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Elder law in Florida

Can a Florida Nursing Home or Assisted Living Facility Take My Stimulus Check?

By Elder Law, Government Benefits, Long-Term Care

The recently enacted federal Coronavirus Aid, Relief, and Economic Security (CARES) Act provided for a direct payment of up to $1,200.00 to most taxpayers, including many residing in nursing homes and assisted living facilities. Unfortunately, the Federal Trade Commission has received several reports of nursing home and assisted living facilities requiring their residents who are on Medicaid to sign over the stimulus funds to the facility. There have been reports of facilities claiming that because the resident is on Medicaid, the facility gets to keep their stimulus payment. This claim is not true.

According to the CARES Act, the stimulus payments are a tax credit. Under the Internal Revenue Code, tax credits do not affect eligibility for federal benefits programs, like Medicaid, and they are not counted as a resource that an individual must use to pay for those benefits.

Because most nursing homes and assisted living facilities are currently closed off to the public due to COVID-19, it can be more difficult to monitor your loved one’s finances. If you are managing a facility resident’s financial affairs (such as an agent under power of attorney) or your loved one lives in a nursing home or assisted living facility and you are not sure what happened to their stimulus payment, talk to the facility’s management.

If you find out that a Florida nursing home or assisted living facility has taken your loved one’s stimulus payment, you should report it to the Florida attorney general’s office immediately and file a complaint with the Federal Trade Commission.

If you have specific questions regarding your stimulus payment and preserving your Medicaid eligibility, the experienced elder law attorneys of Bach, Jacobs & Byrne, P.A. are here to assist you. Call us at (941)906-1231 to set up a consultation.

June 8, 2020
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How to Stay Connected to Loved Ones in Nursing Homes During a Pandemic

By Health, Long-Term Care

 

Family caregivers have now faced weeks or even months of physical separation from their loved ones in nursing homes and other long-term care facilities in order to protect them from Coronavirus. The restrictions on in-person visitation in long-term care facilities during the pandemic have made it challenging for family caregivers to stay close and present in the lives of their loved ones. The lack of family contact and attention can create feelings of isolation and anxiety for a resident, and additional stress for already worried families and friends, who are used to visiting in person.

While you may be unable to visit your loved one in-person, it is possible to brighten their day and try to ease feelings of isolation. Here are some ideas for staying emotionally connected to loved ones while visitor restrictions are in place:

  • Plan a virtual visit. There are several apps that will allow you to meet with your loved one virtually, including FaceTime, Zoom, and Skype. Most facilities are more than willing to assist your loved one in dialing in to a call. Some facilities even have iPads for easier viewing.
  • Send snail mail. Cards and letters are an easy way to tell someone you are thinking of them. Write an update about routine family activities. Have your children draw a picture. Include a photo showing your quarantine activities. Receiving updates will be reassuring to your loved one that you are okay during this health crisis and will provide your loved one with a genuine connection to you.
  • Create a photo book. Create a photo book with photos of what you, family, and friends have been up to. Include captions identifying family members and friends, with a small description. It can be as simple as a few pages printed from your home printer and stapled together, a poster board assortment, or a professionally bound book from Shutterfly or another online printing company. Most facilities will accept envelopes or packages at the front desk and will have staff members deliver to your loved one’s room, or they can always be sent in the mail.
  • Have a window visit. Many facilities will schedule a specific time for your family to “meet” your loved one through a window on the ground floor. You will be on the outside, and your loved one will be safely on the inside. You can chat, share smiles and laughs, and a touch through the glass. You can make special occasions, like a birthday or holiday, extra special with handmade signs.
  • Create a phone chain. Create a schedule of different family members and friends to each call your loved one on a specific day. This is a great way to connect others also feeling isolated, especially seniors and those living alone, with your loved one. Plus, a regular daily phone call gives your loved one something to look forward to.
June 4, 2020
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COVID-19: Tips for Supporting Loved Ones with Dementia Living in Nursing Homes During the Pandemic

By Elder Law, Health, Long-Term Care

There is no evidence to suggest that dementia itself increases the risk for Coronavirus, just like dementia does not increase risk for flu. However, behaviors, increased age, and common health conditions that often accompany dementia may increase risk. For example, people with dementia may forget to wash their hands or take other recommended precautions to prevent the illness. Viruses like COVID-19 or the flu may worsen cognitive impairment due to dementia.

