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Gainesville Florida Estate Planning & Elder Law Blog

Tuesday, May 5, 2015

National Elder Law Month

National Elder Law Month

May is National Elder Law Month. Last year I was honored to accept recognitions from the Alachua County and city of Gainesville commissions recognizing this important milestone on our calendar.  This year, I thought it would be worthwhile to share this series of questions and answers from the National Association of Elder Law Attorneys (NAELA). You should be familiar with this list before contacting me or any other elder law attorney.

Questions & Answers When Looking For an Elder and Special Needs Law Attorney

What Is Elder and Special Needs Law? 

Legal issues that affect people as they age and people with special needs are growing in number. Our laws and regulations are becoming more complex, and each state has different laws. Actions taken with regard to a single matter may have unintended legal effects. It is important for attorneys working with seniors, people with special needs, and their families, to have a broad understanding of the laws that may have an impact on a given situation to avoid future problems.

Elder and Special Needs Law encompasses many different fields of law. Some of these include:

  • Preservation/transfer of assets seeking to avoid spousal impoverishment when one spouse enters a nursing home
  • Medicare claims and appeals
  • Social Security and disability claims and appeals
  • Supplemental and long-term health insurance issues
  • Tax planning
  • Disability planning, including use of durable powers of attorney, living trusts, “living wills” for financial management and health care decisions, and other means of delegating management and decision-making to another in case of incompetency or incapacity
  • Access to health care in a managed care environment
  • Conservatorships and guardianships
  • Estate planning, including planning for the management of one’s estate during life and its disposition on death through the use of trusts, wills, and other planning documents
  • Probate and administration of estates
  • Administration and management of trusts
  • Long-term care placements in nursing home and life-care communities
  • Nursing home issues, including questions of patients’ rights and nursing home quality
  • Elder abuse and fraud recovery cases
  • Housing issues, including discrimination and home equity conversions
  • Age discrimination in employment
  • Retirement, including public and private retirement benefits, survivor benefits, and pension benefits
  • Health law
  • Mental health law

Most attorneys do not specialize in every one of these areas. So when an attorney says he or she practices Elder or Special Needs Law, find out which of these matters the attorney handles. You will want to hire the attorney who regularly handles matters in the area of law of concern to your particular case and who will know enough about the other fields to question whether the action being taken might be affected by laws in any of the other areas of law. For example, if you are going to rewrite your will and your spouse is ill, the attorney needs to know enough about Medicaid to know whether there are legal issues with regard to your spouse’s inheritance.

Attorneys who primarily work with seniors and people with special needs appreciate the complex financial and social decisions their clients face. Elder and Special Needs Law attorneys bring to their practice a knowledge of their clients that allows them and their staff to ignore the myths relating to aging and the competence of seniors and people with disabilities. At the same time, they will take into account and empathize with some of the true physical and mental difficulties that often accompany the aging process. They are tied into a formal or informal system of social workers, geriatric care managers, psychologists, and other professionals who may be of assistance to you or your loved one.

Finding an Elder or Special Needs Law Attorney

Your first question may be: How do I find an Elder or Special Needs Law attorney? Before making the effort, step back a moment and try to determine whether you actually have a legal problem in which an attorney needs to be involved. If you’re not sure, ask your clergy, your financial advisor, a social worker, or a trusted friend to help you decide whether this is a legal issue rather than a medical or a social services issue. Legal expertise is expensive and it serves you well to know that you actually need legal assistance before seeking an attorney.

There are many places to find an attorney in your city or state who specializes in working with the problems facing people as they age and people with special needs. Check with local agencies to obtain good quality local referrals. Some of the groups you may want to contact include:

  • Alzheimer’s Association
  • American Association of Retired Persons
  • Area Agency (or Council) on Aging
  • Children of Aging Parents
  • National Academy of Elder Law Attorneys
  • National Citizen’s Coalition for Nursing Home Reform
  • Older Women’s League
  • Social Security Administration
  • State or local bar association
  • Support groups for specific diseases
  • Hospital or nursing home social services

If you know any attorneys, ask them for a referral to an Elder or Special Needs Law attorney. An attorney is in a good position to know who handles such issues and whether that person is a good attorney. Such persons are often the best and safest sources of referrals.

