What is Elder Law?

Elder law is an area of legal practice that focuses on issues that affect seniors and people with special needs and their families. The purpose of elder law is to prepare the elderly person or person with special needs for financial freedom and autonomy through proper financial planning and long-term care options.

How is an Elder Law and Special Needs Planning Attorney Different?

An elder law and special needs planning attorney has specific knowledge in areas of the law that directly relates to aging or elderly clients and people with special needs. Specialization in all professional fields has raised the standard of practice and allows the client to have the confidence to know that the professional handles only cases within the specialization and thus is very well versed in that particular area of law. Our attorneys are focused on elder law and special needs planning. Member Howard S. Krooks, CELA, CAP is certified as an Elder Law Attorney by the National Elder Law Foundation. Member Ellen S. Morris participates in elder law and special needs law-related legislative initiatives, devoting much of her time to analyzing new rules and updated regulations affecting seniors, people with disabilities, and their families who require government services and protection. Both members have served in an executive capacity on numerous legal and elder law-related boards, including the National Academy of Elder Law Attorneys (NAELA), the New York State Bar Association Elder Law Section, the Florida Bar Elder Law Section, and the Academy of Florida Elder Law Attorneys.

So, what do elder law attorneys do and how do you know if you need an elder law or special needs planning attorney?

An elder law and special needs planning attorney properly plans for the possibility of a client’s disability or incapacity, or for the placement in-home health care, an assisted living facility (ALF) and/or nursing home, and advises clients on how to qualify for public benefits. In so doing, an elder law and special needs planning attorney develops sophisticated plans to allow individuals to preserve assets while still qualifying for Medicaid and VA Aid and Attendance benefits. In addition, as part of the planning process, the elder law and special needs planning attorney prepares documents including:

• a comprehensive durable power of attorney to provide authority for the client’s named designees to act for him or her regarding financial and legal matters;
• a detailed designation of healthcare surrogate, in which the client chooses a loved one to make vital healthcare decisions when the client is unable to act for himself/herself; as well as
• a living will, which specifies the client’s wishes with regard to all life-sustaining devices toward the end of life.

Our elder law and special needs planning attorneys draft and prepare these documents for our clients in both New York and Florida.

In addition, an elder law and special needs planning attorney practices in guardianship proceedings and is able to secure someone (a guardian) to properly handle an incapacitated person’s personal and financial affairs. Our attorneys litigate guardianship issues, including who should be appointed as a guardian, removing a guardian who mishandles the incapacitated person’s affairs, whether personal or financial, and objecting to guardianship entirely.

The elder law and special needs planning attorneys at Elder Law also are proficient in litigation for or against a beneficiary or a fiduciary under a will or trust or other asset that has a named beneficiary like an Individual Retirement Account.

Our elder law and special needs planning attorneys advise clients on long-term care insurance, long-term living arrangements, and facility placement and can provide referrals to Geriatric Care Managers for daily, hands-on care.

Our elder law and special needs planning attorneys are up to date with the new and evolving laws geared to our aging and disabled population. For more information about elder law and how our elder law and special needs planning attorneys can assist you and your family, please contact us.

You need an elder law and special needs planning attorney:

• If you or a loved one is over age 55 for general estate planning and advance directive documents, including a will, trust, power of attorney, living will, designation of health care surrogate, HIPAA release and designation of pre-need guardian:
• If you or your loved one is over age 18 to plan for possible incapacity even before you age to determine who will make decisions for you if you can’t due to illness or injury;
• If you or your loved one is disabled, incapacitated or diagnosed with a disability for Medicaid, veterans’ benefits and special needs trust planning;
• If you or your loved one is a beneficiary or a fiduciary and there is a conflict in the handling of a person’s assets or affairs; or
• If you want to know your options for qualifying for public benefits.

We provide elder law and special needs law services throughout New York and Florida, and particularly in the following cities/municipalities and surrounding communities in South Florida near our offices:

• Palm Beach County: Boca Raton, Delray Beach, Boynton Beach, Highland Beach, Lake Worth, West Palm Beach, North Palm Beach, Palm Beach, Royal Palm Beach
• Broward County: Coconut Creek, Deerfield Beach, Fort Lauderdale, Hollywood, Margate, Plantation, Pompano Beach, Sunrise, Tamarac, Weston
• Miami-Dade County: Aventura, North Miami, North Miami Beach, Sunny Isles, Miami Shores

Elder Law represents individual fiduciaries, personal representatives, trustees, and others in connection with the administration of probate estates and trusts. Being cognizant of the emotional stress fiduciaries are often under as a result of the death of a loved one, our attorneys and staff members approach every service and client contact with a great deal of empathy and understanding.

