Common Questions about Florida Elder Law
You have landed in the right spot if you have questions regarding nursing homes, social workers, doctors, Medicare, Medicaid, asset protection, elder care navigation, and other elder law matters. Our elder law attorneys have answered many of the common questions we hear in the following FAQs.
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Can a Special Needs Trust Protect Assets From the Nursing Home?
Yes, but we generally do not look to special needs trusts as a way to protect money for heirs.
As a full time elder law attorney, I get a lot of questions on how to protect assets from the nursing home. Normally the conversation goes something like this:
My Mom is in the nursing home. She has $100,000 in the bank. Isn't there some type of special needs trust we can place her money into to protect it from the nursing home?
The basic answer to this question is no, with a caveat.
The first rule for Medicaid/asset protection planning is that we cannot give money away within the 5 year lookback period, although this has exceptions in Florida. One exception to the gifting is giving money to a special needs trust. But there are only two types of special needs trust in this situation where a transfer penalty does not apply:
- D(4)a Special Needs Trust - this is reserved for those under age 65
- Pooled Trust - this is allowed for someone over age 65
The big picture is that both of these trusts allow money to be placed into them and the transfers to the trust are not gifts for Medicaid purposes. BUT - there is a but, of course. The BUT here is that these trusts are generally known as "Pay Back" Trusts. A pay back trust means that if any funds are left over after the Medicaid recipient's death, the State of Florida gets paid back for any expenditures they spent to help the recipient before anyone else receives any money. This essentially means that special needs trusts are not asset protection devices for heirs.
If Special Needs Trusts do not work, what can be done to protect assets?
I have a lot more information on Medicaid and asset protection planning here:
Download My Free Book!
If you are thinking about Medicaid and Asset Protection Planning, we have some free books for your review:
If my spouse is on Medicaid, can we sell our home?
Yes, under most circumstances. We get this question quite frequently and there are a few things to cover:
- If your spouse is on long-term care Medicaid (mostly, for the spouse in the nursing home or assisted living facility), you can own a home up to any value
- If you sell the home, Medicaid will not take any of the proceeds
- If/when you sell the home, you generally cannot leave the proceeds joint with the spouse in the nursing home
- One year after getting Medicaid, the countable assets needs to be removed from the joint names and into the names of the community spouse. This does not include the homestead property as that is a non-countable asset.
- Generally, all the the home sale proceeds could/should be placed into the community spouse's name (see above)
- This could be problematic if spousal refusal was done as a part of the Medicaid application
- A gift between spouses is not an issue unless spousal refusal is done
- Gifts between spouses does not create a Medicaid transfer penalty
What if you sell your home with your spouse on Medicaid?
This is fine. The key is that the once Medicaid has been obtained, the community spouse's assets are to allowed exceed the community spouse resource allowance (about $156,000 in 2024).
Anything else to know?
You would definitely want/need to consult with an elder law attorney in this situation. The matters to cover:
- Does the community spouse buy a new home and how should it be titled?
- What does the community spouse's last will and testament say?
- Should the community spouse create a special needs trust in their last will and testament? (Generally, yes)
- Does the sale of the home affect the spousal diversion?
If you or your loved one is looking into long-term care Medicaid, please feel free to download my book, Your Guide to Florida Long-Term Care Medicaid!
This page goes into a little more detail than this webpage on home sale and Medicaid.
What is a Miller Trust?
A "Miller Trust" in Florida is also known as a Qualified Income Trust. They are essentially one and the same.
If your loved one is looking to get long-term care Medicaid in Florida, there is both an asset test and an income test. If the applicant's gross income exceeds the limit (some $2,892/m in 2024), then the applicant will not be eligible for Medicaid without legally lowering the applicant's income below the limit. There are essentially two options for lowering the applicant's income, which are:
- Qualified Income Trust (a/k/a Miller Trust); or
- Joining a Pooled Trust
Need to Set Up a Miller Trust for Florida Medicaid? Our Elder Law Attorney Can Help!
If you or our loved one needs long-term care Medicaid and the applicant's income is too high, you will likely need an elder law attorney to assist you. If so, we are glad to help you, no matter where you live, so please feel free to reach out!
If you have further questions on long-term care Medicaid in Florida, feel free to download my book, Your Guide to Florida Long-Term Care Medicaid!
FAQs: Medicaid Waitlist
In the guide, we answer frequently asked questions about the Medicaid HCBS waitlist.
What is Medicaid and how does it assist the elderly or disabled in nursing homes or assisted living?
