As we age, legal and financial issues can become just as important as medical concerns. Florida Elder Law focuses on helping older adults and their families address issues such as long-term care, Medicaid planning, Estate Planning, Powers of Attorney, health care decisions, Guardianship, elder abuse, and financial exploitation.
The goal is not simply to plan for what happens after death. Elder law planning also addresses what happens if you need help managing your health, finances, or daily life while you are still living.
What Is Elder Law in Florida?
Elder Law is a broad area of legal practice involving issues that commonly affect seniors and their families. Depending on the circumstances, Elder Law planning may involve:
- Wills and Trusts;
- Durable Powers of Attorney;
- Healthcare Surrogate Designations and Living Wills;
- Long-term care planning;
- Medicaid eligibility and planning;
- Nursing home and assisted-living issues;
- Guardianship and alternatives to Guardianship;
- Asset protection planning;
- Elder abuse and financial exploitation;
- Veterans benefits;
- Probate and estate administration; and
- Planning for incapacity and changing care needs.
Because every family’s financial, medical, and family circumstances are different, there is no single Elder Law plan that works for everyone.
Why Is Long-Term Care Planning Important?
One of the most significant challenges facing older adults is paying for long-term care.
Long-term care may be provided at home, in an assisted-living setting, or in a nursing facility. It may include assistance with activities of daily living such as bathing, dressing, eating, and medication management.
A common misconception is that Medicare will pay for a person’s long-term nursing home care. Generally, it does not. Medicare may cover certain medically necessary, short-term skilled nursing facility services when specific requirements are satisfied, but it generally does not cover custodial long-term care simply because a person needs ongoing assistance with daily activities.
That distinction can have significant financial consequences.
Families should consider their potential sources of payment, which may include:
- Personal income and assets;
- Long-term care insurance;
- Medicare for services it actually covers;
- Medicaid, if eligibility requirements are satisfied;
- Veterans benefits, when applicable; and
- Other available public or private benefits.
Long-term care planning is generally more effective when it begins before a crisis occurs.
Medicare vs. Medicaid: What Is the Difference?
Medicare and Medicaid are different programs serving different purposes.
Medicare is federal health insurance primarily associated with people age 65 and older and certain individuals with disabilities. It can cover hospital care, physician services and certain skilled nursing or rehabilitation services.
Medicaid is a joint federal-state program that can provide health coverage to people who meet applicable financial and other eligibility requirements. Florida also has Medicaid programs specifically addressing long-term care.
For Florida’s Medicaid long-term care program, eligibility involves more than simply having limited income or assets. Among other requirements, an individual generally must meet applicable age or disability criteria and be determined through Florida’s assessment process to require the level of care specified by law.
Florida’s long-term care Medicaid program can cover services provided in nursing facilities as well as certain home and community-based services through the state’s managed-care system.
Because Medicaid eligibility rules can involve income, assets, transfers, marital status, medical needs and other factors, families should obtain individualized advice before transferring or giving away assets.
Can Medicaid Planning Protect Assets?
Potentially-but Medicaid planning must be done carefully.
Long-term care expenses can significantly affect a family’s financial security. Depending on the circumstances, advance planning may help a family understand whether assets can be preserved while still qualifying for benefits in the future.
However, there is no universal strategy that guarantees Medicaid eligibility or protects every asset.
Transactions involving gifts, transfers, Trusts, real estate, or other assets can have significant legal and Medicaid consequences. Planning should therefore be based on the individual’s circumstances and the applicable rules before assets are transferred, rather than after a nursing home crisis has already occurred.
What Estate Planning Documents Should Seniors Have?
A Florida estate plan should address more than the distribution of property at death.
Depending on the person’s circumstances, important documents may include:
Durable Power of Attorney. Allows an agent to handle financial and legal matters within the authority granted by the document.
Designation of Healthcare Surrogate. Identifies a person who may make health care decisions as authorized under Florida law when the individual cannot make those decisions.
Living Will. Expresses an individual’s wishes concerning life-prolonging procedures in circumstances covered by Florida law.
Last Will & Testament. Directs the disposition of property at death and can nominate individuals to serve in appropriate fiduciary roles.
Trust. In appropriate circumstances, a Trust may provide additional planning for asset management, incapacity, or distribution after death.
These documents should be coordinated rather than prepared in isolation. An estate plan that does not address incapacity may leave a family facing unnecessary difficulty when a person can no longer manage financial or health care decisions.
When Is Guardianship Necessary in Florida?
A Florida Guardianship may become necessary when an adult is unable to exercise some or all of his or her rights and existing planning documents or other less restrictive alternatives are inadequate.
Florida law provides procedures for determining incapacity and appointing a Guardian. Guardians have fiduciary responsibilities and may exercise only those rights that have been removed from the individual and delegated to the Guardian.
Guardianship is an important legal proceeding and should not automatically be viewed as the first solution.
