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 sovereign immunity in Florida?
Sovereign Immunity: "The King can do no wrong."
Sovereign immunity is a legal principal that dates back to ancient times. It comes from the idea that "the King can do no wrong" and could not be sued. Sovereign immunity is still very much alive and well. As a result, you can't sue the government unless you have specific permission to do so. This principle is reflected in the Florida Constitution which states that suits may be filed against the state only as permitted by law. Florida law provides for a limited waiver of sovereign immunity which permits suits against the state under certain circumstances.
Sovereign immunity applies not only to "the state", as that term is generally understood, but also to agencies of the state and private entities performing what are essentially governmental services. Generally speaking, the state can be sued for breach of contract and for torts (negligence and intentional wrongdoing). However, there are specific procedures which must be followed in order to sue the state, particularly when suing the state for a tort claim. The Florida Tort Claims Act sets forth this procedure. Most importantly, the Florida Tort Claims Act requires a claimant to send a notice to the government within 3 years from the date of the claim. It may be necessary to send this notice to multiple governmental agencies. It is important to note that the 3 year deadline to serve the notice is shorter than the 4 four year statute of limitations to bring a tort action. The claim will be barred if the notices are not timely sent.
Although Florida Law provides for a limited waiver of sovereign immunity, the amount of money which can be recovered from the state by an individual claimant in a tort action is limited to $200,000. There are exceptions to this cap when there is an insurance policy exceeding the $200,000 cap. In the absence of an insurance policy exceeding the $200,000 cap, a claimant may pursue what is called a "claims bill". This is essentially an application to the state legislature to pass a law allowing the state to pay a claim in excess of the $200,000 cap. It is extremely difficult to get a claims bill passed in the legislature.
I have experience bringing claims against the state and state agencies. I welcome the opportunity to discuss any sovereign immunity related claim you may have. To learn more, please visit HelpForTheHurt.com.
How can I pay my medical bills after a pedestrian accident?
When two cars collide, the victims have the benefit of airbags, steel frames, and countless safety measures to protect them from harm. People who are struck while walking or cycling have no such protection, causing injuries to be much more severe. Pedestrians involved in vehicle accidents are usually sent to the emergency room, may have a lengthy hospitalization, and are out of work for weeks, or even months, all of which, can be extremely costly.
The High Medical Costs of a Florida Pedestrian Accident
Pedestrians and bicyclists are often struck when vehicles turn in front of them, wander into pedestrian paths, or in a moment where the driver’s attention wasn't on the road. In just a few seconds, a pedestrian can suffer severe disability or even death as a result of being struck by a car or hitting the pavement at a high speed.
Common injuries in pedestrian-car crashes often include:
- Head injuries. A pedestrian will usually suffer traumatic brain injury (TBI) as his or her head makes contact with the hood of a car or the road surface. Even if a bicyclist is wearing a helmet, he or she can still suffer concussions or brain bleeding that results in long-term brain damage.
- Chest and abdominal trauma. The force of impact can break a pedestrian’s bones, causing fractured ribs, a broken pelvis, and internal bleeding.
- Spinal injuries. Bicyclists and pedestrians often suffer back injuries, such as a herniated disc or a spinal fracture that results in temporary or permanent paralysis.
- Injuries to the extremities. In addition to internal injury, pedestrians may suffer broken hands, feet, and fingers as they attempt to brace their falls—or road rash and broken noses if they're unsuccessful.
- Death. An impact at high speed can easily cause loss of life for a pedestrian or cyclist, placing an enormous financial and emotional burden on surviving family members.
Methods of Payment for Pedestrian Accident Victims
There are many ways for accident victims to get compensation for the loss of their property, the costs of medical treatment, and even pain and suffering after a crash. Some of the most common methods include:
- The pedestrian’s car insurance. Florida is a no-fault insurance state, meaning each driver is expected to cover the costs of his or her own injuries after a car accident. All drivers are required to purchase personal injury protection (PIP) insurance to cover any injuries caused by car accidents. If the injured pedestrian or bicyclist also owns a motor vehicle that's insured in the State of Florida, the victim can use his PIP car insurance coverage to pay for his injuries, even if his vehicle wasn't involved in the accident. If the injured pedestrian doesn't own a vehicle, he or she can be covered under the insurance policy of a relative living in the same household that owns an insured vehicle.
- The driver’s car insurance. If the injured pedestrian doesn't own a car and doesn't live with someone who owns a car, he or she can get payment under the insurance of the at-fault driver. This coverage provides medical, surgical, disability insurance, and funeral benefits to the driver and to other persons struck by an insured vehicle. In general, PIP providers are required to pay 80 percent of medical bills and up to 60 percent of lost wages directly caused by the effects of the crash up to a limit of $10,000.
- The pedestrian’s health or disability insurance. Although PIP insurance can pay for a significant amount of a person’s injuries, it's often not enough to cover the full effects of a pedestrian accident. A victim may have to file a claim under his a health insurance or apply for disability benefits if he's unable to work or needs ongoing medical care due to the crash.
