Here are some new numbers to update the Medicaid Qualification note earlier:
Community Spouse Resource Allowance: $ 109,560.00
Resource Allowance for an Individual: $ 2,000.00
Resource Allowance for a Couple: (both husband and wife in a nursing home) $ 3,000.00
Minimum Monthly Maintenance Needs Allowance: $ 1,750.00
Maximum Monthly Maintenance Needs Allowance: $ 2,739.00
Monthly Personal Needs Allowance: $ 35.00
Shelter Allowance: $ 525.00
Standard Utility Allowance: $ 198.00
Divestment Penalty Divisor: $ 5,000.00
Income Cap Amount: $ 2,022.00
Home Equity Limit: $ 500,000.00
Friday, February 27, 2009
Monday, February 23, 2009
Give Gifts with Warm Hands
Heirs only arrive after death. It is much better to give gifts while the recipient can say thank you. Who wants to wait until someone dies in order to inheirit the land, jewelry, and other possessions of life. In my office I meet people very often who want to write a Will. On many occasions it seems people want to allow some decisions about the division of property to be made by the heirs "After I am gone." "Ill let my children figure that out," they will say.
I can honestly say I see nothing worse than putting children to work deciding who gets what after you are gone. Even if they get along great and are perfectly attuned to your wishes, to leave that burden for them is a terrible curse and can be dangerous to your estate. One may not want to take anything, but have regrets later. There may be one item of furniture they both want causing years of mental anguish. Probate costs are minimal with a well-drafted will that leaves nothing to be worried about later. When the Personal Representative or Executor is forced to make judgment decisions, probate costs skyrocket and may take a much greater portion of the estate than would otherwise be required.
Give gifts while you are alive, with "Warm Hands", so that when your hands are cold in death, you may be eulagized as a generous person who thought of others. Don't set up problems for your children. Relieve them of the burdens of probate by making those decisions in your will or prior to your death.
I can honestly say I see nothing worse than putting children to work deciding who gets what after you are gone. Even if they get along great and are perfectly attuned to your wishes, to leave that burden for them is a terrible curse and can be dangerous to your estate. One may not want to take anything, but have regrets later. There may be one item of furniture they both want causing years of mental anguish. Probate costs are minimal with a well-drafted will that leaves nothing to be worried about later. When the Personal Representative or Executor is forced to make judgment decisions, probate costs skyrocket and may take a much greater portion of the estate than would otherwise be required.
Give gifts while you are alive, with "Warm Hands", so that when your hands are cold in death, you may be eulagized as a generous person who thought of others. Don't set up problems for your children. Relieve them of the burdens of probate by making those decisions in your will or prior to your death.
Thursday, February 19, 2009
The Most Important Thing
I don't normally like tearjerker stories; however, the following link shows what can happen when Customer Service is taken personally by the lowest of employees.
http://www.stservicemovie.com/
Thanks, Aubrey
P.S. If you want to check out my site, go to www.aubreylaw.com
Thanks
http://www.stservicemovie.com/
Thanks, Aubrey
P.S. If you want to check out my site, go to www.aubreylaw.com
Thanks
Tuesday, February 17, 2009
Friday, February 13, 2009
Medicaid Income and Asset limits
As of July 2008, in Florida, the Medicaid qualification limits are as follows:
Community Spouse Resource allowance: $104,400.00
Individual Resource Allowance: $2,000.00
Couple's Resource Allowance: (Assuming both in Nursing Home) $3,000.00
Minimum Monthly Maintenance Needs Allowance: $1,750.00
Maximum Monthly Maintenance Needs Allowance: $2,610.00
Personal Needs Allowance: $35.00
Shelter Allowance: $525.00
Standard Utility Allowance: $198.00
Maximum Income Allowable: $1,911.00
Home Equity Limit for Qualification: $500,000.00
Please consult an attorney for application of these limits to your Individual Situation. Many complicated rules may affect your individual qualification for Medicaid Nursing home payments.
