Adult Guardianship In Florida

In theory it makes sense. When old age catches up to someone and renders them incapable of making essential decisions regarding their finances, self-care, or both, a court can appoint a guardian to make those decisions for them. However, adult guardianship in Florida often has unintended – and sometimes devastating – consequences.

In this article we will provide a general overview of adult guardianship in Florida and discuss some of its pitfalls.

What is guardianship?

The Florida State Guardianship Association defines guardianship as a legal method for the delegation of one person’s rights to someone else who then acts on their behalf. It is designed to protect people incapable of:

• Making decisions
• Articulating or otherwise conveying any decisions they have made or want to make
• Acting in their own best interest

Accordingly, a Florida court will appoint a guardian for an adult who is incapable of taking any of those actions due to circumstances such as:

• Old age
• Traumatic brain injury (TBI)
• A condition that substantially limits the person’s development or intellectual capacity
• Substance abuse or mental health issues

Ideally, the guardian will be a family member  appointed by the court or named as a guardian in a written declaration by the person who is allegedly incapacitated before any finding of incapacitation. Guardianship is not limited to relatives though. Under Florida law, any adult resident of the state can serve as a guardian regardless of whether they are related to the person who is allegedly incapacitated. Having said that, some relatives of the ward who do not live here also may serve as guardian. Furthermore, professional or public guardians may also be appointed in certain circumstances.

Something else to keep in mind is that there are different types of guardianship, A guardian of the property is tasked with inventorying the property, investing  it wisely, and using it for the ward’s support. A guardian of the property is also responsible for  accounting for it. This is done  by filing comprehensive annual reports with the court. Finally, this type of guardian has to  get court approval for certain financial transactions.

A guardian of the person is tasked with certain responsibilities like  providing medical, mental, and personal care services, and choosing where the ward lives. He or she must also present an annual report to the court detailing the ward’s care, in addition to a doctor’s report.

A limited guardian is appointed when a court deems that someone is partially incapacitated. He or she is simply tasked with carrying out the rights the ward is incapable of exercising.

However, it is important to note that the court will only appoint a guardian as a last resort. Specifically, the court will appoint a guardian in absence of a suitable alternative. Acceptable options include a durable power of attorney, trust, health care surrogate or proxy, or similar “pre-need directive.”

Determination of incapacity and guardianship in Florida

In Florida, any adult can ask the court to decide whether someone is legally incapacitated for the purposes of appointing a guardian. This is done by filing a petition, called the “Petition to determine incapacity” with the court.  It must explain in detail why the person who filed the petition believes the person in question is incapacitated.

Once it gets the petition, the court has five days in which to appoint a so-called “examining committee.” This committee must have three members including a psychiatrist or another doctor. Each of the other members must have relevant expertise as either a: psychologist, a gerontologist, a psychiatrist, a physician, an advanced practice registered nurse, a registered nurse, a licensed social worker, or someone with an advanced degree in gerontology. One member  must know about the type of incapacity alleged in the petition, and each committee member  must submit a report detailing their conclusions to the court.

In addition to appointing the committee, the court will appoint an attorney for the subject of the petition. You should be aware, however, that the person who is allegedly incapacitated can be represented by his or her personal attorney instead.

You should also be aware that the assessment of the person who is allegedly incapacitated usually includes a physical evaluation, a mental health evaluation and a functional evaluation.

The court will dismiss the petition If most of the examining committee members find that the person who is allegedly incapacitated is not incapacitated in any way. Conversely, if the examining committee determines the subject of the petition cannot exercise certain rights, the court  will schedule a hearing  to determine if he or she  is totally or partially incapacitated. If he or she is deemed incapacitated in any way, the court will appoint a guardian is appointed at the end of the incapacity hearing.  Depending on the circumstances, the court may simply appoint a guardian of the person, or  a guardian of property. In some cases, the court may appoint both.

The only exception to this, as we noted earlier, is if the court finds a suitable alternative to adult guardianship is available.

Pitfalls of adult guardianship in Florida

Florida law attempts to protect people in need of guardianship in several ways. First, it bars the appointment of convicted felons – or anyone who is otherwise incapable of carrying out required duties – as guardians. Next, guardians in Florida must be represented by attorneys to serve as “attorneys of record.” In most cases, they must also furnish a bond, and may be required to complete a court-approved training program.