- A personal injury lawsuit. Many people who are struck while walking or cycling don't have enough insurance coverage to pay for the extent of the treatment they'll need to recover from their injuries. Some won't ever be able to function at the same level as before the accident, and may not ever be able to earn a living to support themselves or their families. In these cases, victims would be best served by speaking to an accident attorney about their case. A personal injury case may be the best way to recover lost income, ensure that future health costs are paid for, and to hold the driver accountable for pain and suffering.
We Can Help
If you or someone you love has been involved in a car-pedestrian accident, our aggressive legal team can take over your case while take the time you need to heal from your injuries. Simply fill out the form on this page today to make an appointment in our offices.
Why do I need an injury attorney with truck accident experience?
In the days and weeks after a semi-truck accident, victims are forced to struggle with overwhelming physical and financial demands. They may be coping with extensive injuries, have trouble collecting fair payment from an insurance company, or even have lost a family member in the crash. When it becomes clear that a person needs a legal advisor to get proper compensation, he is then faced with an important decision: which accident attorney should represent him?
The Importance of Choosing an Injury Attorney with Truck Accident Experience
Crash injury cases are normally complicated, but are even more so when commercial trucks are involved. In order to be fully compensated for your losses, your legal team must have the experience needed to win these types of claims—and the attorney you choose for representation can make or break your case.
Your truck crash attorney should be well-versed in the details of these kinds of cases, including:
- Trucking regulations. Trucking companies must adhere to federal regulations on the condition and proper operation of their vehicles. Improper maintenance, cost-cutting measures, and failure to properly screen and train drivers can also constitute negligence. Your attorney should be familiar with these laws as well as the penalties for breaking them, in order to negotiate a fair settlement.
- Commercial insurance companies. Payment for truck accident injuries will usually be made by the trucking company’s insurer. These commercial insurance carriers are paid based on their ability to save the company money, may use underhanded tactics to deny or underpay claims. Your lawyer must know how to negotiate with commercial insurance companies and handle a claim against a powerful defendant.
- Loading requirements. In some cases, accidents may be caused by cargo loaded by a truck driver and hauled in the semi, or another party may have loaded the trailer. A truck loaded beyond capacity or not loaded securely could make the rig unbalanced, causing cargo to spill into the road where it strikes a car. A lawyer's full understanding of loading and commercial transport laws is vital to a truck crash case.
- Third party claims. Some accidents are caused not by trucking company negligence, but the fault of a product manufacturer, government agency, or other entity. Just as a loading company may share fault for causing a crash, the maker of defective tires or brakes, or a city government that didn't address dangerous road conditions, may be held liable for an accident.
- Hours of service requirements. Truck driver fatigue is a major cause of Florida trucking accidents. Although there are strict regulations on the length of time a driver can spend behind the wheel, truckers and their employers often disregard them, in order to make more deliveries. Your attorney should make a full investigation into the trucker’s driving logs, driving history, and company policies regarding mandatory breaks and non-driving time.
- Crash scene investigation. Trucking companies and their insurers gather evidence and investigate the scene immediately after a crash. They have procedures in place to reduce their liability and limit the financial recovery of people injured in the crash, and get started before the victims have even left the hospital. Your attorney must immediately conduct a crash scene investigation on your behalf, this includes requesting any evidence collected by the opposition, and issue a spoliation letter to preserve evidence.
- Proving the extent of your injuries. A collision with a semi-truck is more likely to cause severe injuries than with another passenger car. Your attorney should be able to accurately total the amount of damages you are owed, including your past medical bills, damage to your vehicle, lost income, future medical or disability costs, and a fair amount for the pain and suffering you have endured. If you've lost a loved one, your attorney should build a strong claim to recover compensation for the family’s loss and to punish the trucking company for any wrongdoing that led to an untimely death.
From collecting evidence to filing your claim, we have the legal experience it takes to get you fair compensation for your truck accident case. Our attorneys can take over the fight on your behalf and will advise you of all of your legal options while you focus on your recovery. Simply fill out the form on this page today to make an appointment in our offices.
Can I sue a bar for over serving a drunk driver in Florida?
Many people assume that a drunk driver is the only person responsible for causing a DUI accident.
However, there are a few third parties that can be held liable for drunk driving accidents in Florida, such as the person or establishment that provided alcohol to the driver.
Dram Shop Liability for Drunk Driving in Florida
Florida allows claims against businesses that serve alcohol to certain persons under a provision known as "dram shop" laws. However, not all third parties who provide alcohol can be held liable for the costs of an alcohol-related accident.
For instance, different liability rules apply to:
- Bars and restaurants. Florida's dram shop law differs from other state’s laws, because in Florida, it doesn't specifically prohibit an establishment from serving alcohol to someone who is already intoxicated. Instead, the law focuses on a bar’s liability for serving alcohol to anyone under age 21, as well as the establishment knowingly providing alcohol to someone who's "habitually addicted" to alcohol.
In both cases, the bar or restaurant could be held liable for injuries caused by intoxicated minors or drunk drivers with known addictions. This exception is based on the assumption that alcoholic drivers lack the ability to make safe and responsible decisions about drinking, and the operator serving the driver assumes that responsibility. The law even allows the drunk driver himself to collect injury and property damages from the bar that served him, as long as the bartender or provider of alcohol was aware of the driver’s alcohol dependence.