Community Spouse Resource allowance: $104,400.00
Individual Resource Allowance: $2,000.00
Couple's Resource Allowance: (Assuming both in Nursing Home) $3,000.00
Minimum Monthly Maintenance Needs Allowance: $1,750.00
Maximum Monthly Maintenance Needs Allowance: $2,610.00
Personal Needs Allowance: $35.00
Shelter Allowance: $525.00
Standard Utility Allowance: $198.00
Maximum Income Allowable: $1,911.00
Home Equity Limit for Qualification: $500,000.00
Please consult an attorney for application of these limits to your Individual Situation. Many complicated rules may affect your individual qualification for Medicaid Nursing home payments.
Economic Down times mean opportunity
Many clients ask whether they can afford to get divorced in this bad economy. The answer for some may be no, but the answer for many more may be YES! The economy presents a nationwide downer. Moods are bleak, consumer confidence is at record lows. Now is the time to change your outlook by fixing that nagging home problem once and for all. How could your life be changed by making changes at home now.
All over the country, people are facing debt issues, bankruptcy considerations, loan writedowns and writeoffs. With investments such as 401K and stock funds low, this may be the time to split those and move on with independence to invest again.
Home values are lower than ever presenting a unique opportunity to buy out your spouse at a discount. Yes, you may have to give up some of your desires, but with equity very low, a buyout is more affordable now than ever. Offsets of stock funds against equity in homes with tax advantages on both sides may allow you and your spouse to fight less and agree more to resolve your disagreements once and for all.
All over the country, people are facing debt issues, bankruptcy considerations, loan writedowns and writeoffs. With investments such as 401K and stock funds low, this may be the time to split those and move on with independence to invest again.
Home values are lower than ever presenting a unique opportunity to buy out your spouse at a discount. Yes, you may have to give up some of your desires, but with equity very low, a buyout is more affordable now than ever. Offsets of stock funds against equity in homes with tax advantages on both sides may allow you and your spouse to fight less and agree more to resolve your disagreements once and for all.
Wednesday, February 11, 2009
Who is working for you
Most law firms have many different jobs performed by a variety of people. Who is working for you? The Attorney you hired may or may not be the person performing most of the work on your file. Paralegals, legal assistants, legal secretary and the file clerk could all handle different matters within a single file. Make sure when you recieve legal advice, it is coming from the attorney you hired.
The attorney you hire should be the person you are most comfortable talking about your most intimate secrets. Your attorney needs for you to be completely candid. If your spouse cheated many years ago, that may be important today even if you have cheated more recently. Sometimes clients believe their spouse will not air their dirty laundry and are then three steps behind when the information comes out before the court.
Your attorney will and must keep your secrets. That is the heart of the Attorney client privilege. In order to fully assist you, you must be completely candid with your attorney. Your attorney should be completely candid with you as well. In order for you to make the best decisions within your particular problem, you must know what all possible outcomes are. Many seemingly simple questions have a multitude of possible answers depending on not only your desires, but those of your opponent, the perogatives of the judge in your case, previous decisions, called Caselaw, as well as simply potential outcomes.
The attorney you hire should be the person you are most comfortable talking about your most intimate secrets. Your attorney needs for you to be completely candid. If your spouse cheated many years ago, that may be important today even if you have cheated more recently. Sometimes clients believe their spouse will not air their dirty laundry and are then three steps behind when the information comes out before the court.
Your attorney will and must keep your secrets. That is the heart of the Attorney client privilege. In order to fully assist you, you must be completely candid with your attorney. Your attorney should be completely candid with you as well. In order for you to make the best decisions within your particular problem, you must know what all possible outcomes are. Many seemingly simple questions have a multitude of possible answers depending on not only your desires, but those of your opponent, the perogatives of the judge in your case, previous decisions, called Caselaw, as well as simply potential outcomes.
