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Walt Shurden Elder Law

Frequent Questions We Have Heard (and Answered) About Elder Law

Are you worried that you will have nothing to leave to your children? Are your nursing home or medical costs getting too high? Can you set up an account to provide for a disabled loved one? Find out the answers to these questions and more on our FAQ page. Browse through our list of topics or use the search bar on this page for fast information.

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  • If Dad was discharged from a hospital for 100 days of rehab at a skilled nursing facility, and if Dad goes back to the hospital from rehab, does Medicare restart Dad’s 100-day rehab benefit?

    A return to the hospital may extend skilled nursing facility coverage by the number of days one spends in the hospital, because the time spent in the hospital should not count toward the 100 days. However, Dad will not receive a new 100-day allotment until he has been out of the hospital and the skilled nursing facility for at least 60 days.

  • How do I report payments to the IRS for my caregiver?

    The IRS considers household caregivers to be employees and not contractors. Since your caregiver is properly classified as your employee you should apply for and receive a Federal Employer Identification Number (EIN). At the end of the year you must issue your employee a W-2 that contains your EIN.

    The employer must also register with the State of Florida and pay unemployment taxes each quarter. Be aware that if you hire a home health agency you don’t have to worry about any of this. Just pay the agency’s invoice! For more information read IRS Publication 926, Household Employer’s Tax Guide, or call your CPA.

  • Since My Durable Power Of Attorney document says my “Attorney-In-Fact” can act on my behalf, does that mean my lawyer can make transactions on my accounts?”

    No. In its most general sense, the term “Attorney” denotes an agent, or someone who is appointed and authorized to act in the place of another. So when you authorize your “Attorney-In-Fact” to transact on your bank accounts, to sign deeds, or to enter into long term care planning with your assets, you are referring only to that spouse, child, or close friend that you selected to help you
    during your incapacity.

  • Does My Revocable Trust Protect My Assets From Medicaid?

    No, your revocable trust does not protect your assets from Medicaid. When available resources exceed $2,000 for a single person or $121,220 for a married couple then Medicaid benefits are denied. You can amend an existing revocable trust to make it irrevocable so that the assets will not be counted by Medicaid after five years.

  • I have been caring for my husband John for years. He has COPD and complications from diabetes. I promised that I would always keep him at home but now I just can't. John is a big man and I risk my own health helping him around our home because of my chronic back problems. We have an aid during the day but John requires physical help at all hours. He needs nursing home care, and it is going to cost $8,500 a month. We worked hard and lived within our means. We have more savings than Medicaid allows but now I fear how quickly this money will go. What can I do at this late date? Your advice please, Vicky.

    Fortunately, Vicky, Medicaid rules provide help for you as the spouse of a nursing home resident.  One important aspect of this help is that you are allowed to have unlimited income.  As a spouse, you can make the most of the "unlimited income rule." How? By employing strategies that convert excess assets to income.

    Assume that Medicaid counts your assets of living at home to be $175,000. These resources exceed the 2015 allowable resource limit of $119,220. The excess amount is $55,780 ($175,000-$119,220).  Under rules in place since 2005 you could purchase an annuity with the $55,780 and still qualify your husband for Medicaid.  If you purchased a sixty (60) month level pay annuity with $55,780, you would receive about $929.67 ($55,780 /60) each month, and you would be much more financially secure as you age.

    But hold on, Vicky!

    On April 17, 2015 H.R. 1771 was introduced in the U.S. House of Representatives. This bill proposes to count one-half of your annuity income as belonging to your husband living in the nursing home.  This bill targets your financial security by reducing the income on which you live.

    Assume the bill passes and that you have no better option than to buy the same sixty (60) month level pay annuity.  One half of the $929.67, or $467.83 monthly annuity income, is now considered to be your husband's income who resides in the nursing home.  This amount must be calculated into John's "patient responsibility" and will have to be paid to the nursing home each month unless you have very low income.  You can use only the remaining $467.83 for your own needs.

    President George Bush's Administration reviewed Medicaid rules in the Deficit reduction act of 2005. This comprehensive reform looked at what a family could and could not do when one spouse enters the nursing home. This comprehensive review abolished some types of annuities that were considered abusive.  But the Act specifically kept the level pay annuity for the community spouse that is being targeted by H.R. 1771.  The Act reflected the priority that the community spouse, during her life, would be financially secure. 

    Congress's did not extend financial security protection to children of the resident.  A provision was added to the law that dealt with the possibility that the community spouse might die during the term of the annuity.  If the spouse dies, the Act requires that the remaining annuity payments must be paid back to Medicaid in an amount up to the full medical assistance provided on behalf of the nursing home resident.

    Long Term Care Planning.

