The Elder Law Advocate The Elder Law Advocate

32 Pages·2011·3.85 MB·German

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“Serving Florida’s Elder Law Practitioners”
‘Down syndrome’ now included under definition of
‘developmental disability’— page 19
New Florida POA Act leaves out professional guardians— page 21
Long-term care insurance:
New options for Medicaid planning— page 23
Vol. XIX, No. 2
Summer 2011
www.eldersection.org
The Elder Law Advocate
Established 1991
A publication of the Elder Law Section of The Florida Bar
Enrique Zamora, Coconut Grove
Contents:
Chair
Twyla L. Sketchley, Tallahassee Message from the outgoing chair: The next 20 years ......................................3
Chair-Elect
Member news ...................................................................................................4
Jana McConnaughhay, Tallahassee ELS & AFELA Joint Public Policy Task Force Contributors ..............................7
Administrative Chair
Awards given at annual TFB convention .........................................................8
John S. Clardy III, Crystal River Elder law attorneys provide testimony on Medicaid
Substantive Chair
managed care ............................................................................................10
David Hook, New Port Richey Mark your calendar .........................................................................................10
Treasurer
Committee reports ...........................................................................................11
Ellen S. Morris, Boca Raton Budget committee rejects ‘Money Follows the Person’ funding .....................13
Secretary
Why TFB’s UPL investigative process is ‘complaint driven’ ............................15
Leonard E. Mondschein, Miami
ELS committees .............................................................................................16
Past Chair
Hurricane preparedness for loved ones with special needs ...........................17
Patricia I. “Tish” Taylor, Stuart
Editor ‘Down syndrome’ now included under definition of
‘developmental disability’ ...........................................................................19
Susan Trainor, Tallahassee
New Florida Power of Attorney Act leaves out professional
Copy Editor
guardians ...................................................................................................21
Arlee J. Colman, Tallahassee
Program Administrator Long-term care insurance: New options for premium payment and Medicaid
planning .....................................................................................................23
Lynn M. Brady, Tallahassee
Tax Tips: Using IRS Form 56-Notice Concerning Fiduciary Relationship as a
Design/Layout
tool .............................................................................................................24
Statements or expressions of opinion Tips & Tales: O.K., so you avoided probate, but what about
or comments appearing herein are
the creditors? .............................................................................................25
those of the contributors and not of The
IRA beneficiary designations to third party special needs trusts
Florida Bar or the section.
Charitable remainder beneficiary issues ....................................................26
The Elder Law Advocate will be glad
Summary of selected caselaw ