Our Sarasota and Manatee County Florida elder law practice is focused on all aspects of planning, counseling, educating, and advocating for senior Sarasota and Manatee County Florida residents in the areas of: illness, incapacity, end-of-life decisions, veteran benefits, death and guardianship. Our elder law practice is defined by our service to our clients.
Every senior Sarasota and Manatee County Florida residents legal problems are a unique function of the aging process. Those problems can be complex and include estate planning, incapacity, end of life decisions and the cost of long-term care. We focus on our Florida client's legal needs and work with a variety of Florida legal tools and techniques to meet their goals and objectives. This includes assisting them with planning for long-term care needs, including nursing home and assisted living care placement, asset preservation, estate planning, Medicaid qualification, estate planning issues, guardianship, planning for incapacity, end of life issues, probate and trust administration, eligibility for veteran benefits and transferring assets to other family members.
I serve clients throughout Sarasota, Venice, Osprey, Port Charlotte, Nokomis, Englewood, Casey Key, Bird Key, Siesta Key, Longboat Key, University Park, River Club, Palm Aire, Bradenton, Meadows, Anna Maria Island, Palmetto, Parrish, Ellenton and Lakewood Ranch.
Frequent Florida Elder Law Questions:
Q. If you have too many assets to qualify, but need Medicaid now, can you still protect any assets?
A. Yes, you can still protect the assets. While you may have lost the opportunity to use some strategies, it is never too late to protect most if not all of the remaining assets.
Q. If you give assets away do you have to wait 36 months to qualify for Medicaid?
A. No. New rules effective in 2008 severely penalize you for making uncompensated transfers of assets. These rules will extend the look-back period to 60 months.
Q. Is the home counted as an asset?
A. No. The first $500,000 in home value is a not counted as an asset so long as the owner has an intent to return.
Q. When you die does the state take the house?
A. No. But if the house does not qualify as the “homestead” as defined by Florida’s constitution it could be taken by the state to recover money spent on your care in the nursing home after you die.
Q. What about the money in the safety deposit box, do you have tell anyone about it when applying for benefits?
A. Yes. You must disclose to Medicaid all of your assets. Failure to do so is fraud. Always tell us about all the assets.
Q. Can your son take money out of your joint account without affecting eligibility?
A. No. Any transfer of assets from a joint account, regardless of who makes the transfer, will be considered a transfer.
Q. Can you still give $13,000.00 a year away?
A. No, not without it being considered a disqualifying transfer. Many people mistakenly believe that because you can give away $14,000.00 per person, per year, tax free, that this is the same case with Medicaid. Unfortunately, it is not and the gift may adversely affect your eligibility.
Q. Do you get to keep your income if you are on Medicaid?
A. No. You are required to pay to the nursing home your total monthly income, minus $35.00 for personal needs. But, if there is a spouse he or she keeps all of their income and may be entitled to some or all of the applicant’s income.
Q. Should you wait until you need Medicaid benefits before seeing an elder law attorney?
A. No. Many of the options available to protect your assets are dependent on time. Therefore, the sooner you begin planning before the need arises the more options you have to preserve the assets.
Q. Once you are in a nursing home are there still planning options available?
A. Yes. There are multiple options available to preserve and protect assets.
Q. Do you need to have an elder law attorney help you qualify for Medicaid benefits?
A. Only an elder law attorney can bring together the necessary Medicaid planning, estate planning and incapacity planning skills to comprehensively solve the issues presented by a prolonged stay in a nursing home.
Every Sarasota and Bradenton Florida resident is presumed to be capable of making his or her own decisions unless a Sarasota or Manatee County Florida Probate Court determines they lack capacity. If a Sarasota or Manatee County resident becomes incapable of making responsible decisions for themself a Florida Probate Court can appoint a substitute decision maker ("Guardian") to act on their behalf.
The Florida Guardian will be authorized by the Sarasota or Manatee County Probate Court to make legal, financial, and health care decisions on behalf of the Ward. Depending on the level of incapacity established by the Sarasota or Manatee County Florida Probate Court for the Ward, the Guardian may be required to seek court approval for various decisions.
Determination of Incapacity:
Under Florida guardianship law, a Sarasota Florida resident can be judged to be in need of guardianship when he or she lacks the ability to make responsible decisions. This has been defined to include the lack of capacity to make sound decisions. This determination will be made by three licensed professional (including a physician).
The Sarasota & Manatee County Florida
Under Florida guardianship law, anyone interested in the "alleged" incapacitated individual's well-being can initiate a Florida guardianship proceeding.
At the initial emergency guardianship hearing, the Sarasota or Manatee County Florida Probate Court will evaluate the evidence presented and attempt to determine whether an "Emergency Temporary Guardian" needs to be appointed for the alleged incapacitated Sarasota or Manatee County Florida resident. If sufficient evidence is presented, the Sarasota or Manatee County Florida probate Court will determine whether the individual (spouse, family member, friend, neighbor or professional guardian) or organization seeking the role of guardian will be appointed to serve as their guardian. When appointing an individual to serve as a Guardian, the Sarasota or Manatee County Florida Probate Court will give first consideration to family members and then those who play a significant role in the individual's life and who are both aware of and sensitive to the Ward's needs and preferences.
Sarasota & Manatee Guardian of the Property:
A Sarasota or Manatee guardian of the property will be responsible to inventory the property of the ward, invest it prudently, use it for the ward’s support, and account for it by filing detailed annual reports with the court. In addition, they must obtain Sarasota or Manatee County Probate Court approval for certain financial transactions, such as selling or mortgaging property.
Sarasota and Manatee Guardian of the Person:
The Sarasota or Manatee guardian of the person may exercise only those personal rights that have been removed from the ward and delegated to them, such as to consent to medical, mental and personal care services and to determine the place and kind of residential setting best suited for the ward. The Sarasota guardian of the person must also present to the Sarasota or Manatee Probate Court an initial guardianship plan including provisions for medical, mental health and personal care services and the type of residential setting best suited for the ward every year thereafter and an accurate accounting of all assets and distributions.
Annual Reporting Requirements:
To avoid the potential for abuse, Sarasota and Manatee County Florida Probate Courts hold guardians accountable for their actions. A Sarasota or Manatee County Florida Guardian of the Property is responsible to inventory the Ward's property (real and personal), invest the Ward's funds, and file annual detailed financial reports with the court. In addition, a Sarasota or Manatee County Florida Guardian of the Person must file an annual report on the Ward's physical health and care. This includes proof of adequate residential arrangements for the Ward, sufficient health care and treatment services, and that educational and training programs have been made available to the Ward.