Elder Law represents individual fiduciaries, personal representatives, trustees, and others in connection with the administration of probate estates and trusts. Being cognizant of the emotional stress fiduciaries are often under as a result of the death of a loved one, our attorneys and staff members approach every service and client contact with a great deal of empathy and understanding.

Probate Litigation

Elder Law represents individual fiduciaries, personal representatives, trustees, and others in connection with the administration of probate estates and trusts. Being cognizant of the emotional stress fiduciaries are often under as a result of the death of a loved one, our attorneys and staff members approach every service and client contact with a great deal of empathy and understanding.

We serve as the liaison between the court in the county in which the decedent resided and the fiduciary of the estate. We act timely in accordance with court orders and probate code time frames to efficiently distribute and administer the estate. In addition, we are careful to consider all beneficiaries and comply with all notice requirements. In short, we seek to make the probate process less frustrating and more satisfying to our clients by being responsive and proactive with the estate as a whole.

We represent interested parties of an estate administration in court proceedings when they are not being fully informed and when their interests require protection. We draft creative pleadings and engage in effective advocacy, which are integral to ensuring all parties protect their interests when a loved one passes away. In the event that these types of matters become complicated or entangled, we challenge the status quo and think outside the box to reach a satisfactory resolution for our clients.

Trust and Estate Litigation

We handle trust and estate litigation including actions to remove fiduciaries, for accountings, and to preserve beneficiaries’ rights. We also handle actions to assert or defend an expected inheritance. Furthermore, we engage in litigation to protect and preserve homestead rights wrongfully removed.

For example, we have represented numerous beneficiaries of a trust to remedy improper actions which took place. We seek to hold the wrongdoers accountable for their inequitable actions and force repayment of assets back into the trust, when applicable.

We represent spouses, adult children, and others who may be wrongfully accused of interfering with the estate plan of a spouse or parent or have a claim against someone who wrongfully interfered with an estate plan. We can defend a claim of this nature if there was no fraud involved and/or the decedent had capacity. Likewise, we institute proceedings against wrongdoers where fraud, undue influence, or incapacity may have been present.

We also represent beneficiaries of a trust who are not receiving the full accounting and information regarding the distribution of trust assets. Florida law mandates accountings and disclosure of trust transactions. A beneficiary has a limited time to object to possible improper handling of trust assets, so time may be of the essence.

There may be instances where two people are serving as co-trustees or co-personal representatives of a trust or under a will. If one of the persons is behaving improperly by refusing to cooperate and/or unilaterally making decisions without the other person, we advocate on behalf of that other person to protect and preserve their rights and responsibilities as a fiduciary.

When a beneficiary under someone’s will is not receiving their inheritance, there may be actions taken by the personal representative that are improper and/or causing delay. We represent the interests of those beneficiaries in an estate administration action.

Guardianship Litigation

In some cases, guardianship matters are adversarial due to family conflicts. We have handled many contested guardian proceedings. We guide our clients through very difficult and often emotional proceedings.

Guardianship litigation is unique in that traditional litigation preparation must be combined with knowledge of statutory guardianship regulations and procedures. We zealously represent our clients while always keeping the best interests of the alleged incapacitated person or ward in mind.

Guardianship litigation may be brought on behalf of an alleged incapacitated person who is disputing the need for a guardianship. In other circumstances, a family member or interested party may object to the appointment of a particular individual as a guardian, or even the need for the guardianship where alternative estate planning documents sufficiently provide for the incapacitated person’s needs. Similar litigation also may arise out of a guardian’s mishandling or abuse of the ward or the ward’s property.

Potential clients should be aware that without proper representation in a guardianship court, an individual may lose the opportunity to be properly heard, or very quickly become overwhelmed and/or disadvantaged due to the expeditious handling of these matters in the court system. In contrast to many other types of litigation, time is of the essence in these matters.

Homestead Litigation

Homestead litigation typically occurs under one of two circumstances. One is where a property owner’s homestead rights are improperly removed by the Property Appraiser’s office. The other circumstance is when someone moves to Florida from another state and his/her homestead application is wrongfully denied because the Property Appraiser’s office fails to recognize the finality of the move. Elder Law assists its clients in establishing homestead status.

