What happens if you don’t have written advance directive documents?

Failing to make your wishes openly known, particularly in writing, can pull your family apart and can cost you and your loved one’s untold burdens in suffering, financial expense, public airing of private lives, and emotional burdens beyond measure.

Money, remarriage, emotional attachment, divergent religious views, and disagreements over recollections of statements can lead to very different perspectives. When this occurs, great sorrow and even outright injustice can be carried out by otherwise well-meaning participants.

Case Examples:

Terri Schiavo – Just recall some of what happened in this case.  On February 25, 1990, Terri Schiavo suffered from a collapse and fell into a Coma.  Terri did not leave documents indicating who she wanted as her health care surrogate or what her advance directives and health care wishes were.  Her husband had to obtain legal guardianship to make decisions for Terri.  June 18, 1990 the Court appointed Michael Schiavo, Terry’s husband, as Terri’s legal guardian.  July 29, 1993 Terry’s parents (the Shindlers) begin to challenge Michael Schiavo’s guardianship of Terri and attempt to remove him as legal guardian.  As we all know this was a case that went on for years and included media frenzy, political agendas and after years of litigation and appeals, a final attempt to have the case heard by the US Supreme court.  The Florida Senate debated a proposed law twice (it failed) that would favor the Shindler’s position. Terri passed away March 31, 2005, fifteen years after her catastrophic incident.

Consider examples in your own life in which people that you know disagreed on end-of-life care measures.  Many hospitals have medical ethics committees whose work is rife with discussions and advising staff due to family fights occurring at the bedsides of patients who can no longer speak for themselves.  Only you can protect yourself and your family and friends from these circumstances.

It is up to YOU to initiate the conversation and documents such as a Healthcare Surrogate, Durable Power of Attorney for Healthcare, Healthcare Agent or Proxy, HIPPA release and/or Living Will.

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.

If you become unable to speak for yourself, due to illness or accident, you will leave a guide for others and peace of mind for yourself and your loved ones.

Do you know what healthcare treatments you would and would not want if you could not speak for yourself?  It is important to think about your values and learn about treatment options.

What is a Do Not Resuscitate Orders (DNR)?

Do Not Resuscitate orders are signed by the patient and the physician when a decision not to be resuscitated in the event of cardiac or respiratory failure and imminent death.  In Florida, the form is printed on yellow paper, otherwise EMTs will not abide by it.  It should be kept on your refrigerator with a magnet and in your wallet or purse.  The form has two copies built into it.  Both will have to be signed.  You can get the form on-line on the Florida department of Health website.

Do you want your Organs or Tissue donated? Organ donation can be added to your driver’s license and be sure to notify your physician(s).

Do other people know what your wishes are?  What are your concerns?  Please share your wishes and your concerns with your physicians, family and friends.

What is the one thing that you want to be sure your doctors, family and friends know about your wishes?

Take this valuable opportunity to reflect on what’s important and share with your loved ones. Discussion and documentation must happen before a crisis.  Open discussion and communication of one’s wishes and concerns prior to a crisis provides comfort to you and to your loved ones

It is up to YOU to initiate the conversation and documents such as a Healthcare Surrogate, Durable Power of Attorney for Healthcare, Healthcare Agent or Proxy, HIPPA release and/or Living Will.

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.

“Is Probate needed if there is a Will?”

If the deceased owns property, bank accounts, etc. and owned these items in their own name alone then Probate will be necessary to transfer the property into the name(s) of the beneficiaries.  Think of Probate as the “re-titling of assets”.  Probate is a Court proceeding.

Just two examples of when Probate was needed to retitle assets:

1. Husband and Wife. All bank accounts had both names on them except Husband had one account with only his name on it.  Husband died.  Wife could not get the funds out of the account owned solely by her husband and had to retain an attorney for a Probate proceeding.
2. Husband and Wife with both names on Deed to Homestead property. Husband died.  Wife did nothing to change deed.  Wife died.  Three adult children had to retain an attorney for a Probate proceeding.

Florida law requires that anyone who has possession of a Will must file it with the local circuit court within 10 days of learning of the death.

“What happens if there is no Will”

Someone who dies without a valid Will is said to have died “intestate”.  If there is property that must be re-titled, the heir or heirs will retain an attorney for a Probate proceeding.  The decedent’s probate assets will be distributed to the decedent’s heirs in the order of priority found in Part I, Chapter 732 of Florida Statutes.

There are often simple ways to avoid the time delays, the stress on family members, and the cost of Probate. Take some time to talk with an Estate Planning attorney and do some thoughtful planning for your future and for how you want to leave your legacy.

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.

“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 not witnessed.  Florida does not recognize holographic Wills, even if it is valid in the state in which it was drafted.

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 the 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.

Even if your Will is valid in Florida, certain key provisions still might not be effective under the laws of this State.  Some examples are:

1. Florida has very specific laws on how you can devise your homestead property.
2. Florida provides specific laws for a spouse to take what is called “elective share” if they are not satisfied with what you give them in your Will.
3. 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 of your Will won’t take effect.

Ease your mind and have your out-of-state Will reviewed by a Florida attorney.

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.

1) The Program of All-Inclusive Care for the Elderly (PACE) model targets individuals who would otherwise qualify for Medicaid nursing home placement and provides a comprehensive array of home and community-based services at a cost less than nursing home care. Individuals who choose to enroll in PACE have both their medical and long-term care needs managed through a single provider.

To be eligible for PACE, an individual must be age 55 or older, be eligible for Medicare or Medicaid with income and assets up to the Institutional Care Program (ICP) level, meet medical eligibility, and live in proximity to a PACE Center.

