Common Questions About Florida Law
It is natural to have many questions and worries when faced with a legal issue or litigation. The experienced lawyers at DeLoach, Hofstra & Cavonis, P.A., ask many common legal questions and provide useful answers to help get you in making the best decisions for you and your family.
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What is a Health Care Proxy and how is it Different from a Health Care Surrogate?
A health care proxy is used in Florida when someone is incapacitated and has not created a designation of health care surrogate or the designated surrogate is unable or unwilling to act. The health care proxy statute provides the legal ability for the family and others to take over someone's health decisions if the incapacitated person is unable to make health care decisions themselves. When an estate planning attorney (like us) helps with incapacity planning, we always do the appropriate advance directives, which includes the living will and health care surrogate designation. If someone fails to correctly plan ahead for their incapacity, the Florida proxy law provides an orderly determination for who will make the incapacitated person's health care decisions.
The Florida Health Care Proxy statute provides the order of people who can make decisions for the incapacitated person as follows:
(a) The judicially appointed guardian of the patient or the guardian advocate of the person having a developmental disability as defined in s. 393.063, who has been authorized to consent to medical treatment, if such guardian has previously been appointed; however, this paragraph shall not be construed to require such appointment before a treatment decision can be made under this subsection;
(b) The patient’s spouse;
(c) An adult child of the patient, or if the patient has more than one adult child, a majority of the adult children who are reasonably available for consultation;
(d) A parent of the patient;
(e) The adult sibling of the patient or, if the patient has more than one sibling, a majority of the adult siblings who are reasonably available for consultation;
(f) An adult relative of the patient who has exhibited special care and concern for the patient and who has maintained regular contact with the patient and who is familiar with the patient’s activities, health, and religious or moral beliefs; or
(g) A close friend of the patient.
Example: Mom has not done correct planning with her advance directives and she has a stroke and cannot make her own healthcare decisions. She is not married and has 3 children. Florida law provides that her three (3) children are her health care proxy, and that the majority decisions on mom's healthcare will rule.
The Florida Department of Children and Families (DCF) has a health care proxy acceptance affidavit (download the form here), which can be very helpful for those seeking to help their loved one.
Of course, good estate and incapacity planning tries to avoid the health care proxy, among other matters, but if your loved one becomes incapacitated and a health care surrogate was not created, you can follow this statute and use the DCF affidavit (above) to help your family member.
What about financial decisions?
A health care proxy (or designation of healthcare surrogate) does not give the ability for the family to make financial decisions, which includes banking, bill paying, legal matters and more. If the person needing help is competent, then he or she should do a durable power of attorney with a good elder law attorney. If the person is incompetent and family member needs to assist them with bill paying, financial matters and other legal aspects, then a court ordered guardianship would be necessary.
If you want to learn more about estate planning in Florida, we are glad to send you a copy of my book, The Top 20 Ways to Protect Your Florida Estate.
What evidence can be used in a Florida car accident case?
Most people aren’t thinking about protecting their injury claims in the moments after a car accident. Victims are often shaken and just want to go home, or are taken away from the scene by an ambulance while they're not yet conscious.
While receiving medical treatment is the most important thing you can do after a crash, collecting evidence to help your case should be the next thing on your agenda.
7 Pieces of Evidence You Need for Your Florida Crash Case
Whether you're filing a case in court or filing a claim with the insurance company, it's vital that you gather as much evidence as possible. The more documentation you have to support your losses, the more likely you are to get a settlement that covers your injuries and property damages.
Strong evidence in a car accident case includes:
- Police reports. Law officers are required to fill out an accident report whenever they attend to an accident scene. You may have to pay a fee for a copy of the police report, but the cost is usually minimal—and it's worth it, if the police officer made any observations that help your case. Insurers know that it's difficult to refute the word of a police officer at the scene, so if the officer’s report says you aren’t at fault, you have a good chance at compensation.
- Photographs. Pictures are invaluable to your case because they present an impartial view of the facts. There's no limit to the items that may be photographed, but common photos include the position of the vehicles after the crash, the damage done to both vehicles, the appearance of skid marks, the position of road signs and traffic lights, and photos of your injuries.
- Eyewitnesses. If you were unconscious at the time of the crash, the police report may include the names and contact information of the other driver as well as any witnesses that were at the scene. Any one of these people may be called to give their testimony regarding what they saw at the crash scene.