Ellen S. Morris has represented numerous individual and professional clients involved in the following types of cases:

• Breach of Duty, Removal and Surcharge of Personal Representatives and Trustees
• Will Contests due to Undue Influence and Lack of Testamentary Capacity
• Appointment of Emergency Temporary, Limited and Plenary Guardians of Person and Property
• Probate Administration of Testate (with a Will) and Intestate (Without a Will) Estates
• Fiduciary and Attorney Compensation Disputes
• Trust Reformation and Termination
• Tortious Interference with Expectancy of Inheritance
• Breach of Power of Attorney
• Probate and Trust Accounting Disputes
• Elective Share and Surviving Spouse Rights
• Exploitation of Elderly or Vulnerable Adult
• Determination of Incapacity Proceedings
• Summary Administration
• Creditor Claims
• Administration of Simple and Complex Florida Trusts
• Inheritance Disputes

Wills & Trusts

We are a full-service estate planning firm, using wills and trusts to accomplish the most proper end-of-life plan for our clients. These documents may provide for asset protection during life, asset distribution upon death and may allow the estate to avoid probate. We advise clients regarding the benefits, advantages, and disadvantages of different trusts and assist clients with funding issues.

Revocable Trusts

We use revocable trusts to allow our clients to avoid the probate process and provide a means for proper asset distribution and proper management of assets in the event of incapacity.

Revocable trusts name a trustee who will continue to properly manage one’s assets in the event of permanent loss of capacity, temporary unavailability, or upon death. A revocable trust may be used to retain assets for many later generations and leave a legacy from the grantor while properly planning for all available tax benefits. The administration of a trust typically results in considerably less attorney fees than otherwise applicable probate fees.

Within the revocable trust, there are many available planning options. For example, the trust can provide for protective trusts in the event a beneficiary is an inappropriate spender or too immature to handle the assets, if a beneficiary is disabled in any way, or if a beneficiary is going through a divorce. It also may plan for charitable gifts and specific gifts of property.

In addition, under Florida law, the trustee must provide accountings to all beneficiaries, ensuring that all loved ones are properly and adequately informed and that the assets are being disbursed and handled as the creator of the trust intended.

Irrevocable Trusts

So what’s the difference between a revocable and an irrevocable trust? A revocable trust is just that … it can be revoked or amended during your lifetime, allowing you to use the trust to help you plan for incapacity and to help your family avoid probate upon your death. An irrevocable trust does the same thing, except you can’t amend it and you are not the trustee, so you are essentially giving up control over your assets in the trust. However, the assets in an irrevocable trust are not counted for Medicaid purposes (after the required five-year look-back period), where revocable trusts are fully countable for Medicaid purposes.

Certainly gifting of assets can be done outright, not involving an irrevocable trust. Outright gifts have the advantages of being simple to do with minimal costs involved, including the cost of preparing and recording deeds and the cost of preparing and filing a gift tax return. Many financial institutions have their own documents they use for changing ownership of assets so there are typically no out-of-pocket costs for the transferor.

So, why complicate things with a trust? Why not just keep the planning as simple and inexpensive as possible? The short answer is that gift transaction costs are only part of what needs to be considered. Many important benefits that can result from gifting in trust are forfeited by outright gifting. These benefits are what give value to using irrevocable trusts in Medicaid planning.

Prior to state implementation of the federal Deficit Reduction Act of 2005 (DRA) in recent years (with the exception of California), federal Medicaid law contained a bias against trusts: Most transfers of assets to trusts had a five-year lookback period, whereas there was a three-year lookback period for non-trust transfers. This different standard induced many clients to elect outright gifting in preference to gifting in trust. The DRA leveled the playing field by imposing a five-year lookback period for ALL transfers. Removal of the bias against trusts shifted the discussion of elder law attorneys with clients to the real benefits of gifting in trust versus gifting outright.

Key benefits of gifting in trust are:

• Asset protection from future creditors of beneficiaries
• Preservation of the Section 121 exclusion of capital gain upon sale of the settlors’ principal residence (the settlor is the trust maker)
• Preservation of step-up of basis upon death of the settlors
• Ability to select whether the settlors or the beneficiaries of the trust will be taxable as to trust income
• Ability to design who will receive the net distributable income generated in the trust
• Ability to make assets in the trust noncountable in regard to the beneficiaries’ eligibility for means-based governmental benefits, such as Medicaid and Supplemental Security Income (SSI)
• Ability to specify certain terms and incentives for beneficiaries’ use of trust assets
• Ability to decide (through the settlors’ other estate planning documents) which beneficiaries will receive what share, if any, of remaining trust assets after the settlors die
• Ability to determine who will receive any trust assets after the deaths of the initial beneficiaries
• Possible avoidance of the need to file a federal gift tax return due to asset transfer to the trust

Proper estate planning involves more than wills and trusts, however.

