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April 2017

Estate Planning for Same-Sex Couples in Florida: Tax Filing

By Asset Protection Planning, Estate Planning, Tax Law

Because same-sex married couples are now federally recognized, they can file joint tax returns. The  IRS also recognizes federal tax provisions which include income tax credit, child tax credit, and employee benefits.

Spousal exclusion now applies to same-sex couples, which permits partners to leave property to the surviving spouse without having to pay estate taxes when the first spouse passes away.

The 2015 ruling, Obergefell v. Hodges, also made amends to states’ intestacy statutes. Now if a same-sex spouse dies without making a will, the surviving same-sex spouse will inherit some of the assets of the deceased spouse and receive other benefits formerly only available to heterosexual couples such as homestead protection.

April 28, 2017
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Questions to ask before retirement

By Asset Protection Planning, Estate Planning, Government Benefits, Long-Term Care

For many seniors, retirement is a time of relaxation and having opportunities to explore their interests and the world. But before making the transition into retirement, there are some questions that you and your spouse should discuss.

 

  • What is the best time for my retirement? There are several factors you and your loved ones should consider before making the decision to retire. A large topic to discuss is how best to maximize your Social Security spousal benefits. You should also assess your family’s financial needs and consider the ways in which your retirement could impact your loved ones.
  • What lifestyle do I want to pursue? Everyone has a different vision for retirement. While some wish to travel the world, others plan to stay close to home. By having an idea of your lifestyle, you can properly prepare for your retirement.
  • How do I plan for long-term care? Planning for long-term care can be a long process. It is a good idea to meet with an elder law attorney to properly construct a plan. Planning ahead can save time and money and reduce unnecessary stress. Planning for long-term care involves setting up end-of-life documents, finding the right assisted living facility if necessary, and getting the best healthcare coverage for your needs.

 

If you wish to set up estate planning documents or plan for your retirement and end-of-life decision-making, please contact our office at (941) 906-1231 to speak with one of our attorneys.

 

April 25, 2017
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Changes to the Florida Health Care Surrogate Act for Minors

By Elder Law, Estate Planning

Legislation that made changes to the Florida Health Care Surrogate Act was enacted in October of 2015. Although many of the changes affected competent adults, there were also changes that affected the medical treatment of minors. The bill makes a change that no power of attorney executed after October 1, 2015 can consent to the treatment of a minor.

The bill makes an amendment to s. 743.0645, F.S. to establish that a power of attorney executed between July 1, 2001 and September 30, 2015 is sufficient to authorize an individual to consent to ordinary and necessary health care for a minor. However, the bill changes the statute so that no power of attorney executed after October 1, 2015 will have the authority to consent to the treatment of a minor.

After October 1, 2015, only a health care surrogate, designated pursuant to 765.2035, F.S., can allow someone other than a parent or guardian to consent to medical care or treatment for a minor. This designation must be in writing and signed by two witnesses. The designation can be revoked or amended at any time.

April 21, 2017
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Changes to the Florida Health Care Surrogate Act for Adults

By Elder Law, Estate Planning

Florida recently enacted changes to the Florida Health Care Surrogate Act that gives patients additional flexibility in appointing an agent and add additional notification requirements for facilities. These improvements went into effect October 1, 2015, and impact both adults and minors.

The bill created a new statute 765.202(6), F.S. that allows an individual to designate a health care surrogate who can act and make health care decisions while the individual is still competent. Historically, a determination of incapacity has been essential to a health care surrogate taking effect. Now, however, a health care surrogate can be given authority immediately upon execution of the document. The bill also maintains that when a conflict arises between the principal and the surrogate, the decision of the principal prevails.

The bill amended s. 765.204, F.S. so that a health care facility is required to notify the surrogate of a determination of incapacity. It is also required now that if the health care facility knows of a durable power of attorney, it must also notify the attorney in fact of a determination of incapacity. Lastly, the bill makes it a requirement that the attending physician’s office notify the principal’s primary physician of the principal’s incapacity.