 

The CDC has provided guidance on the prevention and control of COVID-19 in nursing homes. Precautions may vary based on local situations. If you have a loved one with dementia living in a nursing home:

 

  • Check with the facility regarding their procedures for managing COVID-19 risk. Make sure the facility has your emergency contact information and contact information for another family member or friend as backup.
  • Do not visit your loved one in the facility if you have been exposed to COVID-19, or have any signs or symptoms of illness.
  • Depending on the situation in your local area, facilities may limit or not allow visitors, in order to protect the residents.
  • If visitation is not allowed, ask the facility how you can have contact with your loved one. Options may include telephone calls, video chats, or emails to check in.
  • If your loved one is unable to engage in calls or video chats, ask the facility how you can keep in touch with staff in order to get updates.
June 3, 2020
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How Can I Spend Funds in A Qualified Income Trust?

By Asset Protection Planning, Medicaid Planning

There are very specific rules regarding how the funds in a Qualified Income Trust (QIT) may be spent. It is very important that the Trustee ensures that only allowable expenses are paid out of the QIT account because if funds in the QIT are spent improperly, it could jeopardize the recipient’s Medicaid eligibility.

Only the following expenses can be paid out of a QIT account:

  1. The Patient Responsibility due to the nursing home (as determined by the Department of Children and Families)
  2. Health insurance premiums
  3. The Community Spouse Allowance (as determined by the Department of Children and Families)
  4. Medical expenses not covered by insurance (i.e. medical durable supplies, additional home health care agency hours, therapies not covered by Medicaid)
  5. Uncovered portions of an assisted living bills

If you have specific questions regarding managing a Qualified Income Trust account or your duties as the Trustee of a Qualified Income Trust, the experienced elder law attorneys of Bach, Jacobs & Byrne, P.A. are here to assist you. Call us at (941)906-1231 to set up a consultation.

June 2, 2020
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Does the Qualified Income Trust Need a Taxpayer Identification Number?

By Asset Protection Planning, Medicaid Planning

Some banks may request that you obtain a Taxpayer Identification Number for the Qualified Income Trust (QIT, also referred to as a Miller Trust).  However, In Part 21, Chapter 7, Section 13 of “Assigning Employer Identification Numbers (EINs),” the IRS specifically provides that “If the trust is a Miller type of trust, do not assign an EIN. Instead, inform the trustee that he/she must …Use the SSN of the beneficiary or trustee to report trust activities.” A Qualified Income Trust (QIT) is a “grantor trust”, which means that for tax reporting purposes, the trust’s finances are the same as the Settlor’s finances.  Therefore, the bank must use the Social Security Number of the Settlor (the Medicaid recipient) when setting up the QIT checking account.

If you have specific questions regarding establishing a Qualified Income Trust,  the experienced elder law attorneys of Bach, Jacobs & Byrne, P.A. are here to assist you. Call us at (941)906-1231 to set up a consultation.

June 1, 2020
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How much of my income should be deposited into the Qualified Income Trust?

By Asset Protection Planning, Medicaid Planning

The Trustee must deposit the amount of the Medicaid recipient’s income that exceeds the income cap into Qualified Income Trust (QIT) each and every month.  In 2020, the gross monthly income cap is $2,349.00. So, for example, if the Medicaid recipient’s gross monthly income was $4,000.00, the Trustee would need to deposit a minimum of $1,651.00 into the QIT each month.  If the Medicaid recipient’s gross monthly income was $4,500.00, the Trustee would need to deposit a minimum of $2,151.00 into the QIT each month.  In order to account for any discrepancies or fluctuations that may arise in monthly income, we always advise our clients to deposit more than the minimum amount each month.

Properly managing and funding a QIT is very important for maintaining Medicaid Eligibility.  If you have specific questions regarding funding a Qualified Income Trust account or your duties as the Trustee of a Qualified Income Trust, the experienced elder law attorneys of Bach, Jacobs & Byrne, P.A. are here to assist you. Call us at (941)906-1231 to set up a consultation.

May 29, 2020
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How do I Establish A Qualified Income Trust?

By Asset Protection Planning, Medicaid Planning

A Qualified Income Trust (QIT) agreement is a complex document that must meet specific requirements to be approved by the Florida Department of Children and Families. The Florida Supreme Court has ruled that the preparation and execution of QIT is the “practice of law” and as a result, you cannot hire someone other than a Florida attorney to assist you with the planning and preparation of a QIT.

If you think you may need to establish a Qualified Income Trust, the experienced elder law attorneys of Bach, Jacobs & Byrne, P.A. are here to assist you. Call us at (941)906-1231 to set up a consultation.