Medicaid is crucial in helping our elderly clients pay for long-term care, such as care in a nursing homes, assisted living or in-home care. However, accessing benefits can be challenging due to stringent income and asset requirements.
How does Nursing Home Medicaid work?
Nursing Home Medicaid is an entitlement where the government helps pay for care if the applicant meets strict income and asset criteria.
What about Long-Term Care Assistance outside of the nursing home?
Unlike Nursing Home Medicaid, getting Medicaid in an assisted living facility or at home has a lengthy waitlist that takes the sickest/neediest people first, making Medicaid eligibility uncertain even if one runs out of money.
How does the waitlist for Assisted Living Medicaid function?
The waitlist is not first-come, first-serve; it operates on a triage system, prioritizing the sickest and neediest individuals. Generally, those at home are prioritized over those in assisted living.
Can an Elder Law Attorney expedite the process?
Yes, an elder law attorney can be instrumental in prioritizing public benefit programs, assisting with paperwork, protecting assets during the five-year look-back period, and exploring additional government programs.
Is there a difference between Nursing Home and HCBS Medicaid?
There are subtle differences on how Medicaid works. This article discusses the differences between nursing home and assisted living (HCBS) Medicaid.
Get More Information
Remember, if your loved one is looking for long-term care, a good elder law attorney can guide you through this complex process and protect your loved one's financial interests. For more detailed information, visit dhclaw.com/Medicaid, download a free copy of my e-guide, Your Guide to Florida Long-Term Care Medicaid, or attend one of my free webinars.
Do I need an elder law attorney?
Residents of the U.S. are aging at an astonishing pace. Less than a century ago, older adults comprised a small percentage of the overall population. Today, though, an estimated 1 out of every 6 Americans is 65 years or older. In a great many ways, longer life expectancies are an uncontested advantage. For instance, senior citizens are afforded more time to spend with their families and to enjoy the rewards of a hard-earned retirement. However, as Americans grow older, they often face unique legal challenges.
DeLoach, Hofstra & Cavonis, P.A., has spent decades helping Floridians overcome the challenges associated with aging. Our experienced team of elder law attorneys could help protect your rights and preserve your legacy by revising an estate plan, recalibrating your beneficiary designations, or reviewing your eligibility for critical public benefits.
Understanding Elder Law
Elder law is a legal discipline that seeks to address the needs of older adults. It has a broad scope, defined more by its clients than any specific element of code or civil procedure. This is because senior citizens often have age-related concerns that aren’t necessarily common among their younger counterparts, and which cannot always be readily addressed by other attorneys.
DeLoach, Hofstra & Cavonis, PA, helps our clients find solutions to age-related concerns including, but not limited to, the following areas.
Estate planning is the proactive process of determining how your assets should be distributed after your death. A typical estate plan might include:
Everyone—irrespective of their age—needs an estate plan. Without one, your assets will be left to the mercy of Florida’s intestate succession laws, which privilege some relatives at the expense of others.
Incapacity protection is an integral part of elder law and estate planning. Your attorney could help you plan for incapacity—cognitive decline, an unexpected illness, or a serious injury—by laying the framework for a living will and advance health care directive. Both documents give you—legally referred to as a testator—an opportunity to explain care preferences and to designate trusted surrogates to make informed care decisions on their behalf.
The durable power of attorney, similarly, lets a spouse, a child, or another party handle certain financial affairs if you’re ever placed in a position where you can no longer pay your bills or meet other obligations without assistance.
Medicaid and Asset Protection Planning
Far too many senior citizens make the mistake of thinking that Medicaid benefits will cover the costs of staying in a nursing home (over $12,000/m) or other assisted living community.
However, while Medicaid does subsidize assisted living, it only provides benefits to Floridians whose income falls below a certain threshold. Without a Medicaid asset protection plan, many older adults are forced to sell off their assets just to afford life-saving care.
Finding the Right Elder Law Attorney in Sun City Center
Elder law is a rapidly expanding field. In Florida alone, there are hundreds of practices. However, many elder law attorneys lack the experience and qualifications needed to effectively serve their clients. Before making a commitment, always ask the following questions.
Are They Board Certified?
The Florida Bar Association only accords elder law certifications to attorneys who meet very specific criteria, including real-world experience and a commitment to continuing education. This ensures that lawyers who advertise themselves as elder law specialists have the knowledge needed to take on even the most challenging types of cases.
How Often Do They Actually Practice Elder Law?