    Although you may have built a nice nest egg, you never know how much you will need.  Your rainy day savings can be washed away quickly by the flood of bills that come with a stay in long term care.  In order to preserve the assets your family has managed to save, contact a Florida Board Certifed Elder Law Attorney. 

    Call to schedule an appointment with out office at 727-443-2708.

     

     

  • Should I set up a special needs trust for my disabled child?

    It depends. If you have a disabled child who relies on your financial support, a special needs trust (SNT) can provide income and protect the child’s right to receive government benefits.

    The SNT was originally created to allow children and adults with special needs to retain access to public health benefits (such as Medicaid and Social Security) without counting his or her parents’ income against them. In the past, children who were willed money and assets from their parents’ estate could be put over the allowable income limit to qualify for Medicaid. With a trust, the money goes into the trust to provide funds for any of the child’s care that is not covered by government benefits.

    Your Disabled Child (or Adult Child) is a Good Candidate for a Special Needs Trust if He or She:

    • Cannot Work

      Generally speaking, a child with special needs will qualify for government benefits if he or she cannot perform any “substantial gainful activity” due to a physical or mental disability that will last for at least a year or result in the child’s death.
    • Cannot Handle His or Her Own Finances

      A trust can be written to provide a regular monthly income for the child, as well as provide funds for housing, utilities, and other costs of living.
    • Has a Caretaker

      Funds from a trust can be used to pay for a home nurse, family caretaker, or other professional who helps your child perform daily tasks.
    • Could Be Bamed in a Lawsuit

      Assets in trust are protected from being used to pay the trustmaker’s past debts and serve as a settlement in a lawsuit, so if you own a business or could be subject to legal action, a trust will ensure that your child retains the funds no matter what happens to you.

    We Can Help With Every Facet of Your Special Needs Trust

    At Walt Shurden Elder Law, we know how important it is to make sure your child is safe from harm after you can no longer provide protection. That is why we create comprehensive, legally binding trusts to ensure your child’s health and happiness, and can even act as your trustee to avoid misuse of funds. Email us at [email protected] today to find out how we can be of service.

  • Are there benefits to starting my estate planning early?

    Yes. While seniors in their 70s, 80, or even 90s can benefit from proper estate planning measures, it is often true that the earlier you begin the process, the more flexibility you will have. Many people who plan later in life have a specific goal in mind, such as paying for nursing home care or providing for an ailing spouse. By planning early, you can avoid many potential problems, financial losses, and stresses from last-minute “crisis” planning.

    Benefits for Florida Seniors Who Plan Their Estates Early

    • Informed Decisions

      Estate planning can be a complicated process that requires many difficult decisions. Seniors who wait too long may suffer from Alzheimer’s disease, dementia, or other illnesses that prevent them from having the legal capacity to execute legal documents that delegate authority to family members who can then protect their estates.
    • Benefits Eligibility

      The best thing seniors can do to ensure the best of care in their old age is to protect their eligibility for Medicaid. Medicaid benefits will pay for a senior’s nursing home care, but only if the senior has less than $2,000 in available assets. However, you can keep your assets and your benefits by transferring your property into a trust, essentially gifting your belongings to your family before your death.
    • Caregiver Compensation

      Seniors who receive care from a service or family member can enter into agreements that provide payment for the caregiver’s services. Of course, this must be done carefully, as paying too much at one time generates taxable income to the caregiver and reduces the overall effectiveness of this strategy.
    • Emergency Funds

      Some seniors are hesitant to create an Irrevocable trust that transfers assets out of their hands, just in case something goes wrong and they need their money or property back. In addition to Irrevocable trust, an estate planning attorney can help you create a revocable trust—a trust that allows you to retain control over a portion of your assets for personal use. 

    At Walt Shurden Elder Law, we believe that Florida seniors have a right to know all of their options before making their estate plans. Call us today at 877-241-1230 or email us at [email protected] to have us explain how you can protect your rights and your wealth.

  • Can I collect multiple kinds of veterans’ benefits to pay for a nursing home?

    While the Department of Veterans Affairs (VA) provides a number of different benefits to disabled or elderly seniors who have served in the military, there are restrictions on how and when they may be used.

    Consider the Qualifications for Using the Following Benefits to Pay for the Costs of Your Care:

    • Veterans’ Aid and Attendance

      Veterans’ Aid and Attendance is the most common benefit used to pay for long-term care. It can help offset the costs of intermediate nursing facilities, mental health hospitals, and home health care for seniors who need daily personal care.
    • VA Disability

      Veterans who have suffered a disability during active military service are entitled to monthly benefits based on their disability rating (between 10 percent and 100 percent). Once they collect this benefit, veterans who require daily help with personal care can apply for extended benefits to pay for nurse visits or in-home caretakers.
    • VA Pension

      Low-income veterans who actively served during wartime can receive monthly payments called a Veteran’s Pension. However, this can only be collected if you are 65 or older, or totally and permanently disabled, receiving Social Security benefits, or are currently living in a skilled nursing facility.
    • Housebound Allowance

      Veterans who receive a VA Pension can get an additional amount from the VA if they are bedridden or are significantly restricted to their homes due to permanent disability.

