Skip to main content
Monthly Archives

January 2019

Can nursing homes keep you from seeing your loved one?

By Elder Law, Long-Term Care, Medicare

No, it is against the law for nursing homes to ban visitors from seeing their loved ones, unless the visitor is deemed dangerous to the other residents of the nursing home. According to the Centers for Medicare and Medicaid Services, nursing home residents have the following rights when it comes to visitors:

  • To spend private time with visitors
  • To have visitors at any time, as long as you wish to see them, as long as the visit does not interfere with the provision of care and privacy rights of other residents
  • To see any person who gives you help with your health, social, legal, or other services at any time. This includes your doctor, a representative from the health department, and your Long-Term Care Ombudsman, among others.

If you feel that a loved one is being deprived of his/her rights as a nursing home resident, you have the right to register a complaint with the nursing home as a resident advocate. If the facility’s management does not resolve the issue, one can also report the problem to the Florida Agency for Health Care Administration at 1-888-419-3456 or to the Long Term Care Ombudsman of Florida at 1-888-831-0404.

January 28, 2019
Love0

“It’s All Greek to Me”: Settlor vs. Grantor vs. Trustor

By Estate Planning

We turn to Florida Statute §736.0103 for the legal definition of “settlor”: “a person, including a testator, who creates or contributes property to a Trust.” Florida Statute §731.201 defines “grantor” as: “one who creates or adds to a Trust and includes ‘settlor’ or ‘trustor’ and a testator who creates or adds a Trust.”

Do the terms seem confusingly similar? If so, it is probably because “settlor,” “grantor,” and “trustor” all have the same basic meaning: the person who creates a Trust. Today, one might even come across the word “trustmaker,” which – you guessed it – also means the same thing.

            If you are a settlor, grantor, trustor, or trustmaker (or hope to be someday) and would like help preparing or reviewing your estate plan documents, please call the attorneys of Bach, Jacobs & Byrne, P.A. at (941) 906-1231.

January 24, 2019
Love0

What is the “spendthrift provision” in a Trust?

By Estate Planning, Probate

Florida’s spendthrift provision protects Trustees and beneficiaries from creditors seeking to collect on a beneficiary’s debts and from the beneficiaries themselves, pledging their interest in the Trust as collateral. Essentially, the provision stipulates that no creditor can access the assets in a Trust designated to be distributed to certain beneficiaries, as long as the assets remain in the Trust. However, as soon as the beneficiaries receive their assets from the Trust, the creditors are allowed to seek repayment from them.

For more information about the spendthrift provision, you can look up Florida Statute §736.0502 at www.leg.state.fl.us/Statutes. To review an existing Will or Trust or for help creating one, please contact the attorneys at Bach, Jacobs & Byrne, P.A. at (941) 906-1231.

 

January 22, 2019
Love0

What constitutes undue influence in a Will or Trust contest?

By Estate Planning, Probate

The Florida Supreme Court case which has set the standard for determining undue influence in Will disputes is the seminal case of In re: Estate of Carpenter, 253 So.2d 697 (Fla. 1971), which held that: “It is established in Florida that if a substantial beneficiary under a will occupies a confidential relationship with the testator and is active in procuring the contested will, the presumption of undue influence arises.”

In terms of proving that that a beneficiary was active in procuring the Will, the Carpenter court lists seven criteria which may be used in doing so:

  1. The beneficiary was present at the execution of the Will
  2. The beneficiary was present on occasions when the testator expressed a desire to make a Will
  3. The beneficiary recommended that an attorney draw the Will
  4. The beneficiary knew the contents of the Will prior to execution
  5. The beneficiary gave preparation instructions to the attorney drawing the Will
  6. The beneficiary secured the witnesses to the Will
  7. The beneficiary kept the Will in his/her possession after execution

The attorneys at Bach, Jacobs & Byrne, P.A. are trained Trust and estate litigators and elder law attorneys. If you think the Will or Trust of a loved one has been impacted by undue influence, call us today at (941) 906-1231 to set up an appointment to discuss your case.

January 18, 2019
Love0

Why does probate take so long?

By Estate Planning, Probate

In Florida, the formal probate process, when not drawn out by disputed claims or other complications, generally takes at least four months. Though this may seem long, our system is more concise and takes less time than many other states.

In any probate process, creditors must be notified of the decedent’s death and given time to file claims on the probate estate. Florida law provides three months for the notification of any and all possible creditors – this is why the formal probate process in Florida can never take less than three months. Summary probate administrations for small estates are an exception.

The attorneys at Bach, Jacobs & Byrne, P.A. represent personal representatives in the administrations of probate estates, from start to finish, whether they are quick and simple or complicated and drawn-out. Contact us at 941-906-1231 to schedule an appointment.

January 14, 2019
Love0

What is the CARES assessment?

By Asset Protection Planning, Long-Term Care, Medicaid Planning

In Florida, Comprehensive Assessment and Review for Long-Term Care Services (CARES) is the federally-mandated screening system for nursing home applicants. It is required by law for any person seeking Medicaid reimbursement for nursing home care or Medicaid waivers for community-based long-term care services. Furthermore, any private-pay applicant who is suspected of having an intellectual ability or mental illness must also take the test.

The CARES process is initiated once a person applies for the Medicaid Institutional Care Program. A registered nurse or other qualified individual performs the assessment, and then a physician or registered nurse reviews the application and determines the best course of action for the patient. You can read more about the process at the CARES website: http://elderaffairs.state.fl.us/doea/cares.php.

The lawyers at Bach, Jacobs & Byrne, P.A. are skilled Medicaid planning and elder law attorneys. To discuss protecting your assets in anticipation of long-term care and Medicaid application, or to learn more about the eligibility requirements of Medicaid, please contact us at (941) 906-1231 to schedule a consultation.

January 10, 2019
Love0

What happens if a beneficiary predeceases the testator?

By Probate

As is the answer with many legal questions, the answer here is: it depends. When a person named as a beneficiary of a Will dies before the person who signed the Will, you should review the terms of the devise to see if alternate beneficiaries are named.

When alternate beneficiaries are not named, the gift is said to have “lapsed.” If the bequest lapses, the gift can instead be passed to other beneficiaries of the Will.

If one of your intended beneficiaries has passed away, it may be time to review your estate plan. Call Bach, Jacobs & Byrne, P.A. at 941-906-1231 to set up an appointment to create or review your existing estate plan documents.

January 8, 2019
Love0

What is a “pour-over” Will?

By Asset Protection Planning, Estate Planning, Probate

A “pour-over” Will is usually created by individuals who hold most, if not all, of their assets in a Trust. The reason one might maintain such a document is to account for overlooked assets in the estate planning process – if one wishes for all his/her assets to be held by the Trust after death and inadvertently forgot to transfer some assets to the Trust, the pour-over Will directs those assets to be transferred to the Trust.

The assets in a pour-over Will still have to go through the probate process (unlike the assets already in the Trust). However, it is still wise to have a pour-over Will, as it will avoid intestate probate and provide clarity and direction with regard to your estate plan.

Do you need to make a pour-over Will? Do you need to review your existing estate plan to make sure it aligns with all your wishes? Contact Bach, Jacobs & Byrne, P.A. today at (941) 906-1231 to set up an appointment.

January 4, 2019
Love0