Almost any lawyer can take these cases. However, relatively few prioritize elder law over more lucrative personal injury and criminal defense cases. Before retaining an attorney, ask how much time they actually devote to elder law.
Do They Have a Proven Record of Success?
Attorneys who regularly work with older clients should never shy away from sharing testimonials. DeLoach, Hofstra & Cavonis, P.A., for instance, has spent a half-century fighting for the rights of Florida’s senior citizens. We proudly publish client testimonials highlighting how our hard work, perseverance, and commitment have changed lives and cemented long-lasting legacies.
Can you read their book?
If you are looking for an elder law attorney, ask if they have a book you can read. Attorney Rep DeLoach has written numerous books, including Your Short Guide to Florida Long-Term Care Medicaid.
How can a Sun City Center elder law attorney help me if my spouse has Alzheimer’s disease?
Dementia and Alzheimer’s disease almost always have life-changing repercussions. Even when these illnesses progress slowly, seeing a spouse struggle to recognize the faces of friends and family and remember what they’re doing can be as frustrating as it is heartbreaking. However, the consequences of a diagnosis often extend beyond routine complications and everyday difficulties. DeLoach, Hofstra & Cavonis, P.A., has spent decades helping Floridians protect themselves from uncertainty. If your spouse has Alzheimer’s disease, our experienced Sun City Center elder law attorney can help you explore the options to preserve your health and your wealth.
The Importance of Being Proactive if Your Spouse Has Alzheimer's Disease
Both dementia and Alzheimer’s disease are progressive illnesses, with symptoms growing worse over time. While it could take years, there may eventually come a point where your spouse is unable to make legal and medical decisions by themselves.
Florida law presumes that most people have the legal capacity to make important decisions about their own estate. However, this capacity is often conditioned, with prospective trustors and testators expected to meet certain criteria. Anyone wishing to write a will, for instance, should be at least 18 years of age. They must also be of “sound mind,” meaning that they have the testamentary capacity to understand the risks, benefits, and effects of signing a will or nominating an executor.
If your spouse has already been diagnosed with Alzheimer’s disease or dementia, they may still have the mental capacity necessary to write a will or establish a trust. However, as their disease progresses, their circumstances could change, and they may no longer appreciate the consequences of nominating beneficiaries or changing heirs.
Without an adequate estate plan, you might be unable to help your partner make important medical decisions—and a Florida probate court may not respect their last wishes.
3 Ways Our Elder Law Attorneys Can Help Protect Your Spouse (and Family)
Spouses are often accorded some measure of privilege in directing the care of an incapacitated spouse, or in receiving assets from an intestate succession. However, absent an estate plan, surviving husbands and wives may be put to the mercy of a court—a court that may strive to protect a family’s best interests, but which could be bound by the limits of law and code.
If your spouse was recently diagnosed with Alzheimer’s disease, dementia, or another neurodegenerative disorder, our elder law attorney suggests the following steps to begin securing your family’s future.
Establish an Estate Plan
Almost everybody appreciates the necessity of having an estate plan. Nevertheless, few Americans—including many past retirement age—ever get around to writing a will or funding a trust.
However, a will is the only way to ensure your last wishes are respected by a Florida probate court. If your spouse has Alzheimer’s disease or dementia, they may still have years left to live—but far fewer to comply with state requirements dictating that a testator be of sound mind. If you wait too long to start exploring your estate planning opportunities, any estate plan you and your spouse make could be compromised by a bad-faith creditor contest or another unexpected challenge.
Delegate Powers of Attorney
Older adults with neurodegenerative diseases face unique risks. As their condition worsens, they may find it more difficult to manage their health and finances. This often creates significant complications, both for adults with Alzheimer’s and their spouses.
Delegating certain powers of attorney eases the difficulty of making critical decisions. The durable power of attorney, for instance, assigns financial authority to an agent-in-fact, who can assist in paying bills, buying groceries, or managing an investment account. Similarly, a health care power of attorney lets a spouse or other individual make medical decisions in accordance with the principal’s preferences.
Anticipate Financial Aid
People with Alzheimer’s and dementia may eventually need medical care beyond what even a dedicated spouse and loving family can provide. Unfortunately, with the high costs of health care only continuing to rise, few Floridians can afford to pay out-of-pocket for a home health aide or an assisted living facility.
While Florida Medicaid can help alleviate assisted living costs, eligibility is contingent on income. Since Florida’s Medicaid income limits are very low, applicants could soon be in a difficult position—unable to pay for care alone, but with too many assets to qualify for public benefits.
