Elder Law

A Living Will is one important part of your overall estate plan and a qualified Elder Law attorney can ensure that such documents are properly explained, prepared and executed to ensure your intentions and wishes are clearly defined and followed.

A will is a written direction controlling the disposition of property at death. The laws of each state set the formal requirements for a legal will.

In Florida:

1. You, the maker of the will (called the testator), must be at least 18 years old.
2. You must be of sound mind at the time you sign your will.
3. Your will must be written.
4. Your will must be witnessed and notarized in the special manner provided by law for wills.
5. It is necessary to follow exactly the formalities required for the execution of a will.
6. To be effective, your will must be proved in and allowed by the probate court.

No will becomes final until the death of the testator, and it may be changed or added to by the testator by drawing a new will or by a “codicil,” which is simply an addition or amendment executed with the same formalities of a will. A will’s terms cannot be changed by writing something in or crossing something out after the will is executed. In fact, writing on the will after its execution may invalidate part of the will or all of it.

Who should prepare a will? No sensible person would employ “just anyone” to fill teeth, take out an appendix, or deliver a baby. The person who wants these services performed skillfully with the minimum risk to health, life, property, or the accurate execution of his or her wishes, will engage the services of a trained person. Except in dire emergency, these important tasks should not be performed by anyone except the professional.

The drafting of a will involves making decisions that require professional judgment which can be obtained only by years of training, experience, and study. Only the practicing elder law attorney can avoid the innumerable pitfalls and advise the course best suited for each individual situation. In addition, an experienced elder law attorney will be able to coordinate the use of other skilled professionals, such as an investment advisor, actuary, insurance specialist, and tax accountant to complete a proper estate plan.

Moreover, there is no such thing as a “simple will.” Even smaller estates can have complexities only foreseeable by the experienced elder law attorney.

Avoid probate can eliminate the ability for Medicaid recovery claims to be filed against the estate. Too often, estate planning attorney only focus on avoiding probate and not protecting assets. While avoiding probate is important in a plan, be careful that you don't subject assets to claims only to avoid small probate claims.

The court process that oversees distribution of assets held in your name when you die. Once a probate action is opened, a court can also do things like the following:

• determine if your will is genuine
• appoint an executor (administrator) for your estate
• appoint a guardian for minor children or an incapacitated adult
• establish trusts
• determine beneficiaries
• rule on the validity of claims by creditors

What is the role of my Elder Law Attorney during the probate process? Probate can be expensive and time-consuming. Your Elder Law attorney can guide you or those you leave behind through the process as quickly and efficiently as possible, protecting your plan for your estate and for your loved ones.

Inter vivos (Living) Trust

Established by you (the grantor) giving a trustee the right to take care of your property for someone’s benefit (the beneficiary). Your trust is established while you are living, and determines how your property should be managed while you are living and how it is to be distributed when you die. This allows you to avoid the expense of the lengthy probate process and helps manage your finances.

Provides benefits and protects assets for you if you are disabled or chronically ill, while allowing you to qualify for long-term care benefits such as Medicaid, Medicare or Social Security. The assets in the Trust are not counted against you when you qualify for public assistance.

Revocable means you can make changes in how your Trust is managed, whereas an Irrevocable Trust can only be modified under specific terms written into your Trust’s instructions. The Irrevocable Trust relieves the grantor of the income and therefore the tax liabilities of the Trust’s assets.

Whether a Trust is right for you and the best type of Trust depends, of course, on your circumstances. An Elder Law Attorney will help you determine the best Trust for you, and create it, while ensuring that it is properly managed and meets your intended goals.

If you are a Guardian, you are legally responsible for the care and property of a minor or a person who is incompetent (the Ward). A Guardianship is created when a person or institution is named in a will or assigned by the court. To become a Guardian of a child, either the party intending to be the Guardian, another family member, a close friend or a local official will petition the court. The Guardianship of a minor remains under court supervision until the child reaches age eighteen.

• I am responsible for the welfare of the child or incompetent adult.
• I cannot benefit at the expense of the ward.
• I must periodically report back to the court on the financial affairs and caring of the ward.

• if the parents die or and not able to take care of the child
• if a child receives an inheritance or proceeds of a lawsuit or insurance policy exceeding the amount parents are allowed by statute to receive on behalf of their child.

• when the court finds that an individual’s ability to make decisions is impaired.
• when less restrictive alternatives, such as a durable power of attorney, a trust, a health care surrogate or another form of pre-need directive, are not available.

