Medicaid Cake with VA Icing on Top?

The Elder Law Advocate “Serving Florida’s Elder Law Practitioners”

Vol. XVII, No. 2 Summer 2009 www.eldersection.org The Elder Law Advocate Established 1991 A publication of the Elder Law Section of The Florida Bar

Babette B. Bach, Sarasota Chair Contents:

Leonard E. Mondschein, Miami Message from the chair...... 3 Chair-elect The Elder Law Section thanks the 2008 - 2009 CLE program chairs!.. 4 Enrique Zamora, Coconut Grove Administrative Law Division Chair Rainmaking 101: Top 20 influencers...... 6 Twyla L. Sketchley, Tallahassee Kudos Korner...... 7 Substantive Law Division Chair Age discrimination in Florida is on the rise...... 7 Jana McConnaughhay, Tallahassee Member News...... 9 Secretary Congratulations to new CELAs!...... 9 Robert Mark Morgan, Jacksonville Treasurer Mark your calendar...... 9 Patricia I. “Tish” Taylor, Stuart Annual Meeting Memories...... 10 Editor ELS committee list...... 11 Susan Trainor, Tallahassee Committee reports: Copy Editor Legislative Committee...... 12 Arlee J. Colman, Tallahassee Unlicensed Practice of Law Committee...... 12 Section Administrator Letter from TFB UPL Committee...... 13 Lynn M. Brady, Tallahassee Layout Can you always have your Medicaid cake with VA icing on top?...... 15

Statements or expressions of opinion Retaining clients and increasing revenue in a tough economy...... 17 or comments appearing herein are Writing for FAQs...... 19 those of the contributors and not of The Florida Bar or the section. ELS Annual Retreat...... 20 The Elder Law Advocate will be glad Tips & Tales: Building flexibility into a third party SNT...... 21 to run corrections the issue following the error. Summary of selected caselaw...... 24 Fair Hearings Reported...... 25

The deadline for the FALL ISSUE is October 15, 2009. Articles on any topic of interest to the practice of elder law should be submitted via email as COVER ART: an attachment in MS Word format to Patricia I. “Tish” Taylor, Esquire, pit@ “The Eagle Has Landed,” pastels, mcsumm.com, or call Arlee Colman artist – Arlee J. Colman. at 1-800-342-8060, ext. 5625, for ad- Private collection of Terry Hill, The Florida Bar. ditional information.

07/09 Congratulations to new CELAs, ELS award winners As I come to the end of my tenure increase and more and more aging dar and required meetings, CLEs, ad- as chair of the Elder Law Section, I clients will require our assistance. ministrative functions, The Advocate can think of no nicer way to wrap up In addition, many of us, as well as and the section’s website, legislative my official duties than to congratu- others, are concerned caregivers who positions and considerations for the late our newest certified elder law provide the care our parents desire, next legislative session. attorneys (CELAs). CONGRATULA- and many need the specialized coun- Your Executive Council is pre- TIONS to Genny Bernstein, Jill seling an elder law attorney can pro- pared to lead through the coming Burzynski, Sara Caldwell, Amy vide. year. However, one issue became very Fanzlaw, John Griffin, Jana Mc- I have been privileged to serve as apparent throughout our training; we Connaughhay, Leonard Mond- chair this year and have had the op- need additional section members to schein, Stephen Taylor, Marjorie portunity to work with an amazing get involved. We invite you to join a Wolasky and Enrique Zamora for Executive Committee. The section is committee by contacting the commit- earning this important distinction. very fortunate to have such a talented tee chairs. All of the committees and To become board certified in elder group of individuals leading our orga- their chairs are listed on the elder law law, an attorney must have substan- nization. A very big thank you to our website, www.eldersection.org. tial involvement in all aspects of plan- incoming Chair Babette Bach, Chair- Many of you have asked during my ning for aging, illness and incapacity tenure how to be asked to speak at on a full-time basis for at least five a CLE, how to get on the Executive years with 40 percent or more of his Council or how to get more involved in or her practice focused on elder law Message general with the section. Attendance during the two years immediately at the Executive Council meetings preceding certification. Each board from keeps you up to date and will help certified lawyer has passed peer re- you determine which committee(s) view, completed 60 hours of continu- the you may have an interest in as well ing education within the three years chair as provide the opportunity to get to immediately preceding application know your fellow members. and has passed a written examination As an Elder Law Section member, Linda R. Chamberlain demonstrating knowledge, skills and you are invited to attend the Execu- proficiency in the field of elder law. tive Council meetings as well as any Currently there are 81 board cer- elect Len Mondschein, Administra- committee meetings. Many of the tified elder law attorneys in Florida. tive Chair Enrique Zamora, Substan- committee meetings provide the op- I encourage all of you meeting the tive Chair Twyla Sketchley, Secretary portunity to obtain continuing educa- requirements to apply for Elder Law Jana McConnaughhay and Treasurer tion credit and/or to analyze existing Certification; the filing period is open Robert Morgan. We appreciate your law as well as to advocate for our beginning July 1, 2009, and applica- dedication, expertise and hard work clients. For those of you with a desire tions must be filed by Aug. 31, 2009. to further the mission of our organi- to make a change, join a committee The application, requirements and zation. I am grateful to have served and start preparing for our next leg- exam specifications can be found on with each of you. islative session—there are sure to be The Florida Bar’s website, www.fla- This year we remained focused on some hot topics. bar.org. our section’s mission and long-range As we moved through the legisla- Elder Law Certification recog- action plan developed in 2007. Part tive session this past year, we ran nizes competency in the following of our long-range action plan was to into several road blocks by not hav- core areas: Health and Personal elect officers prior to the end of our ing an elder law legislative position Care Planning; Pre-Mortem Legal existing officers’ terms to allow for approved by The Florida Bar. A leg- Planning; Fiduciary Representation; continuity so our new leaders could islative position allows our section Legal Capacity Counseling; Public act more efficiently from the begin- to advance or stop/amend legislation Benefits Advice; Probate and Trust ning of their terms. We have imple- through support or opposition, to re- Administration; Insurance; Resident mented this process; the old and new spond to requests for assistance in Rights Advocacy; Housing Counsel- Executive Committees met in March writing legislation and proposed rules ing; Employment and Retirement; and developed orientation training for and to effectively lobby as the Elder Income, Estate and Gift Tax; Torts all members of the Executive Council. Law Section. Our bylaws provide that Against Nursing Homes; Age/Dis- The Executive Council is composed no legislative position may be taken ability Discrimination; and Litigation of the section’s officers, past chairs that is contrary to the legislative po- and Administrative Advocacy. for the five preceding years and the sition of The Florida Bar and that a Elder law will continue to be a chairs/co-chairs of all standing com- legislative position of the section may much needed legal practice area as mittees and special committees. The not be advanced or supported before the number of boomers continues to training reviewed the annual calen- continued, next page

The Elder Law Advocate • Vol. XVII, No. 2 • Summer 2009 • Page Message from the chair Tish Taylor has been the editor of Florida Elder Law Attorneys. Gover- from preceding page The Elder Law Advocate for many nor Lawton Chiles declared Sept. 6, years, finding volunteers to write ar- 1996. as Charlotte E. Brayer Day, rec- ticles, encouraging those who have ognizing her dedication to pro bono volunteered to complete articles and service and commitment to seniors. any public body until the Board of ensuring that we receive updated in- At the age of 64, Charlotte was admit- Governors has reviewed (and not formation on a regular basis. This ted to The Florida Bar. Twyla Sketch- disapproved of) the position. year, The Advocate made the move ley is mirroring Charlotte’s life: they Our committee chairs are review- from a newsletter to a magazine-style have both received the Second Judi- ing potential legislation for this com- publication, providing great insight to cial Circuit Pro Bono Services Award. ing year and are developing legislative all that is happening within the sec- For those of you who haven’t had positions that will allow our section to tion as well as a review of legal issues the opportunity to know Twyla or advocate or oppose as the section de- affecting the section and our clients. understand the meaning of “This is a cides. We anticipate a very lively leg- We appreciate the time Tish willingly Twyla case,” I encourage you to take islative session this coming year and has provided and is continuing to pro- the time to get to know her. She is a will be prepared to act when needed. vide to promote our section and get the wonderful example of what being an The Florida Bar’s website has a great job done. Thank you, Tish, for being an elder law attorney encompasses. tool available under the sidebar Leg- incredible Member of the Year in the I am grateful to have had the op- islative Activity to monitor the status Elder Law Section. We appreciate all portunity to serve as your chair this of all bills, organized by section. of your hard work and dedication. year and look forward to seeing the The task I enjoyed most this year Charlotte Brayer: “She came. She Elder Law Section continue to grow, was recognizing our Member of the gave. She changed things!” Charlotte advance as an organization and re- Year, Patricia “Tish” Taylor, and was a charter and founding member main committed to its mission. Thank presenting the Charlotte Brayer of The Florida Bar Elder Committee you for allowing me to serve you and Award to Twyla Sketchley. (now our section) and the Academy of for all of your support.

