Florida Lawyer Case Studies

Attorney John R. Frazier


Florida Lawyer Case Studies:  Elder Law

Problem: Frederik is 85 years old, he has severe dementia and he needs long-term care in a nursing facility, which he will need the state help to pay for; however, Frederik can no longer execute a new durable power of attorney, because he is now incapacitated.

Solution: His son Ralph contacted us about this Medicaid dilemma. The solution was to establish a guardianship and petition the court to authorize planning on Frederik’s behalf, since he can no longer execute a new durable power of attorney.

Result: Frederik was able to get the help that he needed, thanks to his son Ralph who contacted and elder care attorney on this situation.


Florida Lawyer Case Studies:  Florida Medicaid Planning

Problem: Mary, a 95-year-old resident of Polk County, Florida, has $120,000 in her checking account, and she is widowed with no children; she has no other assets. She recently fell and broke her pelvis; her doctor is now recommending long-term care, which costs approximately $6,000 per month. Mary cannot afford this excessive cost and will need to qualify for Florida Medicaid.

Solution: Mary’s great-niece, Joyce, her attorney-in-fact, contacted an elder law attorney regarding this situation. Mary and Joyce decide, after discussion with us about possible solutions, that Mary should use a Pooled Trust option. Mary decides to have all of her money, except for $1,700 in her regular checking account, held in the Pooled Trust, which is an exempt asset for Medicaid purposes.

Result: The attorney prepared Mary’s Medicaid application, which allowed Mary to obtain Medicaid benefits with a patient responsibility of $465 per month. Mary will have access to the funds in the Pooled Trust, and her funds will probably last her the rest of her life.


Florida Lawyer Case Studies:  Estate Planning

Problem: Bernice is a 101-year-old widow with 4 children. After a stroke, she needs to qualify for public benefits to help pay for long-term care. Bernice has $600,000 in a money market account, her only asset.

Solution: Nicole, who is Bernice’s daughter and attorney-in-fact, contacted an elder care attorney on this issue. The attorney advised them to consider the purchase of a rental condominium unit for $599,000 and combine that with a Qualified Income Trust, to save Bernice about $5,000 per month in nursing home expenses.

Result: Because Bernice’s four children are named equal beneficiaries in the Revocable Living Trust, the condominium will bypass probate when Bernice dies. Title to the property will then pass to her four children without any benefit recovery from the state (under current law).


Florida Lawyer Case Studies:  Probate & Trust Law

Problem: Mildred was an 86-year-old receiving ICP Medicaid benefits at a skilled nursing facility. When she died, she owned only a Florida homestead property, but failed to list her only daughter, Jessica, as the heir to the property.

Solution: Jessica hired an elder care attorney to open a probate. When the probate was opened, the Agency for Health Care Administration was notified of Mildred’s probate proceeding, in accordance with Florida statutes, which resulted in a claim being filed against the property.

Result: The homestead qualified as a protected asset under the Florida constitution, and went to Jessica since she was Mildred’s natural heir. The state of Florida was unable to recover any of the Medicaid benefits paid on her behalf, because the homestead is exempt, and remains exempt. The homestead property passed to the natural heir.


Florida Lawyer Case Studies:  Tax Law

Problem: Francisco and Magdalena emigrated from Spain in the 1950’s and established a chain of successful Spanish restaurants. Because of plain hard work, the couple accumulated approximately $4,000,000 in assets. Because the estate tax exemption is currently limited to $2,000,000, their estate is subject to the Federal estate tax, upon the death of both spouses.

Solution: Francisco and Magdalena established A/B trusts to shelter their assets from the estate tax, and the A/B trusts will entirely eliminate the estate tax on the $4,000,000 in assets.

Results: The A/B trusts allowed Francisco and Magdalena estate to pass free of the estate tax to their children.


Florida Lawyer Case Studies:  Business Law

Problem: Marcela is a successful real estate investor. She purchased a piece of rental property in her own name and rented the property out. Much to her surprise and disappointment, the property flooded and developed a mold problem after the flooding occurred. The renters claimed that the mold caused their serious health problems, and successfully sued Marcela for $100,000 in damages. Because the property was owned in Marcela’s name, Marcela was personally liable for the $100,000 judgment, which she paid out of her own personal money.

Solution: When Marcela purchases her next rental property, she will establish a single member Limited Liability Company (LLC) which will own the property. Marcela will own the LLC, through her membership interest in the LLC. Under Florida Law, if the LLC is sued, Marcela is not personally liable for the judgment against the LLC. The remedy a successful judgment creditor has against an LLC is called a “charging order.” This means that a judgment creditor can only receive payments of income that are actually paid out to Marcela from the LLC. If no income is paid out to Marcela, nothing will be recovered by the judgment creditor.

Result: Marcella has provided a great deal of protection of her personal assets by establishing the LLC.


Florida Lawyer Case Studies:  Veterans Benefits

Problem: Christian is a 72 year old veteran of the U.S. Air Force, who served during the Vietnam War. Due to serious health problems, Christian now needs to live in an assisted living facility which costs $3,500 per month. Christian meets all eligibility requirements for the VA Aid & Attendance program, but he only receives $2,000 per month in social security. Additionally, Christian has $20,000 in his checking account. Christian’s funds will not last long, because of the cost of the assisted living facility.

Solution: Because of his military service, his medical condition, and his low asset level, Christian is eligible for VA Aid & Attendance. The maximum 2008 pension rate for Christian is $1,554 per month. The $3,500 monthly cost of the ALF effectively nullifies his income as an unreimbursed medical expense under the VA rules. Accordingly, Christian will receive an additional $1,554 per month from the VA.

Result: Because of Christian’s eligibility for Aid & Attendance, the out of pocket expense for the ALF is now only $54 per month as calculated $2,000 x $1,559 = $3,554 – $3,500 = $54.


Now that you know how an elder care attorney may help by reading our Florida lawyer case studies, find out how we may be able to help you by calling us today to schedule your free, no-obligation consultation.

To find out more about the elder law issues featured in these Florida lawyer case studies, visit our Free Article Index where you can download articles on Florida Medicaid program, estate planning, probate law, and more.

After reading our Florida lawyer case studies, don’t forget to pick up your two free chapters download from Protecting Your Family’s Assets in Florida: How to Legally Use Medicaid to Pay for Nursing Home and Assisted Living Care by John R. Frazier J.D., LL.M. in our Free Resources section.