DeLoach, Hofstra & Cavonis, P.A., could help you reconfigure your estate plan to account for the possibility of incapacity due to Alzheimer’s disease, ensuring that your spouse gets the care they need and in time, your heirs receive the inheritances you wish. You can even protect assets within the five-year Medicaid look-back period.
Work With Our Sun City Center Elder Law Attorney
If you’re not sure where to turn after a loved one’s care needs have changed, our elder law attorney in Sun City Center can help you navigate the road ahead. Simply fill out our quick contact form by clicking the button below or by calling DeLoach, Hofstra & Cavonis, PA, at 727-777-6842 to set up a consultation.
Can I move my mom into a nursing home while her Medicaid application is pending?
When your loved one is having health issues, it can be difficult to make the decisions on getting good care and thinking about how government benefits, such as Medicaid, can help. Medicaid is a part of our social safety net to help the needy pay for the cost of long-term care. Medicaid can help pay for nursing home care, assisted living or in-home care, but the asset and income rules, among other matters, are strict for those applying.
Sometimes, the elder is living at home and the family cannot help any longer or the elder is just too needy to be home safely. This may mean that the elder must go directly to a nursing home due to their long-term care needs. But can an elder apply for long-term care Medicaid before moving to a nursing home? The basic answer is NO.
Nursing Homes May Not Accept a Medicaid-Pending Resident
In the best-case scenario, a person will apply for Medicaid well before they need care, but there is a wait-list for long-term care benefits at home. This may mean that the elder does not come off the wait-list before needing to transition to a nursing home, which may mean that you cannot apply for Medicaid until the elder is actually in the nursing home.
When someone applies for Medicaid, this is generally known as being "Medicaid pending." But you cannot be Medicaid pending until you are:
- In a nursing home (i.e., skilled nursing facility/rehabilitation facility); and
- You have actually applied for Medicaid.
Unfortunately, most long-term care facilities will not someone who comes into the facility unless the are private paying. All of this is confusing but the big picture is that if the elder does not have money, placing into a nursing home is difficult without private paying. The reasons are as follows:
- The nursing home might not be reimbursed. There's no guarantee that a pending application will be approved. Nursing homes may be unwilling to take on a resident without a guarantee of benefits from the government to offset their costs.
- Approval may not be retroactive. Even if a resident is approved for Medicaid, there's no guarantee that they will receive retroactive benefits. If benefits are only provided for the future, the resident and their family will have to pay for any costs incurred between the date of admission and the date of approval.
- Eligibility may be deferred. Many Medicaid applications contain errors, discrepancies, or incomplete information, causing problems that defer eligibility. Medicaid generally won't cover any delays due to application mistakes, so costs will fall on the resident for care received during this time.
Of course, there are many situations where families may be unable to wait for government assistance before moving an elder into a nursing home. If your loved one's care needs are changing, our legal team can answer your questions and help you secure the benefits you need. When an elder law attorney is helping the family apply for Medicaid, a long-term care facility may accept someone Medicaid pending as the facility will trust the elder law attorney's representations that the elder will get Medicaid.
If you want help, simply fill out our quick contact form or call DeLoach, Hofstra & Cavonis at (727) 397-5571 to set up a consultation.
My loved one suffered a sudden health crisis. Is it too late for elder care navigation?
Not at all. Although all planning is best done as early as possible, many people are moved to create a Life Care Plan after a triggering event—such as a life-altering medical diagnosis or entry into long-term care. However, elder care navigation in a crisis can be tricky, and it will take experience and specialized knowledge of Florida laws to do it effectively.
Step-by-Step Elder Care Navigation in Florida
You may have already been pointed toward additional elder care resources by a loved one’s health care professionals. Unfortunately, each person on these lists typically helps with one area of care: choosing a nursing home, applying for Medicaid, or ensuring the well-being of elderly loved ones. Our law office has the ability to address all of these needs simultaneously, prioritizing the health and welfare of your family.
The sooner you meet with a elder care navigation attorney in our offices, the sooner you will have a clear picture of your options for:
- Future care. We tackle the most important decisions first: where will your loved one live? Who will be providing medical care? Who do they want to make medical decisions on their behalf if they are incapacitated? After we know how the future will look, we can create powers of attorney and a designation of healthcare surrogate to protect your loved one before proceeding.
