Fred: In the tax and business areas, I have also represented and advised business owners on succession planning. That is, how do you get a business from one generation down to the next in the most efficient way, both from a tax standpoint and also from a governing standpoint. Frequently, when a business is passed from the founder to the next generation, you have controversies and disputes between the children in the operation of the business. In many cases some want to sell, some don’t want to sell. You can provide for that and prevent those kinds of disputes with well thought-out succession planning in the form of buy/sell agreements, employment agreements and operating agreements that will state with some specificity just who has the right to make the decisions, and who is going to be running the business while still treating all of the beneficiaries of a business owner equally.
Babette: One of the things that an elder law attorney specializes in is estate planning for a disabled beneficiary. Many of our clients have children or grandchildren who are suffering from various disabilities and receive governmental benefits. If they receive medicaid, they need to do a special needs trust in order for that beneficiary to be able to receive an inheritance and have their governmental benefits protected. We often work on a team approach doing the estate planning for a family that’s very concerned about a disabled beneficiary.
Fred: The special needs trust is a very exacting document. You must draft the document so that the beneficiary, that is, the disabled person, gets all the benefits from the trust that the creator of the trust intended but at the same time, does not get kicked off medicaid or another governmental benefit. The way you accomplish that is to give to the trustee, whether it be a family member or perhaps a trust department of a bank, the complete discretion as to whether or not to distribute income or principle benefits to the disabled beneficiary so long as everything is done in the best interests of the beneficiary.
Fred: We can also handle all aspects of real estate transactions for our clients, including transfers to beneficiaries, and in those cases where clients are purchasing homes in Florida, we can represent them in connection with the purchase, including reviewing the agreements of sales, searching the titles and obtaining title insurance on behalf of our clients, so that they can be assured that they own clear, free and marketable title to any properties down here that they are purchasing.
One of the questions that we’re frequently asked is whether a client should become a resident of the state of Florida. We have many clients who own homes in Florida but also still own homes up north, and the issues is, should they remain a resident of their state or establish residency in Flordia. In our view, their really is no downside to establishing residency in the state of Florida. There is no personal income tax and no inheritance tax. Many states up north still do have an inheritance tax that ranges from 4% to 15% of the value of the assets that are being passed to children, grandchildren and other beneficiaries. In Florida we have no such tax. If you have a home here and spend at least the majority of your time here, there is no downside to establishing residency in the state of Florida.
Fred: Many times clients express concern about the costs and delays of going through the probate process. One of the ways to avoid that is to establish what’s called a living trust during your lifetime. A living trust involves a document whereby you create a trust. The creator of the trust is both the trustee and the creator. That person puts substantially all of their assets into the name of the trust. Upon the death of that person, their property passes under the terms of the trust document, and those assets are not subject to probate and can be distributed to the beneficiaries in a relatively short period of time in accordance with the terms of the trust document. There is less time involved, and in some cases less expense in winding up the affairs of the trust as opposed to a probate estate. In the case of a probate estate, at every stage along the process you must get the approval of the court to do such things as making distributions, hiring outside consultations, and things of that sort. The revokable living trust is not a panacea. It does not accomplish all things and in some cases may actually be disadvantageous to a person. I personally feel that the probate process is more protective of beneficiaries, particularly in the case of minor beneficiaries such as young children. I think it’s an advantage to go through the probate process where there are young children who absolutely must be protected if both the mother and father are deceased.
Fred: Hello. My name is Fred Jacobs. My interests outside the practice of law are biking, rowing and going for long walks on the beach in our beautiful state of Florida. Even though I’m an old guy, I still bike 25 to 50 miles per day. I also get the opportunity to go to work everyday in my boat. In addition to having a slip behind my house here in Florida, I rent a slip downtown and I actually get to work in my Boston Whaler. Sometimes it’s so much fun that I’ll take the long way home and go out into the Gulf of Mexico, which is an unusual way to commute in this day and age. I’m also working on my first novel, which is a mystery in the format of Robert B. Parker who wrote the Spenser novels. One of my favorite things is to row across Sarasota Bay and back in my rowing skull, a distance of approximately eight miles. Not bad for an old guy.
We represent legal guardians in establishing guardianships of person and/or property for minors as well as incompetent adults, pre-need planning for guardians, and complying with annual reporting and accounting requirements.
