Video Summary

Is it important to have a will if you have few or no assets that you’re aware of?

The answer to the question is is yes, it is important, and that you don’t know what assets you’re going to have when you pass away.  You may be the recipient of an inheritance that you didn’t know about.  You may be the lucky winner of a lottery, course you have to play to win.  But you don’t know when you’re gonna pass away, so therefore you don’t know what assets you may have at that time.  And the will gives you an opportunity to designate to whom you wish to receive those assets.

Also as far as owning assets that you may jointly own with someone else, and you anticipate that they’re going to survive you, well if they pre-decease you, well then you need to designate who you would want to receive that particular assets.  Also, it’s important to designate who you would like to administer this.  Many times, whenever you have family involved, there may be one particular child that can get along with everyone else; or you may decide that you want a complete – someone that’s not a family member to administer the estate to avoid any friction, and that way you can designate whom you would like to administer your estate.  So I believe that it is important.

Also, whenever you do your will, there are other documents that will be discussed, such as a living will, a healthcare surrogate, and durable power of attorney, all of which are estate planning documents that we discuss and usually execute in conjunction with your will, which controls the end of life situation, as far as your estate planning.

So if you ‘d like to do a will, give me a call at 727-847-2288.

Video Summary

Why do I need a durable power of attorney? Well, there’s many reasons why a durable power of attorney is a necessary document.

First and foremost, a durable power of attorney is probably one of the most, if not the most, important estate planning document that you’ll utilize during your lifetime. And the reason that this is so is because a durable power of attorney allows you, in your lifetime, while you have capacity, to appoint an agent to act on your behalf to manage your affairs.

Also, it’s very important to know that the power of attorney statute in Florida did change in October 2011, where there are certain super powers, which now need to be specifically enumerated in your document as well as initialed in your document. These super powers include things such as the power to do banking transactions on your behalf, the power to do investment transactions on your behalf, create a Miller Trust on your behalf, even create, modify, or change a trust or a beneficiary designation. This is a lot of power that you’re giving this specific person that you’re appointing as your agent. Therefore, it’s very, very important that you choose somebody that you trust immensely, because this document will allow them to do many things on your behalf.

More importantly, a power of attorney is very important because it can prevent the necessity of a guardianship proceeding being instituted on your behalf in the event that you have an accident or you become incapacitated in your lifetime. Therefore, a durable power of attorney is a necessary document, whether you are in your 20s or whether you are in your 90s.

If you have any more questions about estate planning or a durable power of attorney, please give me a call here at Waller & Mitchell at (727) 847-2288.

Video Summary

What is elder law?

Many people ask me that question: Well, what exactly is elder law, or what do elder law attorneys do? Well, there are a few different practice areas that elder law attorneys cover. One of which is Medicaid planning, specifically for what’s called the ICP program – also known as the Institutional Care Program. So, getting families qualified for Medicaid coverage for skilled nursing care, through a variety of methods, including a Medicaid plan, even as much as drafting a Miller Trust, or a personal services contract. So that’s one component of elder law.

Another component of elder law would be probate, whether it be a summary administration or a formal administration. So, in Florida, probate is required to transfer title to assets in a decedent’s name, absent joint ownership, or absent some other previous mechanism, such as a trust, to go and pass ownership. So probate is a part of elder law. Another component of elder law would be guardianship. Guardianship has two different forms incapacity guardianship which, in the elder law, is really gonna be used a majority of the time. And then you also have minor guardianship, so guardianships are a huge part of elder law, as far as that’s concerned.

You also have estate planning. Estate planning is a very large part of elder law. Estate planning encompasses creating actual plans for your clients, as well as creating documents for their future, as far as last will and testaments, powers of attorney, healthcare surrogate forms, and declarations of preneed guardians. So those are some components of elder law, and what elder law attorneys do.

Our office, here at , we handle all of those areas of the law. I specifically handle areas of the law, as well, and we would love to help you. If you have an elder law question, or an elder law need, please feel free to give us a call, at 727-847-2288.

Video Summary

Estate planning considerations after Medicaid approval.

The legal counsel of your elder law attorney does not end with the Medicaid approval notice. Discussions follow by planning measures should be considered by the single Medicaid applicant as well as the community spouse.

For the single Medicaid applicant family members are generally desirous and have exempt assets inheritable by operation of law. Well, what exactly does this mean?

For example, avoiding probate on the exempt homestead property may be advantageous under many circumstances. After evaluating the family’s dynamics and discussing the pros and cons, an Enhanced Life Estate Deed, also commonly referred to as a Lady Bird Deed may be a suitable planning technique for avoiding probate for real estate owned by the single Medicaid applicant.