Medicaid Planning continued
Although we try to avoid generalizations, many deferred annuities are sold to elderly persons because of large commissions, rather than for good investment reasons. It is generally inappropriate to sell an 80-year-old person in a 15% tax bracket a deferred annuity at a low interest rate that carries a surrender charge for the next seven years. When the children inherit the principal, they will most likely be in a higher tax bracket, and, without the stepped up basis, will pay tax at ordinary income tax rates on all of the deferred income.
Many seniors purchase annuities out of the misplaced fear of protection from nursing home costs and often with the discouragement of purchasing valuable long term care insurance. Individuals should consult their financial advisor before purchasing a deferred annuity after retirement.
If an individual has three years of nursing home insurance they, or their power of attorney holder, can legally give away their wealth to their children more than three years before application for Medicaid. Only as a last resort should that certain kind of Medicaid annuity be considered.
However, as a last resort, annuities may save much of the couple’s net worth from the feared nursing home “spend-down”. They may also preserve the single nursing home resident’s estate for their children, all perfectly legal if you follow the rules. With proper Medicaid planning, a client can protect a large portion of their net worth from the erosion of the almost inevitable nursing home costs.
Many seniors purchase annuities out of the misplaced fear of protection from nursing home costs and often with the discouragement of purchasing valuable long term care insurance. Individuals should consult their financial advisor before purchasing a deferred annuity after retirement.
If an individual has three years of nursing home insurance they, or their power of attorney holder, can legally give away their wealth to their children more than three years before application for Medicaid. Only as a last resort should that certain kind of Medicaid annuity be considered.
However, as a last resort, annuities may save much of the couple’s net worth from the feared nursing home “spend-down”. They may also preserve the single nursing home resident’s estate for their children, all perfectly legal if you follow the rules. With proper Medicaid planning, a client can protect a large portion of their net worth from the erosion of the almost inevitable nursing home costs.
Medicaid Planning Continued:
It is perfectly legal and ethical to plan to protect assets from erosion due to nursing home costs, as long as the federal and state rules are followed. Although Florida’s rules are fairer than many states, the rules are so complicated as to almost require the counsel of an elder law attorney.
Strategies differ for a married couple and an unmarried nursing home resident. With a married couple, one spouse will reside in a nursing home (called the “institutional spouse”) and the other spouse will continue to reside in the residence (called the well spouse or the “community spouse”).
There are limits on what assets the couple is permitted to keep, called “exempt” assets, which includes a residence, car, burial plots, etc, together with a cash reserve of more than $96,000 this year. Although for some couples this amount may seem large, for most retired couples this amount is far less than their net worth. A spouse has a legal obligation of support even if it is a recent short-term marriage and even if they have “pre-nuptial” agreement. A single person’s cash reserve may be limited to only $2,000.All other assets are either “countable” assets, which disqualify the client from Medicaid nursing home benefits, or they are “unavailable” assets, which do not disqualify one from such benefits.
For example, “unavailable” assets such as a spousal IRA or Limited Partnership unit or certain annuity investments may be able to be kept, while still qualifying for Medicaid nursing care. It is not illegal to reposition a client’s assets for good investment planning, which may also lead to Medicaid qualification, again as long as the rules are followed.
Strategies differ for a married couple and an unmarried nursing home resident. With a married couple, one spouse will reside in a nursing home (called the “institutional spouse”) and the other spouse will continue to reside in the residence (called the well spouse or the “community spouse”).
There are limits on what assets the couple is permitted to keep, called “exempt” assets, which includes a residence, car, burial plots, etc, together with a cash reserve of more than $96,000 this year. Although for some couples this amount may seem large, for most retired couples this amount is far less than their net worth. A spouse has a legal obligation of support even if it is a recent short-term marriage and even if they have “pre-nuptial” agreement. A single person’s cash reserve may be limited to only $2,000.All other assets are either “countable” assets, which disqualify the client from Medicaid nursing home benefits, or they are “unavailable” assets, which do not disqualify one from such benefits.
For example, “unavailable” assets such as a spousal IRA or Limited Partnership unit or certain annuity investments may be able to be kept, while still qualifying for Medicaid nursing care. It is not illegal to reposition a client’s assets for good investment planning, which may also lead to Medicaid qualification, again as long as the rules are followed.