Fred: One of the situations that we frequently become involved in is when a client will come into the office and say, “my dad is elderly, my mother passed away several years ago. Dad is not fully in charge of his faculties, he’s going on the internet every night and meeting unwholesome women and we are concerned that he is going to give away or dispose of a lot of his money to these people. We really think that he ought to be protected against that. Is there anything that you can do for us?”
Babette: If you do advance planning and you’ve got a good power of attorney, then you’ve designated who can handle your affairs for you if you are incapacitated. Very often that completely awards guardianship. But if you haven’t, and you become incapacitated, your family or your loved ones have an obligation to go to court to protect you, both in terms of great access to medical care and the best medical attention you can possibly get, as well as in terms of preserving your assets. One of the fields in which I am an expert as an elder law attorney is in the field of guardianship. We try to avoid litigation at all costs. It’s not always possible but if you do need to litigate, we have the experience.
Fred: Frequently, the financial affairs of such persons are in a total state of disarray. They may not have filed income tax returns for the last five years, they don’t know where their assets are, they don’t know how they are held. One of the things I can do in assisting Babette is to straighten out to the extent possible the financial affairs of the person who is somewhat diminished in capacity.
Babette Bach (West Coast Woman Newspaper – June 2010)
Emotionally bankrupt from litigation, dissatisfied with the legal profession, and needing an avenue to rekindle the flame, Babette became an attorney specializing in elder law. With a background in the medical profession, concern about access to health care, an activist in the AIDS movement, and a caregiver to her late husband, She says she was finally like a duck in water when she began practicing elder law.
Babette Bach says she was emotionally bankrupt from litigation, dissatisfied with the legal profession, and needed an avenue to rekindle the flame. Her life experiences prepared her to be the ideal attorney to join a firm specializing in elder law. With a background in the medical profession, concern about access to health care, an activist in the AIDS movement, and a caregiver to her late husband, Babette said she was finally like a duck in water when she began practicing elder law. Opening her own firm in 2003, her primary areas of practice are asset protection planning, probate planning, and guardianship for the elderly and young disabled persons.
“As people live longer, estate planning is not the only issue. There’s a huge range of issues and challenges that a long life presents.
The subject matter is enormous and challenging, but there’s a difference between elder law and estate planning. Elder law is a holistic way of practicing law. I do traditional estate planning and probate, but elder law encompasses so much more. I’m expected to sit across the table from a client and meet all of their needs.
I must interact with people in the community who manage programs so clients can get maximum benefits.
“Traditionally, elder law hasn’t been embraced by larger law firms that focus on high net worth clients. My average client has assets under $200,000, owns a house, and has a monthly income of $2200. Access to health care has always been one of my passions. I help them plan for their life savings, how they can pay for their own and their spouse’s care, and how to control costs. I need to be knowledgeable about every possible program a person can access. I tell my clients ‘I’m here to partner with you through any transition.’ One client had a stroke, called 911, and then immediately called me. We feel emotionally connected to one another.”
Babette is a Florida Board Certified Elder Law Attorney, nationally certified as an Elder Law Expert by the National Elder Law Foundation, and is chair of the Florida Bar Elder Law Section, the watchdog on legislative issues and case law relating to the elderly and disabled.
She was co-counsel in Gerkin v. Reiger/Levine that required the State of Florida to change its Medicaid policy to provide coverage for Florida’s poorest and most ill. A high-profile case in which she was involved was the Julie Rubenzer breast augmentation case where the patient died after surgery by a Sarasota doctor.
“It is difficult to plan for the last 20 years of life. The stronger the family support system is, the better the aging experience will be. In many cases, I deal with multiple generations and family units which is an ethical landmine.
I determine very quickly who I am representing and make that clear to the family. I usually represent the oldest person, but not always.
Occasionally a child becomes the client.” Sitting in her office on the seventh floor with a view of downtown Sarasota and surrounded by live orchids and plants in the conference room, she exudes passion for her work and compassion for her elderly and disabled clients. To stay current with issues affecting her clients she spends a lot of time studying alone and with a small study group of attorneys who have met for six years and continue to meet twice a month. “Practicing elder law means you have to be an expert in government programs such as Medicare, Medicare Part D, and Medicaid as well as veterans benefits. Now I’m learning how the federal healthcare reform act affects people over 65 and young disabled people.