Take the time to interview prospective attorneys. Not every attorney is right for each client. The attorney/client relationship must be built on mutual trust and understanding. Ask questions about fees and services.

Ask Questions First

Ask lots of questions before selecting an Elder or Special Needs Law attorney. You don’t want to end up in the office of an attorney who can’t help you. Start with the initial phone call. It is not unusual to speak only to a secretary, receptionist, or office manager during an initial call or before actually meeting with the attorney. If so, ask this person your questions.

  • How long has the attorney been in practice?
  • Does his or her practice emphasize a particular area of law?
  • How long has he or she been in this field?
  • What percentage of his or her practice is devoted to Elder or Special Needs Law?
  • Is there a fee for the first consultation, and if so how much is it?
  • Given the nature of your problem, what information should you bring with you to the initial consultation?

The answers to your questions will assist you in determining whether that particular attorney has the qualifications that are important to you for a successful attorney/client relationship. If you have a specific legal issue that requires immediate attention, be sure to inform the office of this during the initial telephone conversation

Once You Have Found an Elder or Special Needs Law Attorney 

When you have found an appropriate attorney, make an appointment to see him or her. During the initial consultation, you will be asked to give the attorney an overview of the reason you are seeking assistance, so be sure to organize and bring all the information pertinent to your situation. After you have explained your situation, ask:

  • What will it take to resolve it?
  • Are there any alternate courses of action
  • What are the advantages and disadvantages of each possibility?
  • How many attorneys are in the office?
  • Who will handle your case?
  • Has that attorney handled matters of this kind in the past?
  • If a trial may be involved, does the attorney do trial work? If not, who does the trial work? If so, how many trials has he or she handled?
  • Is that attorney a member of the local bar association, a health advocacy committee, or trust and estates committee?
  • How are fees computed?
  • What is the estimate of the cost to resolve your problem and how long will it take?

Discussing Fees 

There are many different ways of charging fees and each attorney will choose to work differently. Be aware of how your attorney charges. You will also want to know how often you will be billed. Some attorneys bill weekly, some bill monthly, some bill upon completion of work. Ask about these matters at the initial conference, so there will be no surprises. If you don’t understand, ask again. If you need clarification, say so. It is very important that you feel comfortable in this area.

Some attorneys charge by the hour with different hourly rates for work performed by attorneys, paralegals, and secretaries. If this is the case, find out what the rates are. Other attorneys charge a flat fee for all or part of the services. This is not unusual, for example, if you are having documents prepared. Your attorney might use a combination of these billing methods.

In addition to fees, most attorneys will charge you out-of-pocket expenses. Out-of-pocket expenses typically include charges for copies, postage, messenger fees, court fees, deposition fees, long-distance telephone calls, and other such costs. Find out if there will be any other incidental costs.

The attorney may ask for a retainer. This is money paid before the attorney starts working on your case. It is usually placed in a trust account and each time the attorney bills you, he or she is paid out of that account. Expenses may be paid directly from the trust account. The size of the retainer may range from a small percentage of the estimated cost to the full amount. In many cases, the total fee will be higher than the retainer.

Get It in Writing 

Once you decide to hire the attorney, ask that your arrangement be put in writing. The writing can be a letter or a formal contract. It should spell out what services the attorney will perform for you and what the fee and expense arrangement will be. Remember — even if your agreement remains oral and is not put in writing, you have made a contract and are responsible for all charges for work done by the attorney and his or her staff.

Make It a Good Experience 

A positive and open relationship between an attorney and a client benefits everyone. The key is communication. The communication starts with asking the kinds of questions suggested in this brochure. Use the answers to the questions as a guide not only to the attorney’s qualifications, but also as a way of determining whether you can comfortably work with this person. If your concerns are given short shrift, if you don’t like the answers to the questions, if you don’t like the attorney’s reaction to being asked all those questions, or if you simply do not feel relaxed with this particular person, do not hire that person. Only if you are satisfied with the attorney you have hired from the very start will you trust him or her to do the best job for you. Only if you have established a relationship of open communication will you be able to resolve any difficulties that may arise between the two of you. If you take the time to make sure that you are happy right at the beginning, you can make this a productive experience for both you and the attorney. You will thank yourself, and your attorney will thank you.

