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Elder Law

Am I eligible to apply for the higher Social Security income of my ex-spouse after they die?

By Elder Law, Government Benefits

Question: My ex-husband has died.  Can I apply for his Social Security income, which is higher than mine?

Answer: If you are the divorced spouse of a worker who dies and your marriage lasted for 10 years or more, you could get the same benefits as a widow or widower, regardless of whether your ex-spouse remarried!

Benefits paid to you as a surviving divorced spouse who meets the age or disability requirement as a widow or widower will not affect the benefit rates for other survivors getting benefits on the ex-spouse’s record.
Note:  If you remarry after age 60 (age 50 if disabled), it will not affect your eligibility for survivors benefits.

January 31, 2014
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How to Apply for the Higher Social Security Income of a Deceased Spouse

By Elder Law, Government Benefits

Question:     My spouse has died.  How do I apply for the higher Social Security income?

Answer:    When your spouse dies you are entitled to receive his or her social security retirement income if it is higher than yours.
You can apply for benefits by visiting your local Social Security office or you can call the national toll-free service at 1 (800) 772-1213.  It is recommended that you call ahead to schedule an appointment to reduce your wait time but an appointment is not required.
You will be asked to provide documentation to show proof of your eligibility.  Below is a list of documents which may be requested:
•    Death Certificate;
•    Birth Certificate or other proof of birth;
•    Proof of U.S. citizenship or lawful alien status if you were not born in the United States;
•    U.S. Military discharge papers if you had military service before 1968;
•    U.S. Military discharge papers;
•    W-2 forms and/or self-employment tax returns for last year;
•    Final divorce decree, if applying as a surviving divorced spouse; and
•    Marriage certificate

January 28, 2014
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Prior Planning for Long Term Care Costs

By Asset Protection Planning, Long-Term Care, Medicaid Planning

Question:    I am interested in doing Medicaid planning for potential future long term care costs, but I don’t know for sure that I’ll even need skilled nursing care or long term care.  Should I start the Medicaid planning process ahead of time or wait until I need the nursing home care to make the plans?

Answer:    Generally anyone who feels they have inadequate assets to pay for skilled nursing care should consider planning in advance.  Skilled care costs average approximately $8,000 a month in Sarasota County.  Because there is a 60-month look back period, there are risks to waiting until a crisis hits to plan for Medicaid.  It is more advantageous to make an appointment with an elder law attorney to evaluate your situation, income, and assets at the outset of a gradual condition that may cause you to eventually need long term care.  Babette Bach is a Florida Board Certified Elder Law Attorney and an expert in public benefits and asset protection planning.  Call Bach & Jacobs today to make an appointment for a consultation with her.

January 10, 2014
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Federal Income Tax Incentives Conservation Easements Changing in 2014

By Elder Law, Estate Planning, Land Conservation Easements, Tax Law

Question:     Are the federal income tax incentives for donating conservation easements going to change in 2014?

Answer:    The “enhanced conservation easement incentive,” which applied to conservation easements donated in 2013, raised the maximum deduction a donor can take for donating a conservation easement from 30% of their adjusted gross income (AGI) in any year to 50%.  It also allowed qualified farmers and ranchers to deduct up to 100% of their AGI, and increased the number of years over which a donor can take deductions from 6 years to 16 years.  Policy makers at the federal level had given conservation easement donors this tax benefit to encourage them to conserve land.   Because Congress did not renew the enhanced conservation easement incentive prior to the end of the year, it expired on Dec. 31, 2013.  Unless Congress acts, the tax deduction for a donation of a qualified conservation contribution will be the same rates as other charitable gifts. Attorney Sean Byrne of Bach & Jacobs has represented parties in multimillion dollar conservation land transactions and can advise you of your options regarding conservation easement donations.

January 7, 2014
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End of Year Charitable Gifts for Federal Income Tax Reduction

By Tax Law

Question:     I want to reduce my taxes for 2013 by making some gifts to charity before December 31.  Where can I find information on the rules for charitable giving?

Answer:    IRS Publication 526 explains how to claim a deduction for charitable contributions and can be found here on the IRS website.  Additionally, this month the IRS released on its website some brief tips for year end giving that summarize several important tax law provisions that have taken effect in recent years, which can be found here.  To review your current tax liability look for ways to reduce your exposure to federal income taxes, contact Fred Jacobs, a Florida Board Certified Tax Attorney with decades of experience assisting taxpayer with tax planning.

December 30, 2013
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Can a Guardian Initiate a Probate Proceeding When the Ward Dies?

By Elder Law, Estate Planning, Guardianship, Probate

Question:     I was the guardian for a ward who has recently died.  Can I petition to open a probate proceeding and be appointed personal representative also?