The clerk of the court is charged with reviewing  all annual reports of guardians of the person and property, and presenting them to the court for approval. The court can remove any guardian who fails to carry out their duties as required.

Even so, critics say the system is flawed. And some of them speak from personal experience. In one well-publicized case, for example, two sisters who filed for emergency temporary guardianship (“ETG”) for their elderly father ended up in a protracted legal battle to have it removed.

In this case, the sisters are both medical doctors. They also held power of attorney for their father. Nevertheless, a judge denied their request to be appointed his guardians. Instead, the judge appointed a professional guardian. This meant a complete stranger was allowed to manage their father’s money and medical care.

This reportedly led to a series of legal disputes as the sisters objected to the way their father’s money was being spent, a move to an assisted living facility and the sale of his house. Instead of siding with them, however, a judge reportedly approved everything. To add insult to injury, the judge also extended the ETG for three months when it was set to expire. In fact, published reports indicate there were three extensions before a judge “decided to make the ‘emergency’ guardian the permanent, or plenary guardian.”

In the end, the sisters had to claim the rights to their father’s house and name the judge as the defendant, thereby forcing her to recuse herself from the case. The guardian also resigned,  and another judge stepped in and appointed the sisters as guardians after reviewing the case.

A blow to guardianship reform efforts here happened earlier this year, when House Bill 297 was withdrawn from consideration before it came to a vote during the legislative session. As proposed, the bill called for the establishment of “ the visitation rights of the family of the person alleged to be incapacitated” with “presumption in favor of allowing visitation or other contact with the family.” Among other things, the bill would have also “required ‘full reevaluation of need for guardianship after a certain time’”

Despite the setback, the Florida AARP, which reportedly made guardianship reform a “top priority” during the recent legislative session, plans on continuing to teach its members about alternatives to guardianship.

Want to learn more about Elder Law and Medicaid Planning then go to our eBook page where you can download the topics of your choice now.

Meanwhile, if you have questions or concerns about adult guardianship in Florida, don’t hesitate to contact Attorney John Frazier for legal advice. You can reach him at 727-260-2581, or at 813-431-3193 after 5 p.m.

 

Should I Get a Medicaid Annuity?

Asking the question “Should I Get a Medicaid Annuity” is a good one. Usually this comes up when someone needs to go into a nursing home or assisted living facility soon or more often right now.

The prospect of going into a nursing home is not only emotionally daunting. For many, it is financially daunting as well. Depending on the situation, you’ll no doubt have to make numerous decisions – all of which have different implications. For example, should I get a Medicaid annuity? Is it your only option? Is it the best option? Keep reading to find out.

Qualifying for Medicaid long-term care benefits

Let us dig in and see should I get a Medicaid annuity further. Here’s the thing. You can’t qualify for Medicaid benefits relevant to nursing home care unless you have substantially limited financial resources or “countable assets.”

For example, most states have an asset limit of $2,000 for an individual senior applicant this year.  You should be aware, however, that in this context  a married couple’s assets are classified as jointly owned. This is the case even when one spouse applies for long-term care Medicaid benefits.

If your  assets exceed the limit imposed by Medicaid,  you must reduce them accordingly.  However, you cannot give them away or sell them for less than fair market value to meet Medicaid’s asset limit. Doing so is a violation of Medicaid’s so-called Look-Back Rule, and you will be temporarily ineligible for Medicaid benefits.

Now let’s talk about income. This year,  most states cap a senior applicant’s allowable income at  $2,742 a month in income. As we will see, this is also an important aspect of any conversation about annuities.

What is a Medicaid annuity?

In answering the question of should I get a Medicaid annuity let’s dig deeper. Generally speaking, an annuity is a financial mechanism that allows you to turn one cash payment into recurring income. Specifically, you can buy an annuity from an insurance company for a set amount, which is then converted into an income stream and returned to you.

Buying a Medicaid annuity (and often paying a high fee in doing so), or Medicaid Compliant Annuity, allows you to reduce your assets without violating Medicaid’s so-called  Look-Back Rule. In other words, you can turn “countable” (non-exempt) assets into “non-countable” (exempt) assets. This is because Medicaid doesn’t count assets toward the asset limit once they have been converted into an income stream. Single Medicaid applicants should keep in mind, however, that  income from an annuity is counted towards Medicaid’s income limit.

