Protecting Parents from Themselves

A common question I receive in my office is what will happen to my home when I pass away if I die in a nursing home? For Florida residents the answer is quite different than other states. In Florida if you pass away and your home is being left to your family then it is protected by our homestead laws. This is true whether it enters probate or not. Some would argue that going through probate is a more secure way to protect it because it would have an order declaring it as homestead where if it passed to the family through a trust there wouldn’t be an order. As most know I am not a fan of entering into a trust document when there is only homestead property; however, to be clear your home is protected so long as the family meets the definition of family. This begs the question who is my family? The Florida Supreme Court has defined “heirs” in relation to homestead protection as “any family member within the class of persons categorized the Florida intestacy statute.” So, if you are like me then that answered absolutely nothing as it does not address a decedent’s deceased spouse’s family who in many cases closer to be related than others within the statute. Since that opinion by the Supreme Court there have been subsequent cases which have tackled the issue of children of a decedent’s deceased spouse and found they can fall within the protected class. Does that mean children from another marriage have a right to claim an interest in an estate? No, if there isn’t a Will devising the property to those individuals they will not take under the law of intestacy which is the law followed when one does not have a Will. If you are reading this and concerned about your homestead, what action should you take? Well it depends (you have to love lawyers). You may consider altering your deed to name a beneficiary, or you may simply revisit your will to confirm that you didn’t put a charity in a place where they might receive the homestead. There are many things you might do depending on your circumstances. What I will caution you against doing is transferring an interest in your home to your children or others. Our firm has seen a pattern where parents transfer their home to their children but reserve a life estate. This is a very dangerous planning method for the vast majority of people in Florida. My reason(s) for saying this are so long they justify their own blog posting; for now just trust this is a bad technique, which has been abandoned by most attorneys for decades but still is followed by people who dabble in this type of work. In the end the Medicaid recovery act is real, and there are families which may lose their homestead protection. However, those individuals were the ones who did not seek help with their estate plan. Florida protects homestead so long as you intend to leave your home to your family. If you have further questions regarding this post please let us know.