The Elder Law Section thanks the 2008 - 2009 CLE program chairs!

Babette B. Bach, chair of the Elder Law Certification Review, January 8-9, 2009

Twyla L. Sketchley, chair of the Litigating for the Elderly Seminar and the First Live Webcast, February 6, 2009

C. Jason White & Sam W. Boone, Jr., co- chairs of the 13th Annual Public Benefits Seminar, March 20, 2009

David Hook & Collett P. Small, co-chairs of the Fundamentals of Elder Law Seminar, March 21, 2009

Susan M. King, chair of the Elder Law Update Seminar, October 3, 2008 Leonard E. Mondschein (right) & Kara Evans (left), co- chairs of the Elder Law Section 2008 Retreat, held July 17-20, 2008, are pictured here with 2008 - 2009 section chair, Linda Chamberlain.

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The Elder Law Advocate • Vol. XVII, No. 2 • Summer 2009 • Page Rainmaking 101: Top 20 influencers by Mark Powers and Shawn McNalis

In an ideal world, highest-quality business. They send quick turnaround time? Do you pos- all referral sources you the kind of matters you specialize sess a certain expertise that they would be created in and the kind of clients you most have come to rely upon? Does your equal. They would enjoy. These are the influencers who work make them look good to their send you noth- consistently send quality “A” clients superiors, their clients or end-users? ing but the best your way. This group of referral sources of- and brightest cli- Most attorneys who have practiced ten has the potential to send you ents and cases— a for five or more years will have a even more business than they send steady stream of small group of referrers that fit into you now. As you start studying them high-quality work this category— even if they don’t yet and paying attention to their referral m. powers and loyal clients. have 20 of them. habits, it may become clear that they Wouldn’t life be This is an extremely important have more work to give out. They grand? Unfortunately, in the real group of names to identify for your- could be spreading it around to other world, there is a great deal of dif- self. These referral sources have attorneys. ference in the qual- probably kept you in business over ity of your referral the years because their good refer- sources, and the Acknowledgment rals have resulted in money in your Never let this group of people, sooner you realize pocket, often very substantial money. the difference, the whether they are business profes- Calculated or uncalculated, you have sionals, fellow attorneys or your next better. Your exist- done something to impress this group ing group of refer- door neighbors, wonder whether or of people, and they demonstrate their not their referrals came to you. Al- ral sources is far trust and confidence in your abilities from equal in terms ways express your appreciation as by continually sending you new cli- quickly as you can— even if the cli- of the amount and ents. quality of work ent did not ultimately engage your S. mcnallis services. You want to continually re- they refer to you. In Why do they refer to you? this lesson, we are going to help you inforce the fact that they thought of As you work through the attached you so that the next time they have tell the difference by introducing the Top 20 exercise, think about what concept of your “Top 20” influencers. an opportunity to refer someone, your you have done to cultivate the rela- name is the first one on their minds. tionship you have with each referral Immediately let them know that you Your Top 20 influencers source. Do they like you because you appreciate their ongoing faith in you. Your Top 20 influencers are those have a lot in common as people? Do Send them thank you notes and take referral sources that send you your they send you work because of your them out to lunch every so often to thank them for their trust and confidence in you. Their referrals have Top 20 Influencers added substantially to your income. Name Type High Low Annual $ Worth Never take them for granted. Rapport Rapport (to your practice) 1. Cultivation 2. Invite your referrers to join you 3. in non-work related activities to fur- 4. ther the bonds between you. Have 5. 6. fun with them if it is appropriate 7. for the relationship. Include them in 8. important practice changes and deci- 9. sions— solicit their feedback. Keep 10. them up-to-date on any new direc- 11. tions or services you incorporate. 12. 13. The next step 14. 15. Make a list of your Top 20 influenc- 16. ers using the chart included with this 17. article. Next to each person’s name, 18. list the type of influencer he or she 19. is, such as “attorney” or “CPA” under 20. “type.” Then, in the columns marked

Page • The Elder Law Advocate • Vol. XVII, No. 2 • Summer 2009 “high rapport” and “low rapport,” er: An Ethical Approach to Marketing on marketing, creating fresh ideas put a checkmark in the appropriate for Solo and Small Firm Practitioners. and on-going accountability to mar- box. In the far right column, list the Both are featured marketing writers keting. To learn more about Atticus or amount of money that the referrals for Lawyers, USA. Powers founded Rainmakers™, visit the Atticus web- amount to on a yearly basis. When Rainmakers™, a simple process for site at www.atticusonline.com or call this is complete, you will have a ma- attorneys at all levels to stay focused the Atticus office at 352/383-0490. trix that clearly illustrates your most valuable relationships. Upon further study, you might notice you have the basis for a marketing plan. Here’s why: Those influencers with whom you have high rapport should be put into a maintenance rotation— that is, you should contact them at a comfortable rate for the relationship. For Kudos Korner some relationships, this will be two or three times a month; for others, once The following members of the Elder Law Section deserve or twice a quarter. For those relation- special recognition for their EXTRAordinary efforts and ships marked “low rapport,” cultivate advocacy on behalf of the section, its members or our clients them a little more aggressively, based on their receptivity, their availability during the past few months. and their ability to send you more work. Use this matrix to plan your • Public Policy Task Force members marketing activities, follow your plan • Robert Morgan, John Clardy and Shannon Miller faithfully and you should see a surge of new business. for their work on Medicaid issues

Mark Powers is president of Atticus Inc. and co-authored with Shawn McNalis The Making of a Rainmak-

Age discrimination in Florida is on the rise by Commissioner Mario Valle (Naples) Florida Commission on Human Relations Unfortunately, older Americans were based on age discrimination. municate across generations, allow- often face discrimination and stereo- The Equal Employment Opportunity ing for collaborative decision mak- typing in the workplace. In addition Commission (EEOC) has reported ing, creating a support system that to being viewed as senile, seniors are that age-discrimination allegations will allow employees to openly talk often thought of as generally incompe- by employees are at a record high, about issues they may be facing and tent, suffering from physical disabili- jumping 29 percent to 24,600 filed in utilizing teambuilding exercises to ties, lacking in technological skills the year ended Sept. 30, 2008, up from create unity among staff members. and unable (or unwilling) to learn new 19,103 in 2007. Most importantly, business owners things. It is important for businesses to and managers must stay abreast of As the state agency that enforces realize that a workforce of individuals Florida’s antidiscrimination laws and the state’s civil rights laws, we are from a variety of age groups can be implement sound workplace policies all too aware of the discriminatory very beneficial. Older workers have to ensure fair treatment for all. actions that continue to plague our years of experience that can be used seniors. In fact, the number of age Let’s work together to ensure that to teach and mentor younger, less Florida’s businesses, and seniors, discrimination cases closed by the experienced workers. commission has increased every year thrive! For more information on age since 2004. During the 2007-2008 Managers and business owners discrimination, please visit the Florida fiscal year, 20 percent of employment should find ways to work with their Commission on Human Relations’ web- complaints closed by the commission employees by learning how to com- site at http://fchr.state.fl.us.

The Elder Law Advocate • Vol. XVII, No. 2 • Summer 2009 • Page SOLID COVERS EVERY ANGLE

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Page • The Elder Law Advocate • Vol. XVII, No. 2 • Summer 2009 Section News Member News Mark your Krooks elder law attorney, has been appoint- appointed ed by Governor Crist to serve on the calendar Department of Elder Affairs Advisory NAELA Council for a two-year term. secretary Elder Law Section Annual Howard S. Krooks, Sketchley Retreat JD, CELA, has been October 8-10, 2009 receives The Breakers, Palm Beach appointed to a one- Distinguished year term as secre- * * * tary for the Nation- Woman “Va-Va-Va-Voom VA” h. krooks al Academy of Elder Award Mastering VA Benefits L a w A t t o r n e y s Twyla Sketchley Planning (NAELA) board of directors. Howard is of The Sketchley A Special One-Day Program a partner of Elder Law Associates PA Law Firm in Tal- During the Elder Law Retreat with main offices in Boca Raton, Fla., lahassee was hon- October 9, 2009 and of counsel to Amoruso & Amoruso t. sketchley ored with a Dis- The Breakers, Palm Beach LLP in Westchester County, N.Y. He is tinguished Woman admitted to practice law in Florida and Award at the Smith-Williams Cul- In-Person Only Attendance! New York. His professional practice is ture Day Celebration by the Smith- This program will not be taped. devoted to elder law and trusts and Williams Service Center Foundation. Watch for the brochure! estates matters, including represent- Congratulations, Twyla! ing seniors and persons with special Elder Law Certification needs and their families in connec- Karp admitted to appeals Application Deadline tion with asset preservation planning, court If you wish to apply for supplemental needs trusts, Medicaid, Joseph S. Karp, certification, the filing period planning for disability, guardianship, opens July 1, 2009, and wills, trusts and advance directives. who maintains offices in Palm Beach applications must be filed by Gardens, Boynton August 31, 2009. Robinson Beach and Port St. appointed to Lucie, has been Elder Law Certification Elder Affairs admitted to prac- Review Course January 21-22, 2010 Advisory tice in the United States Court of Ap- Hilton Walt Disney World, Council peals for Veterans Orlando Charles F. Rob- Claims. j. karp inson, a Clearwater, Fall Issue ELS Advocate Fla., board certified Article Deadline: c. robinson October 15, 2009

Congratulations to new CELAs!

