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Florida Elder Law Planning [How it Applies to Florida Estate Planning]

Elder Law

How do you know when you need an estate planning attorney verses an elder law or Medicaid planning attorney?  Perhaps you need someone with experience in all 3 areas?

Legal terms such as “estate planning”, “elder law”, and “Medicaid planning” roll easily from the lips of well meaning attorneys and other legal insiders.  Yet does anyone even know what these various terms mean?

A key underlying question is exactly how do the typical types of client concerns, as they relate to elder law in Florida and/or Medicaid planning in Florida factor in to your overall Florida estate planning concerns.

I have often written about estate planning and the benefits of utilizing a Florida revocable trust to avoid probate, or design a living trust to plan for disability provide asset protection through your revocable living trust for your beneficiaries. Often times, clients will end up in the office of an estate planning attorney who despite best intentions knows nothing about elder law and Medicaid planning.

So typical estate plan created by most attorneys in this field will address all of these concerns by analyzing the estate to determine the probate exposure and then implementing revocable trust planning in many cases to limit the need for probate. Additionally, a savvy estate planner will often address estate tax planning issues and will implement strategies such as marital and family trusts or QTIP trusts or GST (Generation Skipping) trust strategies in order to limit estate tax exposure. Surprisingly, in the heat of the estate planning frenzy, the need to look at elder law and Medicaid planning concerns is often missed.

Why is this important? First a bit of background…Medicaid is a need-based program which pays for things like long term nursing home care. This program is distinct from Medicair which is an insurance program for everyone which covers certain healthcare items once a deductible is met. Medicaid requires a “spend down” of the estate assets unless certain estate planning measures are taken to protect the estate.

Where elder law and Medicaid planning concerns often arise and should be considered is where of course the spouses are elderly and this is hard to define because the baby boomers are aging well in many cases and often do not appear elderly. However, often medical incidents arise during this time which substantially alters the clients’ life circumstances giving rise to needs such as long term assisted living, home health care or nursing home care.

Suffice to say that any revocable trust planning should include some elder law planning and Medicaid related provisions in the trust to allow the Trustee to take measures to allow an ill spouse to get qualified for Medicaid while taking all legal measures to preserve the estate. Such measures are varied and based on the individual circumstances of each case. Medicaid planning tools may include an irrevocable income only trust or  a supplemental special needs trust.

Other options may include an “elective share trust in Florida” or a “personal service” contract with the family members to limit the “spend down” of the estate. Medicaid wills in Florida can also be an important tool that is rarely utilized by the masses.

So the key is to make sure that your estate planning attorney understands all aspects of planning which range from business succession planning in Florida, to wealth and estate tax planning, to probate avoidance in Florida and disability planning, to elder law and Medicaid planning. These essential components will offer you a complete estate plan which maximizes the available legal protections for you and those you love the most.

This is an updated version of an original post dated November 3, 2014.  

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