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Bach, Jacobs & Byrne, P.A.

What are my responsibilities as a Florida guardian now that the ward has died?

By Guardianship

If you are a guardian of the person, your duties end once the death certificate is filed with the court. However, if you are a guardian of the property (or a guardian of the person and the property), it is necessary to file a final report (including an accounting), death certificate, and petition for discharge upon the death of the ward. These documents may also need to be served on specific interested parties.

A guardian is not automatically named personal representative of the decedent’s estate – the probate court takes into account a number of factors in this decision, including statutory preferences for who is appointed. If you are a guardian in need of assistance regarding your ward’s end-of-life documents, or if you are seeking appointment as personal representative, contact the experienced elder law and estate attorneys of Bach, Jacobs & Byrne, P.A. Call us at (941) 906-1231 to schedule a consultation.

June 11, 2019
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When can a nursing home discharge a resident?

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

According to Florida Statute §400.0255, a nursing home must provide notice to a resident it is discharging at least 30 days in advance of the date of discharge. There are multiple reasons which a nursing home can cite for discharging a patient – the following are recognized as valid reasons for patient discharge, except in the case wherein the discharge would be medically harmful to the patient:

-A discharge from the nursing home is medically necessary or would be medically beneficial to the patient, if the facility cannot meet the medical needs of the patient

-The patient poses a threat to the health and safety of other patients or of the facility’s employees

-The facility itself is unsafe for the patient

-The resident no longer requires nursing home care due to an improvement in condition

If a patient feels that he/she has been unjustly discharged, that resident has the right to a fair hearing to challenge the proposed discharge. If the patient files a request for a hearing within 10 days of receiving notice of discharge, the discharge is stayed until the hearing decision is reached. The patient has up to 90 days to file a request for a hearing, but he/she may be discharged after 30 days of initially receiving notice of discharge if the request for a hearing was not filed within the 10 days after the receipt of that notice.

It is important to note that the notice of discharge provided by the facility must specify the reason for discharge under state or federal law, as well as the procedures for appeal; if this information is not provided, the discharge is not valid.

June 7, 2019
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VA Mission Act of 2018: A Summary

By Veterans Affairs

The VA Mission Act (formally titled, “the VA Maintaining Systems and Strengthening Integrated Outside Networks Act”) was signed into law on June 6th, 2018, and it bears important consequences for veterans and military families throughout the country.

Below are some key provisions included in the new law:

-The Veterans Care Community Program is established. This requires the VA to furnish care through other institutions in a veteran’s community when the local VA cannot itself provide the care which that veteran requires.

-New access standards are instituted for regulating veteran care. These standards address veteran satisfaction, the timeliness of the care provided, the effectiveness of the care provided, and more.

-A new strategy is presented to guide the Department of Veterans Affairs’ High-Performing Integrated Health Care Network. The VA will be required to conduct market area assessments at least once every four years to determine the capacity and efficacy of local VA health care services.

-An educational health care program requirement is established. The VA is tasked with creating and maintaining a program to teach veterans about their health care options and the services provided by the VA.

-The VA Asset and Infrastructure Review (AIR) Commission is founded.

The full text of the law (Senate Bill S.2372) can be found at: https://www.congress.gov/bill/115th-congress/senate-bill/2372/text.

 

June 3, 2019
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What is respite care?

By Long-Term Care, Medicaid Planning

Respite care is a service which intends to provide a temporary break for a long-term caregiver. It is recommended that caregivers plan intermittent breaks and employ respite care regularly so as to be able to continue giving only the highest quality care to their patients.

The Florida standards for respite care eligibility, as stated on the ARCH National Respite Network and Resource Center website, are met in the following cases:

-A caregiver is providing care to an individual 60 years of age or older

-A caregiver is providing care to an individual with Alzheimer’s disease

-A grandparent or other non-parent relative caregiver is providing care to an individual 18 years of age or younger

-A relative caregiver is providing care to an individual 18-59 years of age with disabilities

In funding respite care, Medicaid waivers play the largest part. However, there are multiple organizations in Florida which all contribute to funding the state’s respite care services. To learn more from Medicaid and elder law experts, call the attorneys at Bach, Jacobs & Byrne, P.A. at (941) 906-1231 today.

May 30, 2019
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What should I do if my doctor is no longer in my healthcare insurance network?

By Asset Protection Planning, Elder Law, Health, Medicaid Planning, Medicare

It is a common problem, but nonetheless an incredibly stressful one: the doctor with whom you have established a good relationship over many years is no longer included in your health insurance network. Whether this is because the doctor has retired, has moved, or is dissatisfied with your network and has chosen to switch, your question is the same: What can I do?

The first thing to do is to check whether you have continuity of care protection. This coverage entitles you to continue receiving the same services from your doctor at the same price, with the same copays and fees. If you are a senior and you have the Medicare Advantage plan, you also have the right to switch networks, given that the network change is “considered significant based on the [effect] or potential to affect current plan enrollees” (Centers for Medicare and Medicaid Services).

