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Bach, Jacobs & Byrne, P.A.

What should I do if I think my loved one is the victim of elder abuse?

By Elder Law, Health, Long-Term Care

According to the National Council on Aging, approximately 1 in 10 Americans above the age of 60 have experienced some form of elder abuse. So what should you do if you suspect a senior citizen is the victim of elder abuse?

The first thing to do is to call the Florida Abuse Hotline at 1-800-962-2873 – all Florida citizens are mandatory reporters of elder abuse. You can also use the online form on the Florida Department of Children and Families website at https://reportabuse.dcf.state.fl.us/Adult/AdultForm.aspx. While you may be able to keep the names anonymous, it is necessary to provide the county, state, and specific location where the victim is currently living. A description of the abuse is also required.

You can find more information about recognizing the signs of elder abuse on our blogs “Recognizing Nursing Home Abuse and Neglect” and “What to Do if Elder Exploitation Is Suspected.”

 

February 19, 2019
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What are the qualifications to serve as a personal representative?

By Estate Planning, Probate

In Florida, the qualifications to serve as personal representative of an estate, as set forth by the Florida Probate Code, are as follows:

-The personal representative has never been convicted of a felony

-The personal representative is mentally able to perform his/her duties

-The personal representative is physically able to perform his/her duties

-The personal representative is 18 years of age or older

Furthermore, the personal representative must be a Florida resident, unless he/she is a family member within a particular degree of relationship to the decedent.

Are you unsure whether you or the individual you would like to serve as personal representative of your estate is qualified and eligible for appointment under the law? Please contact the elder law and estate attorneys of Bach, Jacobs & Byrne, P.A. at (941) 906-1231 to schedule an appointment to discuss your case.

February 15, 2019
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What is the Senior Safe Act (SSA)?

By Asset Protection Planning, Elder Law

The Senior Safe Act is a new federal law intended to fight financial elder abuse by promoting the reporting of suspected elder abuse by financial institutions. Prior to the passage of this law, there were reports of banks, investment advisors, and brokers refraining from reporting elder abuse to the authorities out of fear of lawsuits resulting from false claims of fraud or elder exploitation. Under the Senior Safe Act, financial institutions will be freed from liability if they report suspected financial elder abuse, so long as they have trained their employees in how to detect such exploitation.

Read more about the Senior Safe Act on the AARP website at https://www.aarp.org/politics-society/government-elections/info-2018/congress-passes-safe-act.html.

February 11, 2019
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Should I title a car in the name of a Trust?

By Estate Planning, Probate

Though there are exceptions to every rule, generally there are several reasons not to title a vehicle in the name of a Trust. For example:

-If your vehicle is involved in an accident and you get sued, your Trust becomes a party to the lawsuit – this can create significant complications

-Automobile insurers in Florida sometimes refuse to insure vehicles named in Trusts

-A Trust is generally not necessary to transfer a vehicle’s title after death –in some cases, the DMV Handbook allows the Florida Department of Motor Vehicles to accept the death certificate, the Will, the vehicle title, and a transfer fee as sufficient for transferring the vehicle’s title

For antique automobiles, mobile homes, and certain other situations, circumstances may be different. To review your estate plan documents or to get help preparing new ones, the attorneys of Bach, Jacobs & Byrne, P.A. can provide you particularized advice. Call (941) 906-1231 to schedule a consultation.

February 7, 2019
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Can I prevent my beneficiaries from knowing what other beneficiaries are receiving in my Will?

By Estate Planning, Probate

If a testator wants to distribute assets to multiple children in different amounts, he/she might want to prevent each beneficiary from knowing what the others are getting in order to mitigate strife and avoid hurt feelings. However, in Florida, each beneficiary of a Will has the right to acquire a copy of the Will. Even if a beneficiary was only left $1, the Florida Probate Code mandates that he/she still must have access to a copy of the Will in its entirety, after the death of the testator.

However, there are some alternative methods one might pursue to keep the asset distribution private from certain beneficiaries. First, one can leave assets using “Will substitutes,” such as payable-on-death accounts (“POD accounts”). With multiple POD accounts, one can distribute assets to multiple beneficiaries without each knowing the amount the others received. POD assets do not have to go through the probate process, either, so there will be no court record of the asset distribution.

Another option is to leave one’s assets in multiple Trusts, with only certain individuals named in each Trust as beneficiaries. This can be expensive, but it is another way of preventing beneficiaries from knowing the exact amounts each is receiving. As with Wills, the beneficiaries under each Trust are entitled to a copy of the Trust under the Florida Trust Code.

To prepare your estate plan documents with trustworthy and experienced trust and estate attorneys, or to review existing documents, please contact Bach, Jacobs & Byrne, P.A. at (941) 906-1231.

February 5, 2019
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Medicaid Work Requirements Struck Down by Federal Judge

By Elder Law, Medicaid Planning

In June 2018, a federal judge blocked the Kentucky Medicaid plan which would have required many recipients to work or volunteer in order to stay covered. While the plan included exemptions for pregnant individuals, primary caregivers, and full-time students, all Medicaid recipients deemed able to work would have had to train for a job, volunteer, or work in order to continue receiving benefits.

In the future, more cases surrounding the issue of Medicaid work requirements may emerge, as several other states have already gotten approval from the current administration to include work requirements in their statewide Medicaid plans. To learn more about Florida’s Medicaid program, visit the website of the Florida Agency for Health Care Administration, http://www.fdhc.state.fl.us/.

February 1, 2019
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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
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“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
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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
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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
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