About the National Academy of Elder Law Attorneys (NAELA)

NAELA, founded in 1987, is a national association of Elder and Special Needs Law attorneys devoted to the education and training of attorneys who can meet the needs of seniors and people with special needs, and who advocate for the needs of such individuals.

While NAELA Elder and Special Needs Law attorneys work one-on-one with clients in their local areas, NAELA also examines and advocates on national public policy issues facing seniors and people with special needs in America, including long-term health care; planning for retirement; estate planning and probate; guardianship and conservatorship; health care decision making; and elder abuse and neglect.

This informational brochure is provided as a public service and is not intended as legal advice. Such advice should be obtained from a qualified Elder or Special Needs Law attorney. 


Sunday, May 3, 2015

New Mental Health Coverage Under Medicaid

Many older adults in the U.S. receive benefits from Medicaid for their health coverage.  Unfortunately, mental health coverage under Medicaid is not as accessible as many federal authorities think it should be.

Federal officials are calling for the expansion of mental health coverage for Medicaid beneficiaries, which would greatly ease the burden of the Americans who might have any kind of mental health cost.  The Centers for Medicare and Medicaid Services has proposed new regulations that would cover mental health services at the same level as other medical and surgical services. 

While the expanded coverage is welcome, it may take some time for the new regulations to take effect.  Hopefully, in the years to come, senior citizens will enjoy extensive mental health benefits equal to other Medicaid services.

 


Sunday, April 19, 2015

Costly retirement mistakes to look out for

Some of the costliest errors people make that negatively affect their retirement plans are the ones they make themselves. Here are four of the most common – and avoidable – mistakes from Time.com

1. Not enough savings

Saving over the course of your career is absolutely the easiest way to increase your nest egg (the sum of money you save for retirement purposes). The more you save at an earlier age will result in a much more valuable nest egg. Nearly half of the people questioned in TIAA-Cref’s Ready to Retire survey said they wished they had saved more money for retirement. Many experts suggest aiming to save 15% of your annual income.
 

2. Not saving early enough

Even if you do save 15% each year, you could end up with a much larger nest egg if you start earlier. The earlier in your life and career that you begin saving as much as you can afford to, the more your retired-self will thank you.

 3. Overpaying for investments

Try to spend less on investments.  Like fried foods and ice cream, they’re perfectly fine in moderation, but spending too much on them can significantly reduce the money you could be saving for retirement.

4. Opting for Social Security without strategy

The optimal time to claim Social Security benefits is different for everyone. For some people, it is reasonable to opt for Social Security as soon as they can – but for many, it would be wise to wait. For each year that you postpone your claim to Social Security between ages 62-70, your payment could rise 7-8% and you could end up with a lot more money. To ensure you’re getting the most out of your Social Security, consult an expert on when you should begin opting for benefits.

Not enough savings
Not enough savings
Not enough savings

Sunday, April 12, 2015

Alzheimer’s Disease: The Facts

Alzheimer’s disease is a growing epidemic in the United States. Alzheimer’s is the only top 10 leading causes of death that cannot be prevented, cured or slowed, and nearly one in three seniors develops Alzheimer’s disease or another form of dementia.

As the population of the U.S. grows, so will the number of older adults with Alzheimer’s or other dementias. The number of people with Alzheimer’s in adults over the age of 65 is estimated to reach 7.1 million by 2025. By 2050, the numbers could reach nearly 14 million, almost triple what they are today with 5.1 million people afflicted with Alzheimer’s.

Alzheimer’s and dementia are devastating to victims and their loved ones. Oftentimes, friend and family become caregivers, and in 2014 friends and family of Alzheimer victims provided an estimated 17.9 billion hours of unpaid care. Nearly half of caregivers for victims of dementia reported a household income of less than $50,000 a year. Nearly 40 percent of caregivers for persons with Alzheimer’s suffer from depression.