 

 

May 27, 2020
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Opening the Qualified Income Trust Bank Account

By Asset Protection Planning, Elder Law, Medicaid Planning

Opening the Qualified Income Trust Bank Account

Once a Qualified Income Trust (QIT) has been prepared and signed, the Trustee must establish and maintain a separate bank account in the name of the QIT. The account can be established at any banking institution. Prior to going the bank to open the account, it is a good idea to call your bank and make an appointment. It helps to explain the situation before you arrive for the appointment, so that the bank representative will know what your purpose is and will be better equipped to help you.  When you call to make the appointment, explain that you, as Trustee of a Trust, will be setting up a checking account and making a deposit. Explain that it is not a trust account, but just a regular checking account that happens to be in the name of a trust.  Make sure that the bank can offer you a checking account that is non-interest bearing, and that you do not need to keep any minimum amount in the account at any given time.

The QIT account should be titled in the name of the Trust, for example, “Jane Doe Qualified Income Trust Dated __________, 2020” or “John Smith, Trustee of the Jane Doe Qualified Income Trust Dated ________, 2020.” A QIT is a “grantor trust”, which means that for tax reporting purposes, the trust’s finances are the same as the Settlor’s finances. Therefore, the bank should use the Social Security Number of the Settlor (the Medicaid recipient).

Make sure you bring the original Trust Agreement and your Driver’s License or other government issued photo identification with you to the bank to open the checking account. The bank can make a copy of the Trust, but you should not relinquish possession of the original Trust.

If you have specific questions regarding setting up a Qualified Income Trust account or your duties as the Trustee of a Qualified Income Trust, the experienced elder law attorneys of Bach, Jacobs & Byrne, P.A. are here to assist you. Call us at (941)906-1231 to set up a consultation.

May 26, 2020
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What is a “Qualified Income Trust”?

By Asset Protection Planning, Government Benefits, Medicaid Planning

As of January 1, 2020, in Florida, in order to qualify for Medicaid benefits, the applicant’s gross income must be less than $2,349.00 per month. In general, if the Medicaid applicant’s monthly gross income exceeds this amount, the applicant will be denied Medicaid benefits. The only current exemption to this barrier is the establishment of a “Qualified Income Trust” (QIT). A QIT is an irrevocable trust that can be established to receive the Medicaid applicant’s excess income.  Once the trust is established, a checking account is opened in the name of the trust. Simply put, establishing a QIT allows the applicant’s income to be exempt from the “income cap” by flowing the applicant’s excess income through a special checking account each month.

The QIT is irrevocable and cannot be changed after it is signed. Only the applicant’s income can be deposited into the checking account and only certain payments may be made out of the account. After the Medicaid recipient dies, the balance of the QIT will be paid to the State of Florida up to the total amount of Medicaid payments made on the recipient’s behalf.

If you have specific questions regarding asset protection planning and Medicaid eligibility, the experienced elder law attorneys of Bach, Jacobs & Byrne, P.A. are here to assist you. Call us at (941)906-1231 to set up a consultation.

 

 

May 25, 2020
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Elder Exploitation – Fla. Stat. §825.1035 – What is considered “Exploitation”?

By Elder Law

On July 1, 2018, a new Florida statute, §825.1035, Fla. Stat., created a new legal process to protect vulnerable adults from exploitation. Exploitation is defined in §825.103(1), Fla. Stat., and includes:

  1. Using or trying to use a vulnerable adults funds or property with the intent to deprive the vulnerable adult of it, or to benefit someone else, by a person who is in a position of trust and confidence with the vulnerable adult, or by a person who has a business relationship with the vulnerable adult.
  2. Using or trying to use a vulnerable adult’s funds or property with the intent to deprive the vulnerable adult of it, or to benefit someone else, by a person who knew or should have known that the vulnerable adult lacks the capacity to consent.
  3. Breaching a fiduciary duty to a vulnerable adult by the vulnerable adult’s guardian, trustee, or agent under a power of attorney, which results in an unauthorized appropriation, sale, or transfer of property; or if the fiduciary violates the following duties:
    1. Fraud in appointment;
    2. Abuse of power;
    3. Wasting, embezzling or intentionally mismanaging assets;
    4. Acting contrary to the vulnerable adult’s sole benefit or best interests.
  4. Misappropriating, misusing, or transferring without authorization, funds from a bank account where the vulnerable adult was the sole contributor or payee of the funds. This applies only to personal accounts, joint accounts created with the intent that the vulnerable adult has all rights to the money deposited, or convenience accounts in accordance with §655.80, Fla. Stat.
  5. Intentionally or negligently failing to effectively use the vulnerable adult’s income and assets for the vulnerable adult’s support and maintenance by a caregiver or a person who stands in a position of trust and confidence.

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.

May 22, 2020
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