- Financial planning. Once you know where your loved one will live, we can help you plan how to pay for care. This commonly includes applying for benefits, such as Medicaid or Aid and Attendance through the VA. While there may not be time to spend-down assets for Medicaid purposes, we can help preserve Medicaid eligibility for the future using trusts.
- Estate planning. If your elder has been diagnosed with a terminal or degenerative condition, this may be their only chance to communicate their end-of-life wishes to you. Many people have firm views on resuscitation, organ donation, or funeral and burial arrangements, but few actually complete the necessary forms to accomplish their goals. We ensure that all documents are filled out according to your loved one’s specifications, including ensuring they have a valid Last Will and Testament.
If you’re not sure where to turn after a loved one’s care needs have changed, our legal team can help you navigate the road ahead. Simply fill out our quick contact form or call DeLoach, Hofstra & Cavonis at (727) 397-5571 to set up a consultation.
What's the difference between a Medicaid specialist and an elder law attorney?
Medicaid can be a lifesaver when it comes to paying for nursing home care. Unfortunately, the various requirements for the program can be extremely confusing, and you may need help with the application process. Elder lawyers and Medicaid specialists can both help you apply for Medicaid, and the right one for you will depend on your specific circumstances.
What Do Medicaid Specialists and Elder Law Attorneys Do?
First, let's talk about Medicaid specialists. These can be individuals or whole firms that specialize in Medicaid eligibility and application. For a fee, they can gather the documents you need to apply, submit your application, and follow up with you as the application moves through the system.
However, Medicaid specialists are not lawyers. They don't help with the many issues that usually arise along with the need for Medicaid, and can't offer legal advice if something goes wrong.
An elder law attorney does all of the above, plus:
- Protects healthy spouses. If your loved one is married, but their spouse does not require long-term care, the spouse's assets may be counted against Medicaid eligibility. An elder law attorney can protect spousal income and assets over the Medicaid limit and ensure a spouse can continue living in the family home.
- Helps your relative create an estate plan. Without an attorney's help, families may spend their loved one's life savings on care—but it doesn't have to be this way. An elder attorney who practices estate planning can set up trusts and other structures to ensure that there's something to pass on to heirs.
- Performs incapacity planning. Attorneys can create an enforceable plan using durable powers of attorney and designation of healthcare surrogates if your loved one becomes unable to make decisions on their own.
- Helps you through elder care navigation. There are invaluable legal services related to aging, such as choosing the facility that will preserve your loved one's dignity and independence, securing in-home care, preventing elder abuse, and ensuring the best care for the best price.
At DeLoach, Hofstra & Cavonis, our goal is to help your whole family through the most difficult times in their lives. We have completed thousands of Medicaid applications while protecing our clients and protecting assets. If you need help qualifying or applying for Medicaid, simply fill out our quick contact form or call us at (727) 397-5571 to set up a consultation.
How does working with an elder law attorney benefit my kids?
People often seek out elder lawyers when they are in the midst of a dire situation. They may need immediate help to protect a senior’s health and finances, or are looking for ways to pay for long-term care without sacrificing their life savings.
While these are certainly matters an attorney can handle, they are capable of doing far more—especially if you meet with them sooner rather than later. An experienced elder law attorney doesn’t just help you, they can give you the answers you need to help your entire family.
Working With an Elder Law Attorney Now Will Benefit Your Kids Later
Unfortunately, those who fail to plan ahead unknowingly place the burden of their care and debts on their children. The bulk of your estate may be used to pay for medical bills and nursing home care, leaving your heirs without an inheritance. An elder attorney’s advice is well worth having, especially if they can save your family thousands of dollars and avoid future legal headaches.
Our elder law services can help you:
- Qualify for Medicaid. We use a variety of estate planning methods to plan for future care needs, such as creating a trust to safeguard your property while Medicaid pays for assisted living. Simply put, elder law attorneys know how and when to protect assets, either in a time of crises or 5 years before Medicaid is needed.
- Provide for a surviving spouse. We can create a plan for married couples to ensure the surviving spouse will have money left over once the estate is settled.
- Save your family’s home and assets. We ensure all documentation is compliant under Florida state law, and that your plan will work correctly if you become incapacitated or pass away. This prevents potential legal battles over your estate that could drain your assets.
- Secure your health and wealth. Creating the right legal documents now ensures that the right people will have decision-making authority over your funds and healthcare. A power of attorney, living will, and guardianship designations are just a few ways to protect an older relative now and at the end of life.
At DeLoach, Hofstra & Cavonis, we help whole families through the most difficult times in their lives. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.