Elder Law assists clients in planning for incapacity by preparing a package of advance directive documents.

Chief among these directives is the Durable Power of Attorney. The Durable Power of Attorney is a detailed document providing legal authority for the client’s designee to act on the client’s behalf when the client is unable physically and/or mentally to act on his/her own. The language we use in power of attorney documents relates distinctly to clients who are elderly or have disabilities.

Our firm also prepares Designations of Health Care Surrogate. The Designation of Health Care Surrogate document allows clients to choose loved ones who will make vital health care decisions when they are unable to make those decisions for themselves. We take care to ensure all state and federal regulations are complied with, including HIPPA language and Florida statutory requirements.

In addition, our attorneys prepare sophisticated Living Wills. This legal document specifies the client’s wishes regarding all life-sustaining devices and must be revised continuously to remain current with new and evolving laws. Living Wills are most appropriate for adults aged 21 years and above under various circumstances. The younger population is most susceptible to trauma-related persistent vegetative states. In contrast, seniors’ hospital stays and related illnesses are often the impetus for persistent vegetative states prompting the need for a living will to limit unnecessary and undesired prolonged medical treatment.

Our Advance Directive package also includes the preparation of HIPAA representative forms. HIPAA refers to the Health Insurance Portability and Accountability Act of 1996 and is also called the Medical Privacy Act. Under HIPAA, a health care provider may not release confidential medical records to anyone other than the patient without specific, written authority to do so. By signing a HIPAA Representative Form, the client can authorize his/her family members to access otherwise confidential medical records.

Finally, we prepare Designations of Pre-Need Guardian documents, in which the client can designate who should serve as his/her legally appointed guardian in the event the client’s advance directives are not sufficient to authorize agents to make decisions on the client’s behalf.

Elder Law’s attorneys can help your family plan for the possibility that a family member may need long-term care by recommending an Asset Preservation strategy to meet the costs of long-term care while preserving your assets.

Asset preservation planning is performed to avoid impoverishment caused by the escalating cost of nursing home and long-term care services and to provide a means to seniors and persons with disabilities to provide a legacy to their families. Seniors will have to cope with ever-changing laws and regulations that attempt to shift more of the financial burden of nursing home care onto seniors and their families.

Few seniors have long-term care insurance and many nursing home residents rely on Medicaid to cover part of the cost of their care. Our laws now make it more difficult for residents to obtain Medicaid because gifts or transfers made in the senior’s regular course of life when they were well may cause them to be ineligible for Medicaid if they become sick. Now, the grandparent who helped pay for a grandchild’s education, the parent who helps a child with medical bills, and those who make lifecycle gifts for a wedding, the birth of a baby, or the purchase of a new home, may all possibly suffer financial hardship if they get sick within five years of these types of transactions.

The Medicaid ineligibility period for the above types of transactions is no longer calculated from the date of the last transaction. Now the penalty for those transactions does not begin until the ill individual enters the nursing home. So there very well may be a period of time during which neither the nursing home resident nor Medicaid pays for needed care. The Congressional Budget Office estimates that this change will affect about 15 percent of individuals who are admitted to nursing homes each year and we believe from experience that the percentage is actually much higher.

Asset Preservation Planning Technique: Irrevocable Trusts

Irrevocable trusts, such as a Medicaid Asset Protection Trust or a VA Asset Protection Trust, may be used by grantors who wish to protect their assets from creditors and are ready to relinquish control over their assets to a loved and trusted family member. These trusts may be set up so that the grantor continues to receive the income from their assets in order to maintain their daily lifestyle or, if income is not needed, it is allowed to accumulate in the trust. This trust works well for seniors who do not typically access the principal of their assets and who are happy to turn over the management of the assets to the family member(s) who will inherit the assets when they die. The irrevocable trust is an excellent legal vehicle that allows the senior to secure government financial assistance to pay for costly long-term care (after a period of time lapses) and preserve his/her assets for their loved ones. If other sources of income provide sufficiently for the individual’s daily lifestyle expenses, then the income produced by these assets can remain in the trust and be added to the growing principal and will never have to be used to pay the grantor’s expenses.