- Medical records. Your medical information is key to getting fair compensation for your injuries. You should have copies of all of your medical bills, including receipts for amounts both due and paid. You should also have copies of medical procedures, scans, tests, and treatment beginning on the day of the crash to the current date.
- Work absence records. If you've been unable to work as a result of your injuries, you will need proof of the days you have taken off of work as well as proof of lost benefits, such as lost sick days, bonuses, or opportunities for advancement.
- Property damage estimates. It's important to have all records relating to the damage to your vehicle, not just a repair estimate and car rental receipt. Some supporting evidence many people overlook is documentation of the condition of the vehicle before the crash, such as recent upgrades or improvements that increased the value of the car. Car maintenance records can also help prove that your car was in good working order and the crash wasn't caused by a problem with your vehicle.
- Items from the day of the crash. If your case goes to court, personal items may be admitted as evidence to show the extent of your loss, such as clothing you were wearing at the time of the accident, or the recording of your 911 call.
Strong evidence in your case is not only required to prove you weren't at fault, but also impact how much you're awarded in your claim. A forgotten out-of-pocket expense will leave you with less than you deserve for your medical costs, while doubt regarding fault may cost you thousands in pain and suffering damages.
Your Best Asset: An Experienced Attorney
The best way to gather evidence after a car accident is to seek the advice of an experienced attorney. Our legal team can preserve information that may otherwise have been destroyed, work with accident reconstructionists to recreate the scene, or call expert witnesses to give testimony on your behalf.
Fill out the contact form on this page today to set up your consultation with an injury attorney. We work on a contingency-fee basis, so you will not have to pay our firm anything until you receive compensation.
How are IRAs counted for Medicaid purposes?
When an elderly or disabled person is looking to apply for long-term care Medicaid in Florida, the applicant must document their income and assets for Medicaid purposes, which are set forth in our asset and income levels webpage. Generally, a single person is only allowed to have some $2,000 in countable assets while a married couple will be allowed some $126,000 (this amount changes every year) in countable assets.
Part of the application process means looking at countable assets. Countable assets include bank accounts, stocks, bonds, mutual funds, annuities and more. Basically, the applicant must disclose all assets as part of the process. Interestingly and importantly, the applicant's IRA/401K/Qualified Plans may not be a countable asset for application purposes. The rule is that if the applicant is taking periodic distributions from their IRA/401K/Qualified Plans, the account is not a countable asset for Medicaid purposes. Instead, any distributions from the account are counted as income for Medicaid purposes. This would mean, for instance, that any distribution from the IRA/401K/Qualified Plan may go to the nursing home as part of the patient's responsibility. This would also mean that any distributions from these plans could require a Qualified Income Trust, among other important ramifications. The application of this rule can be pretty tricky, with an example as follows:
Example #1: Mom is an unmarried nursing home resident and has $50,000 in her checking account and $50,000 in stocks and bonds. Her gross income is $2,000/month from Social Security. In order to get Medicaid to pay for mom's nursing home care, she is only allowed $2,000 in countable assets, meaning that she must spend down most of her assets (some $98,000) before Medicaid will assist her. Of course with a good elder law attorney, assets can be protected from the nursing home.
Example #2: Same facts but mom only has $10,000 in her checking account and $90,000 in her IRA. If mom is taking period distributions of $300/month from her IRA, she will only have the checking account as a countable asset for Medicaid purposes, with the IRA not counting as an asset. Interestingly, the $300/month coming from the IRA will take mom over the income cap for Medicaid purposes, meaning she will need an income trust in order to get Medicaid. Also, any distributions from the IRA will be countable income for Medicaid purposes, which means that mom will not be able to take money out of the IRA once she is on Medicaid to use it for her benefit!
In both examples, mom or her family would want to see a good elder law attorney to assist with the Medicaid application and possible protection of assets. In example #1, the elder law attorney may be able to help the elder legally spend down the assets. In example #2, an elder law attorney would be needed to help establish the Qualified Income Trust, among other things.
As we can see, an IRA would generally not need to be protected from nursing home spend down as long as the applicant is receiving their required minimum distributions. If you want to learn more about spending down assets from long-term care Medicaid, we have more information here.
There are no easy Medicaid applications and every situation is different, but if you or your loved one needs help to pay for their long-term care, we can help you. We can help you from anywhere in Florida as well.
