Elder law in Florida focuses on legal issues affecting older individuals. It covers topics like Medicare, Medicaid, Social Security, pensions, and guardianship. Elder law also addresses power of attorney, advance health care directives, and long-term care.
Elder law aims to help seniors maintain independence as they age. It ensures they receive necessary care and support. Attorneys protect seniors’ assets and secure access to healthcare services. They also assist with future planning.
Elder law attorneys know the laws impacting seniors thoroughly. They develop custom legal strategies for their clients’ unique needs. These lawyers advocate for seniors’ rights and navigate complex healthcare systems while guiding seniors through financial planning.
Florida’s elder law also helps older individuals age with dignity and security by providing essential support for seniors facing legal challenges. Elder law ensures respect and protection for Florida’s aging population.
This overview will explore key aspects of elder law in Florida. We’ll discuss how it benefits seniors and their families and you’ll learn about crucial legal tools available to older Floridians.
Asset Management
Drafting a financial Power of Attorney (POA) allows an individual to maintain control over his/her assets until he/she becomes incapacitated. A POA is a document of agency in which one party (the principal) gives another party (the agent) the authority to act for him/her. Powers of attorney may be limited, in which the agent’s powers to act are restricted, such as by defining certain responsibilities or setting a time limit for the POA. They may also be general, allowing the agent to make irrevocable trusts, and terminate only if the principal dies.
Trusts are another asset management tool, which can provide the person creating the trust with the ability to control how his or her property is managed. Trusts can be classified in several ways based on their purpose, creation method, and other characteristics. Here are some types of trusts:
Revocable Trust: Also known as a living trust, this type of trust can be altered, modified, or revoked entirely by the trust maker during their lifetime.
Irrevocable Trust: Once created, the trust maker cannot alter or revoke this type of trust without the consent of the trust’s beneficiaries. It’s often used for tax planning purposes or to protect assets from creditors.
Life Insurance Trust: The main purpose of this type of trust is to exclude life insurance proceeds from the taxable estate of the decedent.
Asset Protection Trust: This type of trust is designed to protect a person’s assets from claims from future creditors. These are often set up in countries outside of the United States, but certain states have begun to permit them as well.
Charitable Trust: Created to benefit a particular charity or the public in general. Typically, they are established as part of an estate plan to lower or avoid imposition of estate and gift tax.
Special Needs Trust: Designed to benefit an individual who has a disability. This trust can supplement the needs of an individual without disqualifying them from benefits received from government programs such as Social Security and Medicaid.
Other less common Trusts Include: Constructive Trusts, Testamentary Trusts, Spendthrift Trusts, Tax-By-Pass Trusts, Totten Trusts, Qualified Terminable Interest Property (QTIP) Trusts, and Generation-Skipping (GST) or Dynasty Trusts, as well as QPRT and SLAT Trusts used for tax planning.
Each of these trusts serves different purposes and the best type of trust for a particular individual depends on their unique circumstances and goals. Always consult with a professional or attorney to understand which type of trust suits you best.
Medical Decision Making
Living Wills & Advanced Directives: To aid in decision making, individuals may also create health care advance directives and living wills. A living will is a written directive authorizing the provision, withholding or withdrawal of medical treatment, including life-sustaining treatment. An individual may also make a written directive appointing an agent to give informed consent according to the advanced directive. Decision makers must use substituted judgment when possible, meaning, acting according to the wishes of the patient, on the basis of clear and convincing evidence that the disabled person would, if competent, make the same decision. In the absence of substituted judgment, the decision-maker may use the “best interest” test, meaning that the benefits to the individual resulting from a treatment outweigh the burdens to the individual.
Surrogate Decision-Making: A surrogate is a related individual within an order of priority who is able to make health care decisions on behalf of a patient who is incapable of doing so when the patient has not already designated a health care agent.
Paying for Long-Term Care
Long-Term Care is the variety of services (medical and non-medical) for people who have chronic illness or significant disability. Medicare and most health insurance plans do not pay for long-term care (Medicare only pays up to 100 days of skilled nursing rehabilitation/care). Options to pay for Long-Term Care include long term care insurance or using personal resources. Reverse Mortgages are another tool which enables homeowners to use the equity they have accumulated in their homes to produce an available pool of funds to draw from.
Continuing Care Retirement Communities (CCRCs) provide a continuum of care, from independent living to nursing home care. All of a resident’s health care needs can be taken care of either within the community or arranged for by the community. There are three types of CCRCs, which vary in cost and covered services.
Medical Assistance (MA) Long-Term Care (Medicaid) is a means-tested benefit program designed to assist those families or individuals with limited resources and income to pay for their medical needs and long-term care. There are several asset protection strategies to assist in qualifying for Medicaid while fulfilling the disabled person’s intentions that their assets protect their spouse or others.
If all this Elder Law legalese makes your head spin like it does mine, and if you have any questions or concerns about elder law, I recommend that you consult with an experienced elder law attorney.
Unique Aspects of Florida Elder Law
Florida’s Elder Law and Estate Planning can have unique aspects due to state-specific laws and regulations. Here are a few notable considerations:
Homestead Exemption: Florida’s homestead protection laws can have a significant impact on estate planning. If a Florida resident’s primary residence qualifies as a homestead, it’s exempt from creditors’ claims. This exemption can pass onto heirs. However, restrictions are placed on to whom and how the homestead property can be left after the owner’s death, which can complicate estate planning.
Florida Probate Code: The state of Florida has its own Probate Code (Chapters 731 through 735 of the Florida Statutes). Some aspects of the probate process can be different than in other states, so it’s important to plan an estate with these specific regulations in mind.
No State Estate Tax: Unlike some states, Florida doesn’t have a state estate or inheritance tax, which can be a significant benefit when estate planning.
Durable Power of Attorney: In Florida, as of October 1, 2011, powers of attorney must be durable and must specifically detail the powers granted to the attorney-in-fact. A Durable Power of Attorney becomes effective immediately upon signing and remains effective if the principal becomes incapacitated.
Long-Term Care: Florida’s elder law also encompasses issues related to long-term care. This includes planning for Medicaid eligibility, which has its own set of rules and guidelines in Florida, and addressing the potential need for guardianship.
Advance Directives: Florida law recognizes living wills, health care surrogate designations (similar to a power of attorney for health care), and anatomical donations. These can be important elements of elder law and estate planning.
Given these and other state-specific considerations, it’s wise to seek the counsel of an attorney specializing in Florida elder law and estate planning to ensure all potential issues are appropriately addressed.