Furthermore, the assets in the trust typically remain intact throughout the grantor’s life to ensure the money will be there for emergency purposes while the grantor remains alive. An irrevocable trust is also used to prevent creditors of the beneficiaries of the trust from accessing assets for attachment purposes and provides for multi-generational legacy planning, so grandchildren, great-grandchildren, and other descendants also receive inheritances and remembrances of the grantor. For gift tax purposes, no gift tax is due upon the creation of the trust provided that a “Special Power of Appointment” is reserved by the grantor(s), thus creating an incomplete gift for gift tax purposes. In addition, income taxes an interest, dividends, and capital gains can be taxed at the grantors’ lower tax rates (as compared to the higher income tax rates of the trust entity or the beneficiaries). And, a step-up in basis can be achieved for assets that have appreciated in value so that no capital gains taxes will be due upon the sale of trust assets after the grantor has passed away.

An irrevocable trust is also a useful way to plan for one’s homestead property. Under the DRA, the equity in a home is limited. This home equity cap can be addressed by placing the home into an irrevocable trust so that the value of the home is no longer considered when determining one’s Medicaid eligibility. Another advantage of this approach is that it allows for the sale of one’s home during their lifetime, without jeopardizing the individual’s eligibility for Medicaid benefits.

Spenddown Planning

Elder Law assists clients in spending down their assets to achieve Medicaid eligibility. This may include a very simple spend-down plan involving the purchase of prepaid funeral arrangements with the remainder of assets being spent down on the individual’s cost of care. In fact, many of our clients retain us to handle the filing of a Medicaid application without seeking asset protection (either because there are insufficient assets or the clients prefer to spend the money down on the individual’s long-term care needs). The Medicaid rules and regulations are notoriously complex and we strive to give our clients peace of mind knowing that their loved one’s Medicaid application will be handled by us. At an average cost of $9,000-$10,000 per month for nursing home care, we understand our clients’ desire to have someone guide them through the Medicaid application process.

We have established relationships with caseworkers at the Department of Children and Families. This allows us to process applications more efficiently and address issues in connection with establishing a person’s Medicaid eligibility directly with a caseworker. We also counsel clients on more complex spenddown plans which require advance planning and other legal documents to implement. These plans may involve some form of trust, personal care contract, purchase of income-producing real estate, or pooled supplemental needs trust.

Finally, we can accelerate an individual’s Medicaid eligibility through a transfer of asset gifting program. This type of spenddown, typically referred to as “crisis planning,” can be an effective way to establish a person’s Medicaid eligibility where other alternatives are not viable. One of the most significant changes brought about by the DRA is the requirement to file a Medicaid application in order to trigger the running of a penalty period for Medicaid eligibility purposes. Another application must also be filed once the penalty period has expired and benefits are desired. This dual Medicaid application requirement has increased the complexity of the Medicaid application process.

Elder Law assists our clients in navigating this process to achieve the best results possible. When you’re ready to discuss Asset Preservation Planning, set up an appointment with one of our attorneys who will guide you through a four-step planning process:

1. Information Gathering

During your planning session, which may be over the phone or by a video conference, our attorneys will gather information from you regarding your (and if applicable, your spouse’s) health, finances, and family objectives.

Based on the information, we will create a plan tailored specifically to you and your situation. The plan reviews in detail the options available to you to finance long-term care. During this stage, we review with you applicable Medicaid law and explain how your assets will be counted for Medicaid eligibility purposes. We also will review any financial transfers affected by the “look-back” period and the impact on you.

2. Analysis

Based on your individual situation, our attorneys will evaluate certain asset protection tools, including:

• Right of spousal refusal;
• Disinheriting an ill spouse;
• Commencing a gifting program;
• Income-producing real estate;
• Personal care contact; and
• Pooled Supplemental Needs Trusts.

Our attorneys will assess all Medicaid planning options available to you and determine the amount of resources you are entitled to retain under Medicaid standards. We also will review the benefits and income you would be entitled to if you apply for Medicaid benefits.

3. Recommendations

The primary objective of the plan is to protect your hard-earned assets. Of course, we also will take into consideration the income tax consequences as well as the estate and gift tax consequences of any recommendations. We will create a strategy to protect your assets from the costs of long-term care.

Each situation is different, but recommendations may include:

• Restructuring how assets are held;
• Funding certain trusts; and
• Deed transfers.

4. Implementation

Once we have presented the plan and our recommended strategy, we will help you implement the plan by drafting the appropriate legal documents, completing and submitting a Medicaid application, if appropriate, and working together with you and your other professional advisers.

