Medicaid Planning

October 7, 2007

Estate Planning for the Disabled in Florida

As a Florida Estate Planning Attorney, I often get involved in planning for Disabled Florida Adults and Children. Often these individuals are receiving government benefits or expect to receive the in the future due to a physical or mental illness or disability. In some cases clients expect their spouse to need these benefits soon. If the individual receives income that is to create or acquires or maintains assets above a certain level, they will be unable to qualify for these government benefits.

Often the solution is to create a Florida Special or Supplemental Needs Trust. This trust can hold assets and income that would typically disqualify an individual. This money can then be used to supplement their lifestyle. If you have minor or adult children (or non-child beneficiaries) who are either receiving government benefits currently, or may receive them in the future due to a mental or physical disability, then you need to know about special needs trusts. These trusts are certainly important enough to spend the next two posts discussing them. The Connecticut Estate Planning Blog has a two part article on this topic and the rules there seem to be very similar to those in Florida. If you have someone in your family who is currently disabled, or you expect to need government benefits in the future, you should discuss this with a Florida Estate Planning Lawyer so that you can determine what the best option for your particular situation is.

October 2, 2007

Are Wills Still Valid After Moving To Another State?

by David M. Goldman

If you move to Florida from any state or country, Florida will recognize any will that was properly executed as to the rules of another state except Holographic wills.

A holographic will is one that is entirely in the handwriting of the creator. Florida does have an exception to their rule against accepting holographic wills, that is for those holographic wills that are witnessed by two witnesses and notarized.

In almost all cases new states will recognize a validly executed will from another state. It is best to check with an Estate Planning Lawyer in your new state to make sure that your will is valid and deals with any special laws that may be available in the new state.

October 1, 2007

Spousal / Elective Share: Constitutional or Not?

by David M. Goldman

Often in the process of Florida Estate Planning, Florida Elder Law, or Florida Probate I get asked about the effects of Florida’s Spousal Share Statutes. The statutes reserve 30 % of the decedents estate for a spouse in the event that the decedent did not provide at least that amount in their will or other Florida Estate Planning Documents. This right can be waived by the spouse in pre or post nuptial documents. Often for wealthy clients, or those who are legally separated but not divorced the spousal share can become a big issue. If you think that a spousal share might be an issue with your estate planning, you should discuss it with a Florida Estate Planning Lawyer.

Last week a Florida Appeals Court looked at, Whether Florida’s Spousal Share Statutes were constitutional or not?

Generally Florida Statutes are constitutional unless they are not rationally related to furthering a valid governmental objective. Lane v. Chiles, 698, So.2d 260, 262 (Fla 1997) In this case the court looked at whether the potential loss of property rights were rationally related to providing a share in the assets of the decedent.

September 28, 2007

Attorney and Client Check List for Mediation

by David M. Goldman

Jacksonville Business and Estate Planning Attorney, David Goldman Found a great article How To Prepare For Mediation: The Mediator’s Check List Of Key Legal And Factual Issues by David Laufer. This article and the checklist below can be used in Florida Business Law, Florida Probate Law, Florida Guardianship Law, and Florida Will Disputes.

THE MEDIATOR’S CHECK LIST ****************************************

ALL INFORMATION WILL BE MAINTAINED IN THE STRICTEST CONFIDENCE.

A CONFIDENTIALITY AGREEMENT HAS BEEN SIGNED BY ALL PARTICIPANTS IN THE MEDIATON BEFORE THE EXCHANGE OF ANY CONFIDENTIAL INFORMATION.

PARTIES

1. Identify each party and title of all participants involved in the dispute.
2. Identify each Disputant required to be present during the mediation process.
3. Identify each decision maker who will not be present during the entire mediation process.
4. Describe any special needs, demands, interests and goals of each Disputant and Counsel.

