Florida Elder Law Blog - ElderLawAssociates.com

Caring for a child or loved one with special needs carries
certain challenges that many cannot understand, and yet
too many of us are confronted by these challenges on a
daily basis. A Special Needs Planning Attorney can assist
you with Medicaid Planning, planning for your loved
one with special needs trusts and comprehensive estate
planning. A Special Needs Planning Attorney recognizes
that caregivers typically do not add up the cost of support
and caring for an individual with a disability. Caregivers
provide many services “naturally” and willingly to loved
ones to help enhance their quality of life. These services
might include any one or more of the following:

• Advocate
• Social service coordinator
• Companion
• Guardianship
• Job coach
• Chauffeur
• Personal care attendant
• Money manager
• Recreation director

If you become unable to provide these services or die
without planning for the continuation of these services,
your loved one’s quality of life may suffer.

An experienced Special Needs Planning Attorney will:

• Establish comprehensive care plans organized so that monies for your loved one with special needs will not be at risk from estate taxes or the long-term care costs of caregivers
• Assist with applying for SSI benefits for a person with disabilities
• Apply and qualify for Medicaid for a person with disabilities
• Provide for a person with special needs in your Will
• Apply for Guardianship
• Set up a Special Needs Trust
• Set up a Supplemental Needs Trust
• Assist in the creation of a Letter of Intent
• Inform you of the estate planning options available to you
• Assist families with long term care planning for loved ones with special needs

What is a Special Needs Trust?

A special needs trust (usually funded with the assets
of the disabled individual) or a supplemental needs
trust (usually funded with the assets of a third party,
such as the parents of a disabled individual) makes it
possible to appoint a trustee to hold property for the
benefi t of your disabled child after you’re gone. A special
needs trust provides for the needs of a disabled person
without disqualifying him/her from government benefi ts
programs such as Social Security and Medicaid.
Why Can’t I Leave My Assets to Other Family Members?
While it might seem like a good idea simply to leave a
certain amount of money to your disabled child’s sibling
or other close relative, with the understanding that the
money will be spent on the disabled child, this approach
is not the best strategy and often produces negative
consequences. For example, any one or more of the
following can occur by leaving your assets to another
family member:

• The money can become subject to judgments, divorce settlements or bankruptcy decrees against the relative
• The disabled person has no legal right to force the relative to use the money to benefit the disabled person
• The relative to whom the money is left may be taxed at a higher income tax rate than the disabled child or a trust
• Should the relative die before the disabled child, the money would go to the relative’s heirs and not the disabled child

A special needs trust avoids these potential problems
without putting an emotional strain on family relations.

Monthly SSI benefi ts can be spent on food and shelter.
The special needs trust money can be used to pay for
additional items that will enhance the quality of life of
your disabled child. Such things might include:

• Summer camp
• Lessons
• Educational expenses
• Airline tickets for travel
• Electronic video games
• Vitamins and grooming supplies
• Funeral and burial expenses

Preparing a Letter of Intent

One way to set forth what your intentions are for your
disabled child’s future is to sign a “Letter of Intent.” This
letter can be given to the trustee of the special needs trust
at the time of your death. This document gives family
members and others the benefi t of your knowledge
about your child’s capabilities, needs and interests. Once
completed, you can update the letter as necessary should
the child’s needs change or should your goals for your
child change.

A typical letter of intent will include:

• Biographical information
• Financial details
• Medical history and needs
• Social contacts
• Any negative infl uences you would like to guard against
• Personality traits
• Skills, hobbies and physical abilities
• Goals your child is working toward

While the challenges facing your disabled loved one are
daunting, they can be even more so if you are not around
to attend to his or her needs. However, with a little
forethought and planning, you can make your disabled
child’s future potentially much brighter.

Howard S. Krooks, JD, CELA, CAP is a partner of Elder Law
Associates PA, which has offi ces in Boca Raton, Aventura,
Weston and West Palm Beach. He is admitted to practice
law in Florida and New York, where he serves as Of Counsel
to Amoruso & Amoruso LLP in Westchester County. His
professional practice is devoted to elder law and trust and
estate matters, including representing seniors and persons
with special needs and their families in connection with asset
preservation planning, supplemental needs trusts, Medicaid,
planning for disability, guardianship, wills and trusts.

Mr. Krooks is certified as an Elder Law Attorney by the
National Elder Law Foundation and is a member of the
Council for Advanced Practitioners of the National Academy
of Elder Law Attorneys (NAELA).