People who read this may also want to read:
- Bypassing the Florida Medicaid Waitlist for Assisted Living Facilities
- My loved one is in the nursing home - is it too late to protect assets?
- Asset Protection and Florida Medicaid Planning
Download my Free Book!
If you want to learn more about Medicaid and asset protection in Florida, or are helping your aging loved one and need some help, please feel free to download our free book, Don't Lose Your Nest Egg to a Florida Nursing Home!
How can I dispose of personal property in my estate plan?
Florida law permits the use of a “separate writing” to dispose of certain items of personal property part of your last will and testament. Here are some common questions and answers that may assist your family from arguing over certain items upon your death, all in a simple and efficient manner.
Why use a Separate Writing in my Estate Plan?
A separate writing is best used to make sure certain tangible items go to certain people who may otherwise argue over who receives what. This allows you to make small changes to your estate without going to your attorney for items of personal property.
How do I use a Separate Writing?
If your will or trust authorizes a separate writing, you can create a list of certain property to be distributed to named beneficiaries. The writing must be signed and dated but it is not witnessed or notarized. You should describe the item with specific clarity.
What is covered with a separate writing?
Your separate writing covers antiques, furniture, jewelry and more, but specifically excludes gifts of cash, stocks, and bonds. If you think your heirs may argue over the property, or if you promised a specific item to that person, you would write it down on a separate sheet, which is then legally binding.
Where should I keep the separate writing?
Keep it attached to your will or in your estate binder so that your heirs could easily find it upon your death.
Learn more about Florida Estate Planning
Good estate planning means more than just will, trusts and incapacity planning, but also trying to avoid arguments or hurt feelings with your loved ones. If you want to learn more about estate planning, join us for one of our free monthly seminars.
What is a designation of health care surrogate?
A designation of health care surrogate is an incapacity planning document naming your health care advocate. This, along with your living will, is known as an advance directive.
What is a designation of health care surrogate?
This is a form that designates your decisionmaker in the event you need help with your care, advocacy and end-of-life wishes. Some states refer to it as a power of attorney for health care.
Should I update my health care surrogate designation?
Yes, if you have not updated your documents since 2015. Florida law was recently changed to include new options relative to when your designation of health surrogate goes into effect. The pre-2015 law said that your surrogate designation only went into effect if a doctor declared you incompetent. The new law lets the surrogate designation go into effect when you sign it. This change makes it much easier to ensure you are getting the care you need and for your surrogate to speak with your doctor without a declaration of incapacity.
Example: Mom, age 86, develops a urinary tract infection that completely disrupts her cognition and function level. If mom had the post 2015 Florida Health Care Surrogate, her trusted daughter could immediately help make mom's health care decisions without the formal necessity of two doctors declaring her incompetent. In other words, the surrogate can act faster in helping make mom's decisions.
Can my power of attorney be different than my health care surrogate?
Yes. Your durable power of attorney is for financial and legal matters, while your health care surrogate designation is for health care decisions. You can name different people to assist you as you age, but you would certainly want to make sure they get along with each other and can work together.
Why should my health care surrogate designation be separate from my living will?
Our opinion is that your designation of health care surrogate should be in a separate written form from your living will. While every situation is different, we like the idea that an elderly person or someone with beginning stages of dementia may need to change their health care surrogate but may not have the desire to change their end-of-life wishes in their living will. This allows easier adjustments to estate planning documents and clarity for all.
Example: Mom is getting forgetful at age 92. Her trusted daughter has to move away and another daughter is to become the health care surrogate. Due to mom's mental decline, she can understand her health care surrogate change but she may not be able to understand (or even want to discuss) the nuances of her own end-of-life wishes in her living will. With separate documents, we can easily change the health care surrogate but not have to broach the very touchy subject of mom's end-of-life care wishes.
What else should I consider with health care surrogate designations?
Make sure your documents have alternate people who can help you. We have seen a number of incapacity planning documents lately without alternate agents. Please call me if you would like to create or update your existing health care surrogate designation. We also invite you to attend any of my free monthly estate planning seminars to learn more.
What if my loved on is incapacitated and did not create a health care surrogate?
See our section on Health Care Proxies in Florida for more information.
Learn more about Florida advance directives:
Is title insurance needed when buying a home in Florida?