How We Can Help

Elder Law develops personalized plans for clients and their families as loved ones age, including the best use and management of personal and financial resources to meet their long-term objectives, exploring all home-based care options as a first priority when appropriate and easing transitions in the event a facility placement (such as assisted living or skilled nursing) is required.

Medicaid Planning for Institutional Care Program Benefits

Elder Law advises clients regarding how to obtain public benefits, including Medicaid. The Medicaid Institutional Care Program (ICP) is a federal/state program that pays most nursing home costs for people who meet three eligibility requirements, including being aged or disabled, having a medical need, and a financial need. In Florida, eligibility for Medicaid is determined by the local county Department of Children and Families, Office of Economic Self Sufficiency, and is administered at the state level by the Agency for Health Care Administration.

In determining the financial need of a Medicaid applicant, Florida’s financial criteria is based on the “income cap” and the “asset test.” There are certain assets that are exempt from consideration and can be kept when applying for Medicaid. These include:

• Personal residence ($603,000 maximum equity value)
• Automobile
• Whole life insurance with a cash surrender value of less than $2,500
• Prepaid funeral plans
• Household furnishings

Planning ahead by consulting with an elder law attorney early will help preserve assets should placement in a skilled nursing facility become necessary. However, even when advance planning has not been done, an elder law attorney can still help preserve assets and avoid very costly mistakes.

Medicaid Applications

The attorneys at Elder Law are knowledgeable and experienced in filing and gaining approval of all types of Medicaid applications. We initiate the two-step filing process with an online application, maintain excellent working relationships with caseworkers, perform all follow-up work and keep abreast of agency and statutory modifications and rulemaking.

We are integrally involved in the Elder Law Sections of the Florida Bar and New York Bar, the Academy of Florida Elder Law Attorneys, the New York Chapter of NAELA, and the National Academy of Elder Law Attorneys, and thus participate in the implementation of new laws, like the Deficit Reduction Act of 2005 (DRA). We are constantly interpreting the program and policy manuals that contain nuanced information about the application process. Furthermore, we work together with area facilities to achieve results for both our clients and the facilities.

Under the Deficit Reduction Act of 2005 (DRA), if an individual transfers assets during the five years prior to applying for Medicaid, an ineligibility period will be assessed wherein Medicaid benefits will be denied. Post-DRA, the ineligibility period will not commence until the individual would be otherwise eligible for Medicaid as specified by the criteria above. Caution should be taken, and a full analysis should be done by an elder law and special needs law attorney before any transfers are made. If prior transfers have been made, there are strategies that can address those prior transfers thus still allowing a person to qualify for Medicaid. Caution should be taken, and a full analysis should be done by an elder law attorney before any transfers are made.

Home & Community-Based Medicaid Waiver Services, Assisted Living Facilities, and Home Care Aides

Long-Term Care Planning

Long-Term Care Insurance

Elder Law advises and assists clients in planning for and purchasing long-term care insurance, a vital asset preservation tool. Long-term care insurance can reduce the financial risk of long-term disability and provide financial security for loved ones.

We have established relationships with some of South Florida’s most widely known insurance agents and companies and are able to pass along this resource to the benefit of our clients. We also can work with the client and his or her insurance agent in making critical decisions regarding the type and extent of coverage to purchase.

We also assist our clients who already have long-term care insurance policies in place in filing claims. The claims process for long-term care can be daunting for many people and is fraught with traps for the unwary. We offer our clients peace of mind by helping them to navigate this difficult and challenging process.

Elder Law develops personalized plans for clients and their families as loved ones age, including the best use and management of personal and financial resources to meet their long-term objectives, exploring all home-based care options as a first priority when appropriate, and easing transitions in the event a facility placement is required. We work with geriatric care managers and other placement specialists to achieve a proper placement of a loved one.

Elder Law helps veterans, members of a veteran’s family, or the surviving spouse of a veteran understand how to obtain long-term care benefits from the Department of Veterans’ Affairs (VA).

We recognize that family caregivers do not always add up the cost of their support and caring for an individual with a disability. Caregivers provide many services naturally and willingly to loved ones to help enhance their quality of life, including as:

• Advocate
• Social service coordinator
• Companion
• Guardian
• Job coach
• Chauffeur
• Personal care attendant
• Money manager
• Recreation director

If you become unable to provide these services or die without planning for the continuation of these services, your loved one’s quality of life may suffer.

