Elder Law

Elder Law

We advocate for the aging population and their loved ones. Elderly clients have very unique circumstances and require more attention and empathy when dealing with attorneys. We handle a range of elder law issues related to Medicaid Planning, Personal Services Contracts, long term care planning, guardianships, and other retirement issues.  We will review your beneficiary designations on existing accounts and policies in order to preserve your hard-earned benefits such as Social Security, Medicare and Medicaid (including nursing home care or an assisted living facility).

When it comes to health care related issues, we prepare Living Wills, Health Care Surrogate/Health Care Proxies, and HIPPA Release Forms.  These documents will allow designated friends and family to make health care related decisions once you are no longer able to.  This includes granting permission for medical procedures, obtaining second opinions from physicians, transferring you to another facility, and obtaining copies of all your medical records. Proactively creating these documents ensures the right people will make the right decisions at the most critical moments.

Medicaid Planning (Proactive Planning)

Proactive Medicaid Planning can be a very useful tool for seniors who may be faced with the need for nursing home care.  Nursing homes are tremendously expensive and can eat up accumulated assets quickly.  We employ legal and ethical methods that will transfer your assets so that you may qualify for Medicaid later in life. The most common method is by creating a Medicaid Asset Protection Trust.

A Medicaid Asset Protection Trust is an Irrevocable Trust.  You, as the “Grantor” create the Trust, fund it with certain assets, and name an individual “Trustee,” other than you or your spouse, to manage the Trust.  You can specify exactly how the assets should be managed and you will be entitled to all of the income for the rest of your life.   The principal of the Trust assets will remain in the Trust until your death.  When you pass away, the Trust assets will pass directly to your designated heirs.  A great benefit to this Trust is that your heirs receive the assets without going through the probate administration process with the Court.

These types of Trusts are highly complex.  Our Elder Law attorneys will guide you through the process and advise which assets should be placed into the Trust, assist with naming a qualified Trustee, and let you know the instances when you can make changes to the Trust, such as naming a new Trustee, and adding or removing beneficiaries.

Crisis Planning

  • Qualified Income Trusts  – A great strategy if your income is over the limit to qualify for Medicaid long-term care services, including nursing home care or an assisted living facility, but you cannot afford to pay for this long-term care.  A Qualified Income Trust allows you to become eligible by placing income which exceeds the eligibility criteria ($2,199.00 effective Jan. 1, 2015) into a Trust account each month. Someone other than the applicant manages the Trust (the “Trustee”).  The money in this Trust Account is used for your supplemental needs.

If there are concerns that the person seeking Medicaid may lose capacity, we can assist with drafting a Durable Power of Attorney. With a properly executed Power of Attorney, the designated agent will be able to make legal and financial decisions on behalf of the Medicaid applicant.  This is a very trusting responsibility so we always advise appointing a family member or close friend.

Our Medicaid Planning Elder Law attorneys will provide you with detailed direction for the proper funding and administration of this type of Irrevocable Qualified Income Trust, also known as a “Miller Trust” or “QIT”.

  • Personal Services Contracts – A personal service contract is a great tool under Florida law that allows an individual to transfer a lump sum of money to a family member in return for receiving care. This is a perfectly valid strategy that then allows the individual to apply for Medicaid.

Receiving care means that a close family member, often children or grandchildren, will provide care for their aging loved ones at their home. They will assist with daily living activities such as getting dressed, providing meals, bathing, using the bathroom, and cleaning or running errands. Family members often do this without reimbursement. With a personal service contract, the family member gets paid for their time while transferring the assets away from the aging individual.

  • Reallocation of assets – There are always ways to reallocate assets to better protect your interests. You may own a certain amount of assets that prevent you from qualifying for Medicaid. Transferring these countable assets into exempt assets can now allow you to qualify for Medicaid without triggering any penalties.

Some of these strategies include investing in your current homestead or purchasing a new home outright, investing into exempt income producing property such as rental property, or other trade or business. These tactics are highly complex and require an Elder Law attorney to advise how to best shift assets while carefully avoiding any fraudulent transfers.

Other Elder Law Asset Protection Strategies

  • Homestead Exemption
  • Converting certain assets to exempt assets by investing in the home or an automobile
  • Gifting
  • Irrevocable Trusts with a close family member serving as Trustee

Health Care Surrogate

A Health Care Surrogate, also known as a Health Care Proxy, allows you to plan ahead for difficult medical decisions.  It allows you to name someone (the “agent”) that will make health care decisions for you in case you are unable to make them yourself. This is crucial because it prevents disagreements within the family as to who should make these critical decisions.  Such decisions include consenting to certain medical procedures, seeking a second opinion, obtaining medical records, or transferring you to a different medical facility.

If you don’t prepare a Health Care Surrogate document, and you fall ill and cannot make your own medical decisions, then the healthcare facility will follow Florida law to determine who is the next of kin responsible for your healthcare decisions.

We help families get organized.

OC Estate and Elder Law will minimize the amount of money spent on nursing home costs and other health care related issues, to ensure that your accumulated wealth passes directly to your loved ones.