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Elder Law

Avoiding Guardianship

By Elder Law, Guardianship

If you believe that you or an elderly person are being exploited financially, take immediate action to protect the alleged victim of the exploitation.  Acting quickly can increase the chance that misappropriated assets can be recovered.  An example of financial exploitation would be if a son or daughter took money out of a parent’s account to help with their own personal financial troubles.  In a situation like this, you should call adult protective services, the Elder Abuse Hotline, the police, and an experienced elder law attorney.  Florida laws protect elderly residents from financial exploitation and if misappropriated assets are not returned by the exploiter within 60 days, you could be entitled recover triple your money.

An elder law attorney may be able to help you protect your assets and pursue remedies under Florida’s civil theft statute.  To speak with Florida Board Certified Elder Law Attorney Babette Bach, Esq. call our office at (941) 906-1231.

Adult Protective Services: (877) 595-0384

Elder Abuse Hotline: 1-800-962-2873

April 26, 2016
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Rights of Immediate Family Members of a Decedent

By Asset Protection Planning, Elder Law, Estate Planning, Government Benefits, Probate

Florida law does not allow for a total disinheritance of a surviving spouse or surviving minor children.  These family members have the right to claim an “elective share” of assets which usually amounts to 30% of certain probate and non-probate assets.  Surviving spouses who are trying to decide between inheriting under the terms of a will or taking an elective share should consult an attorney to explore the implications of the two options.  Prenuptial agreements can impact the ability of a spouse to take the elective share.

If you have questions about the probate process, contact one of our probate attorneys at (941) 906-1231.

March 30, 2016
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What are Letters of Administration in Florida?

By Elder Law, Probate

Letters of Administration are issued by probate judges and name a personal representative to act on behalf of an estate during probate proceedings.  Many times, these letters are requested by banks to ensure they are issuing funds to the correct people after an account holder’s death.  These letters can take time to receive through the courts so it is essential to consult a probate attorney to review the titling of the decedent’s assets and determine if Letters of Administration and a formal probate administration is necessary.  For advice from an experienced probate attorney, contact our office at (941) 906-1231.

March 22, 2016
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How to Become a Florida Resident

By Elder Law, Estate Planning, Government Benefits, Tax Law

Becoming a Florida Resident can lead to significant benefits in access to both beautiful beaches and tax benefits.  One of the most important steps to becoming a resident is submitting a Declaration of Domicile.  In Sarasota County you will need to fill out the Declaration of Domicile and bring it to the Recording Department on the first floor of 2000 Main Street, Sarasota, FL 34247.  You will also need to pay a $10.00 fee for recording the Declaration.  A link to the Declaration of Residency form can be found below:

http://sarasotaclerk.com/FileLib/domicile.pdf

In addition to submitting the form above, consider taking the following steps to declare Florida as your residency:

  • Change your voter registration to Florida and vote here
  • Surrender your out-of-state driver’s license and obtain a Florida drivers license (or a Florida ID card if you do not drive)
  • Register your cars in Florida
  • If you belong to any out-of-state private clubs, change your status from resident to non-resident
  • File your federal income tax using your Florida address
  • If you have taxable assets that require it, file a Florida Intangible Personal Property Tax Return
  • Make primary banking accounts in Florida
  • Update estate planning documents using Florida documents and laws and declare yourself to be domiciled and a resident of Florida
  • Document that the majority of your time is spent in Florida through receipts or other relevant documentation. Report yourself as a Florida resident and use your Florida address when traveling and staying in hotels

 

For help updating your estate planning documents to reflect your Florida residency, contact one of our experienced estate planning attorneys at (941) 906-1231.

March 11, 2016
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Do I have the right to access or handle my spouse’s financial affairs?

By Asset Protection Planning, Elder Law, Estate Planning

Being married does not give your spouse the ability to make financial decisions for you, such as accessing your IRA.  In order to grant your spouse or another trusted individual those rights, you must set up a durable power of attorney (DPOA).  A DPOA is important as it can give an individual of your choice the right to handle your financial affairs, plan for Medicaid, etc.  While the DPOA becomes effective the moment it is executed, the DPOA is especially useful in the event that you become unable to make such decisions yourself.  The specific powers which you grant to your power of attorney can be designated in the document you set up.  They can be extremely specific, such as granting a person the right to sell your home, or broad, such as granting a person the right to conduct banking transactions.

If you do not have a durable power of attorney set up or would like an old DPOA reviewed and updated, contact our office at (941) 906-1231 to meet with one of our estate planning attorneys.

March 8, 2016
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What happens if a beneficiary is underage?