- Liquor stores. Establishing accident liability for a liquor store, grocery store, or another vendor of closed containers of alcohol is particularly difficult, since it's harder to establish fault for products that aren't consumed immediately after purchase. However, Florida businesses that sell beer, wine, and spirits to minors or people with a known history of addiction to alcohol can be held liable just as proprietors of bars and restaurants can. In the case of minors, a bar or liquor store may be held strictly liable for damages caused by the drunk-driving minor, even if the establishment was unaware the person was a minor at the time of sale.
- Social hosts. Hosts of parties or participants in social gatherings cannot be held liable for any injuries caused by drunk driving unless they willingly and knowingly provide alcohol to a minor. If alcohol is given to or accessed by a person under 21 at a private gathering, the host or property owner can face fines and civil damages as well as criminal charges.
A successful dram shop claim can provide victims and their families with many different kinds of compensation. A bar or restaurant can be held liable for the costs of emergency room care, surgery, inpatient hospital stays, rehabilitation, medications, and in-home assistive care. In addition, a business may have to pay for the victim’s lost wages, future disability expenses, lost or damaged property, and funds to compensate the victim for unnecessary pain and suffering.
What Recourse Do You Have?
In order to get payment for injuries and property losses, victims have to prove that the business was aware of the circumstances in which it was providing alcohol to a minor or addicted driver, and that the actions of the waiter or bartender directly led to the accident. The victim or his family must also file a claim within the time limit allowed for Florida injury claims, otherwise the case won't be heard by the court and the victims will lose their right to legal action. Victims only have four years from the date of injury to bring a case against a dram shop—and unfortunately, evidence is often destroyed in the days and weeks following the accident.
If you're considering filing a drunk driving case, it's best to speak with our attorneys as quickly as possible. Simply fill out the form on this page today to make an appointment in our offices, or call the number on this page to speak to an attorney about your legal options.
- Bars and restaurants. Florida's dram shop law differs from other state’s laws, because in Florida, it doesn't specifically prohibit an establishment from serving alcohol to someone who is already intoxicated. Instead, the law focuses on a bar’s liability for serving alcohol to anyone under age 21, as well as the establishment knowingly providing alcohol to someone who's "habitually addicted" to alcohol.
Is it illegal to text while driving in Florida?
Electronic devices are one of the largest distractions for drivers in the U.S. On average, the time it takes to glance at a text message or see who's calling is enough for a driver to travel nearly 300 feet—enough to strike a pedestrian, hit the back of a stopped line of cars, or even veer off the road entirely.
Many states have laws to curb the distracted driving epidemic, including making cell phone use illegal behind the wheel.
Texting and Cell Phone Laws for FL Drivers
Although Florida’s distracted driving laws have become stricter in recent years, there are specific limits on electronic devices depending on the type of communication and the driver using the device. For example, Florida enforces the following laws for:
- Cell phones. There are no laws prohibiting drivers of passenger cars in Florida from talking on cell phones while driving. Throughout the state, it's completely legal for drivers can make and answer calls, use handheld devices, or use the integrated hands-free system in their cars.
- Texting. While drivers are allowed to talk on their phones, they are expressly forbidden from texting, e-mailing, or instant messaging while driving. It's illegal for drivers in Florida to type anything into a virtual keyboard, or even use hit a button on a device to send or read messages. Although texting and driving is illegal, the act of typing on an electronic device itself isn't enough grounds for arrest. A driver can only be pulled over and charged if he or she has been stopped for another traffic violation, such as running a red light.
Depending on the violation, drivers caught while texting can face a number of fines and additional consequences. For instance, drivers caught texting in a school zone will have two points added to their licenses, while those whose texting resulted in a crash will have six points added to their licenses.
- Truckers and bus drivers. Operators of trucks and buses are held to a higher standard than other drivers. Both truck and bus drivers are only allowed to use wireless communication devices if they're hands-free, and can be pulled over and charged if they use a handheld electronic device while driving in Florida law without committing another violation. For the first violation, commercial drivers can a fine up to $500 and their companies can be charged separate costs up to $2,750 fine. If a driver commits three texting violations or more, he or she can be liable for a $2,750 fine and license suspension for 120 days, while the employer can be fined up to $11,000.
It's important to note that there are a number of exceptions to Florida’s cell phone and texting laws. For instance, drivers can send text from a vehicle that's stationary or not in operation. There are also some exemptions for operators of emergency vehicles, law enforcement vehicles, or fire engines, as long as messages are sent for professional reasons in the line of duty, such as reporting an emergency or suspected crime. The law also exempts a driver operating an autonomous vehicle, as long as the vehicle is in autonomous mode for the entire time the driver is messaging.
If you've been injured in a distracted driving accident, you should have the incident investigated as soon as possible. A thorough examination can reveal if a driver was using his or her cell phone at the time of the accident, which can significantly affect the amount of damages a victim can be awarded. Our attorneys can help you build a strong injury case and advise you of all of your legal options. Simply fill out the form on this page today to make an appointment in our offices, or call the number on this page to speak to an attorney.
Compensation for Diminished Value in a Florida Car Accident Claim
As a Florida driver, you know how important it is to carry an adequate amount of car insurance. It's required by law, and buying the best coverage you can afford will also help you get medical care and insurance payments for property damage after an accident.