Goal of Medicaid Planning
Similarly, the goal of Medicaid planning is to avoid spousal impoverishment and the depletion of the inheritance that would pass to the children. In 1988, the United States Congress passed the Spousal Impoverishment Act, which together with the Omnibus Budget Reconciliation Act of 1993, provide the legal means to qualify for Medicaid nursing home care without completely “going broke”.
The difference between tax planning and Medicaid planning is that tax planning involves one body of federal tax law, which varies little from state to state. However, since the states pay 50% of Medicaid benefits, each state enacts their own rules to administer the Medicaid program. Thus, a client may qualify for Medicaid under the Florida rules by investing in certain acceptable types of annuities, but then be moved by their child to their child’s northern state and find they are ineligible for Medicaid, but have no available assets to pay their nursing home costs due to their prior investment and planning decisions.
The difference between tax planning and Medicaid planning is that tax planning involves one body of federal tax law, which varies little from state to state. However, since the states pay 50% of Medicaid benefits, each state enacts their own rules to administer the Medicaid program. Thus, a client may qualify for Medicaid under the Florida rules by investing in certain acceptable types of annuities, but then be moved by their child to their child’s northern state and find they are ineligible for Medicaid, but have no available assets to pay their nursing home costs due to their prior investment and planning decisions.
is Medicaid Planning legal, necessary?
Of all couples over age 65, at least 70% will need nursing home care for one of the spouses. Unfortunately, many couples wrongly believe that the transfer of their assets to their revocable Living Trust will protect them from Medicaid recovery. Even with a revocable trust, the cost of nursing home care, sometimes exceeding $50,000 per year, can quickly deplete the savings of the average senior. Revocable trusts are an important planning technique for minimizing the costs and time delays of probate administration and for providing continuity of management in case of disability, as well as, in many cases, minimizing estate taxation.
Congress makes the rules of estate taxation and advisors help their clients utilize these rules to their clients’ advantage. Everyone accepts the fact that estate tax planning is perfectly legal, as long as the techniques utilized are not abusive. The goal of such estate tax planning is to completely avoid estate tax when the first spouse dies, and after the death of the second spouse, when estate taxes may be due, to pass the maximum legal amount to the client’s children or other beneficiaries in order to “keep it in the family”, paying as little as possible to Uncle Sam.
Congress makes the rules of estate taxation and advisors help their clients utilize these rules to their clients’ advantage. Everyone accepts the fact that estate tax planning is perfectly legal, as long as the techniques utilized are not abusive. The goal of such estate tax planning is to completely avoid estate tax when the first spouse dies, and after the death of the second spouse, when estate taxes may be due, to pass the maximum legal amount to the client’s children or other beneficiaries in order to “keep it in the family”, paying as little as possible to Uncle Sam.
Goals of Attorney
My philosophy is summed up by the statement, Service to the Client. I endeavor to provide legal advice that serves the client's interest within the scope of the situation faced. Personal service is a hallmark of my practice. Effectiveness and efficiency are also my goals.
Attorney's fees are reasonable - considering
Many people wonder how attorney's arrive at their retainer or fees charged. The determination of what is reasonable considers many variables including at least the following: the time and labor required of the task presented, the novelty, complexity, or difficulty of the questions involved, the skills requisite to perform the legal service properly.
Additionally, the attorney may consider whether the acceptance of the particular employment will preclude other employment by the lawyer and the fee, or rate, customarily charged in the locality, Orlando, Central Florida, Winter Park, etc., for legal services of a comparable or similar nature.
The attorney may also consider the significance of, or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results obtained.
More important considerations may include any time limitations imposed by the client or by the circumstances and, as between attorney and client, any additional or special time demands or requests of the attorney by the client.
Of course the attorney may also consider the length of the professional relationship with the particluar client and the nature of previous work involved.