To be classified as a Medicaid Compliant Annuity in Florida, the annuity must:

• Be an immediate annuity
• Name the state as the primary beneficiary
• Be irrevocable
• Be for a term less than the annuitant’s life expectancy (as set forth in Medicaid Tables)
• Be non-transferable
• Be payable to the nursing home (for single applicants)

Be aware that deferred annuities are not Medicaid compliant and should not be used for Medicaid planning purposes. These annuities differ from immediate annuities, or Medicaid compliant annuities in that the funds are not converted into an income stream straight away. Instead, the funds remain in the annuity to grow over time. Accordingly, you may not start to get payments for several years – or even longer.  Furthermore, this type of annuity can be revoked, which means investment owner can cancel and withdraw the money in the account whenever they wish. This information clearly answers the “Should I get a Medicaid Annuity” at least in part with don’t buy one now that is a deferred annuitiy for Medicaid purposes.

With all of that being stated, there are methods for converting deferred annuities into Medicaid Compliant annuities if necessary.

Be sure to consult financial and legal professionals before buying an annuity

The bottom line for you or a loved one going into a nursing home is that you shouldn’t feel pressured into getting a Medicaid annuity. This is because these financial tools have significant shortcomings. Among other things, you may find that you are stuck with a low-yielding investment with the rest going to Medicaid. Also some non-attorney Medicaid planners may sell annuities as part of how they profit from their work thus they have a financial interest in what you do that an attorney does not have and by Bar rules can not.

Experts also point out that purchasing a Medicaid annuity is a viable solution in a small percentage of cases so one can not say never should I get a Medicaid annuity. The experts also say there are often other options that are much better for both the applicant and his or her family.

Finally, it is important to note that Medicaid laws, rules, and interpretations are always changing. Therefore, it is crucial that you consult with financial and legal professionals before purchasing a Medicaid annuity.

Want to learn more about Medicaid planning and Elder Law issues? Then take a look at our free ebooks available for download now.

Thinking about hiring an attorney for Medicaid plannng?  You probably need to read now about how Attorney Frazier works with clients.

When it comes to Medicaid coverage for assisted living facilities in Florida, there is good news and bad news. The good news is if you or a loved one qualify for or are already on Medicaid, it will help pay for an assisted living facility. The bad news is, getting these benefits can be complicated.

What is an assisted living facility?

There’s good news and bad news when it comes to aging, too. If we’re lucky, we’ll reach a point where we get to stop working, and enjoy all the long-term benefits of years on the job. We’ll have the chance to relax, travel, and spend time with friends and family. Hopefully we’ll also benefit from the wisdom that also comes with age. Additionally, we hope we have the money to afford the costs.  If you do not then you need to learn more on getting Medicaid coverage for assisted living facilities.

 

But aging also brings frailty, too. Inevitably, our health will decline, and we won’t be able to do the things that once came so easily. In other words, we will all need help with daily living activities at some point.

 

For many Florida residents, that’s when an assisted living facility may become an option. Along with a place to live, elderly residents at these facilities get help with daily living activities such as getting dressed, mobility, managing medication and so on.

 

Of course all of this comes at a cost. Just two years ago, the average cost for assisted living in Florida was $3,500 per month. The monthly cost for assisted living across the state ranged from $2,836 per month to $5,375 per month.

Eligibility for Medicaid Coverage for Assisted Living Facilities

In addition to being on or eligible for Medicaid, you must be able to qualify for financial help for assisted living facility costs through the state’s Medicaid Long-Term Care Managed Care (LTCMC) plans.

 

Eligibility is based on physical/cognitive assessments, medical necessity and financial criteria. Concerning the former, you must be able to demonstrate that: 1) your condition warrants placement in a nursing home so you could receive 24-hour skilled care. Alternatively, you must be able to prove that placement in a nursing home would be necessary if you weren’t getting supportive long-term care services. This is generally determined through a comprehensive assessment administered by the state Department of Elder Affairs.  This assessment, coupled with information from your medical team, will also determine whether an assisted living facility is medically necessary.

 

There are two ways to qualify financially for Medicaid coverage for assisted living facilities. You automatically qualify if you are getting supplemental security income (SSI). Otherwise, you must meet state income and asset standards. In 2022, the individual income limit for an applicant is $2,523 per month. For couples, when both parties are applying, the joint income limit is $5,046 / month. The asset limit for a single applicant was $2,000, and the limit for a married couple, with both spouses applying, was $3,000.