Are there any alternatives to legal guardianship?
Guardianship is a vital tool that helps adult children care for their incapacitated loved ones. That said, it will also remove a loved one’s right to make any of their own decisions, from where they live to the amount of cash in their pockets. Since guardianship removes all control over a person’s life, judges are required to consider a range of less restrictive options before granting a petition for guardianship.
Is Guardianship the Best Option?
While there are different types of guardianship, each one relies on a loved one’s inability to make decisions on their own. For example, a parent suffering from Alzheimer’s disease or dementia may need a guardian to protect them from scams and ensure they receive proper health care. If your loved one has the ability to make some decisions, there may be alternative legal options that are less restrictive than guardianship.
An elderly relative may not necessarily require a guardian for:
- Medical reasons. If you are seeking guardianship because your loved one is temporarily in ill health, an advanced health care directive or medical power of attorney can help give you control over their affairs if and when they become completely incapacitated. Further, you may be the nominated health care proxy under Florida law.
- Financial reasons. If your loved one can still pay bills on time and balance a checkbook, a durable financial power of attorney can help you manage their financial affairs or prevent large sums from going missing.
- Loss of mobility. A person’s physical limitations may not have any bearing on their ability to make decisions independently. If you are concerned about a loved one falling down or suffering an injury, speak to them about ways to make their lives safer and easier (such as ride-sharing services or grocery deliveries).
- Estate planning. If your loved one is still mentally competent but has not created an estate plan, you could be able to prevent many problems before they occur. A well-crafted estate plan may include the above documents, plus designate beneficiaries and executors, create a trust, and prevent relatives from fighting after their loved one’s passing.
We understand that caring for an incapacitated loved one is difficult. While we cannot change the past, the attorneys at DeLoach, Hofstra & Cavonis, P.A. can help you explore your options. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.
When should I consider getting guardianship over my elderly parent?
Most people who wish to establish guardianship have already taken on the duties of caring for an ailing loved one. You may be cooking their meals, running them to hospital visits, or picking up their mail and paying bills on their behalf. However, there is a limit to how much you can legally do for your parent without the proper authority—and it is generally best to get this authority sooner rather than later.
Warning Signs That You May Need Guardianship Over an Elderly Relative
The choice to get legal control of a parent’s affairs can be unsettling, and can lead to family disagreements that push the decision, and the elder's safety, down the road. Unfortunately, putting off guardianship proceedings may force emergency action when your parent hits a crisis point, adding to your stress and discomfort in an already difficult time.
There are a few ways to tell if it’s time to start the guardianship process. For example, you may need legal help if there is a threat to your parent’s:
- Safety. Guardianship can help if a parent is suffering from a medical condition that often results in long-term decline (such as dementia, cancer, or organ failure) and he or she does not realize that they are unable to make the correct health care decisions.
- Life savings. The elderly are often targeted by scammers, caretakers, and even relatives looking to profit from their vulnerability. If you have seen strange transactions in your parent’s accounts or fear that someone is trying to gain access to their money, you should speak to us about guardianship.
- Health and well-being. If your parent has not appointed someone to act as the health care surrogate and the family does not get along, you will need guardianship to make decisions about their healthcare, housing, and long-term care. Under Florida law, if the elder has not created a health care surrogate, then the family would generally make decisions as the elder's health care proxy. But if the family does not get along and they do not agree on the health care decisions to be made, it is likely that a guardianship attorney would be necessary.
- Lack of Pre-Planning. Guardianships can often, but not always, be avoided through the proper estate planning. If your loved one has not created a durable power of attorney, for instance, and then loses capacity, then a guardianship will be needed to handle his or her affairs.
Lack of Capacity Standards for Guardianships
When a guardianship is sought, the court generally needs to find that the alleged incapacitated person lacks capacity. Here, an “incapacitated person” means a person who has been judicially determined to lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of the person. Further,
- To “manage property” means to take those actions necessary to obtain, administer, and dispose of real and personal property, intangible property, business property, benefits, and income.
- To “meet essential requirements for health or safety” means to take those actions necessary to provide the health care, food, shelter, clothing, personal hygiene, or other care without which serious and imminent physical injury or illness is more likely than not to occur.
What is voluntary guardianship in Florida?
Most people who wish to establish guardianship are relatives of a loved one who is incapacitated. However, some family members realize that they're incapable of handling certain financial matters on their own, and wish to surrender control of their affairs willingly. If you're unable to manage your finances, Florida law allows you to seek voluntary guardianship over property and assets.