The answer is YES! When you purchase a home, you want to be certain it’s yours. Even the most diligent search of the public records may fail to disclose title defects such as:
- A forged will or deed
- A married person conveying homestead real estate without his or her spouse
- Fraudulent impersonations
- Secret marriages
- Undisclosed heirs
- Invalid divorces
These are just a few of the potential problems that can arise. Without the protection of title insurance, you would be in jeopardy of losing your investment.
What types of title insurance are there?
Two. The owner’s policy protects the homeowner or real estate investor. The loan (mortgagee) policy protects the mortgage holder by ensuring that its mortgage lien is the first lien on the property. If you are financing your real estate purchase, your lender will require a loan policy. This is typically a closing cost of the buyer.
Is there an annual premium for title insurance?
No. You pay only once. There are no renewal premiums, and there is no expiration date on the policy. The protection lasts as long as you, or your heirs, retain an interest in the property. The real estate you own represents stability, permanence and the hope of the future. Don’t take a chance and let your property be taken from you because of a flaw in the title. It makes good sense, for the relatively small amount it costs, to protect yourself with title insurance.
Please call me or fill complete our contact form if you have any questions about title insurance.
What are the most common causes of Florida car accidents?
Nearly every American will be involved in a car accident at some point in his or her life. While it's the responsibility of every driver to stay safe on the road, many people engage in risky or even outright dangerous behaviors that place them and others at risk.
By learning the most common threats to road safety, drivers and passengers can recognize danger early on, and maybe even prevent an accident before it happens.
Driver Actions and Other Common Factors in U.S. Road Accidents
The National Highway Traffic Safety Administration (NHTSA) has performed numerous studies on car accident causes over the years. Each year, driver error is by far the biggest single cause of car accidents nationwide, with a much smaller percentage of accidents caused by vehicle malfunction or adverse road conditions.
Those statistics are right in line with what happens on Florida's roadways as well. The most likely factors that lead to car accidents include:
- Distracted driving. Distracted driving has been on the rise since the invention of smartphones, with as many as one in four auto accidents involving some level of distraction. Cell phone use is the biggest distraction, including talking on the phone, checking email and social media, or texting while driving. If a driver doesn't notice the lights change, hits the brakes suddenly, or is holding one hand up to his face, stay well clear of his vehicle in traffic—and of course, resist the urge to use your phone.
- Impaired driving. While alcohol and drug use is less prevalent than distracted driving, it's still a leading factor in accidents that involve fatalities. Drinking and use of illegal drugs or prescription medications can decrease reaction times, impair judgment and vision, and even cause hallucinations. If you see someone acting erratically on the road, always report the behavior to police. Your actions could stop the impaired driver from causing a crash.
- Drowsy driving. Drowsy driving carries many of the same risks as driving under the influence. While it's not illegal to drive while fatigued, tired drivers place both themselves and others at risk if they fall asleep while driving. Even if they don't fall completely asleep, their comprehension and motor skills are still impaired. Beware of drivers who “drift” in and out of lanes, as this is a common sign of fatigue.
- Reckless driving. Reckless driving is a combination of risky or illegal maneuvers that increase the likelihood of an accident. Aggressive actions such as speeding, tailgating, or “chasing” other cars due to road rage can be considered reckless, as can running a red light or engaging in street racing. A driver can be held liable for an accident if he or she was traveling too fast for weather conditions, such as a downpour or heavy fog, even if the driver was within the posted speed limit.
- Unsafe lane changes. Many accidents on the freeway are a direct result of unsafe lane changing, such as late merging or failing to signal a lane change. These types of accidents can also occur on city streets, in traffic circles, and anywhere two lanes of traffic flow in the same direction. The majority of these accidents can be prevented by leaving plenty of space between vehicles, leaving enough time to complete the lane change safely, and checking mirrors and blind spots before proceeding into the desired lane.
- Road conditions. Even if all road users are driving as safely as possible, they're still at the mercy of the road surfaces and driving conditions around them. City and state governments have a duty to make all public areas as safe as possible, including the roads drivers use every day. Potholes, oil slicks, spilled gravel, dangerous curves, road debris, and other hazards can easily cause a driver to blow out a tire or lose control of the vehicle.
- Car defects. From the design of your vehicle to the different components installed in its many systems, automobiles have an almost limitless potential for malfunction. If your car wasn't performing properly before or during a crash, the manufacturer could be held liable for selling a dangerous or defective product.
We Can Help
If you need help after a car accident, we can get you the compensation you deserve—and you won't have to pay our firm anything until you receive compensation. Fill out the contact form on this page today to set up your consultation with an injury attorney.