Contact an experienced Medicaid Assisted Living Facility Attorney Today

We understand that applying for Medicaid coverage for an assisted living facility is a complicated process. If you are intimidated or overwhelmed, we can help. Simply fill out the form on our website or call us at 727-260-2581 to schedule a free phone consultation appointment with attorney John Frazier, today.

Not ready to schedule your free phone consultation.  No worries.  Do be sure to review the free eBooks for you to download now on Elder Law topics before you go.

Also don’t be worried about your loved one being trapped on the assisted living Medicaid waitlist.  Read this article on how to deal with the waitlist right now.

Non-Attorney Medicaid Planners Cannot Give Legal Advice

What is the best way to Legally Protect Your Assets?  Hire an Elder Law Attorney with deep experience in Medicaid Planning says the Unlicensed Practice of Law Committee of the Elder Law Section of the Florida Bar.  Their new brochure begins with this:

“Only a licensed attorney can give you all the legal options for Medicaid Planning and asset protection.  The Florida Supreme Court in 2015 advised that anyone other than a Licensed Attorney who provides legal advice about Medicaid Planning is engaged in the unlicensed practice of law. According to Florida Statute 454.23, the unlicensed practice of law is a third degree felony.”

To learn more you can download the new brochure that talks about the following topics:

• What only an Elder Law attorney can do that a non-attorney cannot do for you.
• What legal issues you need to discuss that non-attorney Medicaid Planners can not discuss with you without committing a felony
• What can happen to you if you hire a non-attorney Medicaid Planner and your Medicaid case is denied?
• Important reasons why you should only hire an Elder Law attorney with robust experience in Medicaid planning.

To download and read this vital information now just click this link now that gives you answers.

 

How Florida Medicaid Treats Retirement Accounts: Radio Interview of Attorney John R. Frazier by Attorney Joseph Pippen

Attorney Pippen:

All right, let’s go to attorney John Frazier. Good morning, John.

Attorney Frazier:

Hey Joe, how are you doing today?

Attorney Pippen:

Good. John is with our law firm. He does all the VA and Medicaid planning cases, and calls in every other week with a tip of the week. John, what are we talking about today?

Attorney Frazier:

Today, I am going to talk about how Florida Medicaid treats retirement accounts like IRAs and 401Ks.

There are a number of different retirement accounts out there. I think IRA is probably the most common. The next most common is called a 401K. These numbers refer to provisions in the Internal Revenue Code. A 401K as an employer-sponsored retirement type of an account.

Another retirement account that I see in my practice is called a 403B plan. This is a retirement account for employees of public schools and tax-exempt organizations. Another plan that I see is called a 457 plan. This is for state and local government employees and some nonprofit employers. Then another plan is called a thrift savings plan. That is for federal government employees. That one is very similar to a 401K type of plan.

The general rule under Florida law is that if you have an existing IRA or one of these other retirement accounts … Most people know that there is a $2,000 asset limit. Let’s say that you have an individual with a $100,000 IRA. The question is, “Well, how do we deal with that under the Florida Medicaid rules?”

The State of Florida says that if you set up a regular systematic payment of all income plus some principal, then the State of Florida will treat that as an exempt asset for the Medicaid rules. I think this is very generous. I don’t know if this is even possible in other states. So we’re very lucky that we can do this.

Let’s say that you’re in the month of January, and that that retirement account would generate $1,200 in income plus some principal. You would take the $1,200 divide it by 12 for the number of months in the year, and your minimum monthly payment would be $100 per month. The State of Florida would then treat that IRA as exempt. That’s a basic overview of what we can do under Florida law to make retirement accounts exempt.

Attorney Pippen:

All right. Well, there’s a big misconception out there, John, that since you have a retirement account, that’s a countable asset, and you have to spend that down to qualify for Medicaid. But you have a way, under the Florida statutes, to protect a person’s retirement account, even if they go in a nursing home. That’s a good summary of it?

Attorney Frazier:

Absolutely. Yeah. I think most people are not aware of that, that you can make these accounts exempt.

Also if you cash it in … Let’s say you have a $100,000 IRA, and it’s a traditional IRA … There are two general types. You have a traditional and a Roth. If you cash in a traditional IRA for $100,000, you’ve generated $100,000 in income in that year. That’s another advantage to not surrendering the IRA and converting it into an exempt IRA.

