Long-Term Care Asset Protection planning is a difficult and confusing process. Families make many mistakes when planning, usually, because they were given bad information from well-meaning loved ones, friends, and non-attorney professionals.
Thinking it’s too late to plan. It’s rarely too late to take planning steps, even after a senior has started receiving care at home, in an assisted living community, or a nursing home.
Giving away assets to children. First, it’s your money (or your house, or both). Take care of yourself first. When a child dies, becomes incapacitated, is sued, or gets divorced, they can no longer give money back to you when you need it. There are other ways to protect your money and remain in control of it.
Ignoring important permissible strategies created by Congress. There are many strategies authorized by Congress that people simply don’t know about. Unfortunately, space doesn’t allow me to explain.
Failing to plan for the spouse of a care recipient. If the spouse of a care recipient dies first, then the government benefits received by the care recipient are put in jeopardy. This can be avoided.
Applying for Government Benefits too late. This happens a lot. The family innocently uses funds to pay for long-term care that the government can’t count, so they lose tens of thousands of dollars. Know when to apply for benefits.
Not getting expert help. Long-Term Care Asset Protection Planning is a complicated field. Tens of thousands of dollars are at stake, sometimes more. It’s penny wise and pound foolish not to consult with an experienced and knowledgeable elder care attorney.
If you have any questions regarding this article, don’t hesitate to contact our office.
One of the greatest fears faced by aging Americans is that they may need a lot of care at home, in an assisted living or in a nursing home. This not only means a great loss of independence; it comes at a tremendous financial price. Nursing homes in Volusia and Flagler County cost over $100,000 a year.
Most people tragically end up paying for elder care out of their life’s savings until they are broke. Then they apply for Medicaid to pick up the cost. The advantage of paying privately is that you eliminate or postpone dealing with Florida’s bureaucracy–an often difficult, confusing, frustrating, and time-consuming process. The disadvantage of paying privately is that it’s expensive. People of ordinary means could lose everything that they have scrimped and saved to the nursing home.
Careful planning, though, especially in advance of an unanticipated need for care, can help protect your hard-earned savings, whether for yourself, your spouse, or your children. This is done by taking steps to make sure you receive the benefits to which you are entitled under the Medicare, Medicaid, and Veteran’s Administration programs.
Those that plan when they are not in immediate need of long-term care usually protect all of their life’s savings and quickly qualify for Medicaid benefits. Those that wait until they are facing long-term care costs might protect some of their life’s savings, but others may not be able to save anything. Don’t hesitate to contact our office with any questions you may have.
Many seniors do not have elder care planning of any kind. Unfortunately, this means they are not prepared for a sudden crisis. This crisis could be a healthcare diagnosis, a car accident or a rapid decline in cognitive abilities. Most of the elder care planning you need as you age may only be completed when you have capacity. You risk losing the right to make choices you want if you have not planned for incapacity.
When you have not provided legal authority to another person, such as in your Florida durable power of attorney and Florida health care surrogate documents, there is no one who can step in and make your decisions for you should you be incapacitated. Through these estate planning tools your agent is given the legal authority to act as you would in specific instances. For example, if you were in a car accident and were unable to pay your bills each month, your agent would be able to do so. Further, if you were to suddenly need long-term care such as in the skilled nursing facility, your agent would have the authority to to hire an attorney to assist him or her with this planning.
Unfortunately, when you do not plan ahead, and create the elder care planning documents you need, no one will have this authority. In the event of a crisis where you can go longer make decisions and have not created the documents to support you, your family may need to hire an attorney to start the Florida guardianship process. In the absence of legal planning, the guardianship process exists to first determine that you are truly incapacitated and then to select the right guardian to make decisions for you for the rest of your life.
While, at first glance, this may not seem to be the worst alternative, there can be significant downsides to the guardianship process. Let us share a few considerations with you.
