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Elder Law

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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Probating a Lost Will in Florida by Babette B. Bach, Esquire

By Probate

Often family members are given copies of wills for safekeeping, but trouble arises when someone dies and the original will is lost.  In Florida, when an original will is known to have existed but can not be located, there is a presumption that the person destroyed the will with the intent to revoke it.  Therefore, a party probating a lost will must present evidence at a hearing to overcome this presumption.  Don’t panic, as it is possible in most cases to overcome this presumption.

 

Florida courts will allow testimony at a hearing from a disinterested witness to prove the execution and contents of a lost will.  If there is an exact copy of the lost original will, the testimony of only one witness to the will execution is required.  However, an unsigned draft of a will does not constitute an exact copy.  If there is no exact copy of a signed will, then the testimony of two disinterested witnesses are required to prove the execution and content of the document.  In every case, a hearing is required in order to satisfy the requirements of Florida Statute 733.207 and relevant Florida case law.

Contact the law firm of Bach & Jacobs, P.A. for an initial consultation.
Babette B. Bach, Esquire, Board Certified Elder Law
Fredric C. Jacobs, Esquire, Board Certified Tax Law
240 S. Pineapple Avenue, Suite 700
Sarasota, FL 34236
(941) 906-1231
www.bachjacobs.com

February 8, 2012
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Are IRA’s exempt from IRS levies for unpaid taxes of the owner of the IRA?

By Tax Law

Are IRA’s exempt from IRS levies for unpaid taxes of the owner of the IRA?

IRA’s are not exempt from IRS levies for the unpaid taxes of the owner of the IRA.  While it is the policy of the IRS to avoid levying against a taxpayer’s IRA or qualified pension plan benefits, it can do so as a last resort (Internal Revenue Manual 5.11.16).  It is also well settled that the IRS lien and levy powers contained in the Internal Revenue Code take precedence over any asset protection provisions in state law, such as FL Stat. 222.21.  The good news is that there is a Tax Court case which holds that in the case of death benefits payable under a qualified pension plan, the IRS levy does not attach to the death benefit, even if the IRS levies against the delinquent taxpayer’s pension account before the death (Asbestos Workers Local 2004-1 USTC 50129).  There does not appear to be any similar case involving IRA death benefits but the analysis should be the same.  It is somewhat similar to IRS levies against life insurance policies owned by a delinquent taxpayer who dies.  While the IRS can reach the cash surrender value, it can’t reach the pure insurance portion of the death benefit payable to a third party beneficiary.

February 22, 2011
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Medicaid Qualification and Application and Medicaid Planning Strategies

By Medicaid Planning
Quick facts about Medicaid
  • Medicaid is a federal and state program that pays for long term care for those individuals that qualify.
  • There is a wrong assumption that Medicare covers long term care. Medicare does not cover costs of basic daily life expenses such as bathing, eating dressing, walking… Medicaid does.
  • The average cost for the Nursing Home in Sarasota County is $7,000.00 per month. These costs are rising annually.
  • If eligible, Medicaid pays the difference between the Applicant’s gross income and his or her care costs.
  • Law provides many Medicaid asset protection planning tools to help you dispose of your assets so that you can still use them for the rest of your life and still qualify for Medicaid.
  • Medicaid planning is technical and often complex. No two cases are alike.
What do we do?
  • Analyze your current assets, estate planning documents and medical expenses
  • Give you detailed explanation of available options for your (or your beloved one’s) Medicaid qualification
  • Provide you guidance for implementation of selected Medicaid asset protection plan. We do not sell any commercial products. We are independent legal advisors looking after your best interest.
  • Complete Medicaid application on your behalf.

 

December 28, 2010
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Special Needs Trust with Babette and Fred (VIDEO)

By Estate Planning

 

Babette: One of the things that an elder law attorney specializes in is estate planning for a disabled beneficiary. Many of our clients have children or grandchildren who are suffering from various disabilities and receive governmental benefits. If they receive medicaid, they need to do a special needs trust in order for that beneficiary to be able to receive an inheritance and have their governmental benefits protected. We often work on a team approach doing the estate planning for a family that’s very concerned about a disabled beneficiary.
Fred: The special needs trust is a very exacting document. You must draft the document so that the beneficiary, that is, the disabled person, gets all the benefits from the trust that the creator of the trust intended but at the same time, does not get kicked off medicaid or another governmental benefit. The way you accomplish that is to give to the trustee, whether it be a family member or perhaps a trust department of a bank, the complete discretion as to whether or not to distribute income or principle benefits to the disabled beneficiary so long as everything is done in the best interests of the beneficiary.

September 29, 2010
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Guardianship with Babette and Fred (VIDEO)

By Guardianship

 

We represent legal guardians in establishing guardianships of person and/or property for minors as well as incompetent adults, pre-need planning for guardians, and complying with annual reporting and accounting requirements.

