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Bach, Jacobs & Byrne, P.A.

Can a guardianship proceeding be contested?

By Guardianship

Yes: any interested person can contest the appointment of a guardian for a given ward, just as any interested person can petition the court to declare that ward incapacitated and in need of a guardian.

The process of determining the capacity of the ward begins with a petition for incapacity, which initiates the appointment of a three-person committee to examine the ward. This committee is made up of at least one psychiatrist or physician and two other health care professionals. Should the majority of the committee members find the ward to be of sufficient capacity, the guardianship proceeding will stop; however, if the majority finds the ward to be incapacitated, the proceeding will continue.

What follows is a final evidentiary hearing on the ward’s incapacity. Here, any person contesting the incapacity of the ward is permitted to present evidence and witnesses to the court. If the alleged incapacitated person is still found to be incapacitated, the guardianship hearing comes next. Florida practice is to pursue lesser restrictive alternatives short of full-fledged guardianship first – but, if a guardian is eventually appointed, the right to appeal remains open. Even after a guardianship is in place, any interested person, including the ward, may file a suggestion of capacity, which could ultimately result in the termination of the guardianship should the court find the ward to have restored capacity. The attorneys at Bach, Jacobs & Byrne, P.A. are experienced guardianship litigators and can represent parties to a contested Florida guardianship.

November 13, 2018
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Who runs the Medicaid program?

By Asset Protection Planning, Medicaid Planning

Medicaid is a program jointly run by both the federal and state governments. In some cases, the funding for Medicaid can come from the local government, too. The proportions of funding vary based on the state.

In Florida, $23.5 billion are spent on Medicaid each year. However, only $9.5 billion of these funds comes from the Florida state budget – the remaining $14 billion is drawn from the federal budget.

When it comes to administration of the Medicaid program, it is primarily up to the states. Eligibility standards, type and scope of services, and payment rates are all set at the state level. Sometimes, states even rename their Medicaid programs to titles like “Medi-Cal” (California) and “TennCare” (Tennessee). In Florida, Medicaid is administered by the Department of Children and Families.

November 9, 2018
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What is the distinction between “surviving” powers of attorney and “springing” power of attorney?

By Estate Planning, Guardianship

The key difference between surviving and springing powers of attorney is the time at which they take effect. Surviving powers of attorney are entrusted to the agent as soon as the paperwork is signed – the term “surviving” refers to the “durability” of this agreement, which lasts until and even after the point at which the ward becomes incapacitated. Springing powers of attorney, on the other hand, only go into effect after the ward is incapacitated.

After June 2011, the updated Florida Durable Power of Attorney Act formally banned springing powers of attorney (though any durable powers of attorney agreed upon before the institution of the new law were to remain valid). Having a durable power of attorney is an important part of comprehensive end-of-life planning and estate planning. Call the attorneys at Bach, Jacobs & Byrne, P.A. to have your estate plan assessed and evaluated.

November 5, 2018
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Risk Adjustment Payments Suspended

By Medicaid Planning, Medicare

Risk adjustment payments to insurance companies had been funded by the federal government as part of the Affordable Care Act since 2014 as part of the ACA’s prohibition against insurance companies discriminating against individuals with chronic illnesses or pre-existing conditions. However, the federal government in early 2018 suspended the risk adjustment payment program, citing a recent Federal District Court opinion regarding the formula used to determine the size of the payments.

Some have expressed fears that insurance premiums could increase as a result of the suspension, while others argue that the risk adjustment payment program has already done more harm than good, through a bias against small insurance companies. The Centers for Medicare and Medicaid Services have asked the Federal District Court to reconsider its decision, and, in the meantime, the insurance market hangs tensely in the balance.

November 1, 2018
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Tax Cuts and Jobs Act of 2017: Estate Taxes

By Tax Law

The recent Tax Cuts and Jobs Act brought with it many changes to federal tax law. In this series of blog posts, we explore what’s new in taxes.

Federal estate taxes are now only applicable to individuals with a taxable estate exceeding $11.2 million and to married couples with a taxable estate exceeding $22.4 million. In 2025, the federal estate tax is set to revert back to the exclusion amounts applicable in 2017.

In Florida, there is no state inheritance tax, so persons with assets of up to $11.2 million or couples with assets of up to $22.4 million do not need to worry about the impact of death taxes on the inheritance they leave to their heirs. The “generation skipping tax” has now also been effectively eliminated for combined estates less than $22.4 million between husband and wife, so it is now possible to establish so-called “dynasty Trusts” in Florida without worrying about subsequent generations inheriting extra generation-skipping taxes.

Attorney Fred Jacobs of Bach, Jacobs & Byrne, P.A. is a Florida Board Certified Tax Law attorney who can advise you throughout the tax planning process. Call (941) 906-1231 to set up a consultation to review your situation.

October 30, 2018
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Tax Cuts and Jobs Act of 2017: Income Taxes

By Tax Law

The recent Tax Cuts and Jobs Act brought with it many changes to federal tax law. In this series of blog posts, we explore what’s new in taxes.

