The Trendsetters: Protecting our Elders in 2019

January 2, 2019

Odds are, this current generation did not start the annual Times Square Ball Drop on New Year’s Eve in New York City. This exciting and illuminating celebration began in 1907; around the time our elders became the new and upcoming generation. Many of our elders can recall this experience. They heard it through the radio, watched it on their non-technicolor TV, or went there, experiencing a time when Times Square didn’t have LED screens. These days, elderly individuals have other things to recall: making sure their medicine was taken on time or receiving their Social Security and pension checks for the month. Here at OC Estate and Elder Law, we value our elders. Providing them with the documents they need for their financial well-being is the least we can do to protect our elders.

In the state of Florida, it is crucial that aging individuals establish the following documents to ensure the right people will make the right decisions at the most critical moments:

Health Care Surrogate

A Health Care Surrogate, also known as a Health Care Proxy, allows them to plan ahead for difficult medical decisions. It allows them to name someone (the “agent”) that will make health care decisions in case they are unable to make them themselves. 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 to a different medical facility.

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

Adult Guardianships

For Aging Adults – An older adult may become incapacitated due to a medical condition or mental illness. Adults who have practical limitations caused by illnesses such as Alzheimer’s, dementia, chronic illness or other conditions may need guardianship. Two petitions must be filed with the court before a legal guardian is appointed. The first petition seeks to establish the capacity of the “Allegedly Incapacitated Person” (AIP). The second petition looks for appointment of one or multiple guardians. The person petitioning the court has the burden of showing incapacity by clear and convincing evidence. Once the prospective guardian has filed an oath, posted a bond, and after the order appointing guardian has been entered, the court issues letters of guardianship. The guardian has authority to exercise only those rights delegated to him by the court on behalf of the ward. The guardian is responsible for creating and filing a care plan explaining the ward’s needs and how the guardian intends to meet those needs. The guardian is also responsible for maintaining a detailed accounting of the ward’s assets, income, and expenses in order to assist the ward with tax preparation and filing. The appointed guardian is typically responsible for helping the person manage their medical, legal, and financial affairs.

For Adults with Dependency Issues – An adult may become incapacitated due to substance abuse issues such as alcohol, illegal drugs, or prescription drugs. In Florida, under the Marchman Act, a person may be involuntarily assessed and possibly involuntarily treated for substance abuse. In such a case, a court may appoint a guardian advocate during court proceedings. The decision to become a legal guardian to a loved one suffering from dependency issues is difficult and costly. Sometimes it is necessary to protect the loved one from depleting their assets, managing their health issues, and preventing them from doing harm to themselves.

Medicaid Asset Protection Trust

A Medicaid Asset Protection Trust is an Irrevocable Trust. The elder, as the “Grantor” creates the Trust, funds it with certain assets, and names an individual “Trustee,” other than themselves or their spouse, to manage the Trust. They can specify exactly how the assets should be managed and they will be entitled to all of the Trust income for the rest of their life. The principal of the Trust assets will remain in the Trust until their death. When they pass away, the Trust assets will pass directly to their designated heirs. A great benefit to this Trust is that the heirs receive the assets without going through the probate estate administration process with the court.

These types of Trusts are highly complex. Our elder care 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. You can invest in your family’s future by protecting your assets today; our elder law practice helps families accomplish those goals the right way.

Our elders started these New Year’s traditions because they wanted something long-lasting and celebratory. These documents are just exactly that, for them.

Contact OC Estate & Elder Law at (954) 251-0332 or to get our elders, and our traditions, secured.