 

Fred: One of the situations that we frequently become involved in is when a client will come into the office and say, “my dad is elderly, my mother passed away several years ago. Dad is not fully in charge of his faculties, he’s going on the internet every night and meeting unwholesome women and we are concerned that he is going to give away or dispose of a lot of his money to these people. We really think that he ought to be protected against that. Is there anything that you can do for us?”

Babette: If you do advance planning and you’ve got a good power of attorney, then you’ve designated who can handle your affairs for you if you are incapacitated. Very often that completely awards guardianship. But if you haven’t, and you become incapacitated, your family or your loved ones have an obligation to go to court to protect you, both in terms of great access to medical care and the best medical attention you can possibly get, as well as in terms of preserving your assets. One of the fields in which I am an expert as an elder law attorney is in the field of guardianship. We try to avoid litigation at all costs. It’s not always possible but if you do need to litigate, we have the experience.

Fred: Frequently, the financial affairs of such persons are in a total state of disarray. They may not have filed income tax returns for the last five years, they don’t know where their assets are, they don’t know how they are held. One of the things I can do in assisting Babette is to straighten out to the extent possible the financial affairs of the person who is somewhat diminished in capacity.

July 21, 2010
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Babette Bach featured at West Coast Woman Newspaper

By Firm News

Babette Bach (West Coast Woman Newspaper – June 2010)

Emotionally bankrupt from litigation, dissatisfied with the legal profession, and needing an avenue to rekindle the flame, Babette became an attorney specializing in elder law. With a background in the medical profession, concern about access to health care, an activist in the AIDS movement, and a caregiver to her late husband, She says she was finally like a duck in water when she began practicing elder law.

Babette Bach says she was emotionally bankrupt from litigation, dissatisfied with the legal profession, and needed an avenue to rekindle the flame. Her life experiences prepared her to be the ideal attorney to join a firm specializing in elder law. With a background in the medical profession, concern about access to health care, an activist in the AIDS movement, and a caregiver to her late husband, Babette said she was finally like a duck in water when she began practicing elder law. Opening her own firm in 2003, her primary areas of practice are asset protection planning, probate planning, and guardianship for the elderly and young disabled persons.
“As people live longer, estate planning is not the only issue. There’s a huge range of issues and challenges that a long life presents.
The subject matter is enormous and challenging, but there’s a difference between elder law and estate planning. Elder law is a holistic way of practicing law. I do traditional estate planning and probate, but elder law encompasses so much more. I’m expected to sit across the table from a client and meet all of their needs.
I must interact with people in the community who manage programs so clients can get maximum benefits.
“Traditionally, elder law hasn’t been embraced by larger law firms that focus on high net worth clients. My average client has assets under $200,000, owns a house, and has a monthly income of $2200. Access to health care has always been one of my passions. I help them plan for their life savings, how they can pay for their own and their spouse’s care, and how to control costs. I need to be knowledgeable about every possible program a person can access. I tell my clients ‘I’m here to partner with you through any transition.’ One client had a stroke, called 911, and then immediately called me. We feel emotionally connected to one another.”
Babette is a Florida Board Certified Elder Law Attorney, nationally certified as an Elder Law Expert by the National Elder Law Foundation, and is chair of the Florida Bar Elder Law Section, the watchdog on legislative issues and case law relating to the elderly and disabled.
She was co-counsel in Gerkin v. Reiger/Levine that required the State of Florida to change its Medicaid policy to provide coverage for Florida’s poorest and most ill. A high-profile case in which she was involved was the Julie Rubenzer breast augmentation case where the patient died after surgery by a Sarasota doctor.
“It is difficult to plan for the last 20 years of life. The stronger the family support system is, the better the aging experience will be. In many cases, I deal with multiple generations and family units which is an ethical landmine.
I determine very quickly who I am representing and make that clear to the family. I usually represent the oldest person, but not always.
Occasionally a child becomes the client.” Sitting in her office on the seventh floor with a view of downtown Sarasota and surrounded by live orchids and plants in the conference room, she exudes passion for her work and compassion for her elderly and disabled clients. To stay current with issues affecting her clients she spends a lot of time studying alone and with a small study group of attorneys who have met for six years and continue to meet twice a month. “Practicing elder law means you have to be an expert in government programs such as Medicare, Medicare Part D, and Medicaid as well as veterans benefits. Now I’m learning how the federal healthcare reform act affects people over 65 and young disabled people.
It’s an embarrassment that these populations need legal help to apply for public benefits.” Due to the current economic conditions, Babette sees families struggling to keep loved ones at home because of the cost when they need specialized care. “People are delaying coming to me and they’re delaying making placement decisions. They need a plan so they can survive financially while at the same time finding adequate care for the ill or disabled spouse.
I’m also very concerned about the care giving spouse since I was in that position myself.” Challenges and frustrations are part of the job. “My challenging days involve financial exploitation cases, right-to-die cases, and watching caregiver burnout. When dealing with exploitive, predatory individuals, it’s hard to get prosecution, but we need to prosecute these cases. I come from a litigation background so I will go to court if I have to. My frustration is with the Department of Children and Families who do a spectacular job but, with a decreasing budget, there are fewer workers for an enormous caseload.” One of five children, Babette was raised in a traditional New Orleans family and enjoyed athletics, competition, boating—everything outdoors. Before Title IX was enacted, she was a nationally ranked track star, but she gave up her hopes of going to the Olympics and enrolled in Duke University. Today she engages in offroad bicycling, weight lifting, swimming, hiking, gardening, and cooking—she calls herself a “foodie”—and nurturing her love of all things French thanks to a year in France during college.
Her late husband, Dr. Michael Bach, taught infectious disease at Harvard Medical School and was on staff at Tufts University and the University of Vermont. Babette recalls, “Being in private practice while being attached to a medical school gave him the opportunity to be a pioneer clinical researcher on the medicine AZT for AIDS patients and eventually becoming an international expert. Early in the AIDS crisis when young people were dying, there was a huge social need which he filled by lecturing at jails, to cafeteria workers, landlords, and in every university and high school in Maine. In our house, Michael had an office on the first floor and we lived on the second floor with our children.”
Babette and Michael founded the first hospice in Portland, Maine, and the Michael C. Bach Clinic in Bradenton continues to serve the HIV and Hepatitis C population. Michael died of melanoma in 1998 leaving Babette and two children, aged 9 and 13. Currently Babette’s son Eric lives in San Diego and daughter, Alexandra, is a movie producer working in New York City.
“It’s brutal to lose someone who adored you. I am darn lucky to have had two wonderful relationships in one life. My partner of 10 years, Rob Patten, a garden builder, and I are avid conservationists and belong to numerous organizations dedicated to conservation. We’re always working on the extensive gardens at our house.”
When asked if she has another aspiration, Babette slowly replies, “I am having a hard time visualizing not doing this. I’m happy to be someone who helps and advocates for other people.”