The seven-bracket structure for income taxes has been retained, but there are generally slightly lower tax rates. The marriage penalty is mostly gone, as married filing thresholds and tax rates are now exactly double the single thresholds for all but the two highest brackets.

In terms of personal exemptions: whereas the old system provided $4,150 personal exemptions plus $6,500 standard deductions (for a total of $10,650 per individual, or $21,300 per couple), the new system eliminates personal exemptions in favor of a $12,000 standard deduction per person, or $24,000 per couple.

Attorney Fred Jacobs of Bach, Jacobs & Byrne, P.A. is a Florida Board Certified Tax Law attorney who can advise you throughout the tax planning process. Call (941) 906-1231 to set up a consultation to review your situation.

October 26, 2018
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Tax Cuts and Jobs Act of 2017: Capital Gains Taxation

By Tax Law

The recent Tax Cuts and Jobs Act brought with it many changes to federal tax law. In this series of blog posts, we explore what’s new in taxes.

Capital gains taxes have remained basically the same. Short-term capital gains (assets held less than one year) are still taxed as ordinary income. However, long-term capital gains tax rates are now based on the following taxable income levels, instead of on the old marginal tax brackets:

Long-Term Capital Gains Rate Single Return Taxable Income Joint Return Taxable Income
0% for taxable income up to $38,600 $77,200
15% for taxable income up to $425,800 $479,000
20% for taxable income up to $425,800 $479,000

 

It is important to note that alternative minimum tax rates still apply to long-term capital gains. In 2018, an alternative minimum tax of 28% will apply to any alternative taxable income (including long-term capital gains) in excess of $95,750 for single returns and $191,500 for joint returns.

Attorney Fred Jacobs of Bach, Jacobs & Byrne, P.A. is a Florida Board Certified Tax Law attorney who can advise you throughout the tax planning process. Call (941) 906-1231 to set up a consultation to review your situation.

October 22, 2018
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Tax Cuts and Jobs Act of 2017: Expanded Child Tax Credit

By Tax Law

The recent Tax Cuts and Jobs Act brought with it many changes to federal tax law. In this series of blog posts, we explore what’s new in taxes.

            The child tax credit has been doubled from $1,000 to $2,000 for children under age 17. The refundable amount has also been increased up to $1,400. Finally, “phase-out” thresholds for the child tax credit have been increased to $200,000 of taxable income for individuals and $400,000 for joint returns.

            Attorney Fred Jacobs of Bach, Jacobs & Byrne, P.A. is a Florida Board Certified Tax Law attorney who can advise you throughout the tax planning process. Call (941) 906-1231 to set up a consultation to review your situation.

October 18, 2018
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How is the guardian of a person’s property selected?

By Guardianship

The guardian of the property is appointed by the Florida circuit court for a ward who lacks sufficient capacity to manage his/her own assets, when no lesser restrictive alternatives are available. Typically, this guardian will be a family member of the ward, though not always. In order to be named by the court, a potential guardian must fulfill broad statutory. Florida law requires that the guardian be:

-A Florida resident over the age of 18 years old; or

-A non-resident who is directly related, related by marriage, or legally adopted by the ward; and

-Never convicted of a felony

*There are also provisions in the Florida guardianship law for banks, trust companies, and non-profits to serve as guardians.

It is up to the courts to determine the fitness of guardians beyond these requirements. This fitness test can be comprised of background checks, credit checks, and whatever else is ordered by the court – however, in Florida, guardians are required to take a court-approved family guardianship course.

The preferences of the ward in choosing his/her guardian are significant, but not given ultimate authority. Often, wards will have named a pre-need guardian in the event of future incapacity; it is this individual who is usually given priority in the guardianship selection process. The attorneys at Bach, Jacobs & Byrne, P.A. represent guardians – both professional and family guardians – in guardianship court proceedings.

October 16, 2018
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Tax Cuts and Jobs Act of 2017: Deductions

By Tax Law

The recent Tax Cuts and Jobs Act brought with it many changes to federal tax law. In this series of blog posts, we explore what’s new in taxes.

There have been significant changes to deductible expenses under the new tax law:

  • Mortgage interest deductions for new mortgages are now available only for up to $750,000 for residential mortgages. Previously, the deduction was available for up to $1,000,000.
  • Home equity interest is no longer deductible.
  • The charitable contribution itemized deduction remains, and one can now deduct as much as 60% of adjusted gross income (up from 50%) for contributions to qualified public charities.
  • Medical expenses in excess of 7.5% of adjusted gross income are still deductible. Previously, this deduction was up to 10%.
  • Casualty losses are no longer deductible, except within federal-declared disaster areas.
  • Itemized deductions for state and local taxes now cannot exceed $10,000 on a single or joint return.
  • There are no longer deductions available for investment advisor fees, tax preparation fees, unreimbursed employee expenses, or safe deposit box fees.

            Attorney Fred Jacobs of Bach, Jacobs & Byrne, P.A. is a Florida Board Certified Tax Law attorney who can advise you throughout the tax planning process. Call (941) 906-1231 to set up a consultation to review your situation.

October 12, 2018
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