1. The guardianship process is expensive. Your family will need to hire an attorney to represent them and a second attorney will also be appointed by the state to represent your interests. There will be court costs, medical examiners costs, and additional costs during the initial phase of this guardianship. This will quickly add up to thousands of dollars that could have been avoided by having Florida advance directives in most situations.
2. The lack of ability to plan for long-term care. Under almost every circumstance, you will no longer be able to plan to protect your life savings from the high cost of long-term care once you are under guardianship. Instead, the planning alternatives that work under your durable power of attorney, are no longer possible. Your family will have to spend your assets and income on the skilled nursing facility you need until they are depleted.
3. Increased family conflict and stress. Unfortunately, in the absence of choosing a decision maker early, your family may fight over who should be your guardian. We have seen countless arguments between spouses, children, and loved ones who each hire attorneys to fight over who should be the decision maker for a loved one. During stressful times like this, most of our loved ones will not be thinking clearly and will be unable to make rational decisions with regard to our care. Not only does this cause long-lasting friction for your family, it also incurs more costs with each person‘s attorney’s fees.
These are just a few of the reasons why it is crucial that guardianship not be your elder care planning choice. When you plan early and well, you can avoid scenarios where you will be forced to use your entire life savings to pay for your long term care needs. Don’t wait to talk to a member of our legal planning team about the help you and and your loved ones need.
There is no question that getting a divorce is a stressful and tense time period. Emotions are heightened as paperwork begins to pile up, meetings with attorneys become more frequent and discussions between ex-spouses become argumentative or sad. Did you know, however, that “gray divorces” or divorces that occur much later than life continue to be on the rise?
The Pew Research Institute reports that “among U.S. adults ages 50 and older, the divorce rate has roughly doubled since the 1990s. In 2015, for every 1,000 married persons ages 50 and older, 10 divorced – up from five in 1990, according to data from the National Center for Health Statistics and U.S. Census Bureau. Among those ages 65 and older, the divorce rate has roughly tripled since 1990, reaching six people per 1,000 married persons in 2015.” Does a divorce at 65 years of age more significantly impact an individual than when he or she is younger? What is the impact on elder care law planning?
It is crucial to plan for your elder care needs whether you are married or divorced. For divorced spouses, however, examining how your needs will be met in the future is critical. Revising your estate plan after divorce is an essential part of the process and the first step in preparing yourself for the future. For most seniors on a fixed income, it is important for you to not only plan for your estate but for your potential long-term care needs as well. Let us share a few tips on how to plan forward in light of divorce.
1. Your last will and testament may no longer reflect your wishes.
After divorce in Florida, any provisions in your last will and testament related to your ex-spouse will become invalidated. Under the law, your will treats your spouse as having died at the time of the divorce. This may or may not reflect your wishes. In order to decrease any confusion, new estate planning documents such as a last will and testament or a revocable trust agreement should be created and executed.
2. Change your durable power of attorney as soon as possible.
In many marriages, spouses act as each other’s agent under their durable power of attorney. That means, if one spouse becomes incapacitated, the other spouse can legally make decisions for him or her. Similar to the last will and testament, the former spouses are treated as having predeceased one another. This is a document that must be updated as soon as possible as to prevent a lapse of person with decision making authority.
3. Plan forward with your elder care attorney for long-term care.
There are more options available for married individuals than for single individuals when it comes to long-term care planning. Many of the remaining strategies require a minimum of sixty months to be in effect before the benefits can be received by the individual. There is no guarantee that any of us will be able to avoid the need for long-term care in the future. It is critical to plan early to know how you will be able to afford this care by yourself without spending all of your hard earned money on a nursing home.
Divorce is never easy. It can become more complicated later in life. It is important to adjust all legal documents and your long-term care planning to reflect this new life change. Do not wait to talk to us about what you need moving forward from this difficult time.
Did you know there is a possibility you could one day be responsible for an aging parent’s long-term care costs? Filial responsibility is the legal and financial responsibility of a third party to pay for another’s unpaid expenses. Although it has only been enforced in a handful of states, over twenty-five states have these laws in place. Experts agree that as our states look for ways to pay for the long-term care costs for an increasing senior population, filial responsibility laws may gain traction.