STORY: Carol Darling

June 14, 2010
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Frequently Asked Questions about the Americans with Disabilities Act

By Elder Law, Government Benefits, Medicare
The Americans with Disabilities Act (ADA of 2008 is a federal law that prohibits discrimination against individuals with disabilities.)
To whom does the Act apply?
Title 1 of the ADA covers employment by:
private employers with 15 or more employees, state and local government and Federal sector
In addition, most states have their own laws prohibiting employment discrimination on the basis of disability.
A two-step process is used to determine whether an individual with a disability is qualified:
  • Determine whether the individual satisfies the prerequisites for the position such as possessing the appropriate educational background, etc;
  • Determine whether or not the individual can perform the essential functions of the position held or desired.
When is cancer a disability under the ADA?
Cancer is a disability under the ADA when it or its side effects substantially limit(s) one or more of a person’s life activities.The ADA includes 2 non-exhaustive lists of “major life activities.”
Walking, seeing, breathing, working, reading, bending and communicating
The second list includes major bodily functions (immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions)
Even when cancer itself does not substantially limit any major activity (such as when it is diagnosed and treated early), it can lead to the occurrence of impairments that may be disabilities.
Do employers have full access to medical information?
Title 1 of the ADA limits an employer’s ability to ask questions related to disability or conduct medical examinations at 3 stages: pre offer, post offer, and during employment.

  • An employer may not ask whether the job applicant has or had cancer or about treatment related to cancer prior to making a job offer.
  • An employer can ask an applicant questions pertaining to the performance of the job (whether he can lift weight, can travel out of town; whether he/she can work rotating shifts, etc.)
  • A person with cancer is permitted to request an accommodation after becoming an employee, even if she did not ask for one when applying for the job or after receiving the job offer.
  • With limited exceptions, an employer must keep confidential any medical information it learns about an applicant or employee.
  • Telling co-workings that an employee is receiving a reasonable accommodation amounts to a disclosure of the employee’s disability.
What protection is there against discrimination?
Employers and their agents may not discriminate against a qualified individual with a disability because of such disability in any aspect of the employment relationship.
Focus is on the following: hiring, pay, benefits, segregation, advancement, discharge, training, testing and contractual arrangements.
What is reasonable accommodation?
Employer must reasonably accommodate a qualified individual with a disability unless to do so would cause an undue hardship.  There is no precise definition of reasonable accommodation.
Examples include: making existing company facilities accessible; permission to work at home; modification of office temperature; permission to use work telephone to call doctors; reallocation or redistribution of marginal tasks to another employee; job restructuring; reassignment to a vacant position; medical leave; providing qualified readers or interpreters; acquisition or modification of equipment or devices.
BUT! An employer is not obligated to provide personal use items such as glasses or hearing aid.
What does undue hardship mean?
Undue hardship means an action requiring significant difficulty or expense in, or resulting from, the provision of the accommodation.Factors to be considered:

