Florida Elder Legal Questions

You have not indicated the nature of the changes that were made by your mother, or provided any information regarding your mother's estate, so it is difficult to assess whether you have any recourse. Generally speaking, legal capacity to sign a will or trust is different than dementia or other challenges faced by the elderly.  Legal capacity is the ability to understand the value and nature of one's assets, who are his or her natural heirs, and understanding that they are signing a document that provides for the disposition of their assets.  Even someone with dementia or Alzheimer's disease can have moments of lucidness that provide legal capacity, unless that person has been declared legally incompetent by a judge, after an evidentiary hearing. If your mother signed the documents during a lucid moment, had an understanding of the nature and value of her assets at the time of signing, and understood that she was disposing of her assets, then her changes are most likely legally effective, and you may not have any recourse. Obviously, one of the most significant issues is how do you prove that she had a lucid moment and legal capacity, or whether she was unable to understand what she was doing.  There is a presumption that she knew what she was doing when she signed the documents, if they are properly witnessed and notarized.  You can overcome that resumption by show that she suffered from dementia, and any other challenges she may have had to live with at the time. If you believe she did not have the legal capacity to sign the documents, then  you should immediately contact an estate planning/elder law/probate lawyer to help you determine what is the most appropriate method of challenging the new documents.  The best option may be an adversarial proceeding in the probate court to have the documents ruled as invalid based on the lack of legal capacity at the time she signed the documents.  Or you may want to immediately pursue legal action to void the new documents, or you may want to wait until your mother has passed and then challenge the administration of your mother's probate or trust estate, to claim the subject property belongs to you, or that you have a more beneficial interest in your mother's estate. It's a tough situation and my best wishes on working through it. Randy Coleman... Read More

  There are a number of sites, including this one, which will list such attorneys. Please look at the Lawyers.com directory or that of the National Academy of Elder Law Attorneys, www.naela.org. Lori G. Levin Attorney at Law 180 N. LaSalle, Suite 3700 Chicago, IL 60601 312-972-3756 levin@lorilevinlaw.com www.lorilevinlaw.com  ... Read More

If the deceased uncle had any assets in just his name without beneficiary-a probate proceeding would be necessary. If his spouse has the mental ability to understand legal documents-she should sign a power of attorney-if not-a guardianship proceeding would be necessary. Would glad to help with either of these and answer further question. Attorney Joe Pippen 1-800-226-3529-- Joe@attypip.com... Read More

No. You are not responsible to pay for the long term care of your father. If your father cannot pay for his long term care, he should consider applying for Medicaid assistance. An attorney who practices in the field of elder law can assist you and or your father with applying for Medicaid assistance. Astrid de Parry, P.A.... Read More

Currently, there is a 5 year look-back period for the creation of an irrevocable trust; however, there are other options for protecting your assets. If your mark that you intend to return home upon entering the nursing home, your home will be protected. Furthermore, you could execute an Enhanced Life Estate also known as a Lady Bird Deed to protect your home from a Medicaid lien. You should seek out an elder law attorney in your area. He or she can assist you with long term care planning and asset protection.   Astrid de Parry, P.A.  ... Read More

Unless your father has been declared incapacitated, he is permitted to choose his social environment. I would suggest that you find an attorney who practices in the field of elder law. He or she may be familiar with the ALF, and may have better success in dealing with the personnel. Additionally, he or she may help you file for guardianship of your father. If your father is declared incapacitated and you are appointed his guardian, you could determine his social environment. Further, as his guardian, you could move your father to another facility. Astrid de Parry, P.A. 107 E. Church St. DeLand, FL 32724 386-736-1223... Read More

Each state has different Medicaid eligibility rules. Therefore, you should post your question regarding New York's look back period on the New York forum.  The Florida Medicaid Fact Sheet states the following:  "Transfers of income or resources may affect eligibility if they are made within 36 months of the application for Medicaid (60 months if used to establish a trust). Assets transferred on or after January 1, 2010 may potentially affect eligibility for Medicaid ICP, Institutional Hospice, Home and Community Based Waiver programs and Program of All-Inclusive Care for the Elderly for sixty months after the transfer." Astrid de Parry, P.A. 107 E. Church St. DeLand, FL 32724 (386) 736-1223  ... Read More