He is an active member of the Special Needs Planning and
Elder Law community on the local, state and national level.
Mr. Krooks currently serves on the NAELA Board of Directors
and is an offi cer of NAELA (Secretary). As a member of the
Joint Public Policy Task Force of The Florida Bar Elder Law
Section and the Academy of Florida Elder Law Attorneys,
Mr. Krooks works to protect the rights of the state’s most
vulnerable citizens. He recently was invited to join a special
sub-task force to review policies of The Florida Department of
Children and Families (DCF) that may not be in compliance
with federal law. The special task force will also determine
whether DCF policies have followed proper rule-making
procedures.

Labels: Florida Estate Planning, Florida Guardianship, Florida Special Needs Trust

With many people unwilling to purchase long-term care insurance policies due to the cost, insurers are rolling out new products that combine long-term care insurance with either a life insurance policy or an annuity. These new products have been on the market for awhile, but they are gaining in popularity due to a law that goes into effect Jan. 1, 2010, making distributions from life insurance and annuities tax free when used to pay nursing home costs.

Even though long-term care costs continue to rise, long-term care insurance has not become widespread. Long-term care insurance is expensive and many people do not want to pay premiums for something they might not need. A hybrid product has the benefit of combining two products into one. If you don't use the long-term care insurance, you can still benefit from the life insurance or the annuity.

The products vary in the details, but the general idea of a hybrid life insurance policy is to allow a buyer to purchase a cash-value life insurance policy and to use a portion of that policy for long-term care benefits, if necessary, and keep the rest as a death benefit that will be paid to the purchaser's beneficiary. If long-term care benefits are used, the death benefit may be reduced.

Hybrid annuity products also vary significantly, but in general they allow a buyer to purchase a fixed deferred annuity with a long-term-care rider attached. The annuity may pay out for a specific number of years or for life. For example, a purchaser could deposit $150,000 into an annuity. The annuity would provide approximately $4,700 a month of long-term care benefits for 36 months. For an additional cost, the purchaser could get the $4,700 monthly benefit for life.

While a two-for-one product may seem attractive, these products are not for everyone. For one thing, you may have less flexibility with a combined product than you would with a stand-alone product. Hybrid products may not cover home care or include inflation protection, for example. In addition, hybrid products may not offer enough long-term care coverage for what you need. It is impossible to predict exact coverage needs, but click here for more information on how to figure out how much insurance to purchase. A hybrid product is likely less expensive than purchasing two separate products, but it is often more expensive than purchasing a stand-alone long-term care insurance policy.

As with any major purchase, you need to evaluate it carefully before purchasing. Before deciding what to buy, get advice from an impartial investment advisor, not a sales agent who makes a commission off the sale of policies.

For more information on long-term care insurance, click here.

For an article on hybrid long-term care insurance policies from MarketWatch, click here.

Labels: Florida Elder Care, Florida Elder Law Attorney, Florida Estate Planning

Good evening, everyone.

Yesterday was a busy day for online articles about estate planning. CBS MarketWatch.com posted a "Feature Package" of articles titled Keep the Money in the Family - short, simple articles that are an excellent reminder for clients and referral sources of the need to do planning. Available online at http://moneywatch.bnet.com/retirement-planning/feature/keep-the-money-in-the-family/338108/?tag=content;col1, the "package" includes the following articles:

• 8 Steps to Protect Your Family
• 12 Tough Questions to Ask Your Parents
• Death in the Family: 12 Things to Do Now
• Will Essentials: What You Need

And Forbes.com posted an article titled You Go-To Guide to Estate Planning, available online at http://www.forbes.com/2009/09/02/estate-financial-planning-forbes-woman-net-worth-guide.html. Directed at women, this is another simple explanation as to why people should plan, with links to related articles.

We hopes this provides some insight as to why Elder Law is so important, and why it's imperative to consult with a qualified Florida Elder Law Attorney before making any commitments. Please contact us for a consultation.

-- Ellen Morris and Howard Krooks

Labels: Florida Elder Care, Florida Elder Law Attorney, Florida Estate Planning

Summertime brings a lot of family time. With family reunions, picnics, weddings and other events, long distant family members travel to gather together. It is also the perfect time to do some planning for the future. With parents aging and their health and lifestyles changing, children need to discuss some changes and decisions that will be needed in the near future. Parents should take the time to tell their children where important documents are kept and what their wishes are in the event of needing health care directives or experiencing long term care needs.

For those children who live away, the change they see in their parent's health and mental capacity may be alarming -- whereas siblings that have daily contact are working with these issues constantly. Here is the chance to compare notes and work together as a complete family in the long term care planning process.