Elder Law's special needs planning attorneys can assist you with:

• Establishing comprehensive care plans, organized so that funds for your loved one with disabilities or special needs will not be at risk from estate taxes or the long-term care costs of caregivers;
• Issues in connection with the suspension or loss of Supplemental Security Income benefits;
• Applying and qualifying for Medicaid for a loved one with disabilities or special needs;
• Providing for a loved one with disabilities or special needs in your will or trust;
• Applying for guardianship for your loved one with disabilities or special needs;
• Setting up a Special Needs Trust or Supplemental Needs Trust for your loved one with disabilities or special needs;
• Informing you of the estate planning options available to you;
• Assisting clients with long-term care and asset preservation and protection planning for your loved one with disabilities or special needs;
• Setting up asset protection plans;
• Setting up family trusts and agreements;
• Setting up family care agreements;
• Creating durable powers of attorney;
• Creating health care proxies and living wills;
• Submitting appeals for nursing home and assisted living facility care for your loved one with disabilities or special needs.

Special Needs Trusts

Special Needs Trusts have many benefits, including:

• preserving eligibility for government benefits;
• providing funds to pay for “extras” (e.g., homes, automobiles, and prescription drugs);
• protecting a case settlement from being immediately depleted due to the high cost of health care;
• keeping assets within the family; and
• giving family members much-needed peace of mind by providing funds to care for their loved ones who may not be able to care for themselves.

Guardianship Advocacy (Florida)

New York Attorneys: Florida and Foreign Guardianship

Qualifications and Requirements to Serve as a Florida Guardian

In certain circumstances, residents and non-residents alike may serve as guardians in the state of Florida. Much like the requirements to serve as a Personal Representative, Florida residents must only be 18 years of age or older to qualify to act as a guardian, while non-residents must also be an acceptable non-resident family member of the ward in question. Certain otherwise eligible people may be disqualified due to felony convictions, incapacity, illness, or if the person has been found by the court to have committed specified acts that demonstrate an inability to act as a guardian. These restrictions also apply to out-of-state, or foreign, guardians. As such, even long-time guardians may find themselves suddenly disqualified and precluded from acting on behalf of their ward upon relocation to Florida. Once qualified to act as a guardian in Florida, individuals may be required by the court to receive education covering their duties and responsibilities, their ward’s rights, and the availability of resources. Additionally, every guardian, foreign or not, must have legal representation by an attorney admitted to practice in Florida. However, a guardian may represent himself/herself if the guardian is a Florida attorney. There are no obstacles precluding a foreign guardian bringing or defending any action in Florida on behalf of his/her ward.

Foreign Guardians in Florida

Transferring Guardianship Between States

What if the New York ward wanted to move to Florida? In order for this to occur, the New York Guardianship Court would need to issue an order approving the transfer of the ward. This transfer would require two separate and simultaneous proceedings. The process begins with the guardian’s petition to the New York court to allow the transfer to Florida. Upon provisionally granting the petition, the guardian must then petition the Florida court for a determination of incapacity and appointment of guardianship. Once the petition is granted by the Florida court, the New York court will grant a final order approving the transfer of the guardianship to Florida.

Preparing Florida Deeds

As you know, the New York-Florida connection is alive and well, and stronger than ever. With so many of your clients owning second homes/vacation homes in Florida, they likely come to you for their estate planning, elder law, and special needs planning solutions involving these properties. When it comes to preparing your client’s Florida deeds, you want to make sure you are considering everything that may affect your client and avoid exposing yourself to potential liability. Nobody understands that more than Elder Law, with Howard admitted to and actively practicing in both New York and Florida. Elder Law is here to help assist with New York/Florida planning issues, and to prepare your client’s Florida deeds; whether it involves transferring property into a revocable trust, an irrevocable trust, intra-family transfers, or the use of Florida-specific lady bird (also known as enhanced life estate) deeds.

Florida Homestead Exemptions

When it comes to Florida real estate, one of the commonly known benefits is Florida’s Homestead Exemption (available for property used as one’s principal place of residence). If an individual owns Florida property and makes it his/her permanent residence (or the permanent residence of his/her dependent), then she or he may be eligible to receive a homestead tax exemption of up to $50,000 for property tax purposes. Further, having one’s property “homesteaded” exempts the property from levy and execution by judgment creditors. Exceptions to creditor protection include tax liens, mechanics’ liens associated with labor or materials to repair or improve the homestead property, and voluntary liens including mortgages and homeowners’ association liens.