Benefits of Voluntary Guardianship in Florida
The greatest benefit of guardianship is that it helps to protect your assets from those who would take advantage of you if you suffer an illness, are diagnosed with dementia, or have a progressive health condition that prevents you from making your own financial decisions.
There are other advantages to voluntary guardianship of property, including:
- Choosing your guardian. People suffering from illness may not recognize their inability to handle their affairs until it’s too late, forcing their families to step in and begin guardianship proceedings. A voluntary guardianship gives you the ability to choose who will serve as your guardian now, instead of taking a chance that a relative you might not trust will seek guardianship later.
- Setting your own limits. Taking action now allows you to control how much of your property is handled by your guardian. You may give your guardian authority to manage specific assets, such as stocks, or the entirety of an estate, and can choose how long the voluntary guardianship remains in effect.
- Protection of the courts. If you simply hand over control of your finances to a family member, there are no restrictions in place to prevent them from using your assets for their own gain. Voluntary guardianship is supervised by the courts, so your chosen guardian will be legally required to manage your affairs in a way that benefits you and your estate.
You should know that the state of Florida only recognizes voluntary guardianship over property. A voluntary guardian won't be able to make medical decisions on your behalf nor choose where you'll live. If you wish to give your guardian medical authority, you should consider including a durable power of attorney as part of your estate plan.
When would you want a Voluntary Guardianship?
Most estate planning is done to avoid any type of guardianships, but there are times when estate planning alone cannot stop people from hurting themselves. Here is an example of when we would think a voluntary guardianship would be helpful:
Mom, age 84, is getting forgetful but is still legally competent. She has a trustworthy daughter who lives locally but she also has a difficult son with "spending problems" who shows up to beg his mother for money. Mom is just not able to say "no" to lending (or giving!) her son money. The son has even taken mom to see an attorney to try and become her power of attorney. While mom is competent, placing her assets under a voluntary guardianship may be the best way to make sure mom cannot take her own money and just give it to her son.
Alternatives to a Voluntary Guardianship
While every situation is different, it is possible that a good estate plan can prevent a guardianship, such as through creating a revocable living trust and naming a trusted person as the trustee. But this has limitations if, for instance, the elder is subject to bad influences from close family members, as an example.
The attorneys at DeLoach, Hofstra & Cavonis, P.A. can meet with you, listen to your concerns and help discuss options to make sure you or your loved one is protected.
How Can I Stop My Loved One From Writing Checks?
We frequently receive questions regarding children trying to help when their parents going starting with dementia or Alzheimer's. The question is frequently something like:
I have durable power of attorney for my mother, but she keeps writing checks and making poor financial decisions when I’m not around. What do I do?
We have seen situations like this many times - Mom or Dad is getting forgetful, some type of dementia, and is not spending her money well. He or she may be writing checks to charities, scammers, needy family members, etc.
So, while durable powers of attorney are an important part of a well-rounded estate planning, they do have one major shortcoming: A durable power of attorney appoints an agent to act on behalf of the Principal (e.g., Mom or Dad), but it does NOT stop the Principal from still conducting business on his or her own. We frequently say that a durable power of attorney is a delegation of your rights, but it does not actually take away your rights.
The big picture is that a durable power of attorney is not really enough to stop someone with dementia from being taken advantage of. The power of attorney cannot stop mom/dad from writing checks/paying bills. There are some things that can help in these difficult situations:
Set Up a Revocable Living Trust
If Mom or Dad does not already have a revocable living trust, then the durable power of attorney may allow the child to set up and fund a revocable living trust in order to help Mom or Dad. Florida law says that a durable power of attorney executed after October 1, 2011, must specifically be initialled to allow the power of attorney to execute a living trust on mom/dad's behalf. Assuming this power is available, as power of attorney, the child may be able to transfer the parent’s assets into the trust and then manage the trust as trustee. Only a trustee can conduct business on behalf of a trust, therefore, the parent would not be able to write checks or conduct financial transactions for any assets that are in the trust.
Of course, we strongly recommend that you consult with an attorney regarding this option and whether the child is legally authorized to establish a trust on your parent’s behalf.
The next step may be to consider an adult guardianship proceeding. A guardianship proceeding will include an incompetency hearing. If the court finds your parent to be incompetent, the clerk of court will issue an order of such finding and will appoint a guardian to manage your parent’s affairs. You can then give copies of the court order to all banks and financial institutions where your parent holds accounts to notify the bank or financial institution that your parent has been declared incompetent by the court and no longer has legal authority to conduct transactions on his or her own behalf.
