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At Shawn R.H. Smith Law Firm, the practice of law is executed with the highest integrity and maintained at the highest ethical standards. We are committed to working collaboratively with clients and their families to minimize long term expenses by creating personal estate plans and strategies that provide peace of mind.
When you look for an attorney to help with an elder law or special needs issue, you should first look for a Certified Elder Law Attorney (CELA) near you. The CELA certification has frequently been referred to as “the gold standard” for elder law and special needs practitioners.
Elder law attorneys are advocates for the elderly and their loved ones. Most elder law attorneys handle a wide range of legal matters affecting an older or disabled person, including issues related to health care, long term care planning, guardianship, retirement, Social Security, Medicare/Medicaid, and other important matters.
In many ways, elder law attorneys are “specialists” because of their focus on the needs of older adults, which are often different and more specialized than the needs of younger adults. Not only can they handle important financial and estate planning matters, they also take care of day-to-day issues affecting the actual care of seniors, such as assisted living and life planning.
In addition, elder law attorneys are often more equipped to handle the sensitive emotional and physical needs of older or disabled adults, and are therefore able to handle a variety of challenging situations.
How Can an Elder Law Attorney Help Me?
An elder law attorney can help with any one of the following:
- Discuss the importance of wills and estate planning, including planning for a minor or adult with special needs, probate proceedings, and other matters.
- Create a durable power of attorney.
- Provide help with health care and planning, including long term care options, patient rights, Medicare, and health care power of attorney.
- Financial representation: financial planning (including durable financial power of attorney), housing opportunities and planning, income, estate, and gift tax matters.
- Guardianship: help with the selection and appointment of a legal guardian.
- Help locate long term care facilities and manage assisted living cost.
- Explain nursing home resident rights and help file nursing home claims.
- Draft a living will or other advance directives, including a durable power of attorney and long term planning documents.
Every adult is assumed to be capable of making his or her own decisions unless a court determines otherwise. If an adult becomes incapable of making responsible decisions due to a mental disability, the court will appoint a substitute decision maker called a “guardian”. Guardianship is a legal relationship between a competent adult (the “guardian”) and a person who because of incapacity is no longer able to take care of his or her own affairs (the “ward”).
Any adult may file a petition with the court to determine another person’s incapacity. The petition will outline the factual information upon which they believe the person is incapacitated.
The court will then appoints a committee of three members, usually two physicians and another person who by knowledge, skill, training or education can form an expert opinion. One of the three members of the committee must have knowledge of the type of incapacity alleged in the petition, and each member of the committee must submit a report of findings to the court.
The examination of the incapacitated person normally includes: a physical examination, a mental health examination and a functional assessment.
The court also appoints an attorney to represent the person alleged to be incapacitated; however, the alleged incapacitated person may substitute his or her own attorney for the attorney appointed by the court. If the majority of the examining committee members conclude that the alleged incapacitated person is not incapacitated in any respect, the judge is required to dismiss the petition. If the examining committee finds the person is unable to exercise certain rights, however, the court schedules a hearing to determine whether the person is totally or partially incapacitated. If a person is found to be incapacitated in any respect, a guardian is appointed at the end of the incapacity hearing unless there are less restrictive alternatives to guardianship that adequately address the person’s incapacity.
A guardian who is given authority over property of the ward is required to inventory the property, invest it prudently, use it for the ward’s support and account for it by filing detailed annual reports with the court. In addition, the guardian must obtain court approval for certain financial transactions.
The guardian of the ward’s person may exercise those rights that have been removed from the ward and delegated to the guardian, such as providing medical, mental and personal care services and determining the place and kind of residential setting best suited for the ward. The guardian of the person must also present to the court every year a detailed plan for the ward’s care along with a physician’s report.