How much is my Florida car accident claim worth?
Many accident victims want to know how much they could receive if they proceed with a car accident claim. The amount of compensation depends on your losses. The amount of your losses make the difference between filing an insurance claim and filing an injury lawsuit.
Since losses vary widely depending on the circumstances of the case, it literally pays to accurately calculate how much your life has been affected by the crash.
Types of Compensable Losses in a Florida Crash Claim
While no victim can completely predict how much compensation they'll receive in a car accident case, they may be able to estimate the range of compensation available in each category of loss.
When totaling the costs of your claim, remember to account for:
Past and future medical bills
Medical costs of an accident can quickly soar into the tens of thousands, especially if a victim needs ongoing care. Everything from emergency medical treatment and initial hospital stays to prescriptions and follow up appointments should be factored into the total, as well as a doctor’s estimate of your future treatment costs.
It's common for injury victims to miss work for several weeks after a crash, and they often have limitations on the amount they can earn while they recover. Lost wages should include:
- All time spent off work due to the accident
- Any money lost due to working part time because of injury limitation
- Work missed to attend doctor’s appointments
- All wages you are likely to lose in the future due to the effects of the accident
If you are unable to work at all for the rest of your life, the total amount of your lost income is typically estimated by taking your annual earnings and multiplying by the number of years you have left until retirement age. This amount is adjusted for inflation, raises and bonuses, and cost-of-living adjustments.
The damage to your vehicle can make up a significant portion of your claim. When your car is damaged in a Florida crash, you have the right to choose a body shop and have your vehicle repaired with "like" kind and condition parts. You can also hold the at-fault driver accountable for the cost of a rental car, as well as for the time that you were without a vehicle due to the accident.
If the cost to repair your vehicle is more than 80 percent of its fair market value, your insurer can declare the vehicle a "total" loss. In this case, the at-fault driver can be on the hook for some or all of the value of the totaled vehicle, as well as any other personal property—such as eyeglasses, electronics, car seats, stereos, or luggage—that were lost or damaged in the crash.
If you needed to make changes in your living situation due to the accident, you can claim the costs of these expenses. These may include installing a wheelchair ramp, hiring visiting nurses or caregivers, moving into a one-floor home, or moving into a 24-hour care facility.
Permanent physical effects
Long-term or permanent effects of an accident can have financial and psychological consequences for a victim. Permanent disability may often lead to depression, while scarring or disfigurement can significantly impact a victim’s career options and earning capacity. It's best to have an experienced injury attorney calculate the full impact of these losses.
Non-economic damages, also called punitive damages, are an amount above and beyond the exact dollar amount that you paid or will pay for the accident. The court will assign these based on its impression of the suffering you've endured, whether the accident forced you to change your regular activities, effect on your marriage or relationships, and your overall quality of life. The judge may assign further punitive damages to compensate you for the other driver’s negligence, such as if the other driver was drunk or texting at the time of the crash.
We Can Help
If you need help calculating your losses after a crash, we can provide a personalized assessment of your case at no cost to you. From your first consultation to the conclusion of your case, you won't have to pay our firm until you receive compensation. Fill out the contact form on this page today to have us begin an investigation into your accident claim.
What are the most common kinds of car accident injuries?
Car accidents happen so frequently, it's nearly impossible to find someone whose life hasn't been affected by a crash. Even when an accident doesn't cause serious injury, it can still result in the loss of a vehicle or time off of work to recover from the strain.
The good news is that most accidents are entirely preventable—and just knowing how they're most likely to occur can help you avoid a crash before it happens.
Different Types of Car Accidents Can Cause a Wide Range of Injuries
The most frequent crash scenario by far is the rear-end accident. One car is following another too closely, and the lead car suddenly stops, forcing the following car directly into the back end. In these accidents, the most common injury sustained by the driver and passengers in the lead car is whiplash. The driver of the following car is almost always determined to be at fault.
After rear-end collisions, the most common kinds of car accidents fall into the following categories:
- Left turn accidents. Accidents tend to occur in intersections or anywhere cars may cross paths. The most common example is the left turn accident, where a driver attempts to make a left turn in the path of a driver going straight through the intersection. Common front-end damages for drivers and passengers in the crash include facial injuries or chest trauma from front airbags, and broken bones if the cross impact was severe and they're not protected by side airbags.
