Wednesday, July 17, 2013

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.

Wednesday, June 26, 2013

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!



Monday, June 10, 2013

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.

Friday, May 24, 2013

     LESSONS LEARNED ABOUT LIFE CARE PLANNING- AN ANECDOTE

I just returned from three great days at Disney World with my daughter. It's great to be a kid and see the world through a child's eyes - ah the wonder and joy.  Have you ever noticed how almost every Disney movie begins with something tragic happening but ends happily ever after? If real life was only that simple.  We can have dreams and be prepared for reality at the same time.  "How do I do this?" you say. Simple - read my top 10 list below:

1. Cindy’s father fell ill while he was married to her step-mother and he was unable to pay the servants and make other financial decisions. Cindy's step-mother thought she could handle his finances because they were married. Wrong. Simply being married does not mean you can make financial decisions for your spouse when he/she is incapacitated unless your name is on the asset. You will need a well drafted Durable Power of Attorney to avoid a court ordered guardianship.

2.  While Princess Maria lived with the little people she signed a durable power of attorney (DPOA) that was very brief and non-specific about the agents’ authority. The financiers in town would not honor the DPOA after Princess Maria bit the poison apple and fell into a deep sleep. True. The financial institutions don't want to risk liability in honoring a Durable Power of Attorney that is vague. In Florida a Durable Power of Attorney must specifically identify certain types of powers (which must also be initialed) such as: gifting; creating or amending a trust; selling real estate, just to name a few.

3.  While Princess Maria was incapacitated the financiers required her agents to sign an affidavit stating that Princess Maria is still alive and that she has not revoked the DPOA. Yes financial institutions can require this before they honor the Durable Power of Attorney.

4.  Once Princess Maria and Prince Stephen get married they sign a Durable Powers of Attorney naming each other as financial agent. The title to the castle is in Prince Stephen’s name alone. When Prince Stephen becomes incapacitated Princess Maria can use his DPOA to sell some of the adjacent land, make gifts (to herself and the little people), and create a trust for her husband to avoid probate when he dies. Princess Maria can only take these actions if her husband's Durable Power of Attorney specifically gives these types of authority.

5.  Tabitha, age 19, made a deal with the sea witch (which you should never do because no matter how good the deal sounds there is no such thing as a free lunch). She gave the sea witch her voice and in exchange became human. When Tabitha became sick her father the King tried to make Tabitha's medical decisions but the hospital would not allow it. In Florida our children are legally adults at age 18. As parents we cannot make medical or financial decisions for them unless they have signed a Durable Power of Attorney and a Designation of Health Care Surrogate. Get these documents in place once your child graduates high school and before they leave for college.

6. The enchantress severely injures the prince while he is trying to save the fair maiden. The fair maiden weeps not knowing what to do since she and the prince never talked about getting old.  As difficult as it may for any of us to face our mortality, making a Living Will that specifies our end-of-life preferences is a godsend to our families.

7. Ming cuts her hair, dons her father’s armor and leaves her home in the Orient to join the army to fight against nomadic tribes. Before leaving she meets with the town attorney and makes a Durable Power of Attorney. Her parents are allowed to use her Durable Power of Attorney while she is away even though she is not incapacitated. In Florida a Durable Power of Attorney is effective as soon as it is signed.  A copy is as effective as the original. So, carefully choose a trusted person and decide where to keep the original until it is needed.

8.  Rose dreams of opening up a restaurant in New Orleans. It was a dream she shared with her father who is no longer alive. Her mother, who is aging, becomes incapacitated and never signed a Designation of Health Care Surrogate because in her culture they do not see the necessity of legal documents. Many cultures have their own rules about who makes decisions for someone who is incapacitated. However, in the United States it is best to have a Designation of Health Care Surrogate and a Durable Power of Attorney that name trustworthy people to make those decisions and avoid the expense associated with a guardianship.