Unfortunately, there are some situations in which insurance won't be enough to cover your losses after a crash.
For instance, if you were struck while driving your brand-new car, the car will now have an accident history. Even if the repairs are excellent and the car still looks brand-new, it was involved in a collision, which can take thousands of dollars off of the resale value. In these cases, a diminished value claim can help drivers collect the difference between the original price and post-accident price of their vehicles.
How to Get Compensation in a Diminished Value Claim
Florida law allows drivers to recover the difference between a car’s pre-crash value and its value after repairs from an insurer. Since these payments vary widely, our attorneys represent clients in diminished value claims on a contingency-fee basis, fighting for the maximum amount of loss to your vehicle.
Compensation for the lost value of your car depends on the following factors:
- Fault. In Florida, you can only seek compensation for diminished value from an at-fault driver's insurance company. If you are found to be at fault for the accident, you won't be able to pursue a diminished value claim against your policy.
- Time limits. Florida drivers have four years from the date of accident to file a diminished value claim against an at-fault driver.
- Appraisals. You'll need an accurate appraisal of the car’s value both before the accident and after the repairs have been done. An experienced appraiser uses a variety of metrics to determine the amount of value a vehicle has lost, including an analysis of the auto market in your area, inspection of the collision damage, and thorough knowledge of how damage history affects auto depreciation. Since most used cars are sold to dealers, it's helpful to obtain a trade-in value letter from several car dealers with an estimate of the value of your car. The dealership should also state the reasons why your car is valued at that trade-in price, drawing a clear line from an accident history to a lower retail value.
- Evidence. There are many ways to prove the loss in value of your vehicle. For example, if the repairs didn't restore the car to its exact condition before the crash, you must show adequate evidence to support this, such as copies of work orders outlining which parts were used and how they affect a car’s performance. If the car doesn't look the same, you should have photos of mismatched paint, gaps in seals, and other aesthetic differences.
Let Our Attorneys Review Your Diminished Value Claim
Insurance companies often fight these kinds of claims, denying a driver’s right to recover or lowballing the amount of equity that has been lost. Our attorneys can inspect vehicles, review your repair documents, draft demand letters to insurance companies, and fight for your rights in court. Let us maximize the value of your claim and deal with the insurance company on your behalf. Call us today for an evaluation of your case, or fill out the form on this page to describe your situation to one of our car accident attorneys.
What Happens to the Power of Attorney When Someone Dies in Florida?
In Florida, like in all states, the power of attorney ends when the principal/grantor dies. A durable power of attorney is a useful document that gives your agent the power to help manage someone's legal and financial affairs during their lifetimes. When the principal/grantor dies, the power of attorney ends. This may mean that the decedent's estate/probate takes over or a number of other possibilities.
The next question: who is in charge upon death? This may mean that the decedent's personal representative/executor would then take over. This may mean that the probate process would then take over. If the decedent had a revocable living trust, the successor trustee takes over and manages the decedent's affairs. You may need legal help with this part of the process, or at least a consultation with a good probate attorney.
You can learn more about probate process with our free handout: Navigating the Florida Probate Process
If you are concerned about the effects of probate upon your death, you may want to establish a revocable living trust for you and your family's benefit.
My Elder is on Medicaid - Can we Sell the Family Home?
If your loved one is in the nursing home or assisted living facility and is on long-term care Medicaid in Florida, you may know that the applicant is allowed to own a homestead property if the property is less than $585,000 in value (2019). If the Medicaid recipient is single, then all of his or her income, minus $130/month (the personal needs allowance), must go to the facility as part of the patient's responsibility. This means that the Medicaid recipient may own the homestead property but that her or she cannot keep their income to actually pay for the home. The family will have to pay for the home costs if they want to keep it.
But what if there is no family member that is able or willing to pay for the home's upkeep (i.e., taxes, insurance, utilities, maintenance), or the family does not want to maintain the home? This is a very common question that we can help you address.
If the elder/family have decided to sell the homestead property, the proceeds would take the applicant off of Medicaid, only if they keep the funds. Funds retained by the elder will become countable assets for Medicaid purposes, which will eventually take the elder off Medicaid. Importantly, if the homestead property is sold, Medicaid will not take the proceeds away, but the proceeds will take him or her off of Medicaid unless the family acts quickly. This means that with an elder law attorney's assistance, the sales proceeds can be protected.
Once the home is sold and the proceeds come in, the Medicaid recipient must disclose the sale to Medicaid within 10 days as a change of circumstances. In order to keep Medicaid, the sales proceeds must be legally spent or protected by the end of the following month. At or before the sale of the home, this is when you will want to start your work with an elder law attorney. There are plenty of options in protecting the sales proceeds, such as:
- Medicaid spend down
- Personal Services Contract (legal way to pay family member for future help)
- Pooled Trust
- Income Producing Property
- Paying off creditors/families for legally enforceable debt
Your options in protecting the home sale proceeds depends upon a number of issues, which should be addressed with a qualified elder law attorney before you sell your home. These issues include:
- Having a good estate plan in place;
- Having a good durable power of attorney if the elder is incompetent;
- Hiring the right attorney to help protect the assets and appropriately inform Medicaid
Importantly, you cannot gift the homestead property away within 5 years of a Medicaid application, so planning in advance is very important if you want to provide an inheritance for your children. If you want to protect your home for your children's inheritance before you go into the nursing home or assisted living facility, you may want to download a copy of our free guide to protecting your Florida homestead property.
