Skip to main content
Category

Elder Law

Does Florida honor foreign Wills?

By Elder Law, Estate Planning, Probate

Yes, but with conditions. The Florida Probate Code states: “Any Will, other than a holographic or nuncupative Will, executed by a nonresident of Florida, either before or after this law takes effect, is valid as a Will in this state if valid under the laws of the state or country where the Will was executed.”

A holographic Will is one handwritten by the testator and not witnessed, whereas a nuncupative Will is one relayed orally by the testator to another person but never put in writing. Neither type of Will is valid in Florida, even if the state where it was executed permits such documents. Note that a handwritten Will that is witnessed is still valid under Florida law. Other than these exceptions, Florida generally recognizes any Will which was valid in the jurisdiction where it was created.

Even if an out-of-state Will is legally valid under Florida law, it may benefit the testator to update it so that it will reflect Florida law, which has many advantages for estates and trusts. To check whether your Will is valid in Florida probate court, or to revise and update your Will to reflect current Florida law, the elder law and estate attorneys of Bach, Jacobs & Byrne, P.A. are here to help. Call us at (941) 906-1231 to set up an appointment.

July 1, 2019
Love0

What is Adult Protective Services in Florida?

By Elder Law, Guardianship, Health

Adult Protective Services is a program of the Florida Department of Children and Families. Their mission is to protect vulnerable adults from abuse, neglect, exploitation, and self-neglect, as well as to enable adults with disabilities to remain comfortable in their communities.

A vulnerable adult, as defined by Florida Statute §415.102, is “a person 18 years of age or older whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired due to a mental, emotional, sensory, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging.” If you suspect that a vulnerable adult you know is the victim of abuse, neglect, exploitation, or self-neglect, do not hesitate to call the Florida Abuse Hotline, 1-800-962-2873. The suspected abuse can also be reported online at https://reportabuse.dcf.state.fl.us/.

For more information, visit the Adult Protective Services website, http://www.myflfamilies.com/service-programs/adult-protective-services. If you believe that a Florida senior may be the victim of financial exploitation, contact the attorneys at Bach, Jacobs & Byrne, P.A. to discuss your options and legal remedies to end the abuse. Call (941) 906-1231 to schedule an appointment.

June 21, 2019
Love0

What questions should I ask if I think my loved one is the victim of elder abuse?

By Elder Law, Guardianship, Health

Despite how common elder abuse is in Florida, it’s not always easy to detect when a loved one is a victim of abuse, exploitation, neglect, or self-neglect. While there are many questions one can ask to determine whether a loved one is being abused, below are some recommended by the Stanford School of Medicine:

1) Do you feel safe where you live?

2) Who prepares your food?

3) Does someone help you with your medication?

4) Who takes care of your checkbook?

Of course, one can also ask more directly about the suspected abuse:

5) Does anyone ever hurt you?

6) Does anyone ever take things from you without asking?

7) Does anyone ever make you do things you don’t want to do?

8)) Have you signed anything strange lately?

9) Are you afraid of anyone at home?

10) Are you alone a lot?

            If your loved one’s answers convince you that there is reason to believe they are the victim of elder abuse, call the Florida Abuse Hotline, 1-800-962-2873, as soon as you can. You can also report the suspected abuse online at https://reportabuse.dcf.state.fl.us/.

To discuss the different legal remedies available to you, including guardianship, call Sean M. Byrne, Esq. of Bach, Jacobs & Byrne, P.A. at (941) 906-1231.

 

June 13, 2019
Love0

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
Love0

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
Love0

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
Love0

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
Love0

What is elder self-neglect?

By Elder Law, Health, Long-Term Care

According to the Senior Connection Center, elder self-neglect accounts for the majority of reports made to Adult Protective Services in Florida. It occurs when a vulnerable individual fails to take the steps necessary to prevent themselves from succumbing to physical harm, emotional harm, or other pain, leading to deterioration in their living situation, personal care, or health. Some warning signs of elder self-neglect include:

-Poor personal hygiene

-Refusal to take medications

-Malnutrition or dehydration

-Unattended wounds or sores

-Excessive amounts of unpaid bills, bounced checks, or unanswered letters

It is the responsibility of every Florida citizen to report elder abuse, including self-neglect. If you suspect a senior citizen is the victim of elder self-neglect, you can call the Florida Abuse Hotline at 1-800-962-2873.

 

April 26, 2019
Love0

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
Love0

Can a Will be contested while the testator is still living?

By Elder Law, Estate Planning, Probate

No, in Florida a Will cannot be challenged while the testator is still alive. The Florida Probate Code states clearly: “An action to contest the validity of all or part of a will or the revocation of all or part of a will may not be commenced before the death of the testator.” However, if one suspects undue influence or fraud in the creation of a Will, one can certainly gather facts and evidence in preparation for future litigation if and when the time comes.

After a person’s death, the personal representative serves a Notice of Administration on the estate’s beneficiaries. For 90 days after this notice is served, beneficiaries can contest the Will.

A Will can be challenged for, among other reasons, errors in execution, fraud, lack of testamentary capacity, or presence of undue influence. The attorneys at Bach, Jacobs & Byrne, P.A. are experienced probate litigators and estate attorneys who can advise you about your case. Call us at (941) 906-1231 to set up an appointment.

April 12, 2019
Love0