Before pursuing Guardianship, families should determine whether an existing Durable Power of Attorney, Healthcare Designation, Trust, or another less restrictive planning arrangement can address the situation.
Planning while a person still has the legal capacity to make decisions can provide more options later.
What About Senior Housing and Assisted Living?
Aging does not necessarily mean moving into a nursing home.
Depending on a person’s health, finances and preferences, options may include:
- Remaining at home with family or professional caregivers;
- Home health or other supportive services;
- Independent senior living;
- Assisted living;
- Memory-care communities;
- Rehabilitation or skilled nursing facilities; or
- Other community-based care arrangements.
The right choice depends on the individual’s care needs, safety, financial resources, and personal preferences.
Families should consider these issues before a medical crisis forces an immediate decision. A care manager, social worker, medical professional, or other qualified professional may also help a family evaluate practical care options.
Florida’s Department of Elderly Affairs administers and coordinates numerous programs and services for older Floridians, including long-term-care-related programs and the State Long-Term Care Ombudsman Program.
How Can Families Protect Against Elder Abuse and Financial Exploitation?
Elder Law also involves protecting vulnerable adults.
Florida law specifically addresses abuse, neglect and exploitation of elderly persons and disabled adults. Florida Statute § 825.103 addresses exploitation involving the improper use of an elderly person’s or disabled adult’s funds, assets, or property, including certain misconduct by persons in positions of trust and confidence and certain breaches of fiduciary duty by agents under Powers of Attorney, Guardians, and individual Trustees.
Warning signs can include:
- Unexplained withdrawals or transfers;
- Sudden changes to estate-planning documents;
- Unusual financial gifts;
- New or unexplained caregivers or “friends” controlling finances;
- Missing property or valuables;
- Isolation from family members; or
- An agent, caregiver or family member refusing to provide financial information.
When exploitation or abuse is suspected, prompt action may be important. Depending on the circumstances, legal remedies, protective proceedings, or other interventions may be available.
When Should a Florida Family Talk to an Elder Law Attorney?
Families often wait until a parent enters a hospital or nursing facility before seeking legal advice. By then, some planning opportunities may be limited.
Consider obtaining legal advice when:
- A parent is beginning to need significant assistance;
- Nursing home or assisted-living care is being considered;
- The family is concerned about how long-term care will be paid for;
- Medicaid eligibility may become an issue;
- A parent has significant assets that need to be reviewed;
- Existing Estate Planning documents are outdated;
- Someone is beginning to have difficulty managing finances or health care;
- Family members disagree about care or finances;
- Guardianship is being considered; or
- Elder abuse or financial exploitation is suspected.
The earlier a family understands its options, the more opportunity there may be to make informed decisions.
Frequently Asked Questions About Florida Elder Law
What does an Elder Law attorney do in Florida?
An Elder Law attorney helps individuals and families address legal issues associated with aging, including Estate Planning, incapacity planning, long-term care planning, Medicaid, Guardianship, and protection against exploitation.
Does Medicare pay for nursing home care in Florida?
Medicare may cover certain short-term skilled nursing facility services when its requirements are met, but it generally does not pay for ongoing custodial long-term nursing home care.
Does Medicaid pay for nursing home care in Florida?
Florida Medicaid can provide long-term care services to individuals who satisfy applicable eligibility and care requirements. Eligibility should be evaluated on an individual basis.
Can I protect my home from nursing home costs?
The answer depends on the circumstances, including how the property is owned, whether it qualifies as homestead, the individual’s marital and family situation, and applicable Medicaid rules. Do not transfer your home or other assets solely to qualify for Medicaid without first obtaining appropriate legal advice.
Is Guardianship always necessary if a person becomes incapacitated?
No. Florida law recognizes Guardianship as a legal process, but existing Powers of Attorney, health care documents, Trusts, and other arrangements may provide alternatives or reduce the need for court involvement in appropriate circumstances.
Planning for Aging Is About More Than Estate Distribution
Elder law planning is not simply about deciding who receives your property after you die. It is also about planning for the years before death, including who can make decisions, where care will be provided, how that care may be paid for, and how family members can protect a loved one’s dignity and financial interests.
At Caserta & Spiriti, PLLC in Miami Lakes, Florida, we assist individuals and families with Florida estate planning, long-term care planning, Medicaid-related planning, powers of attorney, guardianship matters and other legal issues affecting seniors and their families.
If you or a loved one is beginning to face questions about long-term care, Medicaid, incapacity, guardianship or aging in Florida, obtaining legal advice before a crisis may help you better understand the available options.
Disclaimer: This article is provided for general informational and educational purposes only and is not intended to constitute legal advice. It does not create an attorney-client relationship. Medicaid, Medicare, Guardianship, and long-term care rules are fact-specific and subject to change. The information in this article should not be relied upon as a substitute for advice concerning your particular circumstances.