Also, many people ask will Medicaid take the proceeds from the sale?
The answer is no. Medicaid (i.e., the State of Florida) does not take the proceeds, but unless someone acts to protect the proceeds, the Medicaid applicant will get taken off of Medicaid as the countable assets are now above the $2,000 limit.
Finally, can DeLoach, Hofstra and Cavonis help us protect the proceeds?
Yes. It does not matter where you or your elder is located in Florida. Medicaid is a statewide system and we are glad to work with and help families from all over and out of state.
People who read this article may want to read the following:
- Can we protect assets with the elder already in the nursing home?
- My loved one just went to the nursing home - what will happen next?
How Much Do We Charge for Probate?
Many people are often shopping for attorney's upon a loved one's death. Our preferred method on starting any probate is to get together for a free initial consultation. In our initial consultation, we will likely send you a questionnaire to complete to assist everyone. We would review the completed questionnaire, review the decedent’s assets, the estate planning documents (i.e., will and/or trust), and then quote you a fee for our services.
Our office general charges a fee in accordance with Florida Statutes 733.6171. Under the Florida Statutes, an attorney is entitled to a “reasonable fee” to act as the estate’s attorney. Generally, a reasonable fee under the Florida Statutes is 3% of the probate estate’s inventory value on the first $1,000,000. An example is as follows:
The estate inventory showed a gross value of $200,000, which consisted of bank accounts, stocks and bonds. According to the statute, a reasonable attorney’s fee would be $6,000 (3% of $200,000).
Every situation is different so we will be more than happy to meet, review the probate, and quote you a fee for our services in our initial meeting so that there are no surprises.
People who have read this may want to read:
How can I make sure my estate wishes are followed after my death?
The thought of losing control over a home or business can be a great worry to most people, especially after they've invested so much of their time and effort into building their legacy. While it's possible to pass everything on to your loved ones, there are several precautions you'll need to take along the way—especially if your estate plan has been left open to technicalities that can rob your heirs of their inheritances.
Provisions for the Future
In order to make sure the correct beneficiaries inherit and that your property is divided according to your wishes, your attorney should make the proper additions to your estate plan during your lifetime. Depending on your goals, these provisions may include:
While most attorneys merely create the financial framework for their clients, the experts at DeLoach and Hofstra help clients fund their estate plans with IRAs, 401ks, and transferring assets into trusts. We also advise you on the best use of revocable and irrevocable trusts, IRA trusts and special needs trusts to make the transmission of your holdings as painless and accurate as possible.
The beneficiaries you choose to inherit your property will vary over the course of your lifetime, and the provisions you make for your relatives may change as you get older. Children who have come of age may no longer need the trusts that you established for them, while former spouses may still collect on your life insurance policies if their names haven't been removed. We can help you select the beneficiaries who are most likely to adhere to your wishes.
Notating Gifts and Loans
If one of your children, dependents, or beneficiaries has taken a loan from you, it may be worth notating it in your estate plan. An unpaid loan at the time of death may affect the amount each person inherits; while classifying the loan as a gift may carry tax implications.
Anticipating and avoiding common sources of conflict during inheritance helps keep family members together as grief and tensions run high. Clearly outlining the manner of your funeral arrangements and interment in advance—and notifying affected parties while you are alive—can go a long way toward preventing disruptions later. We include funeral wishes as part of our estate planning binder.
Division of Personal Property
In addition to carefully choosing the people who will inherit your holdings, our estate planning binder contains separate lists to name who should inherit your cherished personal property. These items may be called into question if they're not signed and dated, or do not contain enough detail to fully describe each item.
Unlike other attorneys, the experts at DeLoach and Hofstra offer a free review of your estate plan every five years to make sure your estate plan is current and your wishes will be followed. As part of this process, we can review the designations in your healthcare directives, decide who to designate as power of attorney, remove deceased inheritors, and add provisions for new inheritors, such as new spouses or children born after the previous estate plan was established.
The provisions enforced in an estate plan are final, and you won't be able to apologize or explain any of your choices to avoid hurt feelings after your passing. However, failing to make an estate plan in order to avoid potential negativity often creates more problems than it solves, and forces loved ones to deal with court battles and family arguments while they're trying to grieve. A thorough estate plan tells your loved ones they are special to you, and allows you to be remembered in the way that would please you most.
We Help You Maintain Control of Your Florida Estate Plan
The best way to avoid surprises and learn your best options is to prepare your plan with an experienced estate planning and elder law attorney. Use the convenient content form on this page to schedule a free consultation to speak to an attorney about the best way to protect your future wishes.
My Elder Just Went to the Nursing Home - What Will Happen Next?
Part of our elder law practice involves helping people after a change of health, such as their parent or spouse having a medical downturn (stroke, fall, etc.) and going to the hospital. After a hospital stay, an elder is typically discharged to get rehabilitation in a skilled nursing facility. This is a very difficult and confusing time, which we call the “long-term care maze.” Navigating this maze is difficult because:
- You have likely never done this before;
- You and your family may not be prepared (can you ever?);
- People (friends, family, neighbors) come at you with bad advice on things you should be doing;
- You are concerned about Medicare, Medicaid, powers of attorney and more; and
- You do not know what the next steps are.