To update your appointment of health care surrogate document or other estate planning documents, contact Bach & Jacobs, P.A. to schedule an appointment.

April 18, 2017
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What is a Pooled Trust?

By Asset Protection Planning, Government Benefits, Medicaid Planning

A first-party supplemental needs trust is created to allow disabled persons to receive the benefit of their funds in a trust while still qualifying for and receiving government benefits. An alternative to this trust is a pooled trust. A pooled trust is created by a non-profit organization, and individual beneficiaries can create accounts within the trust.

By pooling the assets of disabled persons, the organization can manage one master trust and maximize the benefits for the beneficiaries. The non-profit can make more stable investments and provide more services than a normal supplemental needs trust.

Most people with special needs join a pooled trust when they do not have anyone to create a first-party supplemental needs trust for them. And just like a first-party supplemental needs trust, a pooled trust is used for people to qualify for and remain eligible to receive government benefits, such as Medicaid and SSI.

A couple advantages of a pooled trust are the low costs and the fact that the funds will be used to help others with disabilities.

If you have further questions on this topic, contact our office at (941) 906-1231 to schedule an appointment with one of our attorneys.

April 14, 2017
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Arbitration agreement surviving death of signatory

By Elder Law, Long-Term Care

In the 2013 case Laizure vs. Avante at Leesburg, Inc. (SC10-2132), the Florida Supreme Court had to consider whether a nursing home patient’s agreement to arbitrate all claims against a nursing home applied to the heirs of the patient in bringing a wrongful death claim against the facility. The Supreme Court ruled that the arbitration agreement applied to the wrongful death action.

After undergoing a surgery, Harry Lee Stewart entered into a nursing home to receive rehabilitation. In order to be admitted to the facility, Stewart had to sign an arbitration agreement that required patients to arbitrate any claim made against the nursing home. Quickly after his admittance to the nursing home, Stewart died. His personal representative, Debra Laziure, then filed a wrongful death suit and alleged that the nursing home violated the Florida Nursing Home Resident’s Rights Act.

According to the arbitration agreement, the claims include “breach of contract, breach of fiduciary duty, fraud or misrepresentation, common law or statutory negligence, gross negligence, malpractice or a claim based on any departure from accepted standards of medical or nursing care, where the alleged damages exceed ten thousand dollars ($10,000).”

The Court ruled that the claim of negligence is arbitrable and the agreement also applied to the estate of Stewart.

April 11, 2017
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Estate Planning for Same-Sex Couples in Florida

By Asset Protection Planning, Estate Planning, Government Benefits, Tax Law

 The U.S. Supreme Court rulings in the 2013 Windsor v. U.S. and the 2015 Obergefell v. Hodges cases resulted in changes for same-sex couples in areas such as estate planning and tax filing.

It is important that same-sex couples living in Florida take the proper steps in their estate planning, and specify key details that will ensure their protection under the law.  Such planning may include creating estate planning documents such as a last will and testament, or Revocable Trust, durable power of attorney, living will, and a designation of pre-need guardian.

April 7, 2017
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Guardianship vs. POA: Incapacitated Individuals Making Dangerous Decisions

By Elder Law, Estate Planning, Guardianship

Despite having a power of attorney and other lesser restrictive alternatives in place, there may still be situations in which appointing a guardian is necessary for the safety of the incapacitated individual. Sometimes, an incapacitated individual will become uncooperative and refuse care and assistance from loved ones. Incapacitated individuals can also put themselves in physical danger by mishandling electrical equipment, refusing medicine, forgetting to eat, and carelessly driving.

Under Florida law, it is unlawful to force an individual to stay in an assisted living facility or to house an unwanted caregiver absent a guardianship. It is sometimes necessary to appoint a guardian that will protect the individual from their own incapacity.

If you have more questions on this topic, please contact our office at (941) 906-1231 to speak with one of our attorneys.

April 4, 2017
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