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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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.
Should I Get A Property Survey When Purchasing Real Property?
When purchasing real property, one of the issues presented is - Should I get a survey?
If you are financing your purchase, the decision will undoubtedly be made for you by your lender. Most, if not all, lenders will require a survey of the property so that the survey exception will be removed from the lender's title insurance policy.
If you are paying cash for the property, you must decide whether or not to obtain a survey. The following are some guidelines for you to follow:
A) If the property is not a platted lot within a subdivision, you should definitely obtain a survey;
B) If the property is a platted lot within a subdivision and the neighboring properties do not have any improvements near the apparent boundary lines of the property, a survey is probably not necessary;
C) If there are improvements near the apparent boundary lines of the property, a survey would be recommended;
D) If you intend to make any improvements to the property post-closing (a room addition or the installation of a swimming pool), you should definitely obtain a survey.
In the last case, once you have the survey in hand, you should visit with the building officials in your city or county to verify that you can, in fact, build what you desire to build upon the property.
The cost of a survey is generally low in relation to the cost of the purchase itself. Therefore, when in doubt, obtain a survey and present it to your closing agent so that your title insurance policy will not contain a survey exception. Additionally, when you sell your property, your buyer may be able to use your survey.
What identification do I need to bring to my real estate closing?
At a real estate closing, many documents are executed by the seller and buyer. A substantial number of the documents must be notarized by a notary public.
Section 117.05(5) of the Florida Statutes provides that a notary public may not notarize a signature on a document unless he or she personally knows, or has satisfactory evidence, that the person whose signature is to be notarized is the individual who is executing the instrument.
It is highly unlikely that you will personally know the notary public at your closing, therefore, you must provide the notary public with at least one of the following forms of identification:
- A Florida identification card or driver's license issued by the public agency authorized to issue driver's licenses;
- A passport issued by the U.S. Department of State;
- A passport issued by a foreign government if the document is stamped by the United States Bureau of Citizenship and Immigration Services;
- A driver's license issued by a public agency authorized to issue driver's licenses in a state other than Florida, a territory of the United States, or Canada or Mexico;
- An identification card issued by a territory of the United States or a state other than Florida;
- An identification card issued by any branch of the armed forces of the United States; or,
- An identification card issued by the United States Bureau of Citizenship and Immigration Services.
We highly recommend to our clients that they obtain a Florida identification card if they no longer possess a driver's license.
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.
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.
Getting 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. Our attorneys only represent clients in diminished value claims when handling a car accident claim that has caused personal injuries.
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.
Get The Right Legal Help For Your Florida Accident
Insurance companies often fight car accident claims, denying a driver’s right to recover for their injuries or lowballing the amount of equity that has been lost. If our attorneys are handling your personal injury claim, we 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 car wreck claim and deal with the insurance company on your behalf. If you have been injured in a wreck and concerned about getting fair compensation for your injuries and the damage done to your vehicle, contact us today for an evaluation of your car accident case.
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 the 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 (i.e., nursing home or assisted living Medicaid), you may know that the applicant is allowed to own a homestead property if the property is less than $595,000 in value (2020). 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 planning
- Personal Services Contract (legal way to pay family member for future help)
- Pooled Trust
- Income Producing Property (with attorney guidance)
- 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, maybe with a revocable living trust;
- 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.
What if one spouse is in the nursing home on Medicaid but there is a spouse at home?
The sale of the home would not effect Medicaid for the spouse in the nursing home with the caveat that the proceeds from the sale of the home should be placed into the community spouse's name. If an attorney assisted the family with a Medicaid application, it would be best to confirm this possible plan with that attorney.
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 if you sell the home during the elder's life, but unless someone acts to protect the proceeds (i.e., spend down) , the Medicaid applicant will lose their Medicaid as the countable assets are now above the $2,000 limit. When the home sales, for instance, the assets should have been legally spent/protected by the end of the month after the sale in order to ensure that Medicaid eligibility has not been disrupted.
Also, the rules are different for a husband and wife under most circumstances.
Finally, can DeLoach, Hofstra and Cavonis P.A. 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. We have helped hundreds of clients in situations just like this and we are glad to help you out now.
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 attorneys 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, Hofstra & Cavonis offer a 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 contact form on this page to schedule a 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 $176/day (2020) 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 $280 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 statewide program and we have helped families protect assets and apply for Medicaid across the state of Florida. We offer consultations 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 have 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.
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