You should seek out an attorney who practices in the field of guardianship. As part of the guardianship proceedings, three medical professionals will evaluate the individual to determine whether he or she is incapacitated. If he or she is incapacitated, the Court will seek to determine who should be appointed guardian of the individual. The person appointed guardian will have the ability to make health care decisions for the incapacitated individual. ... Read More

You should seek out an attorney who practices in the field of guardianship. As part of the guardianship proceedings, three medical professionals will evaluate the individual to determine whether he or she is incapacitated. If he or she is incapacitated, the Court will seek to determine who should be appointed guardian of the individual. The person appointed guardian will have the ability to make health care decisions for the incapacitated individual. ... Read More

You are allowed to charge someone living with you with room and board that is reasonable for the level of support provided.  You should memorialize the room and board charge through a written contract.  Otherwise, should your mother-in-law later need Medicaid to pay for nursing home costs, the payments for room and board will not interfere with her ability to qualify for Medicaid benefits.  The written agreement should specify the nature of the goods and services being provided for her, and specify the costs.  The costs need to be reasonable, otherwise the transfers of money from her to you or your husband might be considered "uncompensated transfers" for which there would be penalty period upon her otherwise qualifying for Medicaid benefits. You can learn more about the issues associated with qualifying for Medicaid benefits and preserving family assets from nursing home costs at our website:  www.thecolemanlwfirm.net/Medicaid_Planning_Attorneys.php Randy Coleman... Read More

This is a difficult question to answer on this forum. You should seek out an estate planning attorney in your area to help you determine whether the elder has the capacity to change his or her Durable Power of Attorney (DPOA). Capacity to execute estate planning documents requires the individual to understand the nature of his or her assets and the individual(s) to whom the assets are going to be distributed. The elder would need to be able to understand what a DPOA is, what powers he or she is giving to the agent and be familiar with the person they are designating as an agent. ... Read More

You should seek out an elder law attorney in your area. This attorney may suggest initiating guardianship proceedings. You may also want to contact the Department of Elder Affairs Abuse hotline at 1-800-96-ABUSE (1-800-962-2873). Press 2 to report suspected abuse, neglect or exploitation of the elderly. ... Read More

You should seek out an elder law attorney in your area.  It sounds as if you need to file for guardianship. Guardianship proceedings begin by filing a Petition of Incapacity. If it is determined that your mother is incapacitated and the Power of Attorney is being used to financially exploit your mother, the Court will appoint a guardian to safeguard your mother's property. You may also want to contact the Department of Elder Affairs Abuse hotline at 1-800-96-ABUSE (1-800-962-2873). Press 2 to report suspected abuse, neglect or exploitation of the elderly or a vulnerable adult. This toll free number is available 24/7. Astrid de Parry, P.A. ... Read More

You should seek out an elder law attorney to help you resolve this situation.  He or she may discuss petitioning the court for guardianship of your mother. You should also contact the Florida Department of Children and Families office in the area where your mother resides. If you tell them what is going on, they may decide to investigate. Another resource available to you is the Florida Department of Elder Affairs. The following is the elder help line for that department,  http://elderaffairs.state.fl.us/english/elder_helpline.php... Read More

I am assuming you are referring to the Medicaid look back period, as this is tabbed as an elder law question. Assuming you are referring to the Medicaid look back period for Florida, a useful resource regarding Medicaid eligibility and allowable transfers is the SSI-Related Program Fact Sheet of January 2012, which is located on the Florida Department of Children and Families' web site. This fact sheet states the following: "Transfers of income or resources may affect eligibility if they are made within 36 months of the application for Medicaid (60 months if used to establish a trust). Assets transferred on or after January 1, 2010, may potentially affect eligibility for Medicaid ICP, Institutional Hospice, Home and Community Based Waiver programs, and Program of All-Inclusive Care for the Elderly for sixty months after the transfer."  ... Read More