Moving Out of the Nursing Home

What if you are unhappy with the care that is being provided or the location of the nursing home that your loved one is in? Can one move from one nursing home to another? What if your loved one is in a nursing home and it appears that they could live safely in an Assisted Living Facility (ALF)? Does Medicaid pay for Assisted Living? What if your loved one could go home if they had home care providers? Does Medicaid pay for home care?

When a person is in a nursing home and on the Medicaid benefit, that person pays a portion of the monthly nursing home bill and the Medicaid Institutional Care Program (ICP) benefit pays the difference to make up the 100% monthly payment to the nursing home.

The portion that the person in the nursing home pays is based on a calculation and is subject to community spouse rules. Generally, an unmarried person will pay their monthly income to the nursing home minus $130 per month that they get to keep for their personal needs. A married person would pay whatever amount was left to them as income after the allowance for the community spouse was made, and minus the $130 per month they keep for personal needs.

The Florida rules allow a Medicaid nursing home resident to move to an alternative nursing home if they wish. If you are unhappy with the facility that your loved one is in, start looking around at other facilities and making inquiries as to whether they have availability. It is simple to move your loved one into an alternative nursing home facility within the state of Florida. The Medicaid ICP benefit goes with them to the new nursing home and the nursing home bills continue to get paid with the persons monthly income
and the Medicaid ICP benefit. Moving them to another state is another matter. It can be done but it is not nearly as simple.

If it appears that your loved one could leave the nursing home and live safely in an Assisted Living Facility (ALF), start looking around at assisted living facilities and asking about availability and cost. The Medicaid ALF payment does not work the same way as it does in the nursing home. The Medicaid benefit will pay the Assisted Living Facility a portion of the monthly bill. The portion that Medicaid pays is the “medical” portion and is typically $1200 to $1400 per month. The person living in the ALF makes up the difference to cover the total monthly ALF bill using their income and other resources they may have.

You must be careful when considering moving a loved one who has Medicaid ICP. The move must be made within the Medicaid guidelines. Do not jeopardize your loved one’s Medicaid coverage by moving them without being sure of the rules. The process of making the move can be very complex. It is best to consult with an attorney who practices in Medicaid Law.

Diana Mangsen focuses her practice as an elder law attorney in Clearwater, Palm Harbor, Largo, Dunedin and the Tampa Bay area.

For more information, visit our website at
https://www.mangsenlaw.com/
or call (727) 888-6282.

None of us want to face placing a loved one into a nursing home or needing nursing home care ourselves. In Florida, there are approximately 700 nursing homes with 84,000 beds. 73,000 Florida residents live in nursing homes. 10,000 Americans turn 65 every day. 5% of older adults (aged 65+) live in a nursing home.

Medicaid Institutional Care Program benefits are the primary payment source for nursing home care. A little-known fact is that once Medicaid is obtained for the nursing home care, one does not have to stay in the nursing home. The benefit is transferrable to an Assisted Living Facility or even to Home Care if the person will be safe in the alternative living situation.

Florida Medicaid.com lists some of the Common Mistakes Made in Trying to Qualify for Medicaid Nursing Home (ICP) Institutional Care Benefits

01. Transferring assets out of the Medicaid applicant’s name without considering the transfer rules and penalties.
02. Confusing the look-back period and the transfer penalty period.
03. Transferring the homestead to the adult children directly by way of a quitclaim deed.
04. Failing to plan for the event BOTH spouses enter a skilled nursing facility.
05. Failing to plan for the event the Well-Spouse predeceases the Nursing-Home-Spouse.
06. Making transfers without the proper authority or documentation.
07. Relying on outdated or poorly drafted durable powers of attorney (or other estate planning documents).
08. Neglecting to disclose all known income, assets or gifts.
09. Failing to include the gross income of an applicant.
10. Improper establishment and/or maintenance of a Qualified Income Trust (QIT).
11. Failing to determine whether a nursing home accepts Medicaid payments.
12. Believing that MEDICARE pays for long-term nursing home costs.
13. Making transfers into and out of the wrong type(s) of trusts.
14. Thinking the $11,000 IRS gift tax exclusion is applicable to Medicaid.
15. Thinking that Medicaid rules are the same in every state.
16. Failing to realize that Medicaid rules continuously change.
17. Obtaining advice from people who have limited knowledge or expertise with the Medicaid laws.