You can also, and would normally, have beneficiaries named on these retirement accounts. If the Medicaid applicant later passes away, the beneficiaries will inherit that money later on.

Attorney Pippen:

Just like a homestead is exempt and a homestead can pass on to the heirs and not be a countable asset.

Attorney Frazier:

Exactly.

Attorney Pippen:

John, let’s talk about one more exempt asset with respect to how Florida Medicaid treats retirement accounts because I’ve got a caller waiting now. Let’s talk about rental homes as an exempt asset as far as principal goes.

Attorney Frazier:

Yeah. This is another area that the State of Florida is very, very generous. The State of Florida says that if a Medicaid applicant or a spouse owns a rental property, and that rental property is rented for fair market value, the State of Florida will treat that asset as entirely exempt.

Let’s say, for example, you have an unmarried Medicaid applicant with a half a million dollars in a bank account. Well, one of the best ways to shelter that large amount of money is for the Power of Attorney to go out and purchase a rental property in the Medicaid applicant’s name, rent that property out, and the State of Florida will treat that as an entirely non-countable asset.

We set that up to avoid probate when the person passes away. There’s a couple different ways that we can do that. Then later on, if the Medicaid recipient passes away, the beneficiaries will inherit that property without a state recovery.

So again, very generous that the State of Florida allows us to do all of these things in light of this huge federal deficit that we have, and which continues to grow.

Attorney Pippen:

All right, John, one more point. If the income from the retirement account, and the fair market rent paid on the rental home, and their Social Security check exceed the amount of income they can have per month, tell us about the qualified income trust.

Attorney Frazier:

The State of Florida is called an income cap state. The income limit this year is $2,382 a month in gross monthly income. Social Security, pension, the IRA payment, the gross amount, would all count towards that limit.

Now, rental property is treated a little bit differently. The State of Florida says that the Medicaid applicant is allowed to escrow the property taxes, property insurance, monthly maintenance fees, and there are some other expenses.

Let’s say that the gross rent is $1,000 a month, and those monthly expenses are $500 a month. The State of Florida allows us to escrow the $500 a month in expenses. That other $500 is the only amount that counts towards that income cap.

So again, how Florida Medicaid treats retirement accounts is great and here again with a rental property, Florida is very generous in that regard also. That way you can pay for the property taxes, property insurance, maintenance expenses out of the rent each month.

Attorney Pippen:

John, give everyone your contact information if they’d like more information about what we’re talking about here.

Attorney Frazier:

Oh, the office number is 727-586-3306, extension 104. My cell phone is 727-748-5374. My email address is John J-O-H-N @attypip.com.

Attorney Pippen:

Thank you so much, John. You have a great Sunday.

Attorney Frazier:

Okay. You too. Thank you very much.

Attorney Pippen:

Thanks for all the great information. Okay. Thank you very much.

Attorney Pippen:

Just a comment about the information you learned about Medicaid and attorney John Frazier there. A lot of clients, they’ll call, and they want to know … The conversation rolls around to they have to spend all of their assets to qualify for Medicaid. I’ve had many calls where this is; they had already started doing this, maybe some for a number of years or so. They were just spending down their assets.

What attorneys like John Frazier, Medicaid attorneys, VA planning attorneys, do is they do everything by the books, everything by the statutes. They know what can be done to protect assets, to save legacies, to handle estates, and how to deal with certain assets, and how to change assets from one type of asset to another asset that actually protect the assets.

So if you have someone in a nursing home in a private pay, and they’re just slowly, their estate is dwindling down to nothing so they can qualify for Medicaid, a lot of those assets can be protected, and government benefits can be maximized. Everything’s done by the books on this. There’s no … Everything is disclosed to the Department of Children and Family when you do the application.

Some people might think it’s something wrong with doing that type of planning, that Medicaid is only for poor, extremely poor people. That’s not … Some people don’t perceive it that way. Some people perceive they’ve paid into Social Security, worked their whole lifetime, and this is a benefit that they’re entitled to if they do it properly.

Again, if you’d like to contact our office for that, we have a toll-free number. The office number is +1 800-226-3529. That’s +1 800-226-3529. That’s certainly part of the Medicaid and also VA planning for those in assisted living.

We have many more blog posts on Medicaid planning and more radio interviews on the topic.

Also, don’t forget to check out our free ebooks on elder law topics as well as Medicaid planning.