- Head-on collisions. These happen when two vehicles strike each other on the front, usually because one or both drivers veer out of their travel lanes. Head-on crashes cause serious injuries and are often fatal, especially since motorists in these accidents tend to travel at high speeds.
- Side-impact accidents. These collisions are also known as “broadside” or "T-bone" accidents, as the front of one vehicle strikes the side of another. A left-turn accident is a type of side-impact crash. Most side impact crashes are due to driver inattention or speeding, and both behaviors make injuries more likely.
- Sideswipe accidents. Any traffic situation that requires vehicles to travel close to one another has the potential to cause an accident. Merging is especially dangerous, as it may force cars to “line up” while traveling at high speeds, increasing the risk of a sideswipe collision. Two cars that collide while traveling in the same direction can cause body damage to the vehicles and soft-tissue injuries for both drivers—and more serious injuries can occur if one of the drivers loses control.
- Single-vehicle crashes. These happen when a car runs off the road, strikes a tree, or spins out on ice or gravel. While a driver is generally assumed to be at fault for this type of crash, he or she may still be able to file a claim against a municipal entity or construction company if the road wasn't properly cleared of debris, and such conditions contributed to the accident.
- Multi-vehicle accidents. A multi-vehicle collision can involve many different individual kinds of crashes and injuries. These kinds of accidents usually occur on highways or in densely-populated areas, and they carry unique complications due to the various types of vehicles involved and the number of victims. Rescue workers may also have trouble reaching victims in the middle of the pile-up, while a fire from one vehicle can quickly spread throughout the crash area. Vehicles involved in these accidents are sometimes hit multiple times, further increasing the risk of injury.
Getting Help If You've Been Injured
While the type of car accident can affect the range and seriousness of injuries, there are many other factors that might determine how much a car accident case will be worth. If the driver who struck you was speeding, under the influence of alcohol or drugs, or texting before the crash, the driver can be held liable for negligence and you could recover a significant amount for your injuries.
Fill out the contact form on this page today to have us begin an investigation into your accident claim.
Where does my income go when I am on nursing home Medicaid?
Income rules for long-term care Medicaid have a number of moving parts that vary based upon marital status.
A single person on Medicaid in the nursing home must pay their countable income to the facility as part of his "patient's responsibility." In effect, the Medicaid applicant must pay their income to the facility as part of their co-pay, where Medicaid pays the rest of the funds for the resident's stay. The single applicant is allowed to keep $105/month as part of his "personal needs allowance." This allows the resident to buy personal items such as clothing and toiletries.
A married person in the nursing home has the same set of rules with one large qualification - the spouse at home may be able to keep some of the applicant's income as part of the community spouse's income allowance (CSIA). The community spouse may be able to siphon off some of the applicant's income based upon the community spouse's own income. An example of this is as follows:
Married nursing home resident with $2,000/month income applies for Medicaid. The spouse at home (the community spouse) only has income of $1,000/month. The spouse at home, as a minimum, may keep $1,030/month of the resident's income, at a minimum. This amount varies annually (see below for up-to-date numbers). This means that the nursing home resident can keep $105 per month as their personal needs allowance, paying $865/m to the nursing home as their patient's responsibility. ($2,000 minus $1030 minus $105 = $865).
If the applicant's gross income exceeds $2250/month, they will need a Qualifed Income Trust (QIT). The QIT generally does not effect where the income goes (i.e., to the nursing home/community spouse) but how it gets there.
We go into much greater detail about the Minimum Monthly Maintenance Allowance, the community spouse's income and the spousal spousal diversion on this page.
The Florida Medicaid financial requirements change frequently, with this post being the most up-to-date numbers for eligibility.
If your loved one is looking at long-term care or Medicaid in Florida, you are welcome to attend one of our free monthly seminars to learn more!
Do I need an attorney to apply for VA benefits for my elder?
The short answer is "maybe."
VA Pension benefits were created to assist with the veteran, and his or her surviving spouse's, extraordinary health care needs. Most people refer to this program as "aid and attendance", which is a specific benefit level for those needing the most help. We have more about veteran's benefits for the elderly here.
VA Pension benefits are "needs based", meaning the applicant must have only a certain amount of countable assets. The VA rules basically want the applicant to need the money for their healthcare but that the funds are not intended to provide an inheritance to the children. This means that the applicant is allowed countable asset limits based upon the applicant's age and money they are spending on their healthcare. For instance, a 65 year old veteran may be allowed $80,000 in countable assets but a 90 year old veteran applying for pension may only be allowed to have $30,000 in assets.