Genny Bernstein, Palm Beach Gardens Jana McConnaughhay, Tallahassee Jill Burzynski, Naples Leonard Mondschein, Miami Sara Caldwell, Daytona Beach Stephen Taylor, Miami Amy Fanzlaw, Boca Raton Marjorie Wolasky, Miami John Griffin, Sarasota Enrique Zamora, Coconut Grove

The Elder Law Advocate • Vol. XVII, No. 2 • Summer 2009 • Page Annual Meeting Memories

Left: The Florida Bar Elder Law Section awards Patricia I. Taylor with the Member of the Year award. Chair Linda Chamberlain (right) makes the presentation.

Right: Twyla Sketchley is awarded the Charlotte Brayer award by The Florida Bar Elder Law Section. Chair Linda Chamberlain (right) makes the presentation.

Florida CFO Alex Sink talks to the Elder Babette Bach (left) presents outgoing Chair Law Section Executive Council during The Linda Chamberlain with an original pastel Florida Bar Annual Convention in Orlando, painting by Arlee J. Colman as thanks for June 26, 2009. a year well run.

The Elder Law Section thanks Program Administrator Arlee Colman for her administration of the section during the year. She is presented with a set of handmade pastels from France in the hope that she will continue to produce original artwork for the covers of the section’s newsletters.

The passing of gavel. Linda Chamberlain (left) becomes the section’s immediate The Florida Bar Elder Law Section presents past chair and passes the helm to Chair an award to Susan Trainor, longtime editor Babette Bach. of the section’s newsletter, The Advocate.

Page 10 • The Elder Law Advocate • Vol. XVII, No. 2 • Summer 2009 FALL 2008

Committees keep you current on practice issues Join one (or more) today! Monitoring new developments in the practice of elder law is one of the section’s primary functions. The section com- municates these developments through the newsletter and roundtable discussions, which generally are held prior to board meetings. Each committee makes a presentation at these roundtable discussions, and members then join in an informal discussion of practice tips and concerns. All section members are invited to join one or more committees. Committee membership varies from experienced practitioners to novices. There is no limitation on membership, and members can join simply by contacting the committee chair or the section chair. Be sure to check the section’s website at www.eldersection.org for continued updates and developments.

SUBSTANTIVE COMMITTEES Death Care Industry Financial Products Special Law School Liaison Philip M. Weinstein, Tamarac Committee Jason White, Tallahassee Exploitation & Abuse 954/899-1551 Joe Karp, Palm Beach Gardens 850/784-2599 Carolyn H. Sawyer, Orlando [email protected] 561/625-1100 [email protected] 407/354-0888 [email protected] [email protected] Medicaid & Government Benefits Website John S. Clardy III, Crystal River Probate Special Committee “Rep” Deloach, Seminole Erika Dine, Sarasota 352/795-2946 Kara Evans, Tampa 727/443-7898 941/365-2304 [email protected] 813/926-6517 [email protected] [email protected] [email protected] Robert Morgan, Jacksonville Linda Chamberlain, Clearwater Estate Planning & Advance 904/268-7227 Resident/Facility Rights Special 727/443-7898 Directives [email protected] Committee [email protected] Marjorie Wolasky, Miami John Griffin, Sarasota 305/670-7005 Power of Attorney, Subcommittee 941/966-2700 LIAISONS [email protected] of Medicaid [email protected] Robert Morgan, Jacksonville AFELA Jacqueline Schneider, N. Miami 904/268-7227 Tax Special Committee Randy C. Bryan, Oviedo Beach [email protected] Ira Wiesner, Sarasota 407/977-8080 305/919-7730 941/365-9900 [email protected] [email protected] Long Term Care Insurance [email protected] (Partnership) Subcommittee TFB – YLD Creditors’ Rights, Subcommittee Emma Hemness, Brandon Mentoring Special Committee Adam Miller, Venice of Estate Planning 813/661-5297 Angela Warren, Pensacola 941/488-9641 Kara Evans, Tampa [email protected] 850/434-7122 [email protected] 813/926-6517 [email protected] [email protected] Veterans’ Benefits Subcommittee FSGA Jack Rosenkranz, Tampa ADMINISTRATIVE COMMITTEES Joan Nelson Hook, New Port Richey John S. Clardy III, Crystal River 813/223-4195 727/842-1001 352/795-2946 CLE [email protected] [email protected] Special Needs Trust David Hook, New Port Richey David J. Lillesand, Miami 727/842-1001 RPPTL Guardianship 305/670-6999 [email protected] Charles F. Robinson, Clearwater Beth Prather, Ft. Myers [email protected] 727/441-4516 239/939-4888 Newsletter [email protected] [email protected] Travis Finchum, Clearwater Patricia Taylor, Stuart 727/443-7898 772/286-1700 Marjorie Wolasky, Miami Carolyn Landon, West Palm Beach [email protected] [email protected] 305/670-7005 561/805-9800 [email protected] [email protected] Developmental Disabilities Susan Trainor, editor Subcommittee 850/878-7760 NAELA Ethics Greg Glen, Boca Raton [email protected] Howard Krooks, Boca Raton Steven Lee Rachin, Tallahassee 561/347-1071 561/750-3850 850/386-8833 [email protected] Mentor [email protected] [email protected] Angela Warren, Pensacola Membership 850/434-7122 TFB Board of Governors Legislative Travis Finchum, Clearwater [email protected] Andrew Blaise Sasso, Clearwater Ellen S. Morris, Boca Raton 727/443-7898 727/725-4829 561/750-4069 [email protected] Council of Sections [email protected] [email protected] Representative Robert Morgan, Jacksonville Leonard Mondschein, Miami Chris Likens, Sarasota 904/268-7227 305/274-0955 941/365-7838 [email protected] [email protected] [email protected] Unlicensed Practice of Law ELS Certification Representative Litigation John Frazier, Largo Beth Prather, Ft. Myers Gerald L. Hemness, Jr., Brandon 727/586-3306 239/939-4888 813/661-5297 [email protected] [email protected] [email protected]

The Elder Law Advocate • Vol. XVII, No. 2 • Summer 2009 • Page 11 COMMITTEE REPORTS