What Is filial responsibility? How could it potentially impact you and your aging parents? Let us share the critical information about filial responsibility laws you need to know to help you plan.
1. The most common form of filial responsibility is the financial duty a child owes to a parent. If a parent is in need of long-term healthcare but cannot afford to pay, an adult child may become legally responsible. The Pittas case from Pennsylvania gives us a clear example of how this law could be used.
2. Filial responsibility laws are in place in over twenty-five states. While not all states have these laws, many do. With these laws in place, this responsibility could be assessed under certain circumstances and other states could seek to add these laws creating similar responsibilities.
3. The degree of responsibility varies from state to state. For example, in Arkansas, adult children are only responsible for paying for mental health care. In Connecticut, the law only applies to parents who are younger than 65. However, in other states there is full responsibility of costs for adult children over parents.
4. You can be sued if you do not pay the bill. Even if the bill comes without notice, these laws can give long-term care facilities the ability to sue if you do not pay. In this instance, and all elder care law scenarios, it is crucial for you and your parents to work with an attorney to plan for this potential issue as early as possible.
5. A Pennsylvania case reversed precedent and made the enforcement of filial responsibility laws a new trend. Prior to 2012, filial responsibility laws were rarely enforced. However, in Health Care & Retirement Corporation of America v. Pittas (May 7, 2012), the Pennsylvania Superior Court upheld a decision to make an adult son liable for a $93,000 nursing home debt.
If enacted and enforced, filial responsibility laws could have a tremendous impact on Florida seniors and their children. One of the best ways to plan ahead is to work with your elder care law attorney to discuss strategies and ways to pay for long-term care early. Do you have questions? You may contact us for more information.
As our parents age, a time may come when they are no longer able to live safely at home. Whether due to a crisis or as a complication arising from the aging process, their needs may increase to a care level where they need 24-hour assistance. This level of long-term care is not only expensive but is often best provided inside of a Florida skilled nursing facility.
Placing a parent or helping a parent select a nursing home is not an easy task. How will you choose the right facility for your parent? What should you look for? What should you avoid? How will you be able to monitor the care to make sure it is what your parent requires? How will you be able to afford it?
We help families with these questions every day and we can assist you. We want to share with you our top three tips that we share with our clients and professional advisors when they are seeking Florida elder care help.
Tip 1: Start off by making a list with your requirements.
What do you and your parent require from the Florida skilled nursing facility? Does the nursing home need to be a certain distance from you or your siblings? Does your parent require any specialty care? Is the nursing home equipped to meet specific care needs? How often are elder care conferences held? Before you go on a tour or sign a contract, make a list of your needs and make sure the facility is able to meet them.
Tip 2: Do your research.
Research can show you facilities that are in your parent’s home town and give you an idea of the services each skilled nursing facility provides to residents. Don’t hesitate to search for references from friends and family or to ask your elder care attorney for recommendations. Getting educated on your options and knowing what to expect can help you and your elderly parent with this transition.
Tip 3: Take tours of the skilled nursing facilities you select.
Narrow down your list from your research and visit each nursing home. Taking a tour of potential skilled nursing facilities can help you better understand and evaluate where your parent could be living. While on your tour, be sure to eat a meal and pay attention to how the staff interacts with the residents. Sitting in on a group activity can also allow you to have a better idea of the structure of the nursing home. Is it more of a family setting? Are residents stimulated? Are the levels of care represented similar to what your parent needs?
Don’t wait to get the help you need. This means communicating with all of your loved ones who will be involved in this process and working with a knowledgeable elder care law attorney. We work with our Florida seniors and their children to find solutions that provide excellent elder care at a cost the family is able to afford. While at first this may seem to be an insurmountable task, we are more than qualified, ready and able to assist you. Call us at (877) 977 – ELDER or contact us through our website to discuss the planning you need.