So now that your loved one went to the hospital and is in the nursing home getting rehab, what questions should you be looking at?
- How long will they be there?
- What type of health insurance do they have?
- How expensive will rehab be?
- How are they responding to rehabilitation?
- Are the proper incapacity and estate planning documents in place?
- Should we apply for Medicaid?
- Will VA benefits help?
- What will happen next?
Let’s discuss each of these questions in a little more detail:
How long will he/she be there?
Generally, the elder’s ability to stay in rehabilitation is based upon their ability to get stronger and improve. The purpose of rehabilitation at this point is to get as strong as they can or to prevent further decline. At some point, whether through a decline in health, dementia or just general improvement, the elder's health insurance (i.e., Medicare or HMO) will stop paying for their stay in the rehabilitation facility.
What type of health insurance do they have?
This is very important as it may tell us how long the elder will be able to stay in rehab. The elder will likely either have Medicare with a supplement or a Medicare replacement policy (HMO or PPO). Medicare will pay up to 100 days of rehab with a co-pay of $167.50/day (2018) for days 21-100. The co-pays may be picked up by the Medicare supplemental policy depending on the Medigap plan; plans A and B do not cover the skilled nursing co-pay. An HMO or PPO will have a similar payment program based upon the individual policy. Generally, Medicare is more generous in allowing rehab days than HMOs. Regardless of health insurance, it is extremely rare that the elder will stay the full 100 days in rehab covered by their health insurance, which means now is the time to start planning on where they will go next. Learn more about Medicare and Long-Term Care here.
How is the elder responding to rehabilitation?
Health insurance only pays to get the patient stronger and will not pay if he or she is not willing to participate, is too sick, or cannot participate in rehab due to dementia. The family must work with the facility to make sure the elder is participating and getting stronger. If the elder cannot or will not participate in their therapy, for instance, the health insurance will stop covering the rehabilitation.
How much will skilled nursing cost?
The cost for skilled nursing will vary based upon the health insurance, but it can get very expensive if you are not working with the business office and social worker to keep track of how the elder is progressing, the type of health insurance, and other factors. When the health insurance (i.e., Medicare or the HMO) stops paying, the cost for long-term nursing care is between $250 to $300/day. When the health insurance stops paying for rehabilitation, this generally means that the elder is now in the skilled nursing facility for long-term care.
Are the proper incapacity and estate planning documents in place?
Now is definitely the time to make sure the elder has a last will and testament, durable power of attorney (done by an elder law attorney), designation of healthcare surrogate and living will. It may be time to update these documents if they are over 5 years old, or at least reviewed by an elder law attorney for accuracy, proper execution and relevance. Not all powers of attorney are created equal, for instance, and some do not allow the elder to protect their assets from the high cost of the nursing home.
Will VA benefits help?
A wartime veteran or his/her surviving spouse may be eligible for VA benefits when there are unreimbursed medical benefits. Please see our page on veteran's benefits and long-term care. At this point, it is likely that the VA will not help with nursing home/rehab costs, but it can never be too early to look for the veteran's military discharge paperwork, for instance. We can generally say that VA benefits will provide the most help when a veteran is trying to stay home or looking for help with the cost of an assisted living facility.
What will happen next?
When the rehabilitation portion ends, the elder has three choices:
- Go home if they are well enough;
- Go to an assisted living facility; or
- Stay in the nursing home (very expensive!).
The ability to do any one of these may be very difficult. Will they be safe at home? Will Medicaid pay for home care? Will Veterans benefits help? What is the right facility? All of these questions, and more, are a part of the long-term care maze.
Importantly, our law firm is here to help you navigate the long-term care maze. With our health advocate on staff, we help make sure the elder is in the right place, getting the right care and then taking the next steps, through the maze, together.
Should we apply for Medicaid?
This answer will depend on a number of factors such as where the elder goes next, their mental condition, their assets and their income. Now would be the time to meet with our law firm to make sure you are prepared to navigate the long-term care maze, protect assets, apply for benefits, and be prepared for will come next. Also, see the our list of Seven Lies Your Friends Tell You about Florida Medicaid. You may want to lean about effective spend down planning as well.
What about moving to assisted living?
If the elder has been declining or may not be safe to go home, the family may want to take advantage of the elder's time in the nursing home and apply for Medicaid. Please read our report on obtaining Florida Medicaid for the assisted living facility. Veteran's benefits, such as "Aid and Attendance" may also be helpful in paying for your elder's assisted living facility as well.
When your elder has experienced a downturn in health, our law firm can help you answer all of these questions, and more, to make sure your elder gets the proper care, the assets are protected, and the family gets the help they need in making the right decisions.
Can Our Law Firm Help?
We may be able to help, yes. Medicaid is a state wide program and we have helped families protect assets and apply for Medicaid across the state of Florida. We offer a free initial consultation to see what we can do. Importantly, the elder will need to participate or the family must already have a good durable power of attorney to protect assets.
Download our Free Book!
I written a free book available for download that will address issues such as Medicare, placement issues, long-term care options, Medicaid and more. Don't Lose Your Nest Egg to a Florida Nursing Home is available for free download.
