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Please join us in congratulating partner Howard S. Krooks, Esq., CELA, who has been named to the National Academy of Elder Law Attorneys (NAELA) Executive Committee. In June, he will begin serving as Secretary of NAELA, having served as a member of the NAELA Board of Directors since June 1, 2006.
Partner Ellen S. Morris, Esq. and Mr. Krooks have been invited to join a special task force of the Joint Public Policy Task Force of the Florida Bar Association Elder Law Section and the Academy of Florida Elder Law Attorneys 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. Elder Law Associates PA continues to monitor the administrative agencies to make sure Florida's seniors are getting fair and consistent treatment for benefits.
We provide The Elder Law Update to our clients and our colleagues who make up a wide range of service providers for seniors and people with disabilities to facilitate the dissemination of helpful and accurate information. We thank you for letting us share our knowledge with you. We continue to welcome your comments and questions. You may send them to Info@ElderLawAssociates.com. |
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Property Deemed Homestead of Decedent Even Though He Never Lived There!
In a case from the Fourth District Court of Appeal, a decedent's real property was deemed to be homestead property for devise and descent purposes, even though the decedent never lived in the property.
Here are the facts - Decedent married his wife, Nivia Giblin, in 1959. They had one daughter and in 1981 separated but never divorced. In 2000, decedent purchased real property in Broward County titled in his name. Decedent's wife and daughter lived in the home, but the decedent never lived in the property before his death in 2001. Decedent bequeathed his estate to his children and grandchildren. While the probate matter was pending, the Personal Representative of the Estate took out a mortgage on the property. The lender later brought a foreclosure action against the Estate in response to the wife having filed a Petition to determine the homestead status of the property.
The trial court found that the property was decedent's homestead within the meaning of Article X, Section 4 of the Florida Constitution, and ordered that title to the property descended and the constitutional exemption from the claims of decedent's creditors inured to the decedent's surviving spouse as to a life estate with a vested remainder in the descendants of the decedent in being at the time of decedent's death.
The lender appealed to the 4th District Court of Appeal.
The 4th District Court of Appeal noted the following language in Article X, Section of the Florida Constitution:
(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement, or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person:
(1) a homestead. . . . if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner's family;
. . .
(b) These exemptions shall inure to the surviving spouse or heirs of the owner.
(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner's spouse if there is no minor child. . .
(emphasis added).
The 4th District Court of Appeal found that the decedent was a natural person who owned property occupied by his wife and child at the time of his death; thus, the property is homestead. Under Florida law, the wife is entitled to a life estate in the property with a vested remainder interest to the descendants. |
Be Aware of the Dangers of Joint Accounts
 Many people believe that joint accounts are a good way to avoid probate and transfer money to loved ones, and such accounts are sometimes referred to as "the common person's estate plan." But while joint accounts can be useful in certain circumstances, they can have dire consequences if not used properly. Adding a loved one to a bank account can affect Medicaid planning as well as expose your account to the loved one's creditors.
When a person applies for Medicaid long-term care coverage, the state looks at the applicant's assets to see if the applicant qualifies for assistance. While a joint account may have two names on it, most states assume the applicant owns the entire amount in the account regardless of who contributed money to the account. If your name is on a joint account and you enter a nursing home, the state will assume the assets in the account belong to you unless you can prove that you did not contribute to it.
In addition, if you are a joint owner of a bank account and you or the other owner transfers assets out of the account, this can be considered an improper transfer of assets for Medicaid purposes. This means that either one of you could be ineligible for Medicaid for a period of time, depending on the amount of money in the account. The same thing happens if a joint owner is removed from a bank account. For example, if your spouse enters a nursing home and you remove her name from the joint bank account, it will be considered an improper transfer of assets.
Another problem with joint accounts is that the account is vulnerable to all the account owner's creditors. For example, suppose you add your daughter to your bank account. If she falls behind on credit card debt and gets sued, the credit card company can use the money in the joint account to pay off your daughter's debt.
Finally, you need to be sure you can trust the joint account holder because he or she will have full access to the account. Either account owner can take money out of the account regardless of who contributed to the account.
There are better ways to conduct estate planning and plan for disability. A power of attorney will ensure family members have access to your finances in the case of your disability. If you are seeking to transfer assets and avoid probate, a trust may make better sense. To learn more, talk to an elder law attorney.
For more information about Medicaid planning, click here. |
Nursing Home Residents May Keep $250 Stimulus Payment
 Just about everyone who gets Social Security, Social Security Disability Insurance (SSDI), Supplemental Security Income (SSI), or a Railroad Retirement or Veterans Administration disability pension, will receive a one-time payment from the U.S. government of $250 as part of the American Recovery and Reinvestment Act of 2009 (aka the stimulus bill). The extra payment is scheduled to arrive by the end of May the same way you receive your usual benefit.
Among those receiving the one-time stimulus payment will be long-term care facility residents on Medicaid who draw Social Security benefits. (But note that SSI beneficiaries who live in a nursing home and get a monthly SSI benefit of $30 are not eligible for the payment.)
Medicaid-eligible long-term care facility residents and their families should know that the stimulus payment is not considered income and will not be counted as a resource for 10 months (including the month of receipt) in calculating benefits under Medicaid (or any other federal program or state program with some federal financing). The $250 will also not count as gross income for tax purposes. Recipients can save the payment if they want to, but they should make sure that it will not put their savings over the asset limit for any program benefits they may receive as of February 2010.
Because the $250 payment will not be counted as income, it will not put a Medicaid-eligible resident over the state's income limit. In addition, a Medicaid nursing facility resident should not see an increase in his or her patient pay for the month the payment is received.