The knowledge that we will eventually die is one of the things that seems to distinguish humans from other living beings. At the same time, no one likes to dwell on the prospect of his or her own death. But if you postpone planning for your demise until it is too late, you run the risk that your intended beneficiaries — those you love the most — may not receive what you would want them to receive whether due to extra administration costs, unnecessary taxes or squabbling among your heirs.
This is why estate planning is so important, no matter how small your estate may be. It allows you, while you are still living, to ensure that your property will go to the people you want, in the way you want, and when you want. It permits you to save as much as possible on taxes, court costs and attorneys fees; and it affords the comfort that your loved ones can mourn your loss without being simultaneously burdened with unnecessary red tape and financial confusion.
Many people believe that if they have a will, their estate planning is complete, but there is much more to a solid estate plan. A good plan should be designed to avoid probate, save on estate taxes, protect assets if you need to move into a nursing home, and appoint someone to act for you if you become disabled. All estate plans should include, a durable power of attorney, Living Will, Health Care Surrogate, a will or a trust.
Durable Power of Attorney
A power of attorney is a legal document delegating authority from one person to another. A power of attorney terminates if the principal becomes incapacitated, unless it is a special kind of power of attorney known as a “durable power of attorney.” A durable power of attorney remains effective even if a person becomes incapacitated. In the document, the maker of the power of attorney (the “principal”) grants the right to act on the maker’s behalf as that person’s agent. What authority is granted depends on the specific language of the power of attorney.
Advanced Care Directives
An advanced care directive is a statement about how you want medical decision to be made should be unable to do so. Simply put it gives “advanced directions” to medical facilities as to your wishes regarding medical treatment. A living will and a health care surrogate are two types of advanced care directives.
Health Care Surrogate
A health care proxy designates someone you choose to make health care decisions for you if you are unable to do so yourself. A health care proxy or surrogate can also receive health care information. Florida statute also allows you to designate a alternate health care surrogate as well.
A living will is a document that you can use to give instructions regarding treatment if you become terminally ill or are in a persistent vegetative state and unable to communicate your instructions. The living will states under what conditions life-sustaining treatment should be terminated. If you would like to avoid life-sustaining treatment when it would be hopeless, you need a living will. A living will takes effect only when you are incapacitated and is not set in stone — you can always revoke it at a later date if you wish to do so.
When drawing up a living will, you need to consider the various care options and what you would like done. You need to think about whether you want care to extend your life no matter what or only in certain circumstances. A living will can dictate when you want a ventilator, dialysis, tube feeding, blood transfusions, and other life- saving or life-prolonging options.
A DNR is a different document. A DNR says that if your heart stops or you stop breathing, medical professionals should not attempt to revive you. This is very different from a living will, which only goes into effect if you are unable to communicate your wishes for care. Everyone can benefit from a living will, while DNRs should be only used after serious consultation with family and only for very elderly and/or frail patients.
A will is a legally-binding statement directing who will receive your property at your death. If you do not have a will, the state will determine how your property is distributed. A will also appoints a legal representative (called an executor or a personal representative) to carry out your wishes. A will is especially important if you have minor children because it allows you to name a guardian for the children. However, a will covers only probate property. Many types of property or forms of ownership pass outside of probate. Jointly-owned property, property in trust, life insurance proceeds and property with a named beneficiary, such as IRAs or 401(k) plans, all pass outside of probate and aren’t covered under a will Probate assets include, but are not limited to, the following:
Some examples of assets that will have to pass through probate include A bank account or investment account in the sole name of a decedent. A life insurance policy, annuity contract, or individual retirement account payable to the decedent’s estate. Real estate titled in the sole name of the decedent, or in the name of the decedent and another person as tenants in common, is a probate asset (unless it is homestead property).
A trust is a legal arrangement through which one person (or an institution, such as a bank or law firm), called a “trustee,” holds legal title to property for another person, called a “beneficiary.” Trusts have one set of beneficiaries during those beneficiaries; lives and another set — often their children — who begin to benefit only after the first group has died. There are several different reasons for setting up a trust. The most common reason is to avoid probate. If you establish a revocable living trust that terminates when you die, any property in the trust passes immediately to the beneficiaries. This can save time and money for the beneficiaries.