  • The overall financial resources of the employer;
  • The number of persons employed by the employer;
  • The nature and cost of the accommodation needed, etc.
How is this legally enforced?
Any person who believes that his/her employment rights have been violated on the basis of disability and wants to make a claim against an employer must file a charge of discrimination with the US Equal Employment Opportunity Commission (EEOC).
May 13, 2010
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Babette B. Bach & Fredric C. Jacobs AV rating from Martindale-Hubbell

By Firm News

Babette B. Bach and Fredric C. Jacobs both received peer reviewed AV ratings from Martindale-Hubbell, the highest rating attorneys can receive for both legal acumen and professional ethics.
Babette B. Bach, Esq.
Babette B. Bach, Esq. is an Elder Law Advocate and the founder of Bach Elder Law. Board certified by both the Florida Bar and the National Academy of Elder Law Attorneys (CELA), she is chair of the Elder Law Section of the Florida Bar and has been practicing law for over 25 years.
“She was co-counsel in Gerkin v. Reiger/Levine, a landmark civil rights class action lawsuit which earned her the prestigious award for “Outstanding Service to Florida’s Elderly” from the Florida Bar Association.”
Babette has used her specialization in Elder Law to become a legal activist for the elderly. She was co-counsel in Gerkin v. Reiger/Levine, a landmark civil rights class action lawsuit which earned her the prestigious award for “Outstanding Service to Florida’s Elderly” from the Florida Bar Association.  As a result of this lawsuit, the State of Florida was required to change their Medicaid Policy to provide coverage for all uninsured medical benefits to over 45,000 Medicaid recipients. This new policy resulted in the funding of approximately $ 52 million in new benefits to the poorest and sickest citizens of Florida.
As chair of the Elder Law Section for the Florida Bar, Babette stays abreast of the latest developments in Elder Law statewide and nationally. She frequently lectures on the legislative changes to governmental benefits affecting the elderly. In addition, as a board member of the Florida Gulf Coast Chapter of the Alzheimier’s Association, she is a staunch advocate for the increased support for research and services for those touched by the disease.
In June 2009, Babette began her service as chair of the Florida Bar Elder Law Section, an honor which recognizes her state-wide leadership in the unique practice of Elder Law.
“Babette has used her specialization in Elder Law to become a legal activist for the elderly.”
Fredric C. Jacobs, Esq.
Fred has been an “av” rated attorney since 1976, holds a Masters degree in tax law and is Florida Board Certified in tax law. In addition to practicing law, he teaches estate planning, Federal taxation of estates, trusts and gifts, tax procedure and international taxation as an adjunct law professor at Stetson Law School, St. Petersburg, Florida.
Bach Elder Law benefits from Fred’s experience in income and estate taxation and estate and financial planning for the elderly. For many years he has counseled clients on how to hold, gift and bequeath assets and structure family and business transactions of every type in order to minimize the impact of federal and state taxation.
Fred has drafted and seen to the proper implementation of countless wills, living trusts, family limited partnerships, powers of attorney, guardianship declarations and other documents to meet the financial and tax planning needs of his clients. Clients value his extensive experience in how to avoid probate as well as in the administration of trusts and estates. As an educator, he has lectured and given seminars on the taxation of and planning for IRA, 401(k) and other pension distributions.
With his first job as a trial attorney with the Securities and Exchange Commission in Washington, DC., Fred has a deep background in securities as well as tax law He understands annuities, insurance products and other investments, including policy surrender issues and has successfully represented clients in arbitration proceedings against securities brokers and investment firms.
In the business area, Fred has represented small and medium sized businesses in all aspects of their organization and operation, including choice of business entity (corporation, s corporation, partnership, LLC), business acquisitions and mergers, buy-sell agreements, employee benefit and stock option programs, and employment and non competition agreements.
Fred is also experienced in real estate transactions, including tax free “like kind” exchanges, and serves as an approved attorney and agent for one of the largest title companies doing business in Florida.
Fred is admitted to practice in Pennsylvania and Florida, the United States Tax Court, the US Claims Court and the Federal District Courts and also regularly represents clients before the Internal Revenue Service.
“After 38 years in private practice, it is a privilege to be associated with Babette, the Chair of the Elder Law Section of the Florida Bar, and a knowledgeable, caring and vigorous advocate for the elderly,” says Fred.

May 13, 2010
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