When is the Appropriate Time to Seek Legal Advice for my Parent if he or she is going into Assisted Living in Florida?

by Kellen Bryant

When is the appropriate time to seek legal advice for your parent if he/she is going to assisted living in Florida?

You may be thinking, “Why the heck should an attorney be involved?”   Attorneys should be involved in the elder care process because of the high cost of providing elder care.  High costs…

  1. Could place the burden on children to pay for care.
  2. Could cause the elderly family member to run out of money and be forced to move into a care situation that he or she does not want to be in.
  3. Raises issues with family members who are thinking “inheritance” and not “I want the best care for my parents.”
  4. Raises issues with non-involved family members who “don’t get it.”

This article explains the triggers that would involve the help from an elder care law attorney.

You can also watch the video from my youtube channel, here.

The answer, without hopefully sounding self-interested, is as soon as possible because there are three critical legal issues that an attorney can help you cover and address before you move into assisted living.

First Critical Point: Get the Durable Power of Attorney Correct

The first point is to make sure that the caregiver, family member, son, or whomever, has durable (financial) power of attorney in case the parent needs somebody acting on their behalf for financial and medical decisions.

So usually, the need arises for assisted living if you have a parent that is slowing down or might need care and assistance from others and associated with that is maybe their mental faculties have declined.

If you don’t have a durable power of attorney and healthcare surrogate (Florida term for medical power of attorney) and your parent cannot sign it or have legal capacity to sign it, you could be in a very, very expensive guardianship mess if those legal instruments are not correctly done by an elder law attorney.

Why an elder law attorney?  Because the elder law attorney is the most common attorney that someone would contact if the durable power of attorney drafted somewhere else does not work.

So, it’s very important to make sure, at a baseline, those are done.  You should know that it’s not a horrible, big production to get those done. Those should always be looked at before moving into assisted living.

Second Critical Point: Be Smart with What You’re Going to do With the House

Now, we have a couple options that you may be thinking about what to do with the home.

  • You can either sell it
  • You can rent it out, or
  • You can do neither, and let it sit empty.

Depending on what you want to do or how things workout with assisted living and your level of care, that could guide the discussion.

Also going to guide discussion about how long your parents owed the house.  There could be tax issues such as loss of the tax exemption from future sale of the home, loss of the homestead exemption for Florida property tax purposes, and tax basis for capital gains purposes.

If you’re selling a house, there could be Medicaid issues where the cash proceeds may affect Medicaid eligibility.

So, these are the discussions that you should be having with an elder law attorney before you do anything with the house when you’re moving into assisted living.

Third Critical Point:  Liquid Assets over $100,000

I define a larger sum of assets for somebody looking into assisted care as over a hundred thousand dollars in liquidate assets (money market, CDs, stocks, bonds, mutual funds, cash value life insurance, and annuities), not including the house.

In that case, there could be some instances, if it’s even higher than a hundred thousand, that if your parent needs nursing care, you’re going to have to spend a lot of that money on nursing care before you can stop the outflow of money. And the amount can go up to nine, ten thousand dollars a month, depending on where you live in Florida.

It’s very important to talk about asset protection trust early on because of the Medicaid look-back period of five years. The asset protection trusts are there to protect important tax benefits and protect the money from the nursing home and Medicaid.

If you have any more questions, feel free to go onto my elder law website and download a free report.

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