sunset date is extended to Dec. 31, 2. Scroll down to the first subsection Legislative 2010; home health agencies will be entitled “Bills” and click on the web Committee held to stricter prior authorization page link of the most recent version and reimbursement requirements; at the bottom (e.g., S 1396ER; ER Ellen S. Morris, chair vision services will again be limited stands for enrolled, which means Tom Batchelor, legislative for Medicaid recipients as of Jan. 1, the bill passed and was signed by consultant 2010; and the Department of Elder the governor); Affairs instead of AHCA will now be 3. The screen that comes up will have responsible for administrative du- the actual current language of the Budget issues overwhelm ties, functions and appropriations for statute and the strike throughs 2009 session: Did seniors Medicaid waivers and other programs and changes enacted for your com- get lost in the shuffle? that serve the elderly. parison to existing law. We tracked legislation of interest Two yet undesignated statute sec- to the section and lobbied for Chief tions will be created to establish two Financial Officer Alex Sink’s annuity new pilot projects, a home health bill this past session. However, when agency monitoring pilot project and Unlicensed you read the new laws below, you will a comprehensive home health care Practice of Law notice that most of the enacted laws management pilot project in Miami- are monetary in nature. Dade County to combat an increase Committee in fraud and abuse in the delivery of Probate and guardianship home health services, to be imple- April Hill, chair The Administration of Estates bill mented by Jan. 1, 2010. (SB 1396) will be codified mostly in On the facing page, you will find a Chapters 731, 732 and 733 and be ef- Persons with disabilities letter from Bruce D. Lamb, chair of fective in July. Some changes worthy Chapter 393 via SB 1660 is amend- The Florida Bar’s Standing Commit- of highlighting are the following: It ed to require that the Agency for tee on UPL. It outlines The Florida will cost more for new filings, includ- Persons with Disabilities assign and Bar’s determination as to what is the ing opening any type of administra- provide priority to clients waiting unlicensed practice of law by non-at- tion or guardianship; the exemption for waiver services based on seven torney Medicaid planners. This letter amount for household property was categories for priority; eliminates or is a direct result of our UPL Commit- increased to $20,000 and two motor consolidates services of in-home sup- tee’s discussions over the past year, vehicles are exempt; notice must be port, companion, personal care and including many suggestions from our given to beneficiaries of a trust of a supported living coaching; reduces committee member, attorney John petition for summary administra- supported employment services; and Frazier. tion filed by a petitioner/trustee/ben- provides flexibility for expenditures The original purpose for request- eficiary; changes to procedures to made from trust accounts in devel- ing this letter was to share copies satisfy the elective share, including opmental disability centers. with DCF counsel and, possibly, nurs- the court’s ability to assess fees and ing home administrators and staff. costs against a spouse who makes or Dementia-related We are very pleased that we now have pursues an election in bad faith; es- memorial a letter from which to work. The UPL tate accounting will also be protected A senate memorial passed that Committee will continue to discuss against public record disclosure simi- urges Congress to create a Silver how the section’s membership can lar to the way inventories are pro- Alert Grant Program for a state no- make use of it. And you, as a member tected; and courts may increase filing tification system that will assist in of this section, should note that The fees in any matter to compensate for locating missing persons suffering Florida Bar’s UPL Committee is look- filings made. from dementia-related disorders. ing to us to report instances of UPL. To best track the changes to stat- It is through your individual efforts Health care utes that govern and affect your in- that the ongoing practices of UPL can Chapter 409 of Florida Statutes dividual practices, we urge you to be addressed. was amended pursuant to SB 1658 visit www.flsenate.gov and take the If any member has an interest in and became effective in July. High- following steps: participating in the section’s UPL lights of the legislation are the fol- 1. Enter the bill number (e.g., 1396) Committee, please contact John Fra- lowing: The Medicaid Aged and Dis- in the “Jump to Bill” section and zier, incoming chair, at 727/586-3306 abled and Medically Needs program press “Go”; or [email protected].

Page 12 • The Elder Law Advocate • Vol. XVII, No. 2 • Summer 2009 COMMITTEE REPORTS

THE FLORIDA BAR UNLICENSED PRACTICE OF LAW COMMITTEE

May 13, 2009

Linda R. Chamberlain, Chair Elder Law Section 901 Chestnut St., Ste. B Clearwater, FL 33756

Re: Unlicensed Practice of Law

Dear Ms. Chamberlain:

Several months ago, April Hill had some conversations with Lori Holcomb, UPL Counsel, regarding the unlicensed practice of law and Medicaid planners. As a result, the issue was brought before the Standing Committee on the Unlicensed Practice of Law of which I am chair. Ms. Hill has asked that I send a letter to you outlining the findings of the committee.

The committee reviewed the “typical” activities of Medicaid planners. The committee voted to provide guidance as to which activities would constitute the unlicensed practice of law and which activities need to be examined on a case-by-case basis. The committee voted that based on existing case law, the following activities would constitute the unlicensed practice of law: establishing irrevocable trusts, establishing qualified income trusts, and hiring an attorney to review, prepare, or modify documents for customers if payment to the attorney was through the company. The committee voted that the following activities would have to be determined on a case-by-case basis: restructuring assets, counseling customers on the best way to get Medicaid approval, and advertising as an “elder counselor.” The committee voted based on existing case law that the hiring of an attorney to review, prepare, or modify documents for customers if there was a direct relationship with the attorney and payment was made directly to the attorney would not be the unlicensed practice of law.

As you can see, the committee established certain clear UPL violations and some that would be considered on a case by case basis. The unlicensed practice of law is complaint driven. If members of your Section know of Medicaid planners who may be engaging in the unlicensed practice of law, they may file a complaint with The Florida Bar. If members of your Section come into contact with people who have experienced UPL and have been harmed by it, please encourage them to file a complaint.

If you have any questions on the actions of the committee, please feel free to contact me or Lori Hol- comb at 850-561-5840.

Sincerely,

Bruce D. Lamb Chair, Standing Committee on UPL

The Elder Law Advocate • Vol. XVII, No. 2 • Summer 2009 • Page 13 Special Needs Trusts Pooled Trusts Third Party Trusts Settlement Preservation Trusts

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Page 14 • The Elder Law Advocate • Vol. XVII, No. 2 • Summer 2009 Can you always have your Medicaid cake with VA icing on top? by Emma Hemness

As more elder law defray the cost of Rosie’s home care. to reduce the size of an estate, and attorneys add VA Common sense dictates that Rosie circumstances surrounding transfer benefits planning receive the widow’s Aid and Attendance of property may be considered for eli- to their practices, pension because she has minimal assets gibility determination purposes. The we begin to see how and a modest income in her sole name. opinion also stated that the surviving methods used to se- Also, the assets in the testamentary spouse was considered as exercising cure future Medic- trust are beyond Rosie’s direct control, control over the trust assets because aid benefits may be to be used only at the discretion of the she gave the trustee control over the incompatible with child/trustee. However, it is not certain assets while still competent and had future VA needs- that VA case law favors such a common- provided specific instructions concern- e. hemness based benefits. This sensical result. Let’s briefly examine ing the circumstances under which makes it necessary two cases that may be applicable to Joe trust assets would be used for her to consider how Medicaid eligibility and Rosie’s scenario. own benefit. The VA concluded that, criteria intersect with VA income and In the opinion VAOPGCPREC 72- although the trust was clearly de- net worth rules, particularly as to the 90 (July 18, 1990), a veteran became signed to preserve estate assets by Aid and Attendance pension. Unfor- a beneficiary of a third-party testa- maximizing the use of other available tunately, there may be circumstances mentary discretionary trust that al- resources, the trust definitively autho- where obtaining both sets of benefits lowed the trustee to distribute funds rized the use of trust assets to benefit isn’t a certainty. Consider the following for the veteran’s comfort but not as the surviving spouse, albeit only for example: a substitute for support and mainte- her special needs. The VA held: GI Joe and his wife, Rosie, have nance supplied by other sources. The Assets transferred by a legally com- been married for 45 years. Joe served VA held that the veteran’s beneficial petent claimant, or by the fiduciary in the Army-Air Force during World interest in the trust was not consid- of a legally incompetent one, to an War II for more than 90 days of active ered legal title or control over trust irrevocable “living trust” or an es- duty with one day served during the assets. However, to the extent– and tate-planning vehicle of the same war-time period. Rosie has early to at the time– the funds were allocated nature designed to preserve estate mid-stage Alzheimer’s disease, and to the veteran’s use, they would be assets by restricting trust expen- Joe is her sole caregiver in the home. considered countable for purposes of ditures to the claimant’s “special Joe is older than Rosie, has already income and net worth calculations needs,” while maximizing the use of had a quadruple bypass and suffers in awarding improved pension ben- governmental resources in the care from hypertension. Rosie has sig- efits. and maintenance of the claimant, nificantly older siblings, so Rosie is In another opinion, VAOPGCPREC should be considered in calculat- expected to have a long lifespan. Joe’s 33-97 (August 29, 1997), the veteran’s ing the claimant’s net worth for primary goal is to have Rosie’s care surviving spouse (claimant) estab- improved-pension purposes. VAOP- provided in their marital home if any- lished an irrevocable trust where the GCPREC 33-97 p. 5. thing happens to him. Joe and Rosie’s trustee (a child) was allowed to dis- children are in total agreement. tribute some or all of the income and In comparing these opinions, it ap- An asset protection plan for Joe principal of the trust for the surviv- pears that the VA focuses on the issue and Rosie likely would include, at a ing spouse’s special needs. Although of control of trust assets during two minimum, creating a testamentary the VA recognized it had no specific periods of time: 1) prior to the trust’s qualifying special needs trust in Joe’s criteria governing when trust assets creation, were the assets owned by a will with most assets transferred to are to be considered in net worth de- third party, a fiduciary or oneself?; and Joe’s name alone. After a year passes, terminations, emphasis was placed 2) to what extent were the assets avail- Joe suffers a fatal heart attack, and on the principle of ownership by the able during the lifetime of the benefi- the ensuing probate funds the as- veteran/claimant. The VA questioned ciary … only as allocated or always sets into the testamentary qualifying whether the transfer by the surviving the entire corpus? This raises ques- special needs trust. After the probate spouse to the irrevocable trust was tions like: “Would Joe be considered a is complete, the children seek your true divestiture of ownership, and third party, or would he be considered counsel on how to obtain additional thereby a relinquishment of control, one with Rosie because of their mari- financial support for keeping Rosie such that the assets could not have the tal relationship?” Or, as a possibility, in her home. The children remember expectation of being used for her care. “Would Joe be considered a fiduciary that their father, Joe, was a military Language from 38 C.F.R. § 3.276(b) acting on Rosie’s behalf?” Answers to wartime veteran, and Rosie may be reflected the view that certain gifts these initial questions shed light on entitled to benefits from his war- and transfers to relatives should not, the extent to which the testamentary time service– cash assistance to help for VA pension purposes, be considered continued, page 17