Answer:    Usually, the named personal representative in the decedent’s will is the one who initiates the probate proceeding.  The guardian, who typically will have all of the deceased’s personal records, would normally notify all the family members and the personal representative designee upon the ward’s death.  However, sometimes the decedent dies intestate (without a will) or the designated personal representative is unable to serve.  The guardian is considered an “interested person” under the Florida Probate Code for the purposes of commencing probate proceedings and can open the probate.  The guardian may be required to commence the probate proceedings to transfer the guardianship assets to the probate estate.  However, there could be some cases where the guardian’s appointment as personal representative of the ward’s estate is inappropriate.  For example, if a conflict of interest existed between the ward and the guardian prior to the death of the ward, then the court may be inclined to appoint a guardian ad litem, an administrator ad litem, or a different personal representative all together.  If you are the guardian for a recently deceased ward or want to petition to be appointed the personal representative for a deceased ward, contact Bach & Jacobs to schedule an appointment with one of our attorneys.

December 26, 2013
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What Happens to a Guardianship When the Ward Dies?

By Elder Law, Guardianship

Question:  Does a guardianship end when the ward dies?  If so, what are the guardian’s responsibilities upon the ward’s death?

Answer:    Yes, a guardianship is terminated when the ward dies.  A guardian of the person is discharged upon the death of the ward after filing a death certificate.  A guardian of the property is also discharged when the ward dies.  However, the guardian must first file a final report, including an accounting, and petition for discharge for court approval before the discharge is granted.  The guardian seeking discharge needs to know the requirements of filing the report and the petition.  For example, the Florida Probate Rules require notice of the report and petition to be served on certain interested parties.  If you are the guardian for a recently deceased ward or want to petition to be appointed the personal representative for a deceased ward, contact Bach & Jacobs to discuss your matter and receive assistance.

December 20, 2013
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Home for the Holidays: Talking with your Personal Representative About Your Estate Plan

By Estate Planning, Probate

Question:     Should I let the person I have designated as my personal representative know about my estate plan?

Answer:    Your personal representative—referred to as an executor in some states—is the person responsible for carrying out the provisions of your will.  That person could be a reliable family member, but can also be a trust officer, attorney, or even a trusted friend.  It is often advisable to at least let the individual or entity know that you have chosen them and confirm they are willing to serve in that role.  You should know that there are eligibility requirements for personal representatives under Florida law.  For example, those who have a felony conviction, as well as non-Florida residents who are not related to the deceased, cannot qualify as a personal representative.  Whether you walk that person through the details of your will is a personal decision—you certainly have the right to keep it private.  Although, it can sometimes be helpful to at least discuss some practical matters relating to your estate, such as who to contact upon your passing, how to pay for basic expenses like funeral costs and taxes, and what your funeral and burial wishes are.  The paperwork a family and personal representative may have to deal with regarding a deceased loved one’s estate plan can be overwhelming if they do not know who to go to for help.  The attorneys at Bach & Jacobs can advise you about the eligibility of your preferred personal representative.  Call Bach & Jacobs, P.A. to schedule an appointment to review your estate plan.

December 17, 2013
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Home for the Holidays: Leaving the Nursing Home to Share in Holiday Gatherings

By Elder Law, Long-Term Care

Question:  Our father is in a nursing home, but we would like to bring him home on Thanksgiving and Christmas day so we can all be at the table together.  Will that disqualify him for Medicare coverage?

Answer:    Under Medicare law, a resident at a skilled nursing facility can leave the nursing home for a day or two to enjoy the holidays with family and friends without losing Medicare coverage.  This fall with Thanksgiving, Hanukkah, Christmas and New Year there are lots of opportunities for seniors in nursing homes to re-connect with family and friends.  You can help facilitate those family gatherings without worrying that your father will lose Medicare coverage if he leaves the facility to participate.  The Medicare Benefit Policy Manual states that “an outside pass or short leave of absence,” such as attending a special religious service, holiday meal, or other family vacation is “not, by itself evidence that the individual no longer needs to be in a [skilled nursing facility].”  However, you should be aware that the nursing home can charge you for a bed-hold payment under some circumstances.  If you have questions about arranging for your loved one’s care and qualifying for public benefits like Medicaid, Medicare, and Veterans Benefits, contact Babette B. Bach, a Board Certified Elder Law Attorney and elder law expert.

December 13, 2013
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Where Can I Find More Information on Elder Care?

By Long-Term Care

Question:     Where Can I Find More Information on Elder Care?

Answer:    You can always search for topics related specifically to elder care law on the Bach & Jacobs website. Another source for elder care information with a national perspective is ElderCareMatters.com. This website provides Elder Care articles, contact information for Elder Care professionals, and a is a resource for alternate solutions when seeking Assisted Living Communities, Alzheimer’s & Memory Care Communities, Continuing Care Retirement Communities and Home Care Companies. For customized advice specific to your situation, contact Babette Bach, Esq., a Board Certified Elder Law Attorney and former statewide chair of The Florida Bar’s Elder Law Section.  She is an expert in the elder law field.

December 10, 2013
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