Only when the ward’s legal rights are protected can their quality of life be maintained and even improved. Since Guardianship is a legal relationship with court-mandated duties and involve the rights of another human being, an Elder Law Attorney is specially trained to ensure that all appropriate legal, procedural and financial matters are followed.

The federal program that reimburses doctors and hospitals for certain health care expenses if you are at least age 65.

Medicare has four parts:

• Part A pays for your hospitalization, inpatient care in rehab centers and nursing homes, hospice, and even some home health care.
• Part B pays for your doctor visits, medically necessary procedures, ambulance services, mammograms and pap smears, screenings for cardiovascular problems, colorectal and prostate cancer, diabetes, glaucoma and HIV, shots such as flu and Hepatitis B. Also covered are limited chiropractic services and mental health care, walkers and wheelchairs, pelvic exams, physicals, and smoking cessation programs.
• Part C, also called Medicare Advantage, gives you an opportunity to select health care plans. Medicare Advantage providers can add a more benefits to your plan.
• Part D pays for your prescription drug coverage for both brand name and generic FDA approved drugs

What Does my Medicare not Cover?

Long term care, except for the first one hundred days after hospitalization. Medicare also does not cover alternative health therapies, dental care, cosmetic, elective surgery, foot care or eye care, or routine checkups, although your Medicare Advantage plan may provide coverage for some of these items.

• If you are at least 65 or any age with certain disabilities like End Stage Renal Disease, permanent kidney failure requiring dialysis or a kidney transplant
• If you’re at least 65 and collecting Social Security

A qualified Elder Law Attorney in Jacksonville can help you understand the Medicare benefits you are entitled to as well as assist you with your appeal if your Medicare is denied.

A federal and state medical assistance program that gives you access to health care if you are among the low-income families or individuals, the elderly or disabled, with the costs of nursing homes and other medical expenses.

With Florida’s new Medicaid Reform, Medicaid recipients are being shifted into managed care plans. Also, there is currently debate among state lawmakers on whether and how to expand Medicaid coverage initiated by the federal government’s Affordable Care Act.

In Florida the Agency for Health Care Administration (AHCA) oversees Medicaid and The Department of Children and Families is responsible for enrolling people. AHCA contracts with other state agencies and private organizations to provide your Medicaid services.

Doctor office visits, inpatient and outpatient hospital care, hospice (for age 65 and older), diagnostic screenings and lab work, prescription drugs, ambulance transfers, emergency room care, family planning, chiropractic care, mental health care, and limited dental services to diagnose an existing condition.

Children can be covered for comprehensive dental benefits, vision screening and immunizations. If you are a pregnant woman, you can be covered for pre and postnatal dental work and some maternity benefits.

There are a number of factors that determine your eligibility, such as income and assets, age and your medical needs. The income and assets have certain legal intricacies, meaning it is vital to have the right kind of assistance when applying. For example, there are guidelines that determine whether that money you donated to your grandchild’s education will be counted as an actual transfer of assets, or a way to improperly spend down just to qualify.

A nursing home can cost thousands of dollars per month, which can quickly drain your assets. An Elder Law Attorney is an expert in all of the legal means necessary to help you qualify for a nursing home through Medicaid assistance, so that you and your family can avoid impoverishment. This involves various legal means to make sure your assets are reasonably protected. As you and your attorney review this process, the attorney will help you understand the many options you have when utilizing Medicaid as part of your long term care planning.

Be aware that there are many unlicensed, untrained non-attorney Medicaid planners out there who make commissions selling you unnecessary planning tools. This can result in your loss of Medicaid eligibility and much money, while causing you and your family tremendous stress.

• Medicare
• Medicaid
• Social Security
• Veterans

The Jacksonville, Florida Elder Law Attorneys and lawyers at the Law Firm can help you and your family with your Medicaid benefit needs and other aspects of Florida Elder law. Please Email a Jacksonville Elder Law Lawyer or call us at (904) 685-1200 to discuss your situation with a Ponte Vedra Elder Law Attorney.

The Law Firm is located in Jacksonville and Ponte Vedra Beach and provides individuals and families located in Duval, St. Johns, and the rest of Florida with Elder Law & Planning advise. We often work with individuals who are moving to Florida or have assets in Florida with Estate Planning Documents that complement or increase the efficiency of their Estate Planning needs.

Consultation Fee: As an elder law consultation is a comprehensive review of one's financial situation and opportunities to preserve assets from loss due to nursing home, we do charge a consultation fee. If you are simply looking for estate planning options, estate planning consultations are no charge, but do not include the elder law components of the consultation.

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