The following has been taken from several recent article s and announcements sent to facilities th roughout the country. This summarized version hopefully will provide some understanding of wh at to expect w hen visiting. Plea se keep in mind facilities are bound by their license to follow these guidelines. Everyone is attempting to protect the residents and staff. Patience and understanding by all is going to be necessary. The Centers for Medicare & Medicaid Services (CMS) is taking action to protect the health and safety of our nation’s patients and providers in the wake of the 2019 Novel Coronavirus (COVID-19) outbreak. According to the latest data from the Centers for Disease Control and Prevention (CDC), seniors are at the greatest risk of serious illness due to COVID-19, which is why CMS is providing valuable information to providers who interact with patients in the hospice setting. To protect these vulnerable patients, CMS is amplifying its current health and safety requirements by delivering detailed guidance on the screening, treatment and transfer procedures healthcare workers must follow when interacting with patients to prevent the spread of COVID-19. CMS is also issuing additional guidance specific to nursing homes to help control and prevent the spread of the virus. Limiting visitors and individuals: Expanded recommendations: CMS is providing the following expanded guidance to prevent the spread of COVID-19 (in addition to the information above about restricting visitors).  • Restricting means the individual should not be allowed in the facility at all, until they no longer meet the criteria above.  • Limiting means the individual should not be allowed to come into the facility, except for certain situations, such as end-of-life situations or when a visitor is essential for the resident’s emotional well-being and care.  • Discouraging means that the facility allows normal visitation practices (except for those individuals meeting the restricted criteria), however the facility advises individuals to defer visitation until further notice (through signage, calls, etc.). 1. Limiting or Discouraging visitation:  a) Limiting: For facilities that are in counties, or counties adjacent to other counties where a COVID-19 case has occurred, we recommend limiting visitation (except in certain situations as indicated above). For example, a daughter who visits her mother every Monday, would cease these visits, and limit her visits to only those situations when her mom has a significant issue. Also, during the visit, the daughter would limit her contact with her mother and only meet with her in her room or a place the facility has specifically dedicated for visits.  b) Discouraging: For all other facilities (nationwide) not in those counties referenced above, we recommend discouraging visitation (except in certain situations). See below for methods to discourage visitation. Also see CDC guidance to “stay at home” https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/high-riskcomplications.html#stay-home. 2. Affirmative action Facilities should take:  a) Increase visible signage at entrances/exist, offer temperature checks, increase availability to hand sanitizer, offer PPE for individuals entering the facility (if supply allows).  b) Also, provide instruction, before visitors enter the facility and residents’ rooms, on hand hygiene, limiting surfaces touched, and use of PPE according to current facility policy while in the resident’s room.  c) Individuals with fevers, other symptoms of COVID-19, or unable to demonstrate proper use of infection control techniques should be restricted from entry.  d) Signage should also include language to discourage visits, such as recommending visitors defer their visit for another time or for a certain situation as mentioned above. 3. In addition to the screening visitors for the criteria for restricting access (above), facilities should ask visitors if:  • they took any recent trips (within the last 14 days) on cruise ships or participated in other settings where crowds are confined to a common location.  • If so, facilities should suggest deferring their visit to a later date. If the visitor’s entry is necessary, they should use PPE while onsite.  • If the facility does not have PPE, the facility should restrict the individual’s visit, and ask them to come back at a later date (e.g., after a 14 days with no symptoms of COVID-19). 4. In cases when visitation is allowable, facilities should instruct visitors to limit their movement within the facility to the resident’s room (e.g., reduce walking the halls, avoid going to dining room, etc.) 5. Facilities should review and revise how they interact with volunteers, vendors and receiving supplies, agency staff, EMS personnel and equipment, transportation providers (e.g., when taking residents to offsite appointments, etc.), other practitioners (e.g., hospice workers, specialists, physical therapy, etc.), and take necessary actions to prevent any potential transmission. For example, do not have supply vendors transport supplies inside the facility. Have them dropped off at a dedicated location (e.g., loading dock). Facilities can allow entry of these visitors as long as they are following the appropriate CDC guidelines for Transmission-Based Precautions. For example, hospice workers can enter a facility when using PPE properly. 6. In lieu of visits (either through limiting or discouraging), facilities can consider:  a) Offering alternative means of communication for people who would otherwise visit, such as virtual communications (phone, video-communication, etc.).  b) Creating/increasing listserv communication to update families, such as advising to not visit.  c) Assigning staff as primary contact to families for inbound calls, and conduct regular outbound calls to keep families up to date.  d) Offering a phone line with a voice recording updated at set times (e.g., daily) with the facility’s general operating status, such as when it is safe to resume visits. 7. When visitation is necessary or allowable, facilities should make efforts to allow for safe visitation for residents and loved ones. For example:  a) Suggest limiting physical contact with residents and others while in the facility. For example, practice social distances with no hand-shaking or hugging, and remaining six feet apart.  b) If possible (e.g., pending design of building), creating dedicated visiting areas (e.g., “clean rooms”) near the entrance to the facility where residents can meet with visitors in a sanitized environment. Facilities should disinfect rooms after each resident-visitor meeting.  c) Residents still have the right to access the Ombudsman program. If in-person access is allowable, use the guidance mentioned above. If in-person access is not available due to infection control concerns, facilities need to facilitate resident communication (by phone or other format) with the Ombudsman program or any other entity listed in 42 CFR § 483.10(f)(4)(i). 8. Visitor reporting:  a) Advise exposed visitors (e.g., contact with COVID-19 resident prior to admission) to monitor for signs and symptoms of respiratory infection for at least 14 days after last known exposure and if ill to self-isolate at home and contact their healthcare provider.  b) Advise visitors to report to the facility any signs and symptoms of COVID-19 or acute illness within 14 days after visiting the facility. For more information you may visit the following: https://www.cms.gov/newsroom/press-releases/cms-issues-clear-actionable-guidance-providers-about-covid-19-virus https://www.cms.gov/files/document/qso-20-14-nh-revised.pdf https://www.ahcancal.org/facility_operations/disaster_planning/Documents/SNF-Guidance-Preventing-COVID19.pdf

 Many people make an incorrect assumption that I know more than I actually do know. When out socially, it is not uncommon for someone to ask me about a contract they are signing or for a relative to call and ask if they have a case against a neighbor. Even after years of explaining my expertise is in Elder Law, I continue to get these questions. I have explained I am on top of my field with Elder Law but that does not mean I am on top of the overall legal profession (only a fool would ever considering himself or herself there).  Many know I served on the Florida Bar’s Grievance committee for three years. There we would hear complaints about other attorneys and determine if there was probable cause for the Bar to proceed further against them. We would often hear an attorney say something along the lines of I thought something was better than nothing. A statement which is wrong far more than it is right. In the end the attorney should have never accepted the case and their license was now at risk for attempting to give the “something.” This isn’t simply an attorney issue. I see many people coming into my office and show me documents they have “helped” their love ones create. I have extremely educated individuals come in and show me (somewhat proudly) that they went online and purchased an estate plan. What these people often learn during a meeting with me is the quick and easy document may work to open a bank account; however, for someone in retirement who has a progressive illness those documents fall well short of what is needed once we start working with the Federal Government, Pension companies, the IRS, and the like.  An all too common issue we see is with a poorly drafted Durable Power of Attorney (DPOA). People will slide it across the table and even before opening it I know it will not cover irrevocable trust planning which will be necessary even if the person is completely broke but has $2,349.01 in gross income each month and needs Medicaid. These DPOAs come from online sources; however, too often they come from attorneys who thought they were doing a favor for a friend (often under the assumption it is only a form right). Without a properly worded DPOA the fees often double well into the thousands. All is avoided in the majority of cases for a few hundred. Proving the old adage an ounce of prevention is better than a pound of cure.  I could continue with this right into other areas of my practice such as using financial advisors to do public benefits planning, which is something the Florida Supreme Court has ruled the unlicensed practice of law in the case (SC14-211); however, if you are reading this I know you are smart enough to know the limits of what you should attempt on your own. Let us just hope other professionals can follow our lead.  Until next time if you have a question about your estate or retirement plans and would like to discuss it with me please know we are accepting new clients. Be good to your family.