For you parents who are well and active, this is a good time to hold a family meeting and share with your children your plan for long term care. Tell them where financial and legal documents are located. Review health care directives, living wills and long term care alternatives.

Experience has shown that even families that are close can quickly grow angry, jealous and hostile towards each other when an aging parent begins to need long term care. If a sibling moves into the parent's home, others can easily be suspicious of ulterior motives and fear losing their inheritance. On the other hand, the child providing the elder care becomes bitter and feels there is no support or help from siblings. Pre-need meetings for the purpose of making a plan, before eldercare becomes imminent, avoids these types of conflicts.

In its book, “The 4 Steps of Long Term Care Planning,” the National Care Planning Council provides guidelines and checklists for family planning meetings. Here's an excerpt from the book:

“The first step to holding a meeting, and perhaps the most difficult
one, is to get all interested persons together in one place at one time.
If it's a family gathering, perhaps a birthday, an anniversary or
another special event could be used as a way to get all to meet. Or
maybe even a special dinner might be an incentive.

The person conducting the meeting can be a parent or one person of
a couple who are doing their planning, years before the need for care
arises. A meeting on behalf of someone already receiving care or
needing care in the immediate future could be conducted by that
person or by a member of the family, by an adviser or a friend.
The agenda could be formal or informal. If you want a formal
agenda, we suggest using our care planning checklist as the agenda.

Copies of the care plan should be prepared prior to the meeting and
presented to those attending. Discussion is encouraged and we
recommend that the person in charge not dictate but encourage input from everyone.

After a thorough discussion of the issues and the presentation of the
solutions to the problems that will be encountered, there should be a
consensus of all attending to support the plan. If the plan needs to
be altered to meet everyone's expectations then by all means do so if
that can be done. But it is not always possible to please everyone so
there must sometimes be compromise.

The end of the meeting should consist of asking everyone present to
make his or her commitment to support the plan.

GET IT IN WRITING! All good intentions seem to be forgotten
with time. It may be years after this meeting before the long term
care plan begins. If there are vocal commitments to help with
transportation to doctors, give respite to the caregiver or other
commitments, write them down on the care agreement. You can
even have each person put a signature to his or her commitment if
you think that is important.”

“The 4 Steps of Long Term Care Planning ,” by The National Care Planning Council

The U.S Department of Health and Human Services states:
“No one wants to think about a time when they might need long-term care. So planning ahead for this possibility often gets put off. Most people first learn about long-term care when they or a loved one need care. Then their options are often limited by lack of information, the immediate need for services, and insufficient resources to pay for preferred services. Planning ahead allows you to have more control over your future”.
http://www.longtermcare.gov

"Whether you plan a formal meeting with an agenda or informally gather for a discussion, when the family is together make it a point to start the long term care planning process. There is a lot to learn and many decisions to make concerning finances, health issues and legal work. It may take research and a lot of time to put a plan together, but if everyone is involved it will work, and be worth it."
National Care Planning Council

Labels: Florida Elder Law Attorney, Florida Estate Planning

The financial crisis, coupled with possible changes in the estate tax law, make now a good time to review your estate plan. The future of the estate tax will likely be up for debate in Congress soon because one of the priorities of the Obama administration is making the estate tax permanent. Given the uncertain climate, it is important to make sure your estate plan does what you want it to do.

Under current law, the estate tax rate is 45 percent for 2009, but the estate tax will be eliminated in 2010. The tax is scheduled to return in 2011 at a rate of 55 percent. The amount of an estate that is exempt from taxes also changes under current law. It is now $3.5 million, but will drop to $1 million when the law is reinstated in 2011. The Obama administration would like to eliminate the one-year repeal of the estate tax. It isn't clear what the permanent rate would be, but according to an article in the New York Times, most tax experts believe the exemption will be kept at $3.5 million and the rate will stay at 45 percent.

The Times article identifies several things to consider when reviewing your estate plan:

• Formula clauses in wills. Wills that give specific amounts to trusts can be problematic given the change in the estate tax. Instead of naming a specific sum to go into a trust, your will could name a percentage of whatever limit is currently in place.
  
  
• Bypass or credit shelter trusts. Bypass trusts allow you to put any money up to the exemption amount into a trust. Your spouse would receive income from the trust and the remainder would go to other family members after your spouse dies. The problem with this is that with the exemption being so large, most of your estate could go into a trust, thereby limiting your spouse's inheritance. You may need to make sure the trust is structured in a way that allows your spouse access to the funds.
  
