Florida Elder Law Blog - ElderLawAssociates.com

In today's world, seniors or their heirs may be faced with litigation or may opt to pursue a litigation matter. A recent case which partner Ellen S. Morris handled successfully involved defeating a lawsuit for return of inheritance against a senior filed by her step-children. The result was that the senior was able to keep her inheritance.

On the flip side, in another recent case, Ellen successfully protected the children's inheritance of a house in which a step-mother had only a life estate interest but sued to gain the whole asset. The children prevailed and their father's wishes remain in tact. Click to read more about our litigation practice.

--Leslie Lautin Davis, Director of Marketing

Many of our Florida elder law clients have come to us with a request: "I should transfer my home to my children to get it out of my name."

This is not true. The many problems to this approach include creating unnecessary gift and capital gains taxes and losing the legal right to live in your home.

Fortunately, there are better ways to transfer your home to your children that avoid these pitfalls. Other techniques, such as the execution of a revocable trust to hold your homestead property, or the execution of a deed with an enhanced life estate, are more sensible approaches.

As always, it pays to consult with a reputable, respected Florida elder law attorney before making any drastic financial decisions.

--Howard Krooks, JD, CELA

Many people believe that their power of attorney has the power to transfer assets out of their name in order to qualify them for Medicaid.

What many don't know, is that there are many different types of powers of attorney. You will be able to protect your assets only if you have the proper power of attorney. In order to have the power to transfer your assets for tax and long-term care purposes, your power of attorney must have very special language authorizing these types of transactions.

Unfortunately, the vast majority of powers of attorney do not have these provisions. In addition, your agent may need additional authority to create and fund a special kind of trust, known as a qualified income trust, which may be necessary to establish your eligibility for Medicaid under Florida law.

Consulting a qualified Florida elder law attorney to draft the proper power of attorney documents is a must!

--Howard Krooks, JD, CELA

The second myth I'd like to de-bunk is about Medicaid and your assets. I often hear from clients that they believe something like the following:

"Once I enter a nursing home as a private pay resident, I must use up all of my assets before I can qualify for Medicaid."

This is not true.

Although it is better to begin Medicaid planning earlier (in Florida, Medicaid planning is essential and should be done by an expert Florida elder law attorney), you may still protect almost one-half--and in many cases substantially more--of your assets even if you are already in a nursing home. Remember, the sooner you engage in elder law planning, the more assets you can protect for yourself and your family.

--Howard Krooks, JD, CELA

Long term care is often a painful necessity for most of us. And paying for long term-care is not easy. Most people would not choose to live in a nursing home; however, sometimes it is unavoidable. The average monthly cost of nursing homes in our area exceeds $6,500. Assisted Living and home care are also very expensive.

Over the next few weeks, though, I will share a few common misconceptions about long-term care and why they are not true.

Myth #1 - Medicare will cover my nursing home bill

Not true. Medicare is a federal program that provides very limited coverage for certain short-term nursing home stays but no coverage for long-term care in a nursing home.

Many people confuse Medicare with Medicaid, since the names are very similar; however, the programs are very different. Medicaid is a means-tested program, which has very strict income and asset requirements. Medicaid will pay for long-term care if you qualify. Medicare will not pay for long-term care. This may seem unfair, but it is the law.

--Howard Krooks, JD, CELA

The 2008 Regular Session of the Florida Legislature recently adjourned. Ellen Morris, Legislative Chair of The Florida Bar's Elder Law Section and Howard Krooks, member of the Joint Public Policy Task Force of the Florida Bar Elder Law Section and AFELA are pleased to share with you the following breaking news from the Session.

It is anticipated that, effective July 1, 2008, 14,000 slots for the diversion program will be funded. (It is not clear at this time whether the 1,000 slots that were supposed to be added in January 2008 but were never implemented are included in the 14,000 number.) Governor Crist still has the right to veto this part of the budget but as he and Lt. Governor Kottkamp were instrumental in getting these funds, it is doubtful that will occur.

--Leslie Lautin Davis, Director of Marketing, Elder Law Associates