Alzheimer’s is also one of the costliest diseases to American society. Nearly one in five Medicare dollars is spent treating Alzheimer’s or other dementias. As the population grows, those costs could become one in three dollars. An estimated $226 billion will be spent on Alzheimer and dementia treatments in this year alone.

While medical researchers continue to work tirelessly for effective treatment and cures for Alzheimer’s disease and other devastating dementias, America is still dealing with an aging population. Unfortunately, these issues are not going away anytime soon; it’s important that your family talks about how to deal with Alzheimer’s and other dementias. 


Wednesday, April 8, 2015

When it comes to Medicare benefits, inpatient and outpatient are very different

In order for Medicare beneficiaries to receive access to Medicare’s skilled nursing benefit, the hospital must classify them as an inpatient. Unfortunately, more and more patients are either classified as outpatients receiving observation services instead of inpatients.

Studies have found that hospitals are classifying patients as outpatients more frequently. Researchers have suggested that hospitals are using outpatient observation status as a substitute for inpatient status – meaning more and more patients aren’t qualified for their Medicare benefits.

Hospitals are hesitant to classify patients as inpatients because they are concerned about the Recovery Audit Contractor (RAC) program, which can deny hospitals reimbursement if they conclude that a patient was incorrectly classified as an inpatient. Additionally, the hospital could face other penalties – causing the decrease in patients labeled inpatient.

Currently, Congress is working to solve the problem and ensure that Medicare beneficiaries who qualify for Medicare’s skilled nursing benefit receive adequate treatment. Multiple congresspersons are working on bills that improve access to necessary Medicare benefits. 


Sunday, April 5, 2015

Protecting Your Homestead

It should always be a priority for homeowners to protect their property from creditors.  Of course, if you own a homestead in full, that property is yours and protected from creditors; but things get tricky when you sell a homestead and/or buy another. 

Usually, homesteads are protected from creditors under the Florida Constitution.  In the case JBK Associates v. Sill Bros Inc., the extent of protection under the Constitution becomes muddled.  JBK obtained a $740,487.22 judgment against Patrick Sills in 2010.  In October of 2013, Sills sold his homestead pursuant to a divorce decree – the proceeds were placed in an account, which was later divided into one cash account and two security accounts.  Therefore, Patrick claimed, the accounts were homestead funds and should be protected. JBK appealed by arguing that Patrick lost his right to the homestead protection when he purchased securities with the homestead proceeds.

In Orange Brevard Plumbing & Heating Co. v. La Croix, The Supreme Court of Florida essentially ruled that in order for a homestead to be protected once an owner sells it, the owner must purchase a new homestead within a “reasonable amount of time.”

Each case is different; it would be wise to consult an expert to ensure that your homestead and assets are protected from creditors.  Since the circumstances change with all kinds of variables, protect your homestead by purchasing a new homestead within a reasonable amount of time after selling one. 


Wednesday, March 25, 2015

How to decrease your risks of being scammed

Sometimes, the world can be a scary place.  Everyone is at risk for being taken advantage of in some way or another, but some of the most vulnerable people are the elderly.  But don’t worry – there’s a few rules of thumb to follow that could help you avoid any potential scams.

  • Do your research.

    Make sure you can trust the people who are asking you for any personal information.  It can be impossible to know who is on the other line of the telephone or who is sending you emails.  They may not be who they say they are – so confirm exactly whom you are communicating with before you reveal anything.

  • Take your time.

    Don’t let anyone you don’t know rush you into giving them your personal information.  They may use tactics to try to persuade you that they need money or information immediately, but if you can’t confirm exactly who they are and where your information is going, don’t fall for it.

  • Consult someone you trust.

Make sure you ask about any questionable emails or phone calls you might receive.  Your friends and family might have heard warnings by word of mouth or on the news about your exact circumstance; it could save you a lot of trouble (and not to mention money). If you see a scam or suspicious activity, report it. You can call 1-877-382-4357 or visit ftc.gov/complaint to file a report.  