Diana Mangsen focuses her practice as an elder law attorney in Clearwater, Palm Harbor, Largo, Dunedin and the Tampa Bay area.

For more information, visit our website at
https://www.mangsenlaw.com/
or call (727) 888-6282.

“Who will make healthcare decisions for you when you cannot make them for yourself?” and; “Who will pay your bills and manage your money if you cannot do that for yourself?” and; “Who will apply for public benefits such as Medicaid for you if you cannot do that for yourself?”.

Many people are unaware of the tragic circumstances that happen to people who do not have legal documents in place when they become ill or injured.

During my years of practice as a Registered Nurse I was often faced with providing CPR and other life-saving measures that only served to prolong the natural process of dying. Ventilators for breathing. Tube feedings. Often, the decision maker was ill-equipped and confused about what the person would have wanted. I have sat with
individuals who were required to make decisions and who still suffer with guilt, anxiety, and remorse because they were not at all certain that they did what the dying person wanted them to do.

Difficulties arise when patients in need of public benefits such as Medicaid have not appointed a Power of Attorney to handle these matters for them. Sometimes life-long family hurts and feuds result when adult children do not agree on the course of care for their parent and there is no document giving authority to any of them. It is these
cases that seem to involve the most suffering for everyone involved and the deepest hurts among family members.

Estate Planning is often thought of as providing for the distribution of one’s assets after death. Key to the Estate Plan is providing for what will happen to the person and their assets while they are still alive. I cannot stress this point enough. All too often persons who neglect this aspect of their planning end up requiring Court appointed Guardians
and Court proceedings to manage their care. Terry Shiavo is just one example of many.

What is…

Power of Attorney for Health Care: Appoint the Person most able to make decisions in accordance with your own wishes.

Advance Directives: Give the Power of Attorney for Health Care written directions as to your wishes in order to alleviate confusion during the decision-making process and eliminate guilt and remorse.

Power of Attorney: Appoint the Person and give the authority for them to handle your financial affairs including the long-term care provisions required for Medicaid and other public benefit applications.

Living Will: Tells others what your personal choices are about end-of-life medical treatment.

Diana Mangsen focuses her practice as an elder law attorney in Clearwater, Palm Harbor, Largo, Dunedin and the Tampa Bay area.

For more information, visit our website at
https://www.mangsenlaw.com/
or call (727) 888-6282.

In Florida, a Lady Bird Deed is a way to transfer real property upon death and avoid having to probate it. This device can be used for homestead property and/or for non-homestead property. The Lady Bird Deed transfers the property outside of probate and outside of a person’s estate upon death, effectively protecting it from creditors of the probate estate.

Using a Lady Bird Deed is not appropriate in every circumstance and each case must be analyzed individually. A Florida Lady Bird deed, also known as an Enhanced Life Estate Deed, is designed to allow property owners in Florida to transfer property to others automatically upon their death while maintaining use, control, and ownership
of the property while they are still alive.

With a Lady Bird deed, a person takes an enhanced “life estate” interest in real property while transferring the “remainder” interest to someone else after they pass away. The person who holds the “life estate” maintains ongoing control over the property during their lifetime which allows them to sell, use and otherwise do with the property as they choose without the involvement of the remainder beneficiaries.

The remainder beneficiaries have no rights to the subject property and their consents are not required to sell the property during the lifetime of the life estate holder. Assuming the Lady Bird deed remains valid, and the life estate holder did not otherwise transfer the property during their lifetime, the property automatically passes to the
remainder beneficiaries upon the death of the life estate holder without the need for the property to be administered through the probate court. In fact, this is the main benefit of having a Lady Bird deed rather than a
regular life estate deed.

Most commonly, Lady Bird deeds are used by the owner of a property to grant his/herself a life estate in the property while naming remaindermen to inherit the property upon their death.
Two examples are:
(1) married couple executes an enhanced life estate deed in which a joint life estate is reserved and upon the death
of the surviving spouse, the property transfers to the named remaindermen, or
(2) widowed or single individuals often execute enhanced life estate deeds in their homestead properties naming their children or others as remaindermen.

It is important to note that Florida Statute 732.401 prohibits a person from devising homestead property to anyone else when there is a surviving spouse and/or minor children.

If you think you might want a Lady Bird Deed, please discuss it with a qualified attorney to be sure that it is a proper tool to use to accomplish your estate planning goals.