For additional information contact:
Suncoast PACE
6774 102nd Ave N, Pinellas Park, FL 33782
Phone: (727) 289-0062
Please visit their Website: SUNCOASTPACE.ORG

2) The Statewide Medicaid Managed Care Long-term Care Program (SMMC LTC). Medicaid recipients who qualify and become enrolled in SMMC LTC receive long-term care services from a managed care plan.  There is an extensive wait list for this program.  Long-term care services provided include homemaker, companionship, assisted living services, case management, adult day care, home accessibility adaptation, escort, hospice, assistive care, assisted living facility services, behavioral management, personal care, personal emergency response systems, medical equipment and supplies, intermittent and skilled nursing, medication administration and management, caregiver training, home-delivered meals, respiratory therapy, respite care, occupational therapy, physical therapy, speech therapy, nursing facility services, and non-emergency transportation.  Eligibility SMMC LTC enrollees must be age 18 or older and determined disabled by the Social Security Administration, or they must be age 65 or older and enrolled in Medicare Parts A and B, be eligible for Medicaid up to the Institutional Care Program (ICP) income and asset levels.

For additional information contact:
Florida Department of Elder Affairs
11351 Ulmerton Rd # 303, Largo, FL 33778
Phone: (727) 588-6912
Please visit their website: elderaffairs.state.fl.us/doea

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

When a person is in a nursing home and on the Medicaid benefit, that person uses their income to pay their 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.

If it appears that your loved one could leave the nursing home and live safely at home with home care services, your loved one can be evaluated for this.  If the criteria for safety and appropriateness are met and the plan is approved by the Medicaid plan case manager, then your loved one can transition home from the nursing home and Medicaid would pay a Medicaid home care provider directly for 20 to 40 hours per week of care.  Your loved one, the Medicaid recipient, would keep their income up to the income cap amount for that year (ex. 2019 = $2313/mo).

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.

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.

What if a married person needs long term care but their spouse does not?  What if they own their own home and they have retirement accounts and money in the bank?  Do they have to spend everything down before Medicaid will be available for the spouse needing long term care?

The Florida Medicaid rules are in line with the Federal law that prohibits the impoverishment of a community spouse.  In other words, the cost of long-term care for one spouse is not going to make the other spouse destitute.  There are multiple asset and income rules that provide for the community spouse.  An example of one of the income rules is the Minimum Monthly Maintenance Needs Allowance (MMMNA).  The spouse needing long term care may be the same spouse whose income the couple has relied on to sustain themselves.  The MMMNA prevents that income from going to the nursing home and ensures that it goes to the spouse who will remain residing in the community.  An example of one of the community spouse asset rules is the Community Spouse Resource Allowance (CSRA).  Under the 2019 CSRA, the spouse who will remain in the community keeps liquid assets of $126,420 that are exempt for eligibility purposes.  The process of getting Medicaid 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.

PARC has been providing opportunities for individuals with intellectual and developmental disabilities for over 65 years. Using a “person-centered” approach, PARC provides programs and services helping those exercise their independence and experience life to the fullest. Today PARC serves over 800 individuals, focusing on gaining new experiences and living the quality of life deserved by all.

Advocacy, housing, education, collaboration and community engagement are just some of the many examples in which PARC makes a positive contribution to community life. PARC helps children and adults focus on what they can do rather than what they are unable to do.

PARC’S MISSION:

To provide opportunities for children & adults with developmental disabilities to exercise their independence and experience life to the fullest.

PARC’S VISION:

A community where all individuals live with dignity and are treated with respect.

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.

In 2019 the Florida Medicaid eligibility income cap for an individual is $2313.00/month gross.  What if a person needs long term care and has a monthly gross income higher than $2313.00/month?  What if they are counting on Medicaid in order to remain in a facility?

Florida Medicaid rules permit the establishment and use of a Qualified Income Trust (QIT) in order to meet the income eligibility cap.  This Trust agreement is drawn up by an attorney and signed by the Medicaid applicant or his/her Power of Attorney (POA).  The POA document must comply with the Florida Law and Medicaid rules in order to be valid in the Medicaid process.  In 2015 The Florida Law drastically changed with respect to POA documents.  POA documents drafted prior to 2015 (even if done by an attorney), and POA documents drafted in other states need to be reviewed and likely need to be redone.  Please do not wait to get POA documents done.  Dementia, Strokes, head injuries, and declining health could interfere with the ability to get POA documents later when they are critically needed to complete the Medicaid application process.  POA documents retrieved from on-line sources are most often NOT going to meet the requirements.

The Trust document indicates who will be the Trustee for the Trust account.  Usually the Trustee is the same person as the POA.  The Trust document is taken to a bank along with the POA document and a bank account is opened that will be the Trust account (QIT).

The Medicaid applicant’s monthly income is deposited into the Trust account.  The Medicaid Applicant is required to pay their income to the nursing home every month except for $130.00/month personal needs allowance.  The Trustee has the responsibility of making sure the applicant’s income goes into the account and that the nursing home is paid every month.  The applicant’s $130.00/month personal needs allowance can be kept in a different bank account for spending on personal needs such as clothing and toiletries.

The Nursing home co-pays that I have seen are averaging $170.00/day.  That is a co-pay meaning another insurance, such as Medicare is paying part of the cost.  $170.00/day quickly adds up and is $5,100.00/month.  When the other insurance stops paying, the person needing care in the facility is responsible for the total bill – not just the co-pay.  Medicaid is necessary.  The process of getting it 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.