People who read this may also want to learn about:
- Can we protect assets now that my loved one is in the nursing home?
- How to Apply for Medicaid in Florida
- Irrevocable Trust Planning in Florida
When should I update my Florida estate plan?
It's important to review your existing estate plan regularly. A good rule of thumb is to go over all of your documents every three-to-five years, although residents who have a large number of assets may wish to review their estate plans more often. However, you shouldn't wait to make changes to your documents if you've experienced a life event that could significantly impact your future wishes.
Life Events That Can Affect Your Florida Estate Plan
A person’s needs, family members, and possessions change considerably over the years. Florida law allows for the protection of children, spouses, businesses, and even pet care planning, but these protections will only remain in place as long as you keep the designations on your estate plan current.
Major life events that can impact your estate plan include:
- Marriage or divorce. While the law allows some direct inheritance of shared property for spouses, your spouse will not automatically become your beneficiary. If you want your spouse to inherit your property; have access to your life insurance and brokerage accounts; and make end-of-life decisions for you, you must specifically name him or her in your estate plan. In addition, any former spouses whom you no longer wish to inherit assets or make decisions on your behalf should be removed from these documents as soon as possible.
- Birth and adoption. As your family grows, you may wish to expand your estate plan to accommodate new family members. Not only should you specifically name your children and grandchildren as heirs, but you should stipulate who will care for minor children if you die before the child turns 18. There are additional protections available if your child or grandchild has special needs; requires funds for education; or if you wish to provide for a child from a previous marriage.
- Buying a home. Any significant acquisition of property, real estate, or other assets should be included in an estate plan. For most people, a home is the largest life purchase they will ever make, and an estate planning attorney can advise them on how to pass on the property to a surviving spouse or children after their death. You should also update an existing plan if you move to another state; purchase real estate in another state; or wish to minimize the amount of estate taxes your beneficiaries will owe.
- Opening or closing a business. If you're a partner in a business concern, you can outline your wishes for succession; who should receive your holdings; and who should take over the day-to-day operations of the business. If the opening of the business involved borrowing a large amount of money, an attorney can prevent bill collectors from seeking debt repayment out of your personal holdings. If your business was sold or dissolved, an attorney can excise any professional beneficiaries from your will.
- Changes in your health. If you've been diagnosed with a degenerative condition or another health concern that can affect your decision-making ability, carefully consider who should care for you if you become incapacitated. Your estate plan should include powers of attorney for finances, designations of health care surrogate, and a living will—for both you and your spouse. Updating your documents may also allow your family to protect your assets in the event you need long-term care from Medicaid.
- Changing insurance policies. Update your estate plan any time you buy a new insurance policy or make a drastic change in your coverage. Beneficiaries designated in life insurance policies generally take precedence over those named in wills or trusts, but ensuring that all documents agree can save confusion and possible court costs later.
Changes to the Law
Many estate plans do not age very will due to changes in the law, so we generally say that you should review your estate plan with your attorney every 5 years. For instance, Florida drastically changed their durable power of attorney statute in 2011 and also changed the Designation of Healthcare Surrogate in 2015. While the Federal estate tax exemption is now very high (i.e., $5.49 million per person in 2017), your older estate planning documents may need drastic changes as well.
Legal Trends May Change
While most estate planning tries to save your family time and money by avoiding probate, other trends have recently emerged in estate planning. For instance, your estate plan can help protect your children's inheritance from their creditors, ex-spouses or even the high cost of long-term care. If you want to protect your assets from the high cost of nursing home care, you may want to consider an irrevocable asset protection trust as well.
We Can Help With Important Decisions
Failure to update wills and trust documents can cause confusion and financial problems for your family members down the road. For example, if you've named a guardian to your children who has predeceased you, your surviving family members may be forced to choose a guardian amongst themselves.
Reviewing your estate plan at regular intervals helps ensure that your wishes are followed and that your beneficiaries receive proper care after your passing. We can review the designations in your will, trusts, and healthcare directives, and advise you of changes in state or federal inheritance laws to minimize your tax liability. Contact us today to discuss your future wishes with a member of our legal team.
Will I have to pay income taxes on my Florida Inheritance?
If your loved one recently died, you may be concerned about probate, trust settlement and other issues. Among those includes tax issues - both estate taxes and income taxes. On income taxes, the receipt of an inheritance is not income to the beneficiary. Our income tax system is based solely upon working for your income. An inheritance is not something that you worked for, so the receipt of an inheritance is not taxed to you as income.
One possible exception to this rule is the receipt of an IRA or an Annuity. Once monies are removed from an IRA or an annuity, there may be taxable consequences to the beneficiary as the assets have likely appreciated in value.
The likely tax return that an heir should be concerned with is the estate tax, but an estate tax only applies if the decedent's estate is worth more than $11.20 million (2018). Most people do not need to worry about this as most estates, by far, are below level.
If you want to learn more about probate and the probate process, feel free to download our Free Guide to Navigating the Florida Probate Process.
How can I avoid probate court proceedings in Florida?