Finally and perhaps most important in the determination of attorney's fees in a given case are the experience, reputation, diligence, and ability of the lawyer performing the service and the skill, expertise, or efficiency of effort reflected in the actual providing of such services. Whether the fee is fixed or contingent and the client’s ability to pay being dependent on the outcome of the representation may also factor importantly.
Additionally, the attorney may consider whether the acceptance of the particular employment will preclude other employment by the lawyer and the fee, or rate, customarily charged in the locality, Orlando, Central Florida, Winter Park, etc., for legal services of a comparable or similar nature.
The attorney may also consider the significance of, or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results obtained.
More important considerations may include any time limitations imposed by the client or by the circumstances and, as between attorney and client, any additional or special time demands or requests of the attorney by the client.
Of course the attorney may also consider the length of the professional relationship with the particluar client and the nature of previous work involved.
Finally and perhaps most important in the determination of attorney's fees in a given case are the experience, reputation, diligence, and ability of the lawyer performing the service and the skill, expertise, or efficiency of effort reflected in the actual providing of such services. Whether the fee is fixed or contingent and the client’s ability to pay being dependent on the outcome of the representation may also factor importantly.
Judges and Counselors
One judge in my district put it this way, “I have more than 1,500 different cases. Each one expects me to remember all the details in the court file, know who is telling the truth, act fairly between them, protect their children, divide their property, make the other person follow court rulings on a daily basis, and know what is in the best interests of all involved. I have maybe 30 minutes or an hour of testimony from each of them and they expect me to know what is best. I have never even seen their home, or children. How can any Judge know what is 'Best' for this family?”
Many times an attorney is simply trying to counsel the client to accept the possibilities of Divorce. Realize there are no “winners and losers” just people trying to get on with their lives. Inevitably, clients make mention of church, God, their upbringing or spouses religious life. This is the time when I truly am able to counsel as a Christian, not simply an attorney. From my own life, I cite numerous examples of God working in and through difficult times to a more Holy result. The Bible is filled with examples of broken lives being useful to God, even when the person in question did not acknowledge the broken nature of their relations. Divorce begins as a broken relationship. Whether the break results from outside forces or interior struggles, broken relations are the status. The Court acknowledges and affirms the broken relationship and divides the property, setting a course for future relations either as parents or merely former spouses.
Many times an attorney is simply trying to counsel the client to accept the possibilities of Divorce. Realize there are no “winners and losers” just people trying to get on with their lives. Inevitably, clients make mention of church, God, their upbringing or spouses religious life. This is the time when I truly am able to counsel as a Christian, not simply an attorney. From my own life, I cite numerous examples of God working in and through difficult times to a more Holy result. The Bible is filled with examples of broken lives being useful to God, even when the person in question did not acknowledge the broken nature of their relations. Divorce begins as a broken relationship. Whether the break results from outside forces or interior struggles, broken relations are the status. The Court acknowledges and affirms the broken relationship and divides the property, setting a course for future relations either as parents or merely former spouses.
Divorce Attorney and Collaborative Efforts
No, Divorce Lawyers do not “break up” marriages. The Husband and Wife take care of that on their own. Divorce Attorneys work to help people move on with their lives and heal the pain inflicted so easily by their former spouse. Knowing also that my clients are seldom innocent bystanders on the road to Divorce, I also seek to prevent their further traumatizing the children by fighting over memories and principles.
In a majority of the 50 states, divorce is a no-fault proposition. One party simply desires to end the marriage due to “irreconcilable differences” or because as Florida requires, the marriage is “irretrievably broken.” The other party may disagree, but unless there are children involved, few courts will order the marriage continued where one party can honestly say they no longer desire to be married.
If I were a Christian Attorney, I might cite Jesus words recorded in Matthew 5:25 to my client, “Before you are dragged into court, make friends with the person who has accused you of doing wrong. If you don't, you will be handed over to the judge and then to the officer who will put you in jail.” Or perhaps more appropriate from Matthew 5:40, “If someone sues you for your shirt, give up your coat as well.”
