyone as soon as they reach age 18 (or in some states age 21) and are viewed as a adult in the eyes of the law.  Why you ask? Because once our children become adults we cannot make their medical decisions simply because we are their parents. Before you send your children off to college make sure they have:

1. A Durable Power of Attorney so you can make financial decisions for them if they are temporarily or permanently incapacitated;
2. A Designation of Health Care Surrogate so you can make medical decisions if they are temporarily or permanently incapacitated (i.e. due to a car accident).

     Be a role model for your children, your siblings, friends and family - make your advance directives today. Don't know where to start? Join us for our panel discussion this month (see the calendar on our website).  There's no time like the present!

Why The U.S. Supreme Court Should Hold DOMA Unconstitutional: Don't Forget the Children!

     This is a time in history of great significance as our Supreme Court is charged with deciding whether the Defense of Marriage Act (DOMA) violates the equal protection clause of the Constitution. There is no doubt that DOMA treats LGBT individuals different from people whose marriages are recognized by law.  More importantly, DOMA hurts the children of those relationships and creates a disparate impact between them and children whose parents are heterosexual.  Here's why:

1. Many partners are unable to obtain health insurance coverage through their partner's policy from work and end up paying more by being required to buy two policies;
2. Children of an LGBT relationship don't have the non-birth parent's name on their birth certificate and therefore, aren't entitled to Social Security benefits if that second parent dies or, becomes incapacitated. Those social security benefits can make the difference between the child and the surviving parent having financial independence or, a financial struggle to survive;
3. Children of an LGBT relationship don't have inheritance rights to the non-birth parent's estate unless they are named in the Last Will & Testament or, are adopted and that is likely prohibited under state law;
4. The LGBT partner of a veteran will not be entitled to survivor benefits as the military does not recognize these relationships;
5. Similarly, a child with a disability whose deceased non-birth parent was a veteran will not receive veteran benefits which could mean a world of difference to that child's future;
6. The surviving partner of a deceased LGBT individual has no rights to social security survivor benefits.  If the deceased partner was the higher wage-earner the loss of this income can result in the survivor losing financial independence including being unable to remain in the home;
7. When a spouse who owns an I.R.A. dies the surviving spouse can 'roll-over' the I.R.A. to his/her own I.R.A. and it can continue to be held for the life of the surviving spouse's beneficiaries. This helps delay the payment of income taxes.  However, the surviving spouse in an LGBT relationship must take distributions from the I.R.A. over his/her remaining life expectancy which will cost the family (i.e. children) years of tax deferred growth of the I.R.A. ;
8. The federal estate tax exemption and marital deduction minimizes as well as defers the payment of federal estate taxes but is only applicable to legally married couples.  LGBT couples have the exemption but not the marital deduction and as a result end up paying more in federal estate taxes when the wealthier partner dies.  Again, it is the children who suffer by receiving less of an inheritance while more money is paid for taxes.

These are just a few examples of federal benefits that are unavailable to LGBT individuals and their families.  It is time for a change so that federal privilege and protections truly are available to all United States citizens and their children.