  
• State estate tax. States have different exemption amounts that may be less than the federal amount. You may put more money in the bypass trust to avoid paying federal estate taxes, but end up still having to pay state estate taxes. Consult with a lawyer to determine a way to provide your executor with flexibility to deal with this issue.
  
  
• Grantor retained annuity trust (GRAT) . A GRAT is a way to avoid gift tax for lifetime gifts of more than $1 million. You put appreciating assets in a short-term (two-year) trust and keep the right to an income stream for the life of the trust. If assets appreciate above a rate set by the IRS, your family members will receive the appreciation. Current law allows you to set up a GRAT that will result in little or no gift tax, but Congress is considering changing the law, so setting up a GRAT now may be especially appealing.
  
  
• Family limited partnerships. Family limited partnerships are another giving technique. You can put assets like securities, real estate, or businesses into a such a partnership. Then you can give away shares of the partnership to family members. Because these shares can't be sold to non-family members, the price is discounted. Congress is considering ending the discount, so if you want to establish one of these partnerships, you should act soon.
  
  
• Beneficiary designation forms. Money from a retirement account usually passes outside an estate to the person you designate on your beneficiary designation form. With all the consolidation in the financial industry, you should make sure your 401(k) or other retirement account has the correct beneficiary designation form.

To read the entire New York Times article, click here. For a related Times article, click here.

Labels: Florida Elder Law Attorney, Florida Estate Planning

Living in a different city or state -- miles from aging parents -- can be very difficult. Keeping in touch by telephone and making long trips to help parents or aging relatives with their needs can be time consuming and not nearly as effective as being available full time in person. (That's just one of the reasons why when planning for elder care that you contact a qualified Florida Elder Law Attorney - one familiar with Florida Estate Planning - before making long term care plans.)

Mark Sessions spent two years juggling his restaurant business with multiple daily phone calls to his elderly parents, checking on their needs and answering their questions. Family vacations were spent traveling the 500 miles to his parent's home to personally take care of home maintenance and provide health care visits to their doctor. During his last visit, Mark noticed his father had difficulty walking and his mother was confused as to which medications she was to take and at what time. This alarming change in his parent's condition concerned Mark that his parents' care needs required more than frequent phone calls and vacation visits. Running his business and handling his parent's long distance care was now becoming very challenging.

According to a report by the Alzheimer's Association of Los Angeles & Riverside, California, there are approximately 3.3 million long distance caregivers in this country with an average distance of 480 miles from the people they care for. The report also states that 15 million days are missed from work each year because of long distance care giving. Seven million Americans provide 80% of the care to ailing family members and the number of long distance caregivers will DOUBLE over the next 15 years.
Long Distance Caregiver Project – Alzheimer's Association LA & Riverside, Los Angeles, CA (May 15, 2002, National Web Seminar by Judith Delaney, MFT, Clinical Coordinator)

The long distance caregiver is a new role that is thrust upon children and younger family members. Families used to live closer together, with children residing and working near their parents. But nowadays family members are more distant from each other. Society, today, is recognizing this. Some caregiver services have tweaked their programs to work as liaisons between long distance caregivers, senior loved ones and local medical professionals.

Professional care managers -- a lso known as Geriatric Care Managers, Elder Care Managers or Aging Care Managers -- represent a growing trend to help full time, employed family caregivers provide care for loved ones. Care managers are expert in assisting caregivers, friends or family members find government-paid and private resources to help with long term care decisions.

They are professionals -- trained to evaluate and recommend care for the aged. A care manager might be a nurse, social worker, psychologist, or gerontologist who specializes in assessing the abilities and needs of the elderly. Care manger professionals are also becoming extremely popular as the caretaker liaison between long distant family members and their aging elder loved ones.

Jacqueline Marcell -- author of "Elder Rage, or Take My Father...Please! How to Survive Caring for Aging Parents" (Impressive, 2000) -- says,

"The most important thing to do is to find a geriatric care manager in the area where your loved one lives. She will have knowledge of all the services in the area and can be your eyes."

Below is a partial list of what a care manager or Professional Geriatric Care Manager might do:

• Assess the level and type of care needed and develop a care plan.
• Take steps to start the care plan and keep it functioning.
• Make sure care is in a safe and disability friendly environment.
• Resolve family conflicts and other issues with long term care.
• Become an advocate for the care recipient and the caregiver.
• Manage care for a loved one for out-of-town families .
• Conduct ongoing assessments to implement changes in care.
• Oversee and direct care provided at home.
• Coordinate the efforts of key support systems.
• Provide personal counseling.
• Help with Medicaid qualification and application.
• Arrange for services of legal and financial advisors.
• Provide placement in assisted living facilities or nursing homes.
• Monitor the care received in a nursing home or in assisted living.
• Assist with the monitoring of medications.
• Find appropriate solutions to avoid a crisis.
• Coordinate medical appointments and medical information.
• Provide transportation to medical appointments
• Assist families in positive decision making
• Develop care plans for older loved ones not now needing care

Services offered will depend on the educational and professional background of the care manager, but most are qualified to cover items in the list above or can recommend a professional who can. Fees may vary. There is often an initial consultation fee that is followed by hourly fees for services. Health insurance does not generally cover these fees but long-term care insurance might.