Certain trusts can also result in tax advantages both for the donor and the beneficiary. These could be “credit shelter” or “life insurance” trusts. Other trusts may be used to protect property from creditors or to help the donor qualify for Medicaid. Unlike wills, trusts are private documents and only those individuals with a direct interest in the trust need know of trust assets and distribution. Provided they are well-drafted, another advantage of trusts is their continuing effectiveness even if the donor dies or becomes incapacitated. For more information on trusts, click here.
Many Floridians are concerned about long term care in their later years in life. Their family and hard earned assets are tangible items that they want to be protected and passed on to their next generation of loved ones. Nursing homes can cost on average of $10,000 per month. Such expenses can wipe out a well earned savings and assets. Our firm specializes in protecting these assets while making one eligible for Medicaid.
You can find comfort in knowing that there is a legal team working on your behalf that will assist you every step of the way in the process of qualifying for services and will employ all the legal strategies and tools necessary to achieve the desired out-come possible.
Our Medicaid Planning services are tailored to meeting your specific needs of your particular situation. Our team is focused on providing you with measurable and timely results that you can depend on.
Individuals who apply for Medicaid may be DENIED when applying on their own. Appeals to a denial often require a hearing. Our team has the litigation experience to assist you in a Medicaid hearing.
We are committed to our clients. We understand the struggle of working through the process of planning for the future and many of the unexpected long term care medical needs associated with the continuum of care cycle. We are also available to answer your questions and address any concerns related to the application process.
MEDICAID PLANNING ADVANTAGES
• Complete Application Correctly
• Reduce Time Involved
• Interface with Department of Children and Families (DCF)
• Provide Necessary Legal documents
• Provide Legal Representation
• Effective Process Management
When planning your estate it is important to understand the difference between probate and non-probate assets. Probate is the process through which a court determines how to distribute your property after you die. Some assets are distributed to heirs by the court (probate assets) and some assets bypass the court process and go directly to your beneficiaries (non-probate assets).
The probate process includes filing a will and appointing an executor or administrator, collecting assets, paying bills, filing taxes, distributing property to heirs, and filing a final account. This can be a costly and time-consuming process, which is why some people try to avoid probate by having only non-probate assets.
Probate assets are any assets that are owned solely by the decedent. This can include the following:
- Real property that is titled solely in the decedent’s name or held as a tenant in common
- Personal property, such as jewelry, furniture, and automobiles
- Bank accounts that are solely in the decedent’s name
- An interest in a partnership, corporation, or limited liability company
- Any life insurance policy or brokerage account that lists either the decedent or the estate as the beneficiary
Non-probate assets can include the following:
- Property that is held in joint tenancy or as tenants by the entirety
- Bank or brokerage accounts held in joint tenancy or with payable on death (POD) or transfer on death (TOD) beneficiaries
- Property held in a trust
- Life insurance or brokerage accounts that list someone other than the decedent as the beneficiary
- Retirement accounts
When planning your estate, you need to take into account whether property is probate property or non-probate property. Your will does not control the distribution of non-probate property. Check the ownership of your property and your accounts to make sure jointly owned property will be distributed the way you want it to. It is also important to review your beneficiary designations. Contact our office or sign up for a webinar to learn more answers to your questions about Florida Probate process.
Case Management Services
Our firm provides case management services to help find resources for your loved ones to make life a little easier. We have licensed clinical social workers who will work with you and your family to identify needs and find ways to meet those needs.
Our case manager can help you and your family to identify needs and find ways to meet your needs. They will explain complex issues with you, along with evaluating in home care needs to coordinate short or long term plan. Our unique process involves an initial assessment resulting in an individualized plan that will meet the family’s comprehensive health needs.