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Page 16 • The Elder Law Advocate • Vol. XVII, No. 2 • Summer 2009 Retaining clients and increasing revenue in a tough economy by Teri Yanovitch As the executor times in a day do we hear things your physical environment. Take of my mother’s es- like: a close look at your processes, pro- tate and the oldest “First, I need you to fill out the pa- cedures and service delivery to see of three siblings, I perwork.” if they are just mediocre or if they went to an attor- create a wow, positive feeling. The ney’s office to look “Next.” client’s experience must be carefully for advice and help “This isn’t my department; I’m just planned and managed to ensure the on how to handle taking over while someone is on best possible experience every time. my elderly mother’s break.” Some things to consider: future care and fi- “The computer won’t let me in.” • Does your office, website and collateral t. yanovitch nancial needs. It materials send the message you wish was a meeting I had “Have a seat; someone will be with them to send? long anticipated and worried about you.” since the outcome would determine • Is your phone system welcoming and Looking through the lens of the many delayed decisions. I arrived inviting? What does the paperwork and at the attorney’s office a few minutes client means that if you understand billing processes make the client feel? early and was told to take a seat in the the client’s emotions, then you’ll be Lost, confused, frustrated? able to understand his or her needs waiting room. Most of the magazines • Analyze how you address your clients. more fully. A client’s emotions are key on the coffee table were last year’s is- Do you first acknowledge their emo- to delivering personalized service. sues. Thirty minutes after my sched- tions, or do you immediately jump to Making the emotional connection uled appointment, I was summoned resolving the need? into the attorney’s office. He cursorily will make your client feel appreciated reviewed my folder and acted as if and comfortable, and that’s what will It takes only a moment to focus on it were the first time he had seen it. drive referrals and repeat business. a client’s needs, but it makes a world I asked a few questions, but felt he In today’s world, there are too many of difference. Imagine if the attorney in should be the one asking the questions choices for legal advice, and so how the opening scenario had come into the to guide me to what would be the best do most clients choose to whom and office and asked the client to tell him approach for my mother. He got frus- where to go? They ask their friends, about her mother and listened empa- trated when I asked for clarification family or colleagues. Attorneys whose thetically, asked appropriate questions, on some of his legalese terms. I left his clients believe they were listened to actively attended to the answers and office more confused than ever and on and cared about as well as compe- then got down to business. I can pretty top of it was given a bill that said all tently handled will be the winners well guarantee there would have been payments must be paid upon services of the referral. I know of individuals a different outcome in this scenario— rendered. What services?! who went to the most qualified law- because that client was me. yers in terms of degrees, certifications A truly client-focused organization and education, but because these Teri Yanovitch is a speaker and sees things through the “lens of the attorneys made the experience so un- consultant. Her firm T.A. Yanovitch client” not the “lens of the organiza- pleasant for clients, they were never Inc. works with organizations to im- tion.” Being client-focused will be a referred to again. In the past, it was prove retention and build loyal cli- key factor in retaining clients that said that one unhappy client would ents to increase revenues. She is the distinguish you from your compe- tell 9 or 10 people; today with the In- co-author of Unleashing Excellence tition. Everyone wants to feel spe- ternet, blogging and twittering, that – The Complete Guide to Ultimate cial and unique. No one likes to feel number can be in the thousands. Client Service. Ms. Yanovitch can like just another transaction, no one You can’t afford not to look through be reached at 407/788-7765 or ty@ likes to feel like cattle being herded the lens of your client. Put on your cli- retainloyalclients.com. Her website through a line. And yet how many ent’s shoes and take a walk through is www.retainloyalclients.com.

Medicaid cake, VA icing? minimal, we do not have answers for Emma Hemness is past chair of the from page 15 Joe and Rosie. But as we delve deeper Elder Law Section (2007-2008). She into VA benefits planning, we may practices elder law near Tampa in find more situations where we might Brandon, Fla. Emma is a certified trust’s corpus may be counted. not be able to reconcile Medicaid plan- elder law attorney and Florida board Since the body of VA case law is ning with VA benefits planning. certified in elder law.

The Elder Law Advocate • Vol. XVII, No. 2 • Summer 2009 • Page 17 Page 18 • The Elder Law Advocate • Vol. XVII, No. 2 • Summer 2009 Writing for FAQs by Jerome Ira Solkoff

If you are like me, My usual reply (and that of my sec- and named you as a beneficiary on her you receive many retaries, who try to screen my phone bank account, all you need do is go to daily telephone calls beforehand) is, “Why don’t you the bank, show her death certificate, calls, and you do schedule an appointment to discuss provide proof of your identity and take not have the time this? We charge $____ for the consul- the money.” My time is not necessary to answer them all. tation.” to be spent handling such banking Most are from for- At that point, the caller is irate or matters. How much could I bill for mer clients or their pleads poverty. “You handled all my such non-work? However, because of family members parents’ legal work for years (I did my “free” service, I will handle the j. solkoff seeking answers to wills five years ago), and now, when probate proceeding, sale of the real frequently asked they need you, you abandon them.” To estate, the Florida “non-tax” proceed- questions (FAQs). which I would like to answer, “Well, ing and the caller’s personal legal The callers may be irate if you de- an attorney’s stock in trade is his matters. The caller also will refer mand charges for your telephone con- legal expertise and services. If I don’t friends and family to my services. sultation and for the “fast” answers charge you, I cannot pay for the tele- The child concerned about the par- they seek. Little do they realize that phone or my staff (or my children’s the “two-minute” conversation takes braces) and help you. I must receive ent’s exploitations may engage me 20 or more minutes and that the an- compensation.” to handle guardianship proceedings, swers you give may be based on years Here is an idea that works for me. or it is hoped, less-invasive, trust of experience and expertise. I reply to some (not all) callers: “Let and powers of attorney preparation. me send you a memo that will answer Questions about trusts lead me to “Mom died, and I want to know what trust administration work and filing I do with regard to her trust.” your questions. If after you read it you still want more information, call my of Notices of Trust with the probate “Aunt Wilma is dying, and I want to secretary for an appointment, and you clerk, if not probate proceedings. know how I will receive my inheri- will pay a fee for that consultation.” We attorneys are taught to speak tance.” You want to be of service. Like most and write in “legalese.” The “remain- elder law attorneys, you wear your derman” of a “Lady Bird” deed has “My evil twin brother is stealing from heart on your sleeve. Helping others my father, and I want to stop him before only a contingent interest subject to is the reason you got into this busi- my inheritance is gone.” “disfeasment.” What did I say? Can ness. Still, you must make a comfort- the client understand that? All of my “Uncle Alfred died, and the real estate able living. FAQ memos are painfully worded in agent says I cannot sell his condo- I have numerous FAQ memos that plain, simple English. Give them to minium even though my name is on I send out. These may stop multiple your 10-year-old nephew to read. If the title.” phone calls and smooth a client’s he understands them, your clients feathers. After a client receives such “How can Dad avoid the need of pro- will understand. a memo, I charge for further ques- bate proceedings?” I have found that sending out FAQ tions, and most often, the client will memos, prepared in advance, saves “My dead Aunt Matilda named me as see me to get work done to resolve the me time and money. It enriches my re- beneficiary on her bank accounts. What issues. lationships with my clients and their do I do to get the money?” These memos do not give “how to” families. It brings me more business. instructions for creating documents “My father has dementia, and I want I do well by doing good. and other legal undertakings. Rather, to be able to make health care decisions I present various solutions and ask for him.” that the reader see me for further, A practicing attorney in Deerfield “How can I protect Mom’s assets and paid services. Beach, Fla., Jerome Ira Solkoff is qualify her for Medicaid benefits?” Some memo recipients may go to the founder and past chair of the other lawyers. But for the most part, I Elder Law Section and an inaugural “A man is wining and dining Mom, and have built up good will, and the client member of the National Academy of I think he is taking money from her.” or family will ultimately see me and Elder Law Attorneys. The main desk “The State sent an investigator saying pay to have me perform the necessary references, Practice Guide to Florida that I have not cared for Mom. I saw legal services. Elder Law and the Elder Law Forms her two months ago, but I could not Many FAQ solutions do not need Manual, both published by Thomas stay long in her apartment because it an attorney’s work. Rather, a guide is West Reuters, are authored by Mr. was so bug infested.” given. “Since your grandmother died Solkoff and his son, Scott M. Solkoff.

