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Elder Law

Is My Out of State Power of Attorney Valid In Florida?

By Elder Law, Estate Planning

Question: My parent executed a power of attorney document in another state that appoints me the attorney in fact.  As a Florida resident, can I use the out-of-state power of attorney document to handle my parent’s financial matters in Florida?

Answer: Yes, under Florida law a power of attorney executed in another state is valid in Florida so long as the execution met the requirements of either (a) the state of Florida or (b) the state where the document was executed at the time.  A third party, such as a bank or other financial institution, may require an opinion of counsel regarding the validity of the power of attorney if the out-of-state document does not meet Florida’s requirements.  If you have an out of state power of attorney document and are unsure of its validity, call Bach & Jacobs. We can have it reviewed so you can be sure the document meets the requirements of either Florida or the state where it was executed.

If you need legal advice for estate planning or would like a review of your existing legal documents, such as a power of attorney, please contact our office at (941) 906-1231 for an initial consultation.

August 11, 2013
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How Do I Sign Up for a Direct Express Debit Card?

By Elder Law, Government Benefits

Beginning March 1, 2013, beneficiaries of government benefits are required to have their funds directly deposited into a bank account or they can receive funds through a Direct Express Mastercard issued directly from the government through Comerica Bank.

Signing up for the Direct Express card is easy. Call 1-800-333-1795 or go online to www.godirect.org.

The card will allow beneficiaries access to their funds by making purchases or withdrawals at ATMs. The card has no sign-up fee, no monthly fee and no overdraft charges. There is no fee for teller transactions and beneficiaries can access more than 50,000 participating ATM machines once monthly at no charge.

This new law will save the government a considerable amount of money. It costs $0.92 more to issue a paper check than it does to process funds electronically. There is also less risk of funds being lost or stolen.

Automatic waivers of this new electronic mandate are granted to those beneficiaries born on or before May 1, 1921.

If you need legal advice for estate planning, Asset Protection Planning, Medicaid or planning, please contact our office at (941) 906-1231 for an initial consultation.

January 20, 2013
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Changes to Special Needs Trust Law in POMS

By Elder Law, Estate Planning

In September 2012, there was a change in the POMS prohibiting Special Needs Trustees from being able to reimburse family members for travel to visit a beneficiary. This change stated that a Special Needs Trust document that states that the trust funds can be used to reimburse family members visiting a beneficiary would cause the trust to violate the sole-benefit rule (and make the trust a countable resource). It also prohibited payment of travel expenses to a companion assisting the beneficiary in travel.

Fortunately, on December 18, 2012 the Social Security Administration published yet another change to the POMS which removed the two previously added examples. Special Needs Trusts can once again pay for travel of family members visiting the beneficiary and companion travel fees for assisting the beneficiary with their traveling.

If you need legal advice for estate planning, Asset Protection Planning, Medicaid or planning, please contact our office at (941) 906-1231 for an initial consultation.

January 20, 2013
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How Can I Find a Trusted Florida Elder Law Attorney?

By Elder Law

There are many ways to find an Elder Law attorney. The Florida Bar lists those attorneys who are Board Certified in Elder Law. This informs the public about which attorneys have passed a comprehensive written examination covering nineteen areas of Elder Law, including peer review. In addition, the National Academy of Elder Law Attorneys (NAELA) administers the Certification in Elder Law known as a CELA. This national certification also requires a written examination, as well as peer review. A list of all attorneys in Florida who are board certified in Elder Law can be found at Flabar.org. and a list of CELA’s can be found at NAELA.org.

In addition to state and national certification in Elder Law, attorneys who serve in leadership positions, such as Chair of the Elder Law Section of The Florida Bar, or publish articles on various Elder Law subjects indicate their commitment to the practice of Elder Law.

If you need legal advice for estate planning, Medicaid planning, or VA planning, please contact our office at (941) 906-1231 for an initial consultation.