Unfortunately, I do not believe clients will hire me, much less pay my fees when I tell them to settle quickly, and for double the demand. In reality, there are seldom clear cut cases where one party has clearly defrauded their mate. Family Law is an area that tries to boil an entire life down to a two or three-day trial, expecting the Judge to discern truth from fantasy where there are two sides and even more perspectives and potential outcomes.
In a majority of the 50 states, divorce is a no-fault proposition. One party simply desires to end the marriage due to “irreconcilable differences” or because as Florida requires, the marriage is “irretrievably broken.” The other party may disagree, but unless there are children involved, few courts will order the marriage continued where one party can honestly say they no longer desire to be married.
If I were a Christian Attorney, I might cite Jesus words recorded in Matthew 5:25 to my client, “Before you are dragged into court, make friends with the person who has accused you of doing wrong. If you don't, you will be handed over to the judge and then to the officer who will put you in jail.” Or perhaps more appropriate from Matthew 5:40, “If someone sues you for your shirt, give up your coat as well.”
Unfortunately, I do not believe clients will hire me, much less pay my fees when I tell them to settle quickly, and for double the demand. In reality, there are seldom clear cut cases where one party has clearly defrauded their mate. Family Law is an area that tries to boil an entire life down to a two or three-day trial, expecting the Judge to discern truth from fantasy where there are two sides and even more perspectives and potential outcomes.
Christian Attorneys? No, Attorneys who are Christians
When she first called my office, she was surprised that I answered the phone rather than a secretary or receptionist. She asked for an appointment and as we confirmed time, she surprised me with the question, “I just want to make sure, you are a Christian Lawyer, aren’t you?”
Confronting this question in my office on numerous occasions, I have a standard answer, “No, I am an attorney and a Christian, but I am not a Christian Lawyer.” Unfortunately, this answer works much better in person than over the phone so I inquired as to her motive for asking. It turns out, she wanted someone she could trust not to “break up her marriage” unless it was really necessary.
With half my practice being Family Law cases, I sometimes introduce myself as a Divorce Lawyer. I do this with the knowledge that some people will immediately conjure some LA Law or Boston Legal stereotype trying to fit me into their little box. “Oh he’s one of those,” they will immediately think and dismiss me from their list for Christmas Cards.
The truth is, I have NEVER broken up a marriage. In fact, I have been happily married for more than 20 years, to my first and only wife. Only after I had served as a Guardian Ad Litem for several children, both in Divorce cases and in Abuse cases, did I even consider practicing divorce and Family Law.
Confronting this question in my office on numerous occasions, I have a standard answer, “No, I am an attorney and a Christian, but I am not a Christian Lawyer.” Unfortunately, this answer works much better in person than over the phone so I inquired as to her motive for asking. It turns out, she wanted someone she could trust not to “break up her marriage” unless it was really necessary.
With half my practice being Family Law cases, I sometimes introduce myself as a Divorce Lawyer. I do this with the knowledge that some people will immediately conjure some LA Law or Boston Legal stereotype trying to fit me into their little box. “Oh he’s one of those,” they will immediately think and dismiss me from their list for Christmas Cards.
The truth is, I have NEVER broken up a marriage. In fact, I have been happily married for more than 20 years, to my first and only wife. Only after I had served as a Guardian Ad Litem for several children, both in Divorce cases and in Abuse cases, did I even consider practicing divorce and Family Law.
Litigation by the Sea
Litigation can be described as walking on the beach at the waters' edge. With each step waves can undermine your footing, eroding the very foundation on which you depend. Each action taken by one party serves to compel actions by the other party. These actions like waves my concentrate and solidify your footing, undermine your opponent's footing, or simply crash with noise and fury resulting in little else.
Friday, February 6, 2009
Who are you
I am a divorce lawyer in Winter Park, Florida. This is my first blog, but don't let that fool you. I am routinely published in Christian Ethics Today reviewing books related to the topic. My website is www.aubreylaw.com
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Morning will come.
No matter how dark the night!