The Elder Law Advocate • Vol. XVII, No. 2 • Summer 2009 • Page 19 Make Your Reservation! Elder Law Section Annual Retreat October 8-10, 2009 The Breakers, Palm Beach Call and make your hotel reservations NOW! 561/655-6611

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Page 20 • The Elder Law Advocate • Vol. XVII, No. 2 • Summer 2009 Building flexibility into a third party SNT when you are not sure you need a SNT

The tip: tive,” but was of no help from the sions of a “qualifying special needs Flexibility is critically important “what do we do for Mom, who will trust,” as that term is used in Sec- to a trust particularly when there is definitely need a SNF, but who knows tion 732.2025(8), Florida Statutes uncertainty as to what you need. when” perspective. These were folks (QSNT), would fully satisfy the elec- This installment may prove a bit of somewhat modest means, not Med- tive share amount after taking into basic for the board certified elder icaid millionaires, and paying for the account all other assets or interests in lawyers and CELAs of the world; ALF would be within the budget, but assets that apply toward satisfaction however, it should prove useful to paying for the SNF would break the of the elective share and distributed those less experienced practitioners bank. to a second trust under the will that or the trusts and estates lawyers who It was apparent that Dad would would qualify as a QSNT. are members of the Elder Law Sec- die before Mom; therefore, we recom- So far, so good. There was a tes- tion (like myself). The special needs mended they transfer all assets to tamentary QSNT so it could not be trust (SNT) world is comprised of two Dad and have Dad create under his said that Mom had not taken all the varieties: first party and third party. will several testamentary trusts for benefits to which she was entitled The fundamental difference between the benefit of Mom. A testamentary or had made a transfer of assets for the two is that a first party SNT is trust from which Mom might receive less than fair value. There was also a comprised of the disabled person’s as- testamentary trust for the remaining sets and must contain a payback-to- assets which, as set forth above, could Medicaid clause while a third party be non-countable for ICP eligibility SNT is comprised of assets other purposes. than those of the disabled person and We could make Mom eligible for there is no payback requirement to ICP just as soon as Dad was gone. Medicaid for government assistance Tips & That single fact relieved Dad, who rendered to the disabled person. had literally been keeping himself The topic of how to draft a third alive to take care of Mom, of much party special needs trust with all Tales guilt about his own predicament. the various alternatives and options The dilemma was how to draft the has intrigued me. This analysis, the A. Stephen Kotler testamentary trusts under Dad’s will. first of two parts, is not the map, but There were a few options that would simply a map. An article discussing result in the testamentary trust not all the possible permutations would distributions was an exception to the being a countable asset of Mom’s: 1) a not be an article, but a book. general rule that a husband and wife strict SNT (without or with discretion cannot create a trust for either of to make distributions beyond Mom’s The tale: them and have it considered unavail- special needs); 2) a pure discretion- We had the good fortune to have able. Therefore, if drafted properly, ary trust; or 3) a trust containing a a nice couple engage us to help them the testamentary trust would not be trigger that flipped to 1) or 2). The with long-term care planning: Mom a countable asset for determining QSNT could have only Mom as a and Dad. They were two great people Mom’s Institutional Care Program beneficiary during Mom’s life, while with two great kids, and it was the (ICP) eligibility if she needed a SNF. the non-QSNT could have other ben- only marriage for both. At our first See 1640.0576.03, .07 and .08 of the eficiaries, such as the children, during meeting, Dad told us he had cancer ESS Manual. Mom’s life. Either option 1) or 2) could and thought he had about six months The general disposition of Dad’s qualify as a QSNT. to one year to live. Mom had multiple will would have all of Dad’s assets The remainder of this installment sclerosis and would need a skilled pass in trust for the benefit of Mom concerns the drafting of the non- nursing facility (SNF) at some point and her descendants. The trust would QSNT, which in Dad’s case included in time, but we could not be certain be a third party SNT designed to be his descendants as permissible ben- when. Without Dad’s assistance, how- unavailable to Mom from a Medicaid eficiaries. The strict SNT versus dis- ever, she would need an assisted liv- perspective. However, if Mom made cretionary language battle is equally ing facility (ALF). Two weeks after a valid election to take the elective present in the QSNT. the first meeting, at about the same share, as described in Chapter 732, In our case, a third party SNT time we received a signed engage- Florida Statutes, notwithstanding with restrictive language was un- ment letter and retainer, we got the the prior disposition of the estate necessary, contrary to Dad’s intent bad news that Dad had a few weeks, in trust, the disposition to the trust (if ICP eligibility was not the current maybe a month left. That clarified would be reduced by the smallest goal) and might never be needed (if and simplified the planning from pecuniary amount, if any, which Mom never made it to the SNF). The the “who is going to die first perspec- when held in trust under the provi- continued, next page

The Elder Law Advocate • Vol. XVII, No. 2 • Summer 2009 • Page 21 Tips & Tales “gift” would qualify for the annual ex- individual for support and mainte- from preceding page clusion, and through gift-splitting, the nance, it is not a resource (POMS first $26,000 (if the trustee was mar- SI 01120.200D). ried) would be covered by the annual An SPOA with a class of permissi- exclusion. However, that was deemed ble appointees that could be as broad other option, a pure discretionary to be too restrictive. Distributions by as “any person or entity other than trust, did not work for Mom and Dad an interested trustee pursuant to an the powerholder, the powerholder’s either because that would require a ascertainable standard set forth in estate, the creditors of the power- disinterested trustee, as explained the trust instrument would solve the holder or the creditors of the power- below. If Mom were not in a special taxable gift problem. Further, if we holder’s estate” would not fall into the needs situation, she would have been had ascertainable standard distribu- language quoted above, “directing the the outright beneficiary to all of Dad’s tions, rather than pure discretionary, trust’s assets for his/her own support property, or if a credit shelter trust then the trustee/child could also be and maintenance.” See Spetz, 737 was created with her as a beneficiary, a permissible beneficiary, and such N.Y.S.2d 524 and Verdow, 209 F.R.D. distributions would most likely be for ability to distribute to one’s self would 309 for analogous support. an ascertainable standard, and Mom not be considered a general power of The non-QSNT was just a garden would have had a testamentary spe- appointment causing the trust assets variety testamentary credit shelter cial power of appointment (SPOA). to be includable in the trustee’s estate trust for the benefit of Mom and her Ascertainable standard distribution for estate tax purposes should the language would work best for Mom descendants with a child as trustee. trustee die before Mom. and Dad, but of course, such distri- Distributions of income and prin- Now that the case had been made bution provisions would render the cipal could be made to both Mom for ascertainable distribution lan- trust countable for ICP. Why couldn’t guage until Mom needed ICP, what and her descendants pursuant to Dad’s testamentary trust be that way about giving her the testamentary an ascertainable standard, and at now and then flip to a SNT when SPOA? The manual says Mom’s death the remainder would some trigger was hit? Well, it should pass pursuant to Mom’s testamen- be able to. If the individual does not have au- tary SPOA. In lieu of appointment, Another reason we wanted a trust thority to revoke or direct use of the remainder would pass to Mom’s with an ascertainable standard was the trust, it is not considered an descendants, per stirpes, in further that Dad and Mom wanted a child to asset to him (1640.0576.03 of ESS trust. Mom’s two children were in be the trustee of the trust, if possible. Manual). high liability exposure industries, If the remainder beneficiary, child, as The POMS says and a third party spendthrift trust trustee, had discretion to make dis- was the perfect vehicle to protect the If an individual does not have the tributions to the income beneficiary, children’s inheritance, if any, from legal authority to revoke the trust Mom, not pursuant to an ascertain- bankruptcy, divorce and further or direct the use of the trust as- able standard, we determined the transfer tax. Finally, during any pe- sets for his/her own support and trustee would be making a gift to riod that Mom was eligible to receive maintenance, the trust principal Mom each time the trustee exercised or was receiving any government is not the individual’s resource for discretion to make a distribution to benefits or assistance, distributions Mom because that distribution would SSI purposes. The revocability of a to Mom of income or principal would reduce the trustee’s vested remainder trust and the ability to direct the only be made in accordance with the interest. This should be the case in use of the trust’s principal depends provisions of the SNT. spite of the fact that Mom could exer- on the terms of the trust agreement But wait, there is more. Part two cise her testamentary SPOA (that we and/or on state law. If a trust is ir- will tackle the various options for also wanted her to have) and disin- revocable by its terms and under the SNT distribution language, the herit the trustee/beneficiary. Yes, the state law and cannot be used by an trustee options available under the various alternatives and why Dad chose the course he took.

