The Lawyer Says
Nick Medley, P.A. | Medley Law Firm
“Elder Law” is an umbrella term that refers to the various types of legal issues that often affect seniors and their families. These areas include, but are not limited to: estate planning, probate estates, guardianship, and Medicaid, disability and other long-term care issues.
A “senior” American is typically defined as one who is 65 or older. Today, there are approximately 44.7 million seniors in the United States; that’s 14.1% of the population, or 1 in every 7 Americans. This number is expected to grow by leaps and bounds over the next few decades: by 2060, there will be approximately 98 million seniors in the United States, which is over double the current senior population.
As the senior population grows, it’s important that there are attorneys to act as advocates specifically for seniors and their loved ones, and to help guide them through the unique legal issues and challenges that often accompany aging. Recognizing this, many attorneys have begun to specialize as elder law attorneys, so as to better serve seniors and their families. Unlike many other areas of the law, elder law is defined by the needs of the client, instead of by the particular field of law itself. For this reason, elder law attorneys know that their clients’ needs often extend beyond basic legal services. Therefore, many elder law attorneys work within a network of other professionals in their communities who also serve the senior population, such as financial planners and advisors, assisted living and skilled nursing facilities, home health care agencies and realtors. By working together with these professionals, elder law attorneys can help make sure their clients receive not only the legal help they need, but the assistance necessary to make sure their loved ones and hard-earned assets are protected, regardless of what the future may hold.
Wills & Trusts
Wills and Trusts are the two most common tools used in the field of estate planning. “Estate Planning” is the act of planning out your estate: in other words, deciding who gets your assets when you pass away. Estate planning is incredibly important, because without it, you have no say over who inherits from you after your death.
A will allows you to direct how the probate court distributes your assets. Upon your death, anything you own that is either just owned in your name (i.e. isn’t jointly owned with someone else) or that does not have a named pay-on-death beneficiary (like a life insurance policy, an IRA or a 401k) must go through the probate court in order to be distributed to your heirs. These are called “probate assets”. If you die without a will, it’s called an intestate estate. In an intestate estate, your probate assets will be given to your “next of kin” as defined by Florida’s intestacy statutes. If you die with a will, it’s called a testate estate. In a testate estate, your probate assets will be distributed according to how the will is written.
There are two main parts of a will. The first part is naming someone to serve as personal representative (a/k/a PR), the person in charge of overseeing the probate estate and making sure the will’s instructions are carried out. Any Florida resident can serve as PR, as long as they are at least 18 years old and do not have past felony convictions. Out-of-state residents can serve as PR, as long as they are the deceased’s spouse, sibling, parent, child or certain other close relative. The second part is stating how you want your probate assets to be distributed. This can be as simple or as complex as you want it to be; some people just want to leave everything equally to their children, while others want specific items, amounts or percentages of assets to go to specific people. For this reason, wills are not a “one size fits all” document, and it’s important to work with a qualified attorney to create a document that meets your specific needs.
Trusts are legal entities that a person can establish either during their lifetime or upon their deaths in order to manage assets on their behalf. People primarily create trusts to hold assets like real estate or bank accounts so that, after their deaths, those assets will continue to be managed according to the terms of the trust instead of being distributed out to heirs under a will. This means that trusts can be used to provide for individuals who shouldn’t receive money outright due to disability, incapacity, financial difficulties or lack of responsibility.
A guardianship is a legal proceeding that is used when a person becomes incapacitated and is no longer able to manage their own financial or healthcare decisions. As part of a guardianship, an interested person (usually a spouse, adult child, sibling or other relative or close friend) petitions the court to have another person (referred to as a Ward) declared mentally incompetent and for themselves to be appointed as the Ward’s legal Guardian.
Guardianships can be of the Ward’s person (authority over their healthcare and physical self), the Ward’s property (authority over their financial accounts, real estate and other assets), or plenary (authority over both the Ward’s person and property). Guardianships can be temporary or ongoing, as decided by the court. As part of the guardianship process, the prospective Guardian must prove that the Ward lacks the capacity to take care of themselves. This is done by having the Ward examined by a group of doctors, psychologists and other mental health professionals, who submit reports to the court that give their opinion of the Ward’s competency. If the Guardian is appointed as guardian of the property or plenary guardian, the Guardian must also submit to the court an inventory of the Ward’s assets, as well as regular ongoing accountings showing the current status of those assets.
A guardianship involves taking away the Ward’s rights to do certain things and delegates those rights to the Guardian. Because of this, the court will only approve the guardianship if there are no other “less restrictive means” available of helping the Ward; in other words, guardianships are a “last resort” option. Therefore, if someone has used a Power of Attorney to name someone to act on their behalf before they become incompetent, a guardianship can usually be avoided. However, if a person becomes incompetent before a Power of Attorney or other “less restrictive means” have been put in place, then a guardianship may be the only available option.
Medicaid is a government program that will pay for a variety of health care expenses incurred by an individual, depending on which type of Medicaid is used. One of the most common types of Medicaid that seniors encounter is long-term care Medicaid, which will pay for nearly all of a person’s cost of care in a skilled nursing facility. This is important because the average private pay cost for a skilled nursing in Florida is nearly $8,000 per month. Most people are unable to pay this bill every month, or at least are unable to do so for long before losing all their funds. Therefore, many people in these situations seek Medicaid qualification in order to defray these costs.
Unlike Medicare and other similar programs, Medicaid qualification is based on an applicant’s income and assets: if a person has too much of either, they are considered “too rich” for Medicaid and thus are denied assets. However, there are ways for a person to qualify for the program while still keeping most, if not all, of their assets.
Though Medicaid is a federal program, it is run by a different agency in every state. Because of this, each state often has different sets of rules and requirements regarding Medicaid qualification. In Florida, Medicaid is run by the Department of Children and Families. Because of this, and because of Florida’s unique rules and regulations, it’s important to consult with an experienced elder law attorney if a person or their loved one might need skilled nursing care in the future. The earlier steps are taken to plan for the process, the more options are available.