In addition, simple convenience measures may be undertaken such as adding the beneficiary to certain designated countable assets such as bank accounts. If your power of attorney is necessary to perform these functions then you must be aware of the changes brought about by the Florida Power of Attorney Act which was effective October 1, 2011.

This is crucial because authority such as the ability to create a survivorship or beneficiary designation must have been expressed in the power of attorney created prior to October 1, 2011.
Furthermore, they must also be specifically enumerated and initialed and powers of attorney’s created after or on October 1, 2011.

In addition to the applicable items previously mentioned, planning for the community spouse and the objective of protecting against future disruption in Medicaid eligibility takes on a level of immediate need and importance.

Once of the first considerations is to ensure that the community spouse completes the asset transfers necessary to conform to the asset criteria for him or her and the institutionalized spouse long before recertification.

In addition, the community spouse should review all beneficiary designations on IRAs and change life insurance policies to ensure that the institutionalized spouse is not the beneficiary of same just in case a community spouse should pass away prior to the death of the institutionalized spouse.

In most cases the community spouse will usually require new estate planning documents because she or he may have named the ill spouse as the primary actor throughout these documents.
It must also be addressed in the estate planning documents that the community spouse may predecease the ill spouse and assets received in any self-settled trust whether it enter via those trust or a living trust will not be protected.

Consequently, a third party trust may need to be created under the community spouse’s last will and testament which will likely include many of the terms and conditions for a qualifying special needs trust and that sort of treatment.

It is also important to have the community spouse consult with an insurance agent regarding the affordability and insurability of a long term care insurance policy to see if this may be a viable planning tool for the future just in case the event does occur that the community spouse will require institutional care.

It is also important to note that Medicaid recovery efforts are governed by Florida Statue 409.910. As a generalization, recovery efforts are predominantly encountered when assets of the deceased Medicaid recipient pass through a probate proceeding.

Recovery is not warranted if the Medicaid recipient is survived by either a spouse, a minor child or an adult disabled child.

If you have any questions regarding a state planning consideration and the interplay with the Medicaid application process and approval, I would love to assist you. Please give us a call here at Waller and Mitchell at 727-847-2288.

Video Summary

Special needs planning for people with disabilities. Did you know that ten percent of the families in America have a family member who is disabled as defined by federal regulations? This can be a minor child who suffered malpractice at birth. It can also be an adult who has been injured in a traffic accident or an industrial accident. It can even be a senior citizen who has suffered neglect in a nursing home and incurred serious injuries as a result of the neglect.

If this describes anyone in your family, we at Waller & Mitchell can help you. There are federal and state programs designed to assist individuals with these kinds of injuries and require special care and assistance. These programs are all means tested. That means that you cannot have more than a certain amount of money in order to qualify for assistance through these programs.

When these types of injuries happen to someone, typically there is a lawsuit filed on behalf of the injured party, and this lawsuit can result in hundreds of thousands, or even in some cases millions of dollars, that are made available to that person.

Now, at first glance this may seem good. But, the problem really can be two-fold. First, that money has to last for the entire lifetime of the individual. Second, if they receive that money in their individual names, they will be disqualified from public assistance benefits because of this specifically mentioned means test.

There is, however, a special kind of trust authorized under federal law that is called a Special Needs Trust. In a Special Needs Trust, the money from the lawsuit settlement can be deposited into the trust and a trustee can be named and then the trustee can pay the special needs of the individual. The public benefits are still qualified for the individual, and they will pick up the basic nursing care and medical care of the individual.

Governmental and social assistance programs should be preserved not only for the funds that they provide, but also because they allow essential strong and ongoing social services, counseling, housing, support mechanisms, and other help to the disabled individual.

What this allows for is that the special needs of the individual can be met with such things as:  advanced medical care, special caregiver services, education, and even entertainment. Any of these things would qualify under a properly drafted Special Needs Trust. In addition, with a Special Needs Trust, you can have a trust that is set up by a third party; for example, a grandparent who has a disabled grandchild. In that circumstance, the grandparent sets up the trust, puts the money into the trust, and then the trustee administers the trust for the benefit of the disabled grandchild. The disabled individual continues to receive their public benefits, so there is no problem with the money being diverted or expended unnecessarily.

The good thing about the third-party trust is that after the death of the beneficiary – the disabled grandchild – the original person who set up the trust can designate in the trust where the money is to go if there is anything that remains in the trust.

If you are interested in any of these concepts, please give me a call here at Waller & Mitchell. Our phone number is 727-847-2288, and we would love to assist you with all of your needs.