 


Sunday, March 22, 2015

The Effects of Obesity on Senior Citizens

Today, one out of three adults in the U.S. is clinically obese. Every day, more and more overweight and obese adults head into their senior years with more health risks than ever before.

According to an article from Kaiser Health News, research shows that obese and overweight adults face an increased risk of other health problems and disabilities as they age. The article also states that obese adults face a higher risk of dementia, Alzheimer’s disease and certain cancers as they grow older. Excess weight is also linked to cardiovascular issues and high blood pressure, high cholesterol and diabetes.

Nursing homes and hospitals will treat unprecedented numbers of obese, elderly citizens with complicated health problems that stem from carrying excess weight. More seniors are facing bigger hospital and nursing home charges at a younger age because of their weight.

As a senior citizen, your health is already at risk. Make sure that you are proactively watching your weight.  It could save you time, money, and your life.

Read more about the effects of obesity on the elderly here: http://kaiserhealthnews.org/news/the-extra-cost-of-extra-weight-for-older-adults/


Monday, March 16, 2015

New Alzheimer’s Study with Shocking Results

The results of a new study reveal the presence of the brain plaque buildup related to Alzheimer’s disease in the brains of individuals as young as 20. And that means it’s never too early to plan for the future.

The study’s co-author, Changiz Geula, explained that he and his colleagues analyzed the brain tissue of 48 deceased people, ranging in age from 20 to 99. The buildup in victims of Alzheimer’s is referred to as plaque and involves an abnormal protein that surrounds specialized neurons in the individual’s brain tissue.

While experts still aren’t sure of the exact mechanism by which the plaque causes damage or even if the buildup is the sole cause of Alzheimer’s, the discovery of the plaque in brain tissue so young is groundbreaking.

Ultimately, the information from the study has demonstrated that doctors and experts might have to intervene to prevent Alzheimer’s much earlier than they would have imagined.  Since researchers now realize that the proteins involved in the buildup linked to Alzheimer’s can be present in some brains as early as age 20, researchers now realize that treatment for the disease will have to be much more preventative than originally thought.


Tuesday, March 10, 2015

10 Facts that may surprise you about retirement

Many retirees are ready for the freedom and stress-less lifestyle that retirement brings, but there are other aspects  that could be unexpected. Most retirees have substantial health concerns, financial woes and free-time is only fun if you can make good use of it. Here are 10 ways that retirement might just surprise you.