If these options are unavailable to you, it is recommended that you talk to your doctor about any alternate payment plans he/she might provide. Or, you can ask for referrals to another doctor in your area.

For expertise in Medicaid planning, Medicare, and elder law, please feel free to reach out to the attorneys at Bach, Jacobs & Byrne, P.A. at (941) 906-1231.

May 28, 2019
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What are “grandparent scams”?

By Elder Law

Grandparent scams are one of the most common forms of fraud committed toward seniors. They prey on the goodwill many older individuals have toward the rest of the families and their willingness to help their relatives in times of financial hardship.

A typical grandparent scam may begin with an email, a letter, a text, or a phone call from someone posing as a representative of a relative. For instance, the scammer will claim to be the lawyer, doctor, or even bail bondsman of a relative in trouble. The scammer might say something like, “Please don’t call their parents, they specifically asked me to contact you and keep this a secret from Mom and Dad.” Or, to keep the grandparent from checking with their grandchild, the scammer might attempt to convince their victim that the grandchild needn’t know about the trouble into which they’ve gotten themselves.  The grandparent will then transfer funds to the “representative” of the grandchild in need, unbeknownst to anyone else in the family.

To avoid falling victim to these nefarious scams, several steps can be taken. Following are some examples:

-Do not respond to, or take great care responding to, correspondence from any unknown individuals requesting money

-Verify the caller’s identity by asking a personal question only your relative or their personal representative would know the answer to

-If you do plan to transfer money to a relative, independently contact that relative before doing so; or, contact the parents of that relative to confirm the story you have been told

If you feel you might be the victim of elder exploitation, do not hesitate to call the attorneys at Bach, Jacobs & Byrne, P.A. for litigation representation at (941) 906-1231.

May 24, 2019
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What is a probate caveat?

By Probate

Sometimes, there are other parties interested in the estate of a deceased person who are, for one reason or another, not in contact with the court-nominated personal representative of the estate. If these individuals want to receive prior notice regarding the commencement of the probate estate, they may file a probate caveat.

A potential beneficiary or creditor will file the caveat with the intent of getting the court to notify them upon the opening of the estate. A creditor may file the caveat only after the death of the given individual, whereas the potential beneficiary may file the caveat before or after that individual’s death. In so doing, the potential beneficiary will be able to contest the appointment of the nominated personal representative.

May 20, 2019
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Can a Durable Power of Attorney help avoid guardianship once I become incapacitated?

By Estate Planning, Guardianship

Having certain estate and end-of-life plan documents in place may be considered ‘lesser restrictive alternatives’ to guardianship if you become incapacitated. One possibility is the Durable Power of Attorney: if created by an individual before incapacitation, a Durable Power of Attorney appoints an agent or attorney-in-fact to make financial decisions and possibly even medical directives on behalf of the client (known as the “principal), even when the principal becomes incapacitated. If the individual does not have a power of attorney and a Florida circuit court adjudicates them incapacitated, then the court appoints a guardian, if there are no lesser restrictive alternatives. This guardian may be in charge of making financial and/or medical decisions on behalf of the ward until the point when the ward regains capacity. It is the responsibility of the guardian to make decisions guided in highest priority by the best interests of the ward in compliance with the Florida Guardianship Law.

For help drafting a Durable Power of Attorney or to discuss any questions you have about guardianship, please feel free to call Bach, Jacobs & Byrne, P.A. at (941) 906-1231.

May 20, 2019
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When does a revocable trust become irrevocable?

By Elder Law, Estate Planning

The irrevocable trust is a trust that, once signed by the settlor or trust creator, is intended to be permanent.

However, just because the trust cannot be revoked following its signature does not mean the trust cannot ever be changed in response to new circumstances. The Florida Trust Code provides for modification of irrevocable trusts in certain situations if all requirements are met.

Though most estate planning trusts are devised as revocable trusts, these trusts become irrevocable upon the death of the trustee. These revocable trusts may be formally amended by the settlor while the settlor is living and has the capacity to make the changes.

 

 

May 16, 2019
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“It’s All Greek to Me”: Fiduciary

By Estate Planning, Probate

 In this series of blog posts, we define esoteric legal terms and explain how they are used in law.

The word “fiduciary” has many meanings in law, but the Merriam-Webster definition ties together all uses of the word nicely: “of, relating to, or involving a confidence or trust.” Whether the term is applied to a will, a trust, or a power of attorney, it is the duty of the fiduciary to act in the best interest of his/her client, their estate, and their beneficiaries.

When it comes to probate, the fiduciary acts as the “Personal Representative” (a.k.a., “executor”) of the Will – the person in charge of distributing the assets and seeing the probate administration to its completion. The Personal Representative can be compensated for his/her services, known as “costs of administration.”

A trustee of a trust is the person appointed to hold and invest the assets of the trust. The fiduciary agent named under a power of attorney, like the trustee, has powers and responsibilities that go into effect as soon as the documents are signed.

May 14, 2019
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