Diana Mangsen focuses her practice as an elder law attorney in Clearwater, Palm Harbor, Largo, Dunedin and the Tampa Bay area.

For more information, visit our website at
https://www.mangsenlaw.com/
or call (727) 888-6282.

A Safe Deposit Box may be jointly owned and/or jointly leased, that does not mean that the “contents” are jointly owned.

The registration of a safe deposit box may have nothing to do with ownership of the contents of the box (check bank policy). The general rule is that contents of the safe deposit box are part of the probate estate unless the contents (a) are registered to a trust or (b) ownership of the contents is in some form of joint ownership (c) or the co-lessor can prove ownership separate and apart from the deceased person.

The case law in this area indicates that the contents are part of the decedent’s estate unless the joint owner can prove they own the contents specifically.

In Bechtel’s Estate, In re, 348 So.2d 927 (Fla. App. 1977) the widow argued that the bearer bonds in the decedents name contained in a jointly leased safe deposit box were jointly owned by her and that she and the decedent were tenants by the entirety of the box. The widow relied on the fact that they were joint lessors on the box. The court
did not agree. The widow was ordered to turn over the bearer bonds contained in the safe deposit box to the administrator of the estate.

In Smith v. Silberman, 557 So.2d 78 (Fla. App. 1990) the widow claimed that the decedent’s bearer bonds contained in their joint safe deposit box were gifted to her by the decedent one evening over a romantic dinner. The case was remanded to the trial court where the widow’s testimony would be taken, and the court would determine if in fact the bonds were a gift. If the court determines that the bonds were not a gift, the widow will have to turn them over to the estate administrator. If the court determines that the bonds were a gift to the widow, she will be able to keep them. The fact that the bonds were contained in a joint safe deposit box was irrelevant as to the ownership of the bonds.

Include safe deposit boxes in your discussions with your estate planning attorney. Be sure you account for the contents of safe deposit boxes in your estate plan. Remember, a joint safe deposit box does not mean that the contents are jointly owned.

NOTE: I don’t recommend keeping Wills or Power of Attorney documents and other important estate planning and care planning documents in your safe deposit boxes. When the documents are in a safe deposit box, they are not easily accessible when most needed. A better idea is to keep these documents in a fireproof box in your home and make sure that your loved ones and/or a trusted friend knows where they are.

Diana Mangsen focuses her practice as an elder law attorney in Clearwater, Palm Harbor, Largo, Dunedin and the Tampa Bay area.

For more information, visit our website at
https://www.mangsenlaw.com/
or call (727) 888-6282.

Register to attend at:
https://us02web.zoom.us/j/83214375409?pwd=bVJZY1hmRW0xajg5eGwrWU8zQ2VxUT09
Or just join in on Zoom ID 832 1437 5409, Pass Code: MANGSEN

Diana Discusses…
THE FUTURE DEPENDS ON WHAT WE DO IN THE PRESENT.
MAHATMA GANDHI

Wills and Probate
IS MY OUT–OF–STATE WILL VALID AND EFFECTIVE IN FLORIDA?

Is my out–of–state Will valid in Florida?

Most out–of–state wills are valid in Florida. If the will is in compliance with the laws of the state in which it was drafted, it will almost always be valid. The one major exception is holographic wills. Holographic wills are handwritten by the person whose will it is, signed by them, but is not witnessed. Florida does not recognize holographic wills, even if it is valid in the state in which it was drafted.

It is also important to consider the point that even if your will is valid in Florida, it might not be “self– proved.” A self–proved will is witnessed and signed by two witnesses and a Notary Public. If a will is not self–proved, the probate court will have to track down witnesses who will testify as to the validity of the will. This can prove exceptionally difficult if you have an out of state will that was drafted years and years ago. The
process of locating witnesses can be time consuming and expensive.

Is my out–of–state Will effective in Florida?

Be careful with the difference between valid and effective. Even if your will is valid in Florida, certain key provisions still might not be effective under the laws of this State. Specifically, Florida law can have significant effects on the following provisions of a will:

Homestead: Florida has very specific laws on how you can devise your homestead property.

Elective share: Florida provides for a spouse to have the option of taking an elective share if they are not satisfied with what you give them in your will.

In Florida, your personal representative must be either related to you by blood or be a Florida resident. If the personal representative you have selected in your will is neither of these things, this provision will not take effect.