By Asset Protection Planning, Elder Law, Estate Planning, Probate

When a minor child inherits assets in Florida, their parent or guardian does not have the authority to settle, collect, receive, or manage real or personal property if the total assets exceed $15,000.  If the assets inherited exceed this amount, the court can appoint a Guardian Ad Litem who is responsible for managing the probate process and inheritance for the child.  This guardianship can cost time and money as the guardian must petition the court each year for distributions of assets.

To avoid the cost of an unknown guardian helping a minor to manage inherited assets, assets can be passed for the benefit of a minor using a trust.  A known trustee can then be designated to distribute assets to the minor child or for the minor’s benefit in accordance with the trust provisions.  For example, it could be specified that trust assets are to be used to fund the child’s education.

For estate planning services or to set up a trust to ensure your assets are passed to beneficiaries in the way that you desire, call one of our experienced estate planning attorneys at (941) 906-1231.

March 4, 2016
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What does Per Stirpes mean?

By Elder Law, Estate Planning, Probate

Per stirpes is a Latin phrase used in wills to mean that an asset will be passed to the heirs of designated beneficiaries if the beneficiaries themselves die.  If someone plans to leave assets to a friend but that friend dies before they do, the asset would be passed to the friend’s heirs if a per stirpes expression appears in the will.

February 26, 2016
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Services Medicaid Planners Are Not Authorized to Provide

By Elder Law, Medicaid Planning

Due to a recent Florida Supreme Court decision, many Medicaid Planning services may only be provided by licensed attorneys.  Non-lawyers who provide Medicaid Planning are engaging in the unlicensed practice of law and, because non-lawyers in the Medicaid Planning field are unregulated, often give misguided advice which financially harms clients.

The following are some services which can be legally provided by attorneys but not by non-lawyer Medicaid Planners in the state of Florida:

  • Drafting income trusts
  • Drafting personal service contracts
  • Giving Medicare advice concerning Observation Status, Coverage, and Dropping Medicare Advantage Plan
  • Helping with placement issues on the Medicaid waitlist for the Diversion program
  • Reviewing long term care insurance policies and advising on how to maximize benefits
  • Updating estate planning documents
  • Helping get SSDI or SSI for those under age 65
  • Protecting disabled dependents
  • Advising on pros and cons of all planning options

If you are looking for Medicaid planning advice, be sure to consult a qualified and experienced Elder Law attorney. Babette Bach is nationally certified as an Elder Law Expert by the National Elder Law Foundation and is also a Florida Board Certified Elder Law Attorney.  To consult with Ms. Bach, contact our office at (941) 906-1231.

February 23, 2016
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Obtaining a Florida Death Certificate

By Elder Law

In order to obtain a death certificate for a death that occurred in Florida, you can fill out the form available from the link below and mail it with payment (amount determined through form) to:

State Office of Vital Statistics

Attn: Client Services

P.O. Box 210

Jacksonville, FL 32231-0042

Before mailing the form, call the Florida Dept. of Health, Bureau of Vital Statistics at (904) 359-6900 to ensure you are following the most up to date process to receive a death certificate quickly.

Certificate Request Form

Alternatively, you can order a copy of a death certificate through your local County Health Department.  Call your department for its particular instructions.

Anyone may order a Florida Death Certificate which does not include a cause of death.  However, a certificate with cause of death may only be ordered by the decedent’s spouse, parent, child, grandchild, or sibling who is 18 years of age or older.  If you are not a relative described above, you may still obtain a death certificate with cause of death if you provide documentation of your interest in the estate of the decedent.  Such documentation may include a Will, an insurance policy, etc.  For any death which occurred over 50 years ago, anyone may request a death certificate with cause of death.

February 16, 2016
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How can I ensure my pet is taken care of after my death?

By Elder Law, Estate Planning, Probate

Florida statutes allow for the creation of pet trusts which can be used to designate who will take care of your pet and leave funds necessary to do so.  The trust would appoint a care-taker and a trustee who would observe the care-taker to make sure they are following your instructions and caring for your pet as you specify.  A trust protector can also be appointed to ensure the funds in the pet trust are being spent appropriately by the care-taker.  The care-taker can be given specific instructions through the trust on how they should care for the pet on a day to day basis and how they should respond to unexpected illness of the pet.

Under Internal Revenue Code, the income of a pet trust is taxable.  The trust would be active during the entire lifespan of your pet and after the death of your pet any remaining funds would be distributed to other beneficiaries as you specify.  If you have further questions or would like to set up a pet trust, contact us at (941) 906-1231 to discuss the use of a pet trust as part of your estate planning.

February 12, 2016
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