Website Updates A. Stephen Kotler is a board certified wills, trusts and estates lawyer Check out our committees online! with Wollman Gehrke & Solomon PA in Naples. He maintains a practice If you are interested in becoming more involved with a section committee, you can in the areas of comprehensive wealth find out when the committee members are having a conference call by checking transfer planning, related income tax the committee page of the Elder Law Section’s website. Calls that are scheduled issues, asset preservation, probate, will be at the top of the page, or you can scroll down to the particular committee trust administration, federal trans- you are interested in to see if it has a schedule of calls posted. Almost all do. If you fer tax and long-term care planning. want to join a call, you can contact the chair directly or email Arlee J. Colman at Mr. Kotler is AV rated, received his [email protected] to get the call-in instructions. You are bound to find something JD from Emory Law School and has that interests you on the committee page at www.eldersection.org. an LLM in estate planning from the University of Miami.

Page 22 • The Elder Law Advocate • Vol. XVII, No. 2 • Summer 2009 PROVE YOU’RE AN EXPERT BECOME BOARD CERTIFIED Board certified lawyers are legal experts dedicated to professional excellence. Are you ready for the challenge?

FloridaBar.org/certification

The Elder Law Advocate • Vol. XVII, No. 2 • Summer 2009 • Page 23 Summary of selected caselaw by Nicholas J. Weilhammer

Wintter & Assoc. v. Kanowsky, 992 So. his wife’s death and 2002, husband as (appellants) and a godson. The stock 2d 434 (Fla. 4th D.C.A. 2008). trustee transferred sums from Trust split in 1995, and settlor amended In submitting trustee’s final account- A-2 to himself and others. In 2002, her trust to account for the split. The ing, trustee of a testamentary trust husband as trustee transferred the stock split again in 1998, but settlor included extraordinary attorney’s remaining balance (approximately did not amend her trust. fees and costs in connection with $7 million) to another trust. After husband died in 2001, settlor work to clear title to a parcel of prop- Husband died in April 2004. His and her attorney planned to transfer erty devised to him through testator’s son then sought to set aside the last the assets of the trust to a partner- will. Beneficiary objected to the fees. trust transfer and invalidate his ship to save taxes. Settlor told the At the close of an evidentiary hearing father’s exercise of his power of ap- attorney to retain in the trust the on the objection, beneficiary request- pointment. If successful, under his specific distributions upon her death. ed attorney’s fees against trustee and mother’s trust, the $7 million would The attorney was unaware of the his attorney. The trial court deter- be held for the son’s benefit. The trial stock split in 1998. Settlor resigned as mined that trustee was not entitled to court agreed with the son. trustee. Appellee and a bank became the extraordinary fees and costs and Husband’s trust was a revocable co-trustees, and they transferred the ordered trustee and the law firm to trust, and a conveyance to the trust stock to the partnerships, except for repay them. It also determined that was equivalent to a transfer to hus- the specific distributions. Settlor al- beneficiary was entitled to attorney’s band. Husband maintained 100 per- legedly joined and consented to the fees and costs in pursuing her objec- cent control over husband’s trust as- transfers. Settlor died in 2003. The tion from trustee and the law firm. sets and had the right to end the trustees distributed the shares per In beneficiary’s first document trust at any time and regain absolute the trust, and the niece became owner filed, she did not request attorney’s ownership over the trust property. of the partnerships holding the trans- fees from trustee and his attorney In construing a trust, the rule is to ferred shares. until her written closing argument. give effect to the grantor’s intent, if Appellants requested double the She did not request payment from possible. In authorizing transfers to amount of stock in the trust pursuant the estate. her husband, wife intended to permit to the 1998 stock split and alleged A claim for attorney’s fees, whether transfers to an entity over which her a breach of fiduciary duty since the based on statute or contract, must be husband retained complete control niece was the beneficiary of the stock pled. Failure to do so constitutes a and the right to absolute ownership. transfer in violation of the trust. waiver of the claim. Due process and The transfer was not prohibited by A doctor who examined settlor in prevention of surprise require notice. trust language that “[t]he Trustee late 2001 found she was not compe- Whether fees are requested may play shall also pay to my husband such tent to manage her affairs. Within a role in deciding to pursue a claim. additional amounts of principal from days of the trial, the trustees filed an The exception to the rule, where a Trust ‘A-2’ as he may from time to answer to the complaint with a gen- party has notice that an opponent time request.” The parties agree that eral denial and affirmatively alleged claims entitlement to attorney’s fees husband made transfers prior to the that settlor consented to the trans- and by its conduct recognizes or ac- large transfer. Second, the “from time fers. The appellants filed a reply that quiesces to that claim or otherwise to time” language was not intended by settlor was not competent to consent. fails to object to the failure to plead wife to serve as a limitation on hus- The trial court excluded evidence of entitlement, did not apply. Reversed. band’s right to withdraw principal. To settlor’s competency because appel- accept the son’s argument would mean lants had not timely raised it. Brown v. Miller, 2 So.3d 321 (Fla. 5th that it would have been improper for Where a will devises stock and the D.C.A. 2008). husband to request payment of all of stock splits, a beneficiary is entitled Wife set up a trust, and her husband the Trust A-2 assets at one time, but to the shares after the split that oc- was trustee and lifetime beneficiary. proper if he had requested payment curs between the date of execution Upon wife’s death, her trust assets of all but $10. Reversed. and demise because the split is a were distributed into, inter alia, three mere change in form and not in sub- separate sub-trusts. Trust A-2 au- Brundage v. Bank of America, 996 stance. Where the stock devise made thorized transfers from the trust to So.2d 877 (Fla. 5th D.C.A. 2008). in the will is no longer in the estate “[wife’s] husband.” Settlor executed a revocable trust at the time of testator’s death, the Husband executed his power of in 1992. If her husband predeceased gift adeems. For securities, Section appointment in a codicil so that on her, the residue went to her niece 737.622, Florida Statutes, controls death the Trust A-2 balance would be (appellee) with a specific distribution (repealed and reenacted by Section distributed to a foundation. Between of stock to other nephews and nieces 736.1107, Florida Statutes): gifts of

Page 24 • The Elder Law Advocate • Vol. XVII, No. 2 • Summer 2009 securities are limited to securities for breach of a trustee’s duty owed to received a homestead exemption on owned by the trust at death. Appel- the settlor/beneficiary breached dur- the property. Thereafter, homeowner lants cannot claim a greater share of ing settlor’s life and which affects the transferred the trust to his heirs for stock since the trust did not own more interest of the vested beneficiary. a 99-year lease on the property. Prop- shares at death. Intent of testator is If settlor did not consent to the erty appraiser denied the homestead irrelevant since the statute creates transactions, then appellants would exemption. a clear rule of ademption where the introduce evidence the trustees may There is a homestead exemption trust does not hold the securities at have violated the trust. An incapaci- to every person who has the legal or death. tated settlor cannot consent to ac- beneficial title in equity to real prop- Appellants allege breach of fidu- tion regarding the revocable trust. erty and who resides thereon and in ciary duty by self-dealing. As set- Thus, the issue of settlor’s capacity good faith makes the same his or her tlor of her own revocable trust of was crucial and was timely filed in permanent residence. Lessees own- which she was the sole beneficiary appellant’s reply. Affirmed in part, ing the leasehold interest in a bona until death, she reserved the power reversed in part and remanded. fide lease having an original term to change beneficiaries or revoke her of 98 years or more in a residential trust at any time. Thus, the trustees Higgs v. Warrick, 994 So.2d 492 (Fla. parcel are deemed to have legal or did not owe the contingent beneficia- 3d D.C.A. 2008). beneficial and equitable title to said ries a duty during settlor’s lifetime. Homeowner created a trust using property. Thus, a 98-year-plus lessee However, once the interest of the his single family residence as the of a residential parcel permanently contingent beneficiary vests upon the res. Homeowner continued to reside occupied as a residence qualifies for death of settlor, beneficiary may sue in the home. Homeowner as trustee a homestead exemption. Affirmed.