9. Rebecca meets and falls in love with John. Rebecca’s father is suspicious of John because he sees him exploiting the environment and taking natural riches. The tribal chief decides it is safer to give Rebecca a Durable Power of Attorney instead of putting her name on his assets in the event of his incapacity. When we add a person's name onto our accounts (or other assets) legally they become a joint owner. If that joint owner experiences unforeseen events such as a divorce, accident or a bankruptcy the joint assets will be subject to the joint owners creditors. It is safer to give a Durable Power of Attorney because the agent you name does not become the owner of your assets.

10. Agatha is the eldest of 4 children of the King and Queen. Her three brothers are minors and she is an adult. The King has two brothers that would like to take over the kingdom as soon as the King is incapacitated. The King signs a designation of pre-need guardian naming Agatha. When the king becomes incapacitated there is a fight for control over the kingdom. If you anticipate that your children or other family members will fight to control your assets or, will try to take your assets when you are incapacitated, then signing a declaration of pre-need guardian will create a presumption that the court must appoint the person you name in the document to be your guardian.
 
      I hope you enjoyed my blog.  Remember: Proper Planning May Create Peace of Mind. Have a great and safe Memorial Day holiday weekend.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

Friday, May 10, 2013

Medicaid & Holocaust Reparations: Know Your Legal Rights!

Federal Medicaid law protects Holocaust reparations from being considered as countable resources or countable income when applying for Medicaid assistance.  It is suggested that reparations not be commingled with other assets but rather, kept in a separate account.  This will make it easier to get through the Medicaid application process.  It can be difficult to trace the source of assets if documentation is discarded so it is a better practice to segregate these assets.  If a holocaust survivor had not previously segregated reparations from other assets it is not too late to take this step.  Documentation from Germany can be translated into English and used as supporting information to exempt the monies.
 
Since the reparations can grow in value, a holocaust survivor may want to consider having an attorney prepare a trust agreement specifically for the reparations.  The reparations account (or trust) are exempt from Medicaid's estate recovery efforts at the demise of the Medicaid recipient. The trust can be drafted in such a way that the reparations avoid the probate process and can maintain privacy in the family (as well as avoid a guardianship).

Make an appointment to consult with us today and be on your way to being an informed consumer.  Please visit our website at www.fl-elderlaw.com  to view our blog.  As a token of our appreciation for visiting our website and reading our blog, please download a gift certificate for a 20% courtesy discount on your consultation as well as a legal documents checklist.

There are several community agencies to assist Holocaust survivors and the "next generation" such as: Alpert Jewish Family & Children's Service; JFS of Broward County; Ruth Rales Jewish Family Service.

This communication is not to be considered legal advise or the establishment of an attorney client relationship.

Monday, May 6, 2013

Is Your Child Graduating High School? Read this!

Are you planning your child's graduation celebration? Thinking about what present to give your child for graduating with good grades?  Look no further - give the gift that is priceless (as the MasterCard commercial says). Give your child, and you, the peace of mind of creating a legal plan now that they are adults. Yes, even though we call them our children and many of them may not be fiscally responsible they are adults under the law and we can no longer make medical or financial decisions for them.

When our children become18 year of age, they are legally adults and at minimum should have:
  • a Durable Power of Attorney for financial decision-making and
  • a Designation of Health Care Surrogate for medical decision-making. 
These documents can help your family avoid a costly court guardianship in the event your child is injured or incapacitated and cannot make decisions for themselves.  While events such as the Virginia Tech shooting and the Boston Marathon bombing thankfully don't happen frequently, statistics show that young adults have the highest rate of automobile accidents.  The medical privacy law called 'HIPAA' will not permit parents to make medical decisions for an adult incapacitated child absent legal authority. 
 

Remember: we lead our children by example so be sure you have your legal documents in place!
 
This is for informational purposes only and does constitute an attorney-client relationship


Friday, April 19, 2013

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.