Other Florida laws that can render sections of your will ineffective include the fact that Florida does not recognize common law marriages and it is not a community property rights state.

Florida probate laws are specific and complex. Make sure you have a Florida attorney review your will if you have moved to Florida from out of state.

A note about Wills: Florida law requires that anyone who has possession of a Will must file it within 10 days of the death of the testator with the local circuit court in the jurisdiction where the decedent would have a probate proceeding whether or not a probate proceeding is planned. If a probate court proceeding is necessary, the court will determine whether the will is valid.

Diana Mangsen focuses her practice as an elder law attorney in Clearwater, Palm Harbor, Largo, Dunedin and the Tampa Bay area.

For more information, visit our website at
https://www.mangsenlaw.com/
or call (727) 888-6282.

Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes, and the rules governing Florida probate proceedings are found in the Florida Probate Rules, Part I and Part II
(Rules 5.010-5.530).

There are two types of probate administration under Florida law: formal administration and summary administration. There is also a non-court supervised administration proceeding called “Disposition of Personal Property Without Administration.” This type of administration only applies in limited circumstances. Probate administration only applies to probate assets. Probate assets are those assets that the decedent owned in his or her sole name at death, or that were owned by the decedent and one or more co-owners and lacked a provision for automatic succession of ownership at death.

Probate assets include, but are not limited to, the following:

• A bank account or investment account in the sole name of a decedent.
• A life insurance policy, annuity contract, or individual retirement account payable to the decedent’s estate.
• Real estate titled in the sole name of the decedent, or in the name of the decedent and another person as tenants in common, is a probate asset.

Probate is necessary to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries. Probate is also necessary to complete the decedent’s financial affairs after his or her death.

Probate proceedings are filed with the clerk of the circuit court, usually in the county in which the decedent lived at the time of his or her death. A filing fee is required. The clerk assigns a file number and maintains an ongoing record of all papers filed for the administration of the decedent’s probate estate. Creditors file claims with the clerk that are filed into the case.  Creditors with valid claims get paid from non-exempt probate property before beneficiaries receive inheritance.

Diana Mangsen focuses her practice as an elder law attorney in Clearwater, Palm Harbor, Largo, Dunedin and the Tampa Bay area.

For more information, visit our website at
https://www.mangsenlaw.com/
or call (727) 888-6282.

What if you are unhappy with the care that is being provided or the location of the nursing home that your loved one is in? Can one move from one nursing home to another? What if your loved one is in a nursing home and it appears that they could live safely in an Assisted Living Facility (ALF)? Does Medicaid pay for Assisted Living? What if your loved one could go home if they had home care providers? Does Medicaid pay for home care?
When a person is in a nursing home and on the Medicaid benefit, that person pays a portion of the monthly nursing home bill and the Medicaid Institutional Care Program (ICP) benefit pays the difference to make up the 100% monthly payment to the nursing home.
The portion that the person in the nursing home pays is based on a calculation and is subject to community spouse rules. Generally, an unmarried person will pay their monthly income to the nursing home minus $130 per month that they get to keep for their personal needs. A married person would pay whatever amount was left to them as income after the allowance for the community spouse was made, and minus the $130 per month they keep for personal needs.
The Florida rules allow a Medicaid nursing home resident to move to an alternative nursing home if they wish. If you are unhappy with the facility that your loved one is in, start looking around at other facilities and making inquiries as to whether they have availability. It is simple to move your loved one into an alternative nursing home facility within the state of Florida. The Medicaid ICP benefit goes with them to the new nursing home and the nursing home bills continue to get paid with the persons monthly income and the Medicaid ICP benefit. Moving them to another state is another matter. It can be done but it is not nearly as simple.
If it appears that your loved one could leave the nursing home and live safely in an Assisted Living Facility (ALF), start looking around at assisted living facilities and asking about availability and cost. The Medicaid ALF payment does not work the same way as it does in the nursing home. The Medicaid benefit will pay the Assisted Living Facility a portion of the monthly bill. The portion that Medicaid pays is the “medical” portion and is typically $1200 to $1400 per month. The person living in the ALF makes up the difference to cover the total monthly ALF bill using their income and other resources they may have.
You must be careful when considering moving a loved one who has Medicaid ICP. The move must be made within the Medicaid guidelines. Do not jeopardize your loved one’s Medicaid coverage by moving them without being sure of the rules. The process of making the move can be very complex. It is best to consult with an attorney who practices in Medicaid Law.