In 2002, the AARP published a survey from geriatric care mangers about their fees:

“Respondents were asked how much they charged for their services, which might include: an initial consultation; fees on an hourly or per visit basis; fees for development of a care plan; and fees on a fixed-price contract basis. Hourly fees averaged $74 an hour. GCMs charged an average $168 to develop a care plan. Initial consultations averaged $175. Seven of ten current GCMs responded in the affirmative when asked if they had a statement that listed their fees. ” Written by Robyn Stone, DrPH, Principal Investigator; Susan Reinhard, RN, PhD, Co-Principal Investigator; Jean Machemer, MSG, Research Associate; and Danylle Rudin, MSW, Research Associate of The Institute for the Future of Aging Services, Washington, D.C.Barbara Coleman, Project Manager, AARP Public Policy Institute November 2002

When you take into account the time absent from work and time to find the right care resources for your loved ones, along with the cost of travel expenses to monitor their care, you will probably concur that using a caregiver is money well spent. Add on to this the stress of handling your own life circumstances combined with being a caregiver and you will probably wonder how you could have ever done without the care manager.

A professional or geriatric care manager can be an important asset to all families in elder care situations. Here is an example of how a care manager can help.

Mary is taking care of her aging husband at home. He has diabetes and is overweight. Because of the diabetes, her husband has severe neuropathy in his legs and feet and it is difficult for him to walk. He also has diabetic retinopathy and, therefore, cannot see very well. She has to be careful that he does not injure his feet, since the last time that happened he was in the hospital for four weeks with a severe infection. She is having difficulty helping him out of bed and with dressing and using the bathroom. She relies heavily on her son, who lives nearby, to help her manage her husband's care.

On the advice of a friend, Mary is told about a professional care manager, Sharon Brown. The cost of an initial assessment and care plan from the care manager is $175.00. Mary thinks she has the situation under control and $175.00 for someone from the outside to come in and tell her how to deal with her situation seems ridiculous.

One day Mary is trying to lift her husband and injures her back severely. She is bedridden and cannot care for her husband. Her son, who works fulltime, now has two parents to care for. On the advice of the same friend, he decides to bring in Sharon Brown and pay her fee himself.

Sharon does a thorough assessment of the family's needs. She arranges for Mary's doctor to order Medicare home care during Mary's recovery. Therapists come in and help Mary with exercises and advice on lifting. Sharon advertises for and finds a private individual who is willing to live in the home for a period of time to help Mary with her recovery and watch over her husband. Sharon makes sure the new caregiver is reliable and honest and that taxes are paid for the employment. Sharon enlists the support of the local area agency on aging and makes sure all services available are provided for the family.

Sharon also calls a meeting with Mary's family and explains to them the care needs and how they need to commit to help with those needs. Sharon makes arrangements to rent or purchase medical equipment for lifting, moving and easier use of the bathroom facilities. Medicare will pay much of this cost. Sharon also works closely with an elder law attorney and a financial planner who specializes in the elderly. The attorney prepares documents for the family including powers of attorney, a living will and advice on preserving Mary's remaining assets. The financial planner recommends a reverse mortgage specialist to help Mary and her husband tap unused assets in their home's equity. Some reverse mortgage proceeds are used to pay off debt. The remaining proceeds are converted into income with a single premium immediate income annuity in order to provide Mary adequate income when her husband is gone and she looses one of the Social Security payments.

With the help of the care manager, Mary's life and future have been significantly improved. Her husband as well, if he adheres to the care plan, may end up having a better quality of life for his remaining years.

Labels: Florida Elder Care, Florida Elder Law Attorney, Florida Estate Planning

We found this article about pre-paid funeral arrangements in the Chicago Tribune enlightening, and think that you may, too:

The funeral industry is reconsidering one of the biggest selling points of prepaid funeral contracts—locking in the price prior to death.

Of course, it just highlights some of the many reasons it pays to consult with an up-to-date Florida Elder Law Attorney when planning your estate.

Labels: Florida Elder Law Attorney, Florida Estate Planning