Under Florida law, certain assets must go through probate court proceedings after an individual’s death. This is a way to keep track of all of the deceased person’s assets; pay any outstanding debts or taxes; and ensure that property is legally transferred to beneficiaries. The biggest drawbacks of the probate process are that it can take a long time for the beneficiaries to gain possession of assets due to a fairly cumbersome court process.
Some Assets Do Not Go Through Probate in Florida
It is our general opinion that good estate planning generally tries to avoid probate, although there are worse things than actually having assets go through probate. In our opinion, what is much worse than probate is having assets go to the wrong people or having heirs fight over assets upon your death. Compared to probate, having these two things happen can be much worse than the probate process!
In order to know what assets go through probate, you need to look to how each asset is held:
- Probate Assets. These are assets in the decedent's own, individual name. These assets are distributed according to the decedent's will if they had one, and if not, then according to the laws of intestacy (i.e., the decedent's family) if no will existed.
- Joint tenancy property. Property that is owned jointly by the deceased and someone else may be passed directly to the surviving owner under a law called the right of survivorship. This can be a house that is owned by a couple, or a joint bank account with two named owners. In order to avoid probate, the survivor must have his or her name listed on the joint tenancy property and no other beneficiaries are on the title.
- Should you add your children to your property? Generally, the answer is a NO! Adding children as co-owners of your property is frequently a terrible idea. Before you add a child to your assets, including your home, speak with your estate planning attorney first.
- Beneficiary-designated accounts. Florida law allows residents to add a payable-on-death designation to checking accounts, savings accounts, retirement accounts, certificates of deposit, and life insurance policies. As long as the deceased person has designated a beneficiary, the money in the account may be transferred to the named person without probate. Florida also allows transfer-on-death designations on stocks and bonds, allowing beneficiaries to directly inherit brokerage accounts.
- Should I do this on all of my assets? Generally, this can be a mixed bag. With all of the assets jointly held, who is in charge of the funeral expenses? Who is in charge of the decedent's taxes? If nothing goes through probate and all of the assets are jointly held, no one is in charge, and this may create huge problems!
- Living trusts. In Florida, assets that are held in a living trust may pass to beneficiaries without probate court proceedings. These trusts must be created before your death, and all assets—including real estate, antiques, vehicles, and so on—must be transferred into the trust under the terms of the trust document. You'll remain trustee until your death, at which time your named successor will be control the assets in the trust.
- Enhanced Life Estate Deeds. Florida is one of the few states that allow enhanced life estate deeds, sometimes referred to as "Lady Bird deeds." These deeds allow residents to preserve their eligibility for Medicaid during their lifetimes while keeping valuable assets in the family. After death, the real property named in a Lady Bird deed pass automatically to beneficiaries without probate—meaning that assets cannot be taken by the state to recoup any Medicaid benefits used by the decedent.
- We use enhanced life estate deeds for simple estate matters and living trusts for more complicated matters. We will discuss the difference with you, of course.
Some estates won't need to go through formal probate at all. If a deceased person doesn't leave behind any real estate, and his or her total assets don't exceed funeral expenses and other end-of-life costs, then probate isn't required. If a person leaves behind few assets, beneficiaries may be able to go through a shortened version of probate known as summary administration. If the holdings of the estate aren't eligible for either of these simpler method of administration, beneficiaries must go through formal probate. The key here is seeing a good probate attorney to direct you when the time comes.
Let Us Help With Your Planning
The best way to protect your holdings and provide for your family members is to create a Florida estate plan tailored to your specific needs. Contact us today to speak to a member of our legal team about your ideas for the future.
Do I need an attorney to help settle my mother/father's trust?
People create revocable living trusts in Florida in order to avoid the (mostly) cumbersome probate process. But in avoiding probate, does this mean that the successor Trustee avoids all attorneys? The answer depends on a number of factors. The reality is that "settling" a trust may not be as easy as you may think, but it may not be that difficult either.
One of the first questions on whether an attorney is ended to settle a trust is how complicated are things?
- Are there many beneficiaries?
- Are there a lot of assets?
- Is a charity a beneficiary?
- Did the decedent die with creditors?
- Are there disgruntled (or potentially disgruntled) heirs?
- What is the trustee's capacity to handle financial and legal matters?
These are some of the most important questions on the need for the successor trustee to hire an attorney. Basically, the more complicated matters are, the greater likelihood that the trustee should hire counsel to help them settle a trust. One of the most important reasons is that the trustee has likely never done this before, and they do not know what they do not know. The trustee, importantly, is a fiduciary with a great deal of legal responsibility. The trustee's duties include, but are not limited to:
- Paying the decedent's creditors
- Paying/filing the decedent's last tax return
- Depositing the will with the probate court
- Filing a notice of trust with the local court
- Providing an accounting to all beneficiaries
- Acting as an impartial person, acting on in the trust's benefit
- Acting as a reasonably prudent person would in finalizing matters
In simple situations with a family that all gets along, settling a trust is not necessarily difficult for those who are capable of making sound financial decisions. If this is going to be too difficult for a family member or if the successor trustee is receiving lots of grief from other trust beneficiaries, it would be advisable to hire an attorney. The attorney would be paid from the trust estate, importantly, as this assists the successor trustee.
People who read this may also be interested in:
- Download your free book: Navigating the Florida Probate Process
- A Quick Guide to Revocable Living Trusts in Florida