January 8, 2013
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Landmark Decision for Medicare Recipients Increasing Medicare Coverage for Home Care and Skilled Nursing Rehabilitation

By Elder Law, Government Benefits, Long-Term Care, Medicare

Historically well informed Elder Law advocates have challenged the denial of Medicare coverage for a full 100 days in skilled care after a three night hospital stay under the premise that this common practice is not consistent with federal law.  Finally this denial of coverage may end thanks to a landmark class action settlement.

            Those receiving rehabilitation in skilled care or Medicare home care have historically been told that coverage will end when the patient is no longer showing signs of improvement.  However, neither Medicare law nor any Medicare regulations require the patient show a likelihood of improvement.  But this became “the” accepted practice due to provisions of the Medicare manual and guidelines use by Medicare contractors which suggested that coverage should be denied or terminated when a patient reaches a plateau or is not improving or is stable.

            This settlement should result in increased Medicare coverage for rehabilitation in skilled care and home care if the services are needed to “maintain the patient’s current condition or prevent or slow further deterioration.”

            Under a proposed settlement expected to be approved by a Federal Judge this week,  Federal officials will rewrite the Medicare manual to make it clear that Medicare coverage of nursing and therapy services does not turn on the presence or absence of an individual’s potential for improvement but is based on the patient’s need for care.

            While this may increase the Medicare budget it is an honest reflection of what the law is currently.  Is it an honest correction of a misapplication of regulations interpreting the law.

Many beneficiaries may now be able to continue Medicare home care and thereby avoid skilled care.  In these cases, Medicare costs may actually be reduced by keeping the patient at home.  Many more patients should be able to receive the full 100 days of skilled nursing services, so long as the care is required to maintain the patient’s current condition.

If you need legal advice for estate planning, Medicaid planning & Medicare, or VA planning, please contact our office at (941) 906-1231 for an initial consultation.

October 26, 2012
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Reverse Mortgage-Consumer Financial Protection Bureau seeks Stronger Disclosures

By Elder Law, Estate Planning, Real Estate

The Consumer Financial Protection Bureau is planning stronger disclosure requirements for reverse mortgages as more evidence emerges that senior citizens are using the product without fully understanding its main features and risks.

As part of a Dodd-Frank Act requirement, the agency was set to release a study showing  that signs reverse mortgages are not being used as intended, with increasingly younger borrowers taking out larger pots of money rather than gradual income streams to help finance their later years.

The bureau, which is required to study the reverse mortgage sector and identify potential consumer protection concerns, found that 73% of borrowers last year accessed nearly all or almost all of their home equity available in the reverse mortgage — an increase of 30 percentage points since 2008 — leaving few funds available later in life.

Nearly half of borrowers were younger than 70, and taking out a loan at the earliest eligibility (typically age 62) has become more common. The study found the biggest players in selling reverse mortgages currently are nonbanks, and the sector is “increasingly dominated by small originators.” The two largest providers, Wells Fargo and Bank of America, left the market last year and MetLife left it in April.

“It can be hard to tell a reverse mortgage is better than downsizing, refinancing or using a traditional home equity loan,” CFPB Director Richard Cordray said. “Even when a homeowner makes a careful decision to take out a reverse mortgage, it can be a challenge to select the right product and determine the appropriate amount to borrow initially.”

Consumers need to better understand reverse mortgage loans.  Additionally, consumers need to understand that this is an expensive product which is only recommended as a last resort.

If you need legal advice for reviewing a reverse mortgage, Medicaid planning, VA planning, tax planning, estate planning or trust and probate administration please contact our office for an initial consultation at (941) 906-1231.

September 27, 2012
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Who can Draft a Qualified Income Trust?

By Elder Law, Estate Planning, Medicaid Planning

Only an attorney is licensed to draft a Qualified Income Trust.Medicaid planning companies are not licensed to draft Qualified Income Trusts, unless they have a Florida licensed attorney on staff who is directly and actively representing the trust Grantor.

If you need legal advice for estate planning, Medicaid planning, or VA planning, please contact our office for an initial consultation at (941) 906-1231.

September 6, 2012
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How to Avoid Problems as a Trustee

By Elder Law, Estate Planning

Being a trustee requires significant legal knowledge and if one does not perform their duties properly, a trustee may be personally liable. That’s why it’s important to have legal guidance.

