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Asset Protection Planning

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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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 is an “incontestability provision” in an insurance policy?

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

Florida Statute §627.455 states:

Every insurance contract shall provide that the policy shall be incontestable after it has been in force during the lifetime of the insured for a period of 2 years from its date of issue except for nonpayment of premiums and except, at the option of the insurer, as to provisions relative to benefits in event of disability and as to provisions which grant additional insurance specifically against death by accident or accidental means.

The incontestability provision is thus the clause included in Florida life insurance policies which limits the time during which the insurer can challenge the validity of the policy to 2 years. Whether the challenge to the policy is based on alleged application fraud or an inability to enforce the policy, all claims must be filed within the 2-year period – or else, the claim is barred.

This provision has its origins in the mid-19th century, when insurance companies began including incontestability provisions to combat the perception that insurance companies would refuse to honor their policies over minor mistakes in a person’s life insurance application. Florida required the inclusion of incontestability provisions by law in 1955.

There is a possible exception to incontestability provisions: imposter fraud. Imposter fraud refers to the impersonation of a life insurance application by someone else during the medical examination of the application process – this type of fraud can be exempt from the incontestability provision.

To review your end-of-life and estate plan documents with experienced and dedicated estate and elder law attorneys, schedule an appointment with Bach, Jacobs & Byrne, P.A. at (941) 906-1231 today.

 

April 18, 2019
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Do I need more than a Will for my estate planning?

By Asset Protection Planning, Estate Planning

While obtaining a Last Will and Testament may be the impetus for starting the estate planning process, there are several other testamentary documents which can make end-of-life decision-making significantly less confusing and stressful for you and your loved ones. For example, other documents that are sometimes created and/or updated during estate planning include a living Will or advanced directive, a power of attorney, and a living Trust.

For help creating or updating any of these documents, the attorneys at Bach, Jacobs & Byrne, P.A. are at your service. Call now at (941) 906-1231.

March 29, 2019
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How will remarriage affect my estate planning?

By Asset Protection Planning, Estate Planning

Remarriage may add complexity to the estate planning process, especially when there are children from a previous marriage. All testamentary and end-of-life planning documents should be reviewed after a subsequent marriage.

In the event where the decedent had a Will that was not updated after remarriage, the spouse from the remarriage is considered a “pretermitted spouse,” one unintentionally left out of the testator’s Will. In this case, the spouse will be entitled to a portion of the probate estate in the absence of a prenuptial agreement to the contrary. Alternatively, the spouse also has the option to opt for the elective share: 30% of the potentially larger “elective estate.” Choosing between these two options is often simply a matter of which share has greater value.

Updating the testamentary bequests to the surviving spouse may avoid the issues involved with having to make these elections after death. In addition to the Will, the spouses must consider any changes they wish to make to their health care directives, medical release forms, real estate deeds, and more.

For help revising or drafting your estate planning documents, call the attorneys at Bach, Jacobs & Byrne, P.A. at (941) 906-1231 today.

March 21, 2019
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What is “decanting” of a Trust?

By Asset Protection Planning, Estate Planning

“Decanting” refers to transferring the assets from an irrevocable Trust into another Trust. Florida has a “decanting statute” that describes the requirements of legal decanting under the Florida Trust Code.

There are multiple motivations a trustee might have for decanting. For example:

-To fix a drafting mistake

-To correct certain Trust provisions to conform to new laws or circumstances

-To combine the Trust with another Trust

-To change trustee powers

-To add or remove a trustee

However, there may be other appropriate methods of modifying a Trust applicable to your situation, depending on the circumstances. If you would like to review an existing Trust and discuss your options for modifying the Trust, including the possibility of decanting, or if you would like to create a new Trust, please call the attorneys at Bach, Jacobs & Byrne, P.A. at (941) 906-1231 to set up a consultation.

March 1, 2019
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What is a “CLAT”?

By Asset Protection Planning, Tax Law

A Charitable Lead Annuity Trust, or “CLAT,” is one in which designated charitable beneficiaries receive annual payments during the term of the Trust. Upon the termination of the Trust, designated non-charitable beneficiaries receive the remaining assets of the Trust free from the estate or gift taxes which might otherwise apply.

In a CLAT, the owner assigns certain percentages of his/her original charitable donations to be gifted to specific charities, based on original fair market values, every year. Generally, the grantor of a CLAT aims for charitable annuity payments that will equal all or most of the taxable value of the assets in the Trust. In this manner, the grantor can give as many of the remaining assets to his/her beneficiaries as possible, estate-tax-free.

If you are considering this option in creating your Trust, please feel free to contact the attorneys of Bach, Jacobs & Byrne, P.A., highly-skilled in estate planning and high-net-worth tax planning. Call us at (941) 906-1231 to schedule an appointment.

February 25, 2019
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What are the benefits of using a corporate trustee?

By Asset Protection Planning, Estate Planning, Probate

The decision of who to name as trustee of your Trust is an important one. An option available to you when making this decision is to designate a corporate trustee, a company that will manage the assets in your trust in place of an individual trustee. Some of the advantages of choosing a corporate trustee include:

-Corporate trustees typically have extensive experience managing Trusts

-Corporate trustees are not as susceptible to emotional influence when managing Trusts as family members might be

-Using a corporate trustee removes the potential for conflict among family members who want to be named individual trustee

-Corporate trustees generally have considerable resources available to them when managing Trusts that individual trustees might lack

That said, there are, of course, several disadvantages to choosing a corporate trustee over an individual one. Examples of these are:

-Corporate trustees are often more expensive than individual trustees

-Corporate trustees might not be as familiar with your exact situation as an individual trustee might be

-Corporate trustees might not account for the emotional ramifications of asset management decisions to the extent that an individual trustee might be

Whether you name a corporate or an individual trustee, it is important to name a successor trustee in the event that the one you named is not able to serve. For help drafting a Trust, or to review an existing Trust, please call the elder law and estate attorneys of Bach, Jacobs & Byrne, P.A. at (941) 906-1231 to set up a consultation.

February 21, 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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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
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