Elder Law FAQ's

What is Elder law?
Elder law is the practice of law focusing on the needs of the elderly, mostly during their lifetime, to ensure that their estate planning, medical and housing needs are addressed as they grow older.

The following section addresses legal documents which EVERYONE who is over the age of eighteen (18) needs, especially to avoid a guardianship.

A) Will.
What is it? A will is written instructions to a probate court, which addresses how you want assets that are titled in your name distributed at the time of your death.

After I die, does my will have to be probated? If you die with assets ONLY in your name, without a beneficiary designation or a joint tenant with right of survivorship, then your will must be probated.

What happens if I die without one? The State of Florida will decide who gets your assets.

B.) Durable power of attorney.
What is it? A durable power of attorney is a written document which grants your agent (or the person to whom you grant the powers) the ability to manage your financial affairs. The language making it durable allows the document to survive even if you become incapacitated. There are several kinds of powers of attorney and one kind does not fit all.

How long does a Power of Attorney last? Depends on the terms of your document. A power of attorney can be drafted for a limited time, for a specific purpose or be a durable one which lasts until you revoke it or die.

C.) Health care surrogate.
A health care surrogate allows someone to make medical decisions for you if you are unable to communicate and/or make them yourself.

D.) Living will.
A Living Will is a statement of your end of life choices. I highly recommend that a Living Will be in writing.

E.) HIPAA release.
A HIPAA release is one which allows doctors to release confidential medical information about you to anyone you list on the release. It is an important document, especially to those you name in your health care surrogate. Without one, your health care surrogate may not have access to your medical information, making it difficult to make health care decisions for you.

Other estate planning tools:

Revocable Trust.
A trust is an entity designed to hold and manage your assets, both during your lifetime and after your death. If can provide for a way to have someone else manage your assets if you are unable to and it also can avoid probate upon your death.

Irrevocable trust.
An irrevocable trust is one which, after you execute it, cannot be revoked. These trusts provide useful tools in an estate planning arena as well as in Medicaid planning.

Special needs trust.
A Special Needs Trust is one which allows the Grantor to leave money to a person on public benefits without disqualifying them from those benefits. It is an especially useful tool for parents who have disabled children or for a couple, where one spouse is on public benefits.

Probate.
What is it? As mentioned above, probate is the court process by which a deceased’s assets that are titled only in their name are distributed.

How long does it last? A summary or shortened version of probate can last from a couple of weeks to a month, depending on the court’s calendar. A formal probate can last up to one year. Many times a formal probate can be settled in four to six months.

Guardianship.
What is it? A guardianship is a court proceeding in which, under F.S. Chapter 744, a person is declared incapacitated and a guardian is appointed to represent their interests. The guardian is supervised by the court and has reporting requirements to the court to assure the proper handling of the ward’s assets and person. If a parent has a child who was disabled before turning eighteen (18) and meets the other requirements of F.S. Chapter 393, a guardian advocacy can be established without the costs of a regular guardianship and without an adjudication of incapacity.

How can it be avoided? By executing the documents discussed earlier in this section, a court could find a less restrictive alternative OR the documents may make it unnecessary to file a guardianship.

Medicaid planning.
Medicaid is a joint federal/state program. It is a public benefit of last resort for people 65 or older OR those declared disabled. There are many types of Medicaid programs in Florida to assist those who need help with paying for a nursing home, an assisted living facility, and other benefits.