A trust is a legal arrangement through which one person (or an institution, such as a bank or law firm), called a “trustee,” holds legal title to property for another person, called a “beneficiary.” If you have been appointed the trustee of a trust, this is a strong vote of confidence in your judgment, ethics and skill sets.

A trustee’s duties include locating and protecting trust assets, investing assets prudently, distributing assets to beneficiaries, keeping track of income and expenditures, and filing taxes.  As a trustee, you have a fiduciary duty to the beneficiaries of the trust, meaning that you have an obligation to act in the best interest of the beneficiaries at all times.

A trustee is usually entitled to hire an attorney (and other professionals like an accountant) to assist in trust administration. The attorney’s fees will be paid from the trust funds. While hiring an attorney will cost money, not having an attorney at all could cost a trustee much more if errors are made.

A trust can be administered without court involvement, but that doesn’t mean that the administration is simple. There are many areas where problems can arise — for example, if assets aren’t invested properly, taxes are late, or if proper records aren’t kept. If something goes wrong during the administration of the trust, the trustee can be removed and held personally liable for any costs incurred or losses suffered. Even if a spouse is the trustee, he or she should still consult with an attorney.

If you need legal advice for trust administration, probate, tax advice, estate planning, Medicaid planning, or VA planning, please contact our office for an initial consultation at (941) 906-1231.

August 24, 2012
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Definition of a Florida Power of Attorney

By Elder Law, Estate Planning

A Power of Attorney is a legal document appointing authority to another individual to act as your Agent on your behalf.   The authority granted depends on the specific language you choose to include in your Power of Attorney.

 

A Power of Attorney is an important and powerful legal document.  One should always consult an attorney to have the appropriate preference made for clear instruction on how you would like your affairs managed if you are unable to do so yourself.

 

Most Power of Attorneys give their Agent  the right to sell vehicles, real or personal property on your behalf, to enter into a contract on your behalf, to handle financial transactions or to sign legal documents for the maker of the Power of Attorney.  Your Agent must always act in your best interest.

 

The designated person appointed to act on your behalf is called an Agent or Attorney-in-Fact.  Any competent person over the age of 18 or, in certain situations, some financial institutions can serve as an Agent.  It is very important to choose someone reliable and trustworthy.  The Attorney-in-Fact is a fiduciary who is held to a high standard of care and record keeping.  Power of Attorneys are a valuable tool to avoiding a guardianship if you become incapacitated.
Contact our office to schedule an initial consultation for any Estate Planning, Medicaid Planning, or Veterans Benefits needs.

 

June 18, 2012
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Simple Will vs. a Revocable Living Trust by Babette B. Bach, Esquire

By Elder Law, Estate Planning, Probate

Simple Will vs. a Revocable Living Trust :
Simple Will:  A very effective tool to designate who gets what after death.  Probate is required but this is not usually a difficult process.  The average cost of probate is 3% of the probate assets and the average length of time to complete is six months.  Many assets are not part of the probate estate such as jointly titled real estate, IRAs, annuities, life insurance policies and jointly held assets.

 

Revocable Living Trusts;   These are more complex documents which provide for the trustee to manage assets while the settler is alive but incapacitated or deceased.  It can hold assets in trust for a variety of reasons after the settlor’s death.  Typical reasons may include, a spendthrift child, a disabled descendent, an income trust for the life of a surviving spouse, then residue to children upon death of surviving spouse, Charitable foundations, Pet trusts, generation trusts and tax planning etc.  There is still administrative work to do to administer a trust. Typical costs run about 2% of the trust estate.  It takes about the same amount of time to administer a trust as to probate a Will.

If you need legal advice for estate planning, Medicaid planning, or VA planning, please contact our office for an initial consultation.

 

Babette B. Bach, Esquire, Board Certified Elder Law

Fredric C. Jacobs, Esquire, Board Certified Tax Law
Bach & Jacobs, P.A.

240 S. Pineapple Avenue, Suite 700

Sarasota, FL 34236

941-906-1231

941-954-1185 facsimile

www.bachjacobs.com

April 24, 2012
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