The caveat to the Florida Homestead Exemption is that only a “natural person” qualifies for the protection; therefore, properties titled in the name of irrevocable trusts, corporations, limited liability companies or partnerships will not qualify unless certain language referenced above is included in the trust document or other legal document depending on the form of legal entity assuring that equitable title to the property remains with the individual/natural person. The same issue does not apply regarding properties owned by a revocable trust.

Finally, the “Save Our Homes” Amendment to the Florida Constitution provides that the assessed value of one’s homestead property cannot increase by more than 3% per year or the percent change in the Consumer Price Index, whichever is less. How does one qualify a property as “homestead” property in order to obtain all of the above benefits? The protections attach the day your client first occupies the property with the intent to make it his/her permanent Florida homestead. Co-ownership of the property may jeopardize the exemption if one of the co-owners does not reside on the property.

The Florida Homestead Exemption requires that an individual be a U.S. citizen or U.S. permanent resident, a Florida resident, does not have an exemption from any other state on another property, occupy his/her home on January 1, and files papers with the county tax assessor or property appraiser to claim homestead by March 1. Even a Snowbird who lives in his/her homestead property during the cold months and who heads up north during the warmer months could rent his/her home during those warmer months without losing the homestead exemption, provided that the property remains the primary residence of the individual.

Advance Directives and Medicaid Planning

Many people are aware of the importance of having up-to-date advance directives, such as a durable power of attorney, designation of health care surrogate and a living will. But what many do not know is that if a client has one of these documents prepared in one state, such as New York, a doctor or health care facility treating that client in another state, such as Florida, may not honor it. Rather, the doctor or health care facility may use its discretion in deciding whether to honor the document. Statutes regulating advance directives vary from state to state and the out-of-state form may not be familiar to that facility. As an attorney with experience and credentials in both Florida and New York, Howard advises his clients with dual residencies on the appropriate documents for both locales. Medicaid planning options also vary from state to state, particularly between Florida and New York. We will be happy to discuss the differences with you and will counsel your clients on the proper way forward when moving or residing in Florida.

There are a variety of deeds used to convey real property. In the elder law and estate planning context, Elder Law assists our clients with the conveyance of real property:

• From one spouse to another
• From parent(s) to child(ren)
• As an outright transfer
• With a retained life estate
• With a retained enhanced life estate (aka “lady bird deed”)
• Into or from revocable and/or irrevocable trusts

Determining which deed is appropriate requires careful analysis of the purpose for which the transfer is being made, the planning goals and objectives, and tax and homestead considerations. Under Florida law, certain transfers are subject to “document stamp taxes.” Further, certain transfers may cause the owner to lose the coveted “homestead status” afforded certain Florida homes.

Elder Law assists our clients in navigating the above issues to assure that real property is conveyed effectively with the best possible tax and homestead treatment available.

Preparing Florida Deeds

As you know, the New York-Florida connection is alive and well, and stronger than ever. With so many New York residents owning second homes/vacation homes in Florida, it’s likely they will also need estate planning, elder law, and special needs planning solutions involving these properties.

When it comes to preparing Florida deeds, you want to make sure you are, considering everything and avoid exposing yourself to potential liability. Nobody understands that more than Elder Law, with Howard S. Krooks, CELA, CAP, admitted to and actively practicing in both New York and Florida. Elder Law is here to help assist with New York/Florida planning issues, and to prepare Florida deeds; whether it involves transferring property into a revocable trust, an irrevocable trust, intra-family transfers, or the use of Florida-specific lady bird (also known as enhanced life estate) deeds.

Revocable Trusts

Elder Law strongly advocates for our clients residing in nursing homes and assisted living facilities (ALFs) or when entering a facility for the first time. We also know their families need help, too. We are discrimination watchdogs and pay special attention to the starting points of mistreatment or inferior service.

These services include:

• Source of payment,
• Resident lifestyle preferences,
• Providing necessary services,
• Limits on use of physical restraints,
• Use of psychoactive medications and feeding tubes,
• Visitors’ rights,
• Admission Agreement Prerequisites, and
• Arbitration claims.

In addition, we actively participate in care plan meetings for our clients and their families. Care plans address an individual’s particular needs and preferences. Too many families do not have a voice or an advocate at their care plan meeting, creating the potential for dissatisfaction. We fill this role for our clients and the value is immeasurable. In particular, we can assist a client who is being discharged from a facility, but who wishes to remain in that facility for ongoing care needs.