"This money is yours. Your home or facility is not allowed to take it to pay your bill, even if you get help from your state paying for your care," says the National Council on Aging (NCOA) in an informational handout directed at residents of nursing homes, assisted living facilities and board and care homes. If the nursing home takes your $250, NCOA advises contacting your state long-term care ombudsman immediately.
For Social Security's explanation of the payment and Frequently Asked Questions, click here.
For NCOA's page on the payment, click here.
For NCOA's handout for long-term care facility residents, click here. |
| The Boomer Burden: Dealing with Your Parents' Lifetime Accumulation of Stuff
 Julie Hall. The Boomer Burden: Dealing with Your Parents' Lifetime Accumulation of Stuff . Thomas Nelson, Nashville, TN. 2007. 228 pages.
$10.19 from Amazon (click on book to order).
When someone dies, they leave behind memories of them, but also lots of stuff. The Boomer Burden addresses how to deal with the latter -- how to clear out an estate and avoid family squabbles over heirlooms.
The author, Julie Hall, is an estate contents expert and certified property appraiser who has helped thousands of adult children manage their deceased parents' affairs. She claims that if you follow her tips, you can clean out an estate in a week to 10 days. Hall recommends beginning the process of dividing belongings while your parents are still alive by talking to them and to your siblings about everyone's expectations and wishes. Hall provides practical tips for protecting parents from scammers, moving parents to a new home, clearing out clutter, talking to siblings and other family about valuables, distributing property, cleaning out the estate, and dealing with ethical dilemmas.
Hall also provides advice on how to take care of yourself and on how to keep memories of parents alive. This is a very readable book with lots of practical information to help families deal with a difficult situation. | |
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Nearly Two-Thirds Face Risky Retirement Due to Long-Term Care Costs
 A new report by the Center for Retirement Research at Boston College finds that nearly two-thirds of U.S. households are at risk of being unable to maintain their standard of living in retirement when possible long-term care costs are taken into consideration.
The report, "Long-Term Care Costs and the National Retirement Risk Index," looks at the percentage of households that would fall significantly short of their target retirement income if they do what they can to prepare for the possibility of long-term care costs, on top of health care and other post-retirement expenses.
If those who could afford to do so purchased a comprehensive long-term care insurance policy with a $3,500 annual premium, researchers found that 64 percent of households would still be at risk of a lowered standard of living in retirement. When the researchers assumed that households would instead pay for long-term care using the equity in their homes through a reverse mortgage, 65 percent would still be at risk in retirement.
The report's authors conclude that their findings "raise major concerns about the retirement security of baby boomers and succeeding generations."
For a link to the report, which analyzes 2006 data, click here. |
| Tips for Preventing, Detecting, and Reporting Financial Abuse of the Elderly
 As the economy worsens, incidences of elder financial abuse are reportedly on the rise. The elderly are particularly vulnerable to scams or to financial abuse by family members in need of money.
A recent study found that up to one million older Americans may be targeted yearly. Family members and caregivers are the culprits in 55 percent of cases, although financial losses are higher with investment fraud scams.
While it is impossible to guarantee that an elderly loved one is not the victim of financial abuse, there are some steps you can take to reduce the chances. One option is to have more than one family member involved in caring for the loved one. You can also encourage the elder to get involved in community activities to ensure he or she has a wide range of support. Using direct deposit as much as possible is also helpful. And of course you should always screen caregivers carefully and verify references.
Financial abuse can be very difficult to detect. The following are some signs that a loved one may be the victim of this kind of abuse:
- The disappearance of valuable objects
- Withdrawals of large amounts of money, checks made out to cash, or low bank balances
- A new "best friend" and isolation from other friends and family
- Large credit card transactions
- Signatures on checks look different
- A name added to a bank account or newly formed joint accounts
- Indications of fear of caregivers
If you suspect someone of being financially abused, there are several actions you can take:
- Report the crime by calling your local Adult Protective Services and state attorney general's office. File a police report.
- Explore options at your local probate court if your state has such courts. The court can intervene if someone in the family is misusing a power of attorney or their role as guardian or conservator.
- Contact advocacy organizations. The National Center on Elder Abuse offers guidance on how to investigate and seek justice for elder abuse. State laws vary, but some have elder abuse statutes and may be able to get restitution for breach of fiduciary duties.
- Try to get a temporary restraining order from a court while building your case.
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Elder Law Associates PA is a boutique elder law firm that practices exclusively in Medicaid and long term care planning including long term care insurance, Medicaid applications, home and community-based Medicaid waiver services, diversion program benefits, nursing home benefits, spousal refusal applications, and Medicaid fair hearings and appeals; nursing home and assisted living facility residents' rights litigation; asset preservation planning with a special focus on planning in light of the Deficit Reduction Act of 2005, including personal service agreements, the purchase of life estates, income producing real estate and spenddown planning; disability planning, including special needs trusts and guardianship; estate planning, including wills and trusts and advance directives; and probate, which encompasses estate and trust administration as well as litigation.
We assist clients in planning for the possibility of disability, incapacity, home health care, assisted living and/or nursing home placement. Our firm enables clients to avoid impoverishment caused by the escalating cost of long term care, to maintain their right to make health care decisions and to avoid unnecessary medical treatment.
We hope you have enjoyed The Elder Law Update. If you have questions about something you read, elder law matters or issues concerning persons with disabilities, we would be delighted to hear from you. We serve as an elder law resource to many professionals and organizations and want to become your elder law resource as well. You can reach us at Info@ElderLawAssociates.com.
Warm regards,
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Ellen S. Morris, Esq. & Howard S. Krooks, Esq., CELA
Elder Law Associates PA
phone: (561) 750-3850 / (800) 353-3752
fax: (561) 750-4069
This publication is intended for general information purposes only. It is not intended to constitute individual legal advice to any specific client. |
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