Diana Mangsen focuses her practice as an elder law attorney in Clearwater, Largo, St. Petersburg, Dunedin, Palm Harbor and the Tampa Bay area.

For more information, visit our website at
https://www.mangsenlaw.com/
or call (727) 888-6282.

None of us want to face placing a loved one into a nursing home or needing nursing home care ourselves.  In Florida, there are approximately 700 nursing homes with 84,000 beds.  73,000 Florida residents live in nursing homes.  10,000 Americans turn 65 every day. 5% of older adults (aged 65+) live in a nursing home.  Medicaid Institutional Care Program benefits are the primary payment source for nursing home care.  A little-known fact is that once Medicaid is obtained for the nursing home care, one does not have to stay in the nursing home.  The benefit is transferrable to an Assisted Living Facility or even to Home Care if the person will be safe in the alternative living situation. 

Florida Medicaid.com lists some of the Common Mistakes Made in Trying to Qualify for Medicaid Nursing Home (ICP) Institutional Care Benefits

1. Transferring assets out of the Medicaid applicant’s name without considering the transfer rules and penalties.
2. Confusing the look-back period and the transfer penalty period.
3. Transferring the homestead to the adult children directly by way of a quitclaim deed.
4. Failing to plan for the event BOTH spouses enter a skilled nursing facility.
5. Failing to plan for the event the Well-Spouse predeceases the Nursing-Home-Spouse.
6. Making transfers without the proper authority or documentation.
7. Relying on outdated or poorly drafted durable powers of attorney (or other estate planning documents).
8. Neglecting to disclose all known income, assets or gifts.
9. Failing to include the gross income of an applicant.
10. Improper establishment and/or maintenance of a Qualified Income Trust (QIT).
11. Failing to determine whether a nursing home accepts Medicaid payments.
12. Believing that MEDICARE pays for long-term nursing home costs.
13. Making transfers into and out of the wrong type(s) of trusts.
14. Thinking the $11,000 IRS gift tax exclusion is applicable to Medicaid.
15. Thinking that Medicaid rules are the same in every state.
16. Failing to realize that Medicaid rules continuously change.
17. Obtaining advice from people who have limited knowledge or expertise with the Medicaid laws.Diana Mangsen focuses her practice as an elder law attorney in Clearwater, Largo, St. Petersburg, Dunedin, Palm Harbor and the Tampa Bay area.

    For more information, visit our website at
    https://www.mangsenlaw.com/
    or call (727) 888-6282.

There are several types of trusts. Some examples are:

Special Needs Trust (SNT): Also called a Supplemental Needs Trust.  One must never leave a lump sum inheritance to a recipient of Public Benefits such as SSI or Medicaid. They will lose the SSI and/or Medicaid benefits and the amount inherited is subject to Medicaid Recovery.  However, it is permissible to provide inheritance to an adult with special needs using a SNT.

Testamentary Trust: A Trust created by your Will.  A Testamentary Trust does not exist until you die, and your Will indicates the Trust to begin.  Some people create an SNT in this way.

Pooled Trust: Helps people with disabilities qualify for programs such as SSI and Medicaid by placing their assets which are over the limit into a pooled trust.

Irrevocable Trust: Cannot be changed, reversed, or recovered; final. Example, Irrevocable Burial Trusts are a useful tool for Medicaid Planning purposes.

Others: Charitable Trust, Constructive Trust, Spendthrift Trust, Tax By-Pass Trust.

Revocable (Inter-Vivos) Living Trust: Discussion below and part 2 next month.

A living trust will help with the management of your assets while you are alive and will help with the distribution of your assets after you die.  This is a good tool to use to avoid both Guardianship and Probate.

establishing a REVOCABLE LIVING Trust

Typically, it takes about two to three weeks after the initial meeting with your attorney to prepare, allow for your review, make any edits necessary, and to execute (sign with two witnesses and a notary) the final trust documents and any deeds transferring real property into the Trust. After the trust documents are signed, it is necessary to complete the steps necessary to transfer other assets to the trust.  This can take an additional week or two depending on how quickly you act.

Diana Mangsen focuses her practice as an elder law attorney in Clearwater, Largo, St. Petersburg, Dunedin, Palm Harbor and the Tampa Bay area.

For more information, visit our website at
https://www.mangsenlaw.com/
or call (727) 888-6282.