We typically recommend guardianships as a last resort only - if Mom/Dad is highly functioning (i.e., can go to the bank themselves and refuse to give up the car keys/check book), is not recognizing their own dementia, for instance, or if they are subject to elder exploitation. Florida also has an elder exploitation injunction that can help people when they are being exploited.
We Can Help!
You may be struggling to help your loved one make the right decisions, hitting roadblocks, looking for Medicaid, waitlists in trying to get your loved one placed in an appropriate facility, or constantly fighting with doctors, hospitals (or even other family members) because you don’t have the necessary legal or financial authority to oversee your loved one’s affairs and/or care.
Solid legal and financial planning is your answer and can help you put an end to all of the confusion and overwhelm that you currently face.
If you read this, you may want to read:
- How Your Estate Plan can help prevent elder exploitation
- When Durable Powers of Attorney Cannot Prevent a Guardianship in Florida
- Emergency Temporary Guardianships in Florida
How is VA Pension counted for Medicaid purposes?
This is not an easy answer as you may think!
When someone is on long-term Medicaid in Florida, there is both an income and asset limit for eligibility. The financial guidelines are provided at this link. Medicaid counts the applicant's gross income for qualification purposes. When income exceeds the income cap, a qualifed income trust is necessary in order to qualify for long-term care Medicaid.
But what about when the Medicaid applicant is receiving VA Pension? VA Pension can be very helpful for paying for an elder's assisted living or in-home care. VA Pension Benefits are outlined here. The highest Pension benefit is known as "aid and attendance," with monthly benefits as follows (2024):
- Married Veteran: $2,727.42/m
- Single Veteran: $2,300/m
- Surviving Spouse: $1,478/m
But if someone is applying for Medicaid, how much of the Pension income is countable for gross income purposes? The answer is NOT ALL! Medicaid excludes "aid and attendance" income from the gross income calculation. But the answer does not even stop there - Aid and Attendance is only the highest level of VA Pension benefits. Lower levels are "base pension" and "housebound." Interestingly, the very base pension amount is countable as income for Medicaid purposes. For 2024, base pension levels are as follows:
- Married Veteran: $1,806/m
- Single Veteran: $1,379/m
- Surviving Spouse: $ 925/m
If you really want to learn more about VA pension rates, here is a link to the VA webpage which gets into more detail.
An example of how VA interacts with Florida long-term Medicaid is as follows:
Surviving spouse of a wartime veteran is receiving $1,478/m in VA Pension Aid and Attendance (the maximum). Her gross Social Security income is $1,500/month. Her income for Medicaid purposes towards the income cap ($2,829/m in 2024) is $2,425/m. This means that she does not need a QIT to obtain or keep Medicaid benefits. ($1,500 plus $925 (the base pension amount) = $2,425/month, which is lower than the Medicaid income limit). Notice that only the $925/m is counted as income for Medicaid purposes, not the full $1,478/m that she receives from the VA.
When you are applying for Florida Medicaid and VA Pension benefits are already coming in (mostly meaning Aid and Attendance) then these calculations will be very important.
It is also important to note is that if the elder receives Medicaid in the nursing home, the VA will need to be notified and then his/her VA Pension (including Aid and Attendance) will eventually be reduced to $90/month, which is not countable as income for Medicaid purposes. Make sure you notify the VA if your loved one is in the nursing home receiving Pension.
Also, VA Pension income does not include any VA Disability payments. VA disability payments (based upon an injury while serving our country) is countable income for Medicaid purposes, so it is important to know what type of VA income is being received. If/when applying for Medicaid, it is likely that that VA will provide a breakdown of income for Medicaid purposes.
VA Aid and Attendance from DIC Benefits
VA "aid and attendance" is a difficult subject because the names for VA benefits programs are not always helpful. We mostly look at Pension benefits for helping our veterans, but the VA program also provides benefits known as "aid and attendance" for those veterans that were injured in service and for his or her surviving spouse. The program for a surviving spouse, known as DIC (Dependency and Indemnity Compensation) provides $1,612.75 (2024) to the surviving spouse of a 100% VA disabled person. The surviving spouse can also get an addtional $399.54/month when they need help with their activities of daily living (eating, dressing, bathing, toiletting and transferring). This payment of $399.54/month is not countable income for Medicaid purposes
If you want to learn more about Medicaid benefits in Florida, please look here.