So the general rule is that an elder law attorney is not needed to apply for VA benefits if the assets are already within the applicable range. Here, we typically send people to their local Veterans Services office provided by most counties. If the applicant has assets over the limit, then an elder law attorney can help protect assets and only then apply for VA benefits. A good elder law attorney can protect assets with:
- legal gifting;
- asset restructuring;
- irrevocable trust planning;
- and more . . .
One key to all this planning is that whatever is done to protect assets must not interfere with potential Medicaid benefits in the future. We typically use VA Pension benefits to help with in-home and assisted living care while we generally look to Medicaid to pay for the nursing home.
What does this all mean? If your elder is a veteran or is the surviving spouse of a war-time veteran, you should see an accredited Veteran's Benefits attorney to help clarify your situation and if an attorney is needed.
We offer free seminars on Medicaid and VA planning if your elder may need help. Sign up here to attend!
Will I lose my home if I go to the nursing home on Medicaid?
The short answer is "no" with a few caveats.
First, your Florida homestead is not a countable asset for Medicaid purposes unless it is over $560,000 in assets. If you are married, there is no cap in the value to the homestead. This means that you are allowed to own a home if you are in the nursing home. Further, even if you stay in the nursing home for a long period of time, you will never lose your homestead. The family can hold onto the home for years, for instance, and it will not become a countable asset for Medicaid purposes. We have another page on the financial requirements for Florida Medicaid.
When you die, the state of Florida has a claim in your estate for what they paid to assist you with Medicaid. Importantly, your homestead property is not subject to your creditors, even the state of Florida, so "the state" does not take it, even upon your death!
As with all legal rules, there is a good bit of nuance here and there that can get an unprepared family in trouble, so you should always seek out legal advice to make sure your case would not have any problems. For instance, problems can occur if you:
- rent the homestead property
- own a co-operative share (such as Seminole Gardens)
- or the last will and testaments makes the homestead property be sold upon death.
If you want to learn more about your homestead and how it interacts with Medicaid, please download our free guide to protecting your Florida Homestead property.
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We give free monthly seminars on estate planning and elder law - sign here here to attend!
Can I give $14,000 per year to a child to protect it from the nursing home?
No! We get this question all of the time. Many people are concerned about protecting their assets in the event they go into the nursing home. We all know that the nursing home is very expensive, often exceeding $9,000 per month. Of course, none of us ever want to go into the nursing home, but sometimes this is the only place that can provide the correct care for an aging loved one. But the $15,000 per year annual exclusion (2018) relates only to the Federal estate tax annual limit, not to the rules of Medicaid.
Basically, the $15,000 annual gift tax exclusion has nothing to do with the Medicaid 5 year lookback. The Florida rule is that you are not allowed to give away any money if you apply for Medicaid within 5 years of the last gift. This makes sense as the government wants to discourage asset protection or people intentionally impoverishing themselves. If you give money away, the gifting creates a transfer penalty. This blog post discusses calculating the Florida Medicaid transfer penalty.
If you want to protect your assets from the nursing home, there are some good ways to do it with good advice from a qualified elder law attorney. But gifting the assets away at $15,000 per year is generally not the way to do it. Giving assets away should be done in a lump sum in certain scenarios, and if you want to try to protect money from the nursing home, would generally be done to an irrevocable asset protection trust. If your mom or dad is already in the nursing home, there are legal ways to protect assets and also to do Medicaid spend down planning.
Importantly, you should seek help from a qualified elder law attorney if you want to protect assets. Sign up for a free seminar on Medicaid, VA and asset protection planning if you want to learn more.
You can read more about gifting and other aspects of Medicaid and the application process with the following articles:
- 7 Lies Regarding Florida Medicaid
- Can assets be protected even if my mother is already in the nursing home?
- Florida Long-Term Care Medicaid Requirements
Download my Free Book!
Please feel free to download my free book, Don't Lose Your Nest Egg to a Florida Nursing Home, which discussed Medicaid, long-term care, asset protection planning and more.
My tenant at a residential property is late on their rent, what can I do?
