What can an elder law attorney do for you?

Could you use help from a Florida Elder Law Attorney? To answer that question, we should probably start with an even more basic question: What the heck is elder law, anyway? Since May is National Elder Law Month, this is a fitting time to fill you in. Although elder law is one of the fastest growing areas of law, it is a relatively new field. Most people don’t grasp what kind of help an elder law attorney provides - perhaps because elder law encompasses such a large number of related issues.

In Florida, only Florida Bar Certified Elder Law Attorneys can hold themselves out as elder law specialists. Florida has been certifying lawyers in this field since June 1, 1998, and I was in the initial group to earn the credential. While many of Florida's 93,000 licensed lawyers refer to themselves as elder law attorneys, the truth is, less than 100 Florida attorneys are credentialed Florida Bar certified elder law specialists. Certification requires certain levels of experience, positive peer review, and continuing education. To maintain the credential, re-certification is required every five years.

As you can surmise, a certified elder law attorney helps people and their families with the legal challenges we face as we age. Although the majority of my clients are retirees, near-retirees, Baby Boomers, the very elderly, and the disabled, I deal with the entire life spectrum. My job is nothing if not diverse!

According to The National Academy of Elder Law Attorneys, elder law attorneys assist people in one or more of these areas of life:

• Estate Planning and Probate
• Estate and Gift Tax Planning
• Guardianship/Conservatorship
• Medicaid
• Medicare
• Entitlement Programs
• Retirement Benefits
• Age Discrimination
• Elder Abuse/Neglect
• Housing
• Long Term Care Financing
• Medical Decision Making
• Disability Planning
• Insurance

To flesh out these cut-and-dried categories, here are the stories of some of the clients I've assisted in recent months. I have changed names and simplified the stories for clarity. Do you recognize yourself in any of them? 

• “Hal,” 74, is a widower with grown children from his first marriage. He is about to remarry and wants to make sure his new wife can continue to live in his home should he predecease her. Also, he wants his own kids to ultimately inherit the assets he and his late wife accumulated. Hal and I discussed his obligations to his new wife under Florida law, the necessity of a pre-nuptial or post-nuptial agreement, considered several planning options, and came up with a plan that accomplishes all his goals.

• “Dolores” is 80. Her husband “Frank” had a devastating stroke last year.Following several months in a rehabilitation facility with Medicare paying, Frank is now in a long-term care facility. Dolores is paying the enormous cost out-of-pocket and has been told the only way she can avoid going broke is to divorce Frank, a heartbreaking prospect. She was relieved when I told her she did not have to consider that option, and that there are100% legal and above-board techniques that we can use to hasten Frank’s Florida Medicaid eligibility. She will be able to preserve a significant percentage of her hard-earned nest egg, even though Frank is already residing in a nursing home.

• “Alexandra” came to see me about creating a health care power of attorney for herself. A freshly minted adult at age 18 and looking forward to college in the fall, she has realized (with a nudge from her parents) that they are no longer entitled to access her medical records, get information from her doctors, or deal with her health insurance carrier. She asked me to create a health care power of attorney appointing her folks in that capacity, so that they can step in and deal with any health emergencies that may arise. (It helped that Alexandra's parents paid for the legal work!) As you can see, an elder law attorney does not deal solely with the elderly.

• “Marilyn’s” daughter "Vivian" is 42, bipolar, and has never been able to hold a job or manage money. Marilyn's story is a good example of how elder law attorneys help with issues that go beyond traditional estate planning. Vivian is currently receiving SSI. Marilyn wants to leave something to her daughter but fears doing so will cut off Vivian's SSI benefits. She's also certain Vivian would mismanage her inheritance. We decided to create a Special Needs Trust that will accomplish Marilyn’s goal of providing for Vivian while protecting her government benefits. 

• “Phil and Jennifer” are 34 and 30 respectively, with 3 children under the age of 6. They’ve been putting off doing a will – they are young, healthy adults – but they know they need to name a guardian for their children and make plans for managing the children’s monies if both of them should die.We discussed all this, as well as the beneficiary designations on their brokerage and bank accounts and IRAs. We are creating a Will for them that protects the children and provides Phil and Jennifer with peace of mind. To round out their plan and cover all eventualities, we are also preparing Durable Powers of Attorney, Health Care Powers of Attorney and Living Wills for Phil and Jennifer.

• “Greg and Susan’s” daughter is married to someone they have never liked. Her marriage has been rocky, and Greg and Susan won't be shocked if it ends in divorce sooner rather than later.  They want to make sure their son-in-law can't get his hands on the money they intend to leave their daughter and grandson. I suggested establishing a trust for the benefit of their daughter and their grandchild that also prevents their son-in-law from accessing the funds. Greg and Susan are thrilled with the plan and say they feel like a huge burden has been lifted from their shoulders.

• “Thomas” asks me for advice about the best way to pay for his twin granddaughters’ college tuition. We discussed Thomas’ assets and the tax advantages and disadvantages of different methods of financing the grandchildren’s educations: leaving monies in trust; creating a custodial account; making direct gifts to the children’s parents; and 529 plans. Thomas is thinking it over and I’ll be seeing him again in June to finalize his plan. 

• “Monica” phoned my office from Colorado this week. Her mother is 88 and lives alone in West Palm Beach. She is adamant about remaining in Florida, despite Monica's pleas for her to relocate to Colorado. Although her mother seems lucid most of the time, Monica believes  she can no longer manage on her own, and fears for her safety. Monica is the agent-in-fact under her mother's Florida Durable Power of Attorney, and wonders what legal leverage she has to assist her mother. Monica will fly into town next week to discuss the situation with me. In addition to discussing technical legal issues, I'll give Monica advice on possible living options for her mother, such as independent or assisted living; point her to local agencies that may be of assistance; and give her names of several geriatric care managers who can monitor her mother's welfare first-hand.

• “Bill and Donna” are a married couple in their 60s.  They got into the stock market in the early days of the tech boom, and did very well. So well that under today's laws, their estate is subject to federal estate tax. We discussed how we can put more money into the hands of their children with several estate-tax minimizing strategies, gifting programs, and possibly a Charitable Remainder Trust and a Life Insurance Trust.

• “Herb” and his sister “Dawn” have arrived in Florida to be with their father, Norm, following the death of their mother. Mother's Will in hand, they all came in to see me. Obviously at loose ends, they were unsure of what to do next, and ended up deciding to let my office handle the probate and other administrative details. I advised Norm that given his new circumstances, he needs to update his own estate planning documents. We will address that issue, as well as possible Medicaid planning and V.A. planning for Norm's potential long-term care needs, at a future appointment.

If you recognize yourself in any of the above scenarios, a visit to an Elder Law Attorney’s office is in order. Contact our Florida Elder Law/Estate Planning Attorneys in Boynton Beach, Palm Beach Gardens or Port. St. Lucie for your consultation.