 “Who will manage my estate when I am gone?” is a common concern for many. I can see the concern in my clients eyes as they say that they trust their child but worry over their in-laws influence. Others will tell me they love their children but simply cannot trust them with their estate. There are many reasons people will set up a trust to resolve their estate. For those individuals, many are finding comfort with the fact they can appoint an individual or group of individuals to act as a protector of their original intent. A trust protector is simply a person or a group of people who follow a trust after a certain event (often the death or incapacity of the person who established the Trust). The powers vary as to what a trust protector may do. However, a general list would be audit the accounting, remove and name another trustee (rarely themselves), amend language to provide better tax protections, etc. The goal is to create a little check and balance within the trust to help insure the wishes are followed out. Of course there are limits to the Trust Protector. First and foremost they should be acting as a fiduciary; meaning they are not acting in their own personal interest but in the interest of the trust. They likewise can’t remove a professional trustee and name their spouse as trustee. They can’t modify who is a named beneficiary (absent special circumstances such as the beneficiary becomes disabled and the funds would be better protected in another type of trust). Most trust protectors are compensated in some form or fashion; however, their work shouldn’t be an ongoing matter. Further, many trust protectors are family and do not care about compensation. Generally the cost of a trust protector is low. The drafting attorney should be able to estimate what they would anticipate the cost to be, if any, on an annual basis. You are likely wondering who acts as a trust protector? There is no simple answer to this question; however, often if the trust names a corporate trustee then the beneficiaries might serve as a trust protector. Many people will name their CPA firm as a Trust protector along with a beneficiary or two. On rare occasions people will name their attorney to this role. However, this normally will only occur when they require help with a specific part of their estate. The ongoing cost for an attorney to serve in this role traditionally make it impractical. In the end a properly drafted trust can benefit from a trust protector when there is some uncertainty surrounding the trustee being appointed, the potential actions taken by beneficiaries, complex tax and public benefits being sought by heirs or family disagreements which may make administration difficult for the trustee. If you have a trust and believe your trust could benefit from a trust protector then you should schedule time to discuss this important matter with your attorney. If you are in the Pensacola region and would like to discuss the matter further with me, feel free to reach out as we are accepting new clients.

A common situation we find ourselves in is who to leave our estate to if there was a common accident. Take a recent client who came into our office. She has one daughter and no grandchildren. Her daughter is 55 years old, therefore, is not planning to start a family. The client explains that her siblings are financially stable and elderly themselves so she wouldn’t want to leave them her estate if her daughter passed prior to her or with her. She likewise doesn’t want to leave the funds to her friends. I then start asking questions such as what are you passionate about? What groups help you, inspire you, or make you feel more hopeful for a better tomorrow? From time to time, clients will provide the name of a group I haven’t heard of, or worse yet, a group I have heard of but with a slightly different name. Red flags go up immediately and I go into protector mode. I know that scams on retirees is a 30+ billion dollar a year problem (yes that is a “b”) in the United States. Personally, I believe the problem is much worse as many seniors are afraid to report the scam out of fear their family will believe they are incapable of managing their affairs (back way to judge incapacity, by the way, but that is another topic). Therefore, when I hear of something I am unfamiliar with I go into action to research the group. How can you better protect yourself and those you care about? A common method for debunking myths is to go to the website www.snopes.com . This is a site I forward to my mother on a nearly monthly (and during the holidays and election years weekly) basis due to Facebook. However, for charities it likely will not be the best place to research a group. AARP has many great tools to help you research groups. For example you can visit the AARP Fraud page for a list of different ways to spot a scam. They also have list of groups they have vetted. Another site I have used to research nonprofits is Charity Navigator . Here you will find the financial background of many charities. Groups such as this have helped expose how many charities look good with marketing but are merely fronts for high executive paychecks. A general rule of thumb is a charity should be giving 80% of the amount they take in back to the mission of their charity. The fact that a CEO makes $500,000 isn’t disqualifying in and of itself. Look at the overall picture of the organization. If that 6 figure salary is 50% of the amount they raise in a year then you should avoid it; however, if that is less than 3% of the organizations gross receipts then it might be fine. Managing an international organization can be expensive; however, there are many groups which do it without milking the profits. Therefore, in closing this post, I will remind you to listen with your heart but give with your mind and if you have trouble separating the two ask for help. We are accepting new clients and are more than willing to help you. Take care.