Fair Hearings Reported by Nicholas J. Weilhammer

Petitioner v. Florida Department of that petitioner had an actual pen- who used the daughter’s mailing ad- Children & Families, Appeal No. 08F- sion income distinct from the SSDI dress. 01724 (District 23 Hillsborough, Unit income. Thus, DCF’s request to pro- Florida Administrative Code 65- 883CF, Petitioner v. Florida Depart- vide verification of this alleged pen- 2.046 sets forth 90 days to request a ment of Children & Families, Appeal sion income was not valid. It was not hearing, but this rule does not apply No. 08F-01724 (District 23 Hillsbor- correct to deny the application based in the absence of a notice informing ough, Unit 883CF, May 2, 2008). on the failure to follow through with of hearing rights and the time limits Petitioner had applied for food this specific request for verification. to appeal. stamps in the past. Petitioner’s rep- Appeal partially granted. Petitioner’s authorized representa- resentative applied for ICP eligibility tive is her daughter. Therefore, her for November 2007. Representative Petitioner v. Florida Department of daughter should have been the in- listed the income as Social Security Children & Families, Appeal No. dividual to receive the notice. The and “Union Funds or Pension Ben- 08F-00982 (District 04 Duval, Unit: daughter did not receive the May efits” based on past conversation with 88369, May 7, 2008). 2007 notice informing of petitioner’s DCF. Neither petitioner’s representa- Petitioner appealed timely notifi- patient responsibility increase ef- tive nor DCF knew of any source of cation of increase in monthly patient fective June 2007. DCF must give the alleged union or pension funds responsibility for ICP from $11 to advance and adequate notice when allegedly received by petitioner. DCF $838 effective June 1, 2007. Petition- the patient responsibility increases. requested petitioner to verify the er’s spouse was admitted to the same DCF’s action of May 2007 to increase alleged pension income and alleged nursing home; thus, he was no longer petitioner’s patient responsibility, bank account. DCF agreed that pe- eligible for the community spousal without notice, was reversed. The titioner may not have had a bank income allowance. Petitioner’s spou- patient responsibility remained $11 account and eliminated this require- sal diverted income was removed through December 2007. Appeal ment. from her budget effective June 2007, granted. DCF denied petitioner’s applica- increasing her monthly patient re- tion based on the failure to provide sponsibility from $11 to $838. Petitioner v. Florida Department of proof of this alleged pension income. DCF believed that notice was sent Children & Families, Appeal No. 08N- DCF’s records did not reflect any re- to the nursing home, petitioner at 00046 (District and Unit information port of possible pension, public retire- the nursing home and to petitioner’s redacted, May 13, 2008). ment or union income prior to a Mar. daughter. However, the notice intend- The facility notified petitioner on Mar. 22, 2006, application for benefits. ed for the daughter was addressed to 5, 2008, that he was to be discharged The evidence did not establish a representative of the nursing home continued, next page

The Elder Law Advocate • Vol. XVII, No. 2 • Summer 2009 • Page 25 Fair Hearings Reported her husband. Since the expenses were made. A requirement of eligibility from preceding page not verified, no deduction could be is that the trust be funded for each given to reduce petitioner’s patient month that ICP eligibility is needed. responsibility. It is also a requirement that DCF Husband’s actual shelter costs advise the individual that he or she by Apr. 5, 2008. The same day, the did not exceed the minimum main- cannot qualify for ICP for any month facility Baker-acted petitioner to the tenance income allowance in any in which the income is not placed in hospital. Petitioner now lives in an year. The income allowance may be an executed income trust account in ALF. increased if the community spouse the same month in which the income An expert witness from the fa- can establish that he or she has ad- is received. cility testified that the day before ditional needs that are “exceptional DCF did not advise the son of the the notice, petitioner was inebriated circumstances resulting in significant need for QIT or the funding require- and had acted in a threatening man- financial duress.” First, the expense ment until after this time standard ner toward his roommate. The psy- must be an exceptional circumstance, had elapsed. Once DCF advised of chiatrist determined that petitioner and second, the expense must create the need to set up and fund the trust was a threat to others at the facility, significant financial duress. Black’s in August 2007, the son funded the and petitioner had a history of failed Law Dictionary defines exceptional trust in August 2007, failed to fund treatment and therapy for alcohol circumstance as conditions that are it for September 2007 and funded abuse. A resident-witness said she “out of the ordinary course of events; it ongoing beginning October 2007. was threatened by petitioner who unusual or extraordinary circum- DCF erred in not following its pol- said he was “going to rip her head off,” stances … .” Expenses that are ex- icy, and petitioner was considered so she called the police. pected and are incurred in the nor- ICP eligible for June and July 2007. Petitioner’s representative disput- mal course of everyday living are not However, because the son was made ed the way the facility transferred pe- exceptional circumstances. Expected aware of the funding requirement in titioner, arguing the facility misrep- everyday expenses of living, such as August 2007 and failed to fund the resented its intention by first issuing homeownership and medical expens- trust for September 2007, petitioner a 30-day notice and then transferring es, are not necessarily exceptional, was ineligible for ICP Medicaid for petitioner through the emergency extraordinary, uncommon or sudden September 2007. Appeal granted in process. Petitioner’s representative in nature. Petitioner’s husband had part and denied in part. argued that the hospital was not an normal living expenses and expenses appropriate location for discharge. that were incurred for shelter and Petitioner v. Florida Department of Petitioner was properly discharged everyday medical expenses. Husband Children & Families, Appeal No. by respondent based on the discharge did not demonstrate any exceptional 08F-01556 (District 3 Alachua, Unit rules because the “health of individu- expenses or circumstances that would 88325, May 27, 2008). als in the facility would otherwise be indicate any additional deduction In February 2007, petitioner was endangered” and “safety of other in- from the patient responsibility or admitted to a skilled nursing facility dividuals in the facility is endangered additional diversion to him. Appeal and was diagnosed with dementia. … .” denied. In November 2007, petitioner filed an application for ICP. In February Petitioner v. Florida Department of Petitioner v. Florida Department of 2008, CARES withheld petitioner’s Children & Families, Appeal No. Children & Families, Appeal No. 08F- level of care because of concerns 08F-01737 (District 23 Pinellas, Unit 01424 (District 04 Duval, Unit 88369, with incidents of aggression involv- 88605, May 21, 2008). May 22, 2008). ing other patients. DCF denied the DCF increased petitioner’s patient On June 4, 2007, the facility ap- application in February 2008 because responsibility from $336 to $455 ef- plied for ICP benefits for petitioner, CARES withheld his level of care, fective April 2008. Husband disputed whose monthly income was above and because of excess assets (later the amount of the patient responsibil- ICP limits. The first notification from rescinded). However, CARES deter- ity and has no resources other than DCF to petitioner’s son regarding the mined that petitioner met the level his car. In addition to his shelter costs, need for an income trust was Aug. 22, of care from at least Dec. 1, 2007. husband had expenses of Medicare 2007. Petitioner’s income trust was There was no medical evidence or Part B payments, prescription co-pay- not funded for the months of June authority presented that established ments, car insurance, gas and person- 2007, July 2007 and September 2007. that petitioner did not need skilled al care. He also paid for petitioner’s DCF denied ICP for these months due nursing care. There was no authority expenses such as haircuts, television, to excess income. presented that would allow CARES liquid thickener, wheelchair parts, DCF did not follow up on the in- to withhold a level of care when the telephone message service, cosmetics, come amount or who the designated individual otherwise met the legal clothes and entertainment. representative was until after the 45- requirements of a level of care. Based Petitioner had additional medical day processing time had elapsed. The on these findings, it was determined expenses. However, petitioner did not application was not completed until that the level of care was inappropri- verify any medical expenses paid by five months after the application was ately withheld. Appeal granted. * * * Fair Hearings Reported order form, page 28 * * *

Page 26 • The Elder Law Advocate • Vol. XVII, No. 2 • Summer 2009 The Elder Law Advocate • Vol. XVII, No. 2 • Summer 2009 • Page 27 The Florida Bar PRSRT-STD 651 E. Jefferson Street U.S. POSTAGE Tallahassee, FL 32399-2300 PAID TALLAHASSEE, FL Permit No. 43

FAIR HEARINGS REPORTED The Elder Law Section is making available by subscription copies of the reported fair hearings regarding ICP Medicaid. Also included in the packet are policy clarification correspondence copied to theE lder Law Section from the Department of Children and Families. The reports are emailed on a monthly basis and posted on the section’s website at eldersection.org. It takes approximately 30 to 60 days after the month’s end to receive the opinions, so mailings will typically be several months behind. ANNUAL SUBSCRIPTION: $150 ************************************************************************* Fair Hearings Reported ORDER FORM

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Fax to: 850/561-5825. Mail to: The Florida Bar Elder Law Section, 651 East Jefferson Street, Tallahassee, FL 32399-2300

Page 28 • The Elder Law Advocate • Vol. XVII, No. 2 • Summer 2009