    Veterans’ Aid Benefits Can Affect Your Medicaid Eligibility

    Veterans should pay careful attention to their benefit eligibility, as many funds do not allow “double dipping” (paying for the same services with multiple payments). In addition, seniors may face a wait time of five years after they apply for Veterans’ Aid to get Medicaid benefits, as there is a limitation on trust creation (called “gifting”) to qualify for Medicaid.

    An elder law attorney can help determine your eligibility and wait time for benefits, including setting up trusts as soon as possible to avoid future waiting times—and if you are already in a nursing home, we can help you apply for additional benefits so that you can move to a better facility. Contact us today at 877-241-1230, or email us at [email protected] to have our staff contact you.

  • Who should I ask to serve as trustee of my irrevocable trust?

    One of the biggest issues in creating an irrevocable trust is that there is no way it can be amended once your property has been transferred. For this reason, it is vital that you choose the correct person to serve as trustee. This should not only be someone who you can rely on to administer the property and assets to your beneficiaries, but also someone who will not redirect, spend, or otherwise appropriate the items in trust for his or her own benefit.

    How to Choose The Trustee of Your Irrevocable Trust in Florida

    The person you choose as trustee must be:

    • Responsible

      It is a trustee’s duty to act in the best interests of the trust’s beneficiaries (rather than his own) at all times. This standard of care is called a fiduciary duty, and trustees may be subject to legal action if they are found acting in ways not appropriate to the trust.
    • Financially adept

      Many trusts ensure that funds are help until a certain period of time (such as a number of years or until a child’s 18th birthday) until they may be distributed. Your trust agreement should outline whether or not the funds in trust may be invested, and if so, how the trustee may invest them. Your trustee will need to have a firm grasp on financial concepts, such as distribution of income on assets placed in trust, in order to serve your beneficiaries well.
    • Diligent

      While spouses, children, friends, or family members may serve as trustees, they must understand that administering to the trust will be a significant time investments. They must also be prepare to deal with unforeseen circumstances, such as how to distribute property if a beneficiary is no longer alive or cannot be found.

    Since there are many burdens involved in acting as trustee, you may wish to consider having an independent party act as your fiduciary trust manager. At Walt Shurden Elder Law, we can act as your trustee or co-trustee to endure your family is protected, as well as advice you on which assets to place in trust and which relatives may be included as beneficiaries. Call our office in Clearwater, FL today at 877-241-1230 to get started, or email us at [email protected] to have our staff contact you.

  • What kinds of services for the elderly does Florida Medicaid cover?

    Under the Florida Medicaid program, most medical services are covered for seniors who have been found eligible for the program. Once they are approved, Medicaid beneficiaries must enroll in a health plan provided through health maintenance organizations (HMOs) and service networks, which are administered much like any other benefit plan.

    Covered Services for Elderly Adults Under Florida Medicaid

    • Hospital Treatments

      Medicaid should cover any hospital care, including inpatient visits, outpatient appointments, rural health clinic visits, surgeries, transplant services, care at ambulatory surgical centers, county health department clinic visits, and most treatments administered by a doctor, physician assistant, registered nurse, nurse practitioner, or nurse assistant.
    • Diagnostic Testing

      Any tests you require, such as blood testing, lab work, x-rays, CT scans, MRI, or other diagnostics shall be covered.
    • Nursing Home Care

      Medicaid may pay for intermediate nursing facilities, long-term care, state mental health hospitals, and home health care for seniors who have daily medical needs.
    • Specialist Care

      In addition to regular medical appointments, patients can get payment for podiatry services, dental check-ups, vision care, chiropractic services, mental health care, dialysis center visits, and hospice care.
    • Prescriptions and Medical Equipment

      Any medications, medical equipment, medical supplies, augmentations, communication systems, and assistive devices may be purchased through Medicaid.
    • Miscellaneous Medical Costs

      Medicaid can also be used to pay for transportation costs to and from appointments, and also toward insurance premiums and deductibles.

    Florida also offers a medically needy program, allowing seniors who do not qualify for Medicaid to receive a small stipend toward their monthly medical expenses. This program requires seniors to pay for most of their care before Medicaid pays the remainder, and cannot be applied to the costs of long-term care.

    If you need help determining your loved one’s Medicaid eligibility, we can help. At Walt Shurden Elder Law, we help seniors get Medicaid approval and protect their families from sacrificing their personal wealth to pay for care. Call our office in Clearwater, Florida today at 877-241-1230, or email us at [email protected] to have our staff contact you.