  • It can be difficult to spend down your savings. After years of collecting enough money to comfortably retire it can be inherently challenging  to spend down that money and watch the nest egg that you acquired get smaller and smaller each year.  “They are going to feel like they spent a lifetime accumulating this pile, and the idea of spending this down is just repulsive to them,” says Alicia Munnel, director of the Center for Retirement Research at Boston College. “For anyone who is retiring, I would give them permission to spend their money,” she advises.
  • You still need investment growth. Accumulating just enough money to retire is not your final goal. You must also lay out a plan to make that money last as long as you do. “You need to understand how you can minimize risk in the portfolio, but you also need a component of that strategy that gives you growth,”  says Laura Mattia, a certified Financial planner and wealth management principal for Baron Financial Group. This fundamental growth factor in your investing strategy will help you stay ahead of both inflation and taxes.
  • It's common to rely on Social Security. Social Security is a momentous source of income for many retirees. Approximately 86% receive income from Social Security and Social Security payments make up at least half of the retirement income of 65% of retirees, and comprise 90% of retirement income for over 36% of retirees. The monthly average retirement benefit was around $1,300 as of December 2014.
  • Medicare does not cover everything. Steep health care costs don't go away once you qualify for Medicare. While Medicare will cover a large amount of your medical bills, there are still a few prevalent services that it doesn't. For example, Medicare won't cover any visits to the optometrist or the dentist, along with the costs of hearing aids.  Medicare will also only cover up to 100 days in a nursing home. Retirees who require any additional long term care will have to pay for it out of pocket. And while most preventative care services are covered by Medicare with no cost-sharing requirements, if something of concern is found, then additional tests and procedures will mean that copays and coinsurance will apply.
  • You may spend a lot of time alone. Without a job to spend your nine to five at, you may find that you spend much of your time alone. Approximately 44% of Americans ages 65 and older now live alone, according to the U.S. Census Bureau. Unless you begin volunteering or make a point to socialize often, you are at a high risk to become bored and lonely.
  • Many retirees are dating. If you end up divorcing or outliving your spouse, you will once again find yourself single. While just over 50% of Americans ages 65 and over are currently married, the rest are either divorced, separated, widowed, or even never married according to census data. Some of these single seniors have begun meeting and dating new people, again. There are even a large variety of online dating services that specifically serve the senior population.
  • Moving is difficult. While making the move to the sunbelt is an attractive prospect, most retirees don't relocate for their retirement. On average 5.7% of Americans age 65 and older actually moved between 2009 and 2013, and those who did often relocated to the same state, or even county, found the Census Bureau. Only 1% of retirees actually retired to a new state. Moving far away usually means leaving behind all of your family and loved ones, making it difficult to reconstruct your life in a new place.
  • You will need help from others. While aging is an expected part of retirement, one losing their independence is not usually a welcomed change. There may come a day when you can no longer drive, climb a ladder to clean your gutters, change a light bulb, or shovel the driveway. You may also eventually need help preparing meals and bathing. Although the start of your retirement is full of new adventures, it is also a smart time to make plans for later, when you may no longer be able to take care of yourself.
  • Retirees watch a lot of TV. Most retirees spend over half of their down time watching television. Seniors ages 65 to 75 tune in for about 4 hours on weekdays, while those 75 and over watch TV for an average of 4.2 hours every day, according to the 2013 American Time Use Survey by the Bureau of Labor Statistics.
  • There is no need to hurry. Compared with the rest of the population, retirees between the ages of 65 and 75 spend much extra time lingering over meals, working on their home or garden, and shopping, found the American Time Use Survey. Retirees also tend to spend more of their time relaxing, reading or volunteering than their younger counterparts. 

Tuesday, February 24, 2015

The 5 Most Destructive Misunderstandings About Retirement

As you begin planning for your retirement and the exciting new phase of life that comes with it, it would be wise to check your expectations. The reality may not be what it seems. Those in the Baby Boomer generation, currently in their 50s and 60s, have begun to show a trend in viewing retirement very differently than those who came before them. Many Boomers consider retirement as their chance to begin a new hobby, passion or even career, which is good. But unfortunately these soon-to-be retirees may not be seeing the whole picture.

Here are five of the most common fallacies surrounding retirement:

  1. Retirement is like an extended vacation. Living a life of leisure will be great, right? Unfortunately not. Having too much spare time leaves many retirees feelings depressed, or without purpose. Scientific studies show that those who continue working after the age of 65 actually tend to be happier, whether or not they do so by choice. But above all, voluntary part-time workers were the happiest with their life. While money is the main motivation to work through retirement, having day-to-day duties and satisfaction are just as important.
  2. Money is the most important piece to your happiness in retirement. The biggest key to a happy retirement is good health, so just having financial security is not enough. But money only relates to happiness to a certain level, you can still enjoy your life as a retiree even if you are not a millionaire.
  3. Spending is consistent during retirement. People tend to spend less money in retirement, but this does not always hold true. Many find themselves traveling and enjoying vacations for the first few years, but as the years go on the number of trips generally decreases, while the cost of medical care and family expenses increase. A couple should expect to put aside $220,000 to cover their health-care throughout their retirement. While medical expenses are usually a large concern for retirees, very few spend time planning for that.
  4. Retirement is for couples. As a married couple there is a large adjustment to be faced upon entering retirement. One in three couples don't agree on their ideal type of lifestyle they wish to have in retirement. You should also be aware that you and your partner will require time to themselves, for their own hobbies and passions.
  5. Your financial planning stops at retirement. You will still have many problems that you will deal with during your retirement. This means you will have to continue the planning of your investments to make sure that your money will last as long as you do.

Retirement is not the lifestyle that you leave, but the one that you begin. Just because you reach a specific age does not mean you are required to stop working, and if you do, it is important to remember that to stop working does not mean you stop planning. To enjoy life without worry, you must plan. 


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