DISPUTE

5. Describe each claim, dispute and defense.
6. Describe each Disputant’s demands -the best case outcome-to be achieved in the Mediation.
7. Identify and quote the key statutes governing the claims and defenses.
8. Identify and quote the key cases governing the outcome of the liability issues. For example: Stout v. Turney (1978) 22 Cal.3d 718: “Of the two measures the ‘out-of-pocket’ rule has been termed more consistent with the logic and purpose of the tort form of action (i. e., compensation for loss sustained rather than satisfaction of contractual expectations) while the ‘benefit-of-the-bargain’ rule has been observed to be a more effective deterrent (in that it contemplates an award even when the property received has a value equal to what was given for it.)”
9. Identify the legal support for each demand for special, general and punitive damages.
10. Identify all defenses to the claims for special, general damages and punitive damages.
11. Identify key disputed facts discussed in the legal briefs.
12. Identify any key facts and legal issues overlooked by Counsel and the Disputants.
13. Identify other issues that may have an effect on the dispute, including change in case and statue law, change in management, change in key decision maker, vacations, trial dates, motions for summary judgment, divorce, employment termination, surgery, promotion, restructure of company, bankruptcy, sale of business, cancellation of insurance coverage, and the need for closure.
14. Should the mediation be conducted in segments? For example, if the claimant is rehired in wrongful terminations claim will the damage claim be resolved? If the franchisor reinstates a franchise will the damage claim be resolved? If the insurance company renews the insurance policy will the claim for bad faith claim be dismissed?
15. Identify possible resolutions of dispute by restoring, creating or enhancing a commercial relationship that the defendant may be able to provide as an alternative to payment of money damages. For example, a HR Director may be able to re-hire an employee without consulting with a higher authority, whereas the payment of a damage claim may have to go through several levels of review and approval and consultations with the company’s risk manger for reporting to an insurance carrier or audit committee.

EVIDENCE:
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September 12, 2007

Ladybird Deed

by David M. Goldman

Florida Estate Planning Lawyers and Florida Elder Law Lawyers often use Ladybird Deeds to help transfer property upon death while allowing the owner to retain the full rights to sell, mortgage, convey, or change the future owner.

Jacksonville, Orange park, Ponte Vedra Beach, Jacksonville Beach, Clay County, Duval, St. Johns Florida, Texas, Ohio, California, Kansas and several other states now allow aLadybird Deed (named after Lady Bird Johnson) or Enhanced Life Estate Deed. With an enhanced life estate deed, a person can deed their property to another while reserving for themselves a life estate with the right to sell, convey, mortgage, or change who the property will pass to upon their death.

Quitclaim Deed v. Lady Bird Deed (Enhanced Life Estate Deed)

September 4, 2007

Nursing Home Admission Agreements

by David M. Goldman

July 4, 2007

Jacksonville Living Will Seminar

by David M. Goldman

Jacksonville Estate Planning Law Firm will continue it community service project by adding 3 Living Will Seminars in the month of September. This program provides Free information and the chance to create a free Florida Living Wills, Florida Designation of Health care Surrogate, and a Hipaa Release.

Jacksonville, Jacksonville beach, Ponte Vedra Beach, PVB-on-beach.jpg On September 11, 2007 at 11 A.M.

Riverview Center

June 11, 2007

Why use a Living Trust in Florida

by David M. Goldman

Everyone in Florida seems to be going crazy to setup a Florida living trust. Often we find ourselves asking why does this client need a living trust. In most cases they don’t, but if clients are looking for privacy, to save time or money on probate or have assets in excess of 1,000,000 a Florida living trust might be a good vehicle for their estate planning.

Much like a will, a living trust will describe what happens to your property in the event of your death. While you are alive, you can remain in control and have the power to change the trust at any time. Setting up a living trust allows you to avoid the expense and long delays of probate, and may even save you money on taxes.
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October 5, 2006

Living trusts: Best to transfer assets soon?

by David M. Goldman

A durable power of attorney is to provide a mechanism for reducing a person’s estate by making gifts of his or her assets. A similar objective in a smaller, nontaxable estate may be to make the principal eligible for Medicaid planning or assistance. In either case, it is prudent, and good practice demands, that the attorney at law who drafts the power of attorney includes the power to make gifts.

If the gift-making power is not included, the validity of the gift may be challenged. The IRS has successfully challenged gifts that were made when there was no specific authority in the document.

A power of attorney is not the same as a trust, a will or a living will. But it is a separate legal document that is an important part of a Florida estate plan.

October 3, 2006

Estate planning & Financial Options: Reverse Mortages and Estate Planning

by David M. Goldman

NOTE: Check with your Florida Estate Planning Attorney or one from your state on the effects of a reverse mortgage on your estate planning goals.

Today, many financial planners and insurance agents are advising seniors to consider reverse mortgage as a way to pay for healthcare and/or home exspense.

Reverse mortgages allow seniors to use the equity in their homes to pay expenses and still live in their home. The money can either be paid in a lump sum payment or montly payments or be available as they need the funds. Some reverse mortgages can even be setup as a combination of the options.