Residential tenancies are governed by Chapter 83, Part II, Florida Statutes. In the event your tenant fails to timely make a rental payment, a 3-day notice should be provided to your tenant demanding payment of rent or possession of the premises. Should your tenant fail to comply with the 3-day notice, you may terminate the rental agreement. Should your tenant fail to vacate the premises upon such a termination, an eviction proceeding may be filed in county court where the rental property is located. It is important to note that the form and delivery of the 3-day notice must comply with the specific requirements set forth in Chapter 83. It is recommended that you consult with an attorney to address any questions you may have regarding proper notice to tenants or filing an eviction action.
If I must file a lawsuit to evict my tenant, may I recover my attorney’s fees expended?
Generally, to recover attorney’s fees in litigation there must either be a contractual or statutory right to same. Chapter 83, Florida Statutes provides for recovery of prevailing party attorney’s fees in certain circumstances. It is also recommended that in any written lease provisions for entitlement to attorney’s fees be included. Such provisions, when read in conjunction with Chapter 83, Florida Statutes, may be useful in recovering attorney’s fees incurred in any litigation necessary to enforce the terms of the lease.
Please call me at (727) 397-5571 or fill out a contact form if you have any questions about landlord and tenant law.
Am I required to wear a helmet while riding a motorcycle in Florida?
While it may be legal for some people to ride motorcycles without helmets in Florida, it's a good idea for riders to wear helmets at all times.
The National Highway Traffic Safety Administration has reported that bikers without helmets are 15 percent more likely to suffer traumatic brain injuries, and roughly twice as likely to suffer fatal head injuries, after an accident than helmeted riders.
With that being said, state law only requires riders who are under the age of 21 to wear a helmet while operating a motorcycle. This state law is compliant with U.S. Department of Transportation (DOT). Riders over the age of 21 may operate or ride motorcycles without helmets as long as they're covered under an insurance policy that offers at least $10,000 in injury benefit protection.
In addition, Florida law requires riders of all ages to wear eye protection such as goggles or face shields while operating a motorcycle, even the motorcycle is equipped with a windshield. Sunglasses and prescription glasses are usually not considered adequate to meet the eye protection requirement.
License Requirements for Florida Motorcyclists
Proper training and licensing is essential in the prevention of Florida motorcycle accidents. Florida has strict licensing and road skills assessment requirements for any person wishing to operate a two or three wheeled motorcycle with an engine size greater than 50cc. Motorcycle operators may be obtain a license by achieving and maintaining a motorcycle endorsement on their driver’s licenses or by holding a Motorcycle Only license.
In general, motorcyclists need to compete the following to be legally licensed in Florida:
- Florida driver’s license with a motorcycle endorsement. Drivers who wish to add a motorcycling endorsement to their licenses must hold at least a valid Class E operator’s license, as well as pass the Basic Rider Course (BRC), offered through the Florida Rider Training Program, with an authorized sponsor. These courses involve on-cycle riding sessions to practice road safety techniques and cover a variety of programs on gauging the riding environment, understanding hazards, and avoiding crashes. A motorcycle endorsement can be added to a license within one year of successful completion of the BRC.
- Motorcycle Only license. By state law, no person under 16 can legally operate or obtain a license to operate a motorcycle, moped, motorized scooter, motorized bicycle, or any other two or three wheel motor vehicle on Florida street or highways. In addition, anyone who is at least 16 but under 18, will have to hold a Learner’s License for at least one year, with no traffic convictions, before applying for motorcycle licensing. If you are over 16, you must pass the same road knowledge test that is necessary for a regular Class E driver license, and you must complete the BRC with an authorized sponsor. When the BRC is successfully completed, you must report the completion of the course and show your state-issued ID to a driver’s license office. You will need to pay any required vehicle or endorsement fees before your Motorcycle Only license can be issued, and the license will be restricted to operating motorcycles.
- Motorcycle endorsement on a driver’s license issued by another state. If your driver’s license was issued by a state other than Florida and is endorsed for motorcycle operation, Florida will recognize the endorsement automatically. The only exception is for holders of Alabama licenses with motorcycle endorsements, who must provide proof of completion of a Motorcycle Safety Foundation BRC, or complete the BRC, before the motorcycle endorsement is considered valid.
Although many motorcyclists take every hill and corner with the utmost care, motorcyclists are often surrounded by drivers who may not practice the same diligent safety precautions. If you or someone you love has been involved in a motorcycle accident, our aggressive legal team can take over the case while you take the time you need to recover. Simply fill out the form on this page today to make an appointment in our offices.