It’s an embarrassment that these populations need legal help to apply for public benefits.” Due to the current economic conditions, Babette sees families struggling to keep loved ones at home because of the cost when they need specialized care. “People are delaying coming to me and they’re delaying making placement decisions. They need a plan so they can survive financially while at the same time finding adequate care for the ill or disabled spouse.
I’m also very concerned about the care giving spouse since I was in that position myself.” Challenges and frustrations are part of the job. “My challenging days involve financial exploitation cases, right-to-die cases, and watching caregiver burnout. When dealing with exploitive, predatory individuals, it’s hard to get prosecution, but we need to prosecute these cases. I come from a litigation background so I will go to court if I have to. My frustration is with the Department of Children and Families who do a spectacular job but, with a decreasing budget, there are fewer workers for an enormous caseload.” One of five children, Babette was raised in a traditional New Orleans family and enjoyed athletics, competition, boating—everything outdoors. Before Title IX was enacted, she was a nationally ranked track star, but she gave up her hopes of going to the Olympics and enrolled in Duke University. Today she engages in offroad bicycling, weight lifting, swimming, hiking, gardening, and cooking—she calls herself a “foodie”—and nurturing her love of all things French thanks to a year in France during college.
Her late husband, Dr. Michael Bach, taught infectious disease at Harvard Medical School and was on staff at Tufts University and the University of Vermont. Babette recalls, “Being in private practice while being attached to a medical school gave him the opportunity to be a pioneer clinical researcher on the medicine AZT for AIDS patients and eventually becoming an international expert. Early in the AIDS crisis when young people were dying, there was a huge social need which he filled by lecturing at jails, to cafeteria workers, landlords, and in every university and high school in Maine. In our house, Michael had an office on the first floor and we lived on the second floor with our children.”
Babette and Michael founded the first hospice in Portland, Maine, and the Michael C. Bach Clinic in Bradenton continues to serve the HIV and Hepatitis C population. Michael died of melanoma in 1998 leaving Babette and two children, aged 9 and 13. Currently Babette’s son Eric lives in San Diego and daughter, Alexandra, is a movie producer working in New York City.
“It’s brutal to lose someone who adored you. I am darn lucky to have had two wonderful relationships in one life. My partner of 10 years, Rob Patten, a garden builder, and I are avid conservationists and belong to numerous organizations dedicated to conservation. We’re always working on the extensive gardens at our house.”
When asked if she has another aspiration, Babette slowly replies, “I am having a hard time visualizing not doing this. I’m happy to be someone who helps and advocates for other people.”
STORY: Carol Darling
The IRS Tax Counseling for the Elderly Program offers free tax filing assistance to individuals who are age 60 or older. The Revenue Act of 1978 authorizes this cooperative agreement by providing grants to eligible agencies and organizations to provide tax support to elderly taxpayers.
The funds are used by organizations to reimburse volunteers for their out-of-pocket expenses; including transportation, meals, and other expenses incurred by them in providing tax counseling assistance at locations convenient to the taxpayers.
Tax return preparation assistance is provided to elderly taxpayers during the usual period for filing Federal income tax returns, which is from January 1 to April 15 each year. However, the program activities required to ensure that elderly taxpayers receive efficient and quality tax assistance can be conducted year-round.
For more information on your tax return and tax filing deadlines, visit www.irs.gov. Please contact our office for an initial consultation if you need legal advice.
Fredric C. Jacobs, Esquire, Board Certified Tax Law
240 S. Pineapple Avenue, Suite 700
Sarasota, FL 34236
941-906-1231
941-954-1185 facsimile www.bachjacobs.com
The Americans with Disabilities Act (ADA of 2008 is a federal law that prohibits discrimination against individuals with disabilities.)
To whom does the Act apply?
Title 1 of the ADA covers employment by:
private employers with 15 or more employees, state and local government and Federal sector
In addition, most states have their own laws prohibiting employment discrimination on the basis of disability.
A two-step process is used to determine whether an individual with a disability is qualified:
To whom does the Act apply?
Title 1 of the ADA covers employment by:
private employers with 15 or more employees, state and local government and Federal sector
In addition, most states have their own laws prohibiting employment discrimination on the basis of disability.
A two-step process is used to determine whether an individual with a disability is qualified:
- Determine whether the individual satisfies the prerequisites for the position such as possessing the appropriate educational background, etc;
- Determine whether or not the individual can perform the essential functions of the position held or desired.
When is cancer a disability under the ADA?
Cancer is a disability under the ADA when it or its side effects substantially limit(s) one or more of a person’s life activities.The ADA includes 2 non-exhaustive lists of “major life activities.”
Walking, seeing, breathing, working, reading, bending and communicating
The second list includes major bodily functions (immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions)
Even when cancer itself does not substantially limit any major activity (such as when it is diagnosed and treated early), it can lead to the occurrence of impairments that may be disabilities.
Do employers have full access to medical information?
Title 1 of the ADA limits an employer’s ability to ask questions related to disability or conduct medical examinations at 3 stages: pre offer, post offer, and during employment.
Cancer is a disability under the ADA when it or its side effects substantially limit(s) one or more of a person’s life activities.The ADA includes 2 non-exhaustive lists of “major life activities.”
Walking, seeing, breathing, working, reading, bending and communicating
The second list includes major bodily functions (immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions)
Even when cancer itself does not substantially limit any major activity (such as when it is diagnosed and treated early), it can lead to the occurrence of impairments that may be disabilities.
Do employers have full access to medical information?
Title 1 of the ADA limits an employer’s ability to ask questions related to disability or conduct medical examinations at 3 stages: pre offer, post offer, and during employment.
- An employer may not ask whether the job applicant has or had cancer or about treatment related to cancer prior to making a job offer.
- An employer can ask an applicant questions pertaining to the performance of the job (whether he can lift weight, can travel out of town; whether he/she can work rotating shifts, etc.)
- A person with cancer is permitted to request an accommodation after becoming an employee, even if she did not ask for one when applying for the job or after receiving the job offer.
- With limited exceptions, an employer must keep confidential any medical information it learns about an applicant or employee.
- Telling co-workings that an employee is receiving a reasonable accommodation amounts to a disclosure of the employee’s disability.
What protection is there against discrimination?
Employers and their agents may not discriminate against a qualified individual with a disability because of such disability in any aspect of the employment relationship.
Focus is on the following: hiring, pay, benefits, segregation, advancement, discharge, training, testing and contractual arrangements.
What is reasonable accommodation?
Employer must reasonably accommodate a qualified individual with a disability unless to do so would cause an undue hardship. There is no precise definition of reasonable accommodation.
Examples include: making existing company facilities accessible; permission to work at home; modification of office temperature; permission to use work telephone to call doctors; reallocation or redistribution of marginal tasks to another employee; job restructuring; reassignment to a vacant position; medical leave; providing qualified readers or interpreters; acquisition or modification of equipment or devices.
BUT! An employer is not obligated to provide personal use items such as glasses or hearing aid.
What does undue hardship mean?
Undue hardship means an action requiring significant difficulty or expense in, or resulting from, the provision of the accommodation.Factors to be considered:
Employers and their agents may not discriminate against a qualified individual with a disability because of such disability in any aspect of the employment relationship.
Focus is on the following: hiring, pay, benefits, segregation, advancement, discharge, training, testing and contractual arrangements.
What is reasonable accommodation?
Employer must reasonably accommodate a qualified individual with a disability unless to do so would cause an undue hardship. There is no precise definition of reasonable accommodation.
Examples include: making existing company facilities accessible; permission to work at home; modification of office temperature; permission to use work telephone to call doctors; reallocation or redistribution of marginal tasks to another employee; job restructuring; reassignment to a vacant position; medical leave; providing qualified readers or interpreters; acquisition or modification of equipment or devices.
BUT! An employer is not obligated to provide personal use items such as glasses or hearing aid.
What does undue hardship mean?
Undue hardship means an action requiring significant difficulty or expense in, or resulting from, the provision of the accommodation.Factors to be considered:
- The overall financial resources of the employer;
- The number of persons employed by the employer;
- The nature and cost of the accommodation needed, etc.
How is this legally enforced?
Any person who believes that his/her employment rights have been violated on the basis of disability and wants to make a claim against an employer must file a charge of discrimination with the US Equal Employment Opportunity Commission (EEOC).
Any person who believes that his/her employment rights have been violated on the basis of disability and wants to make a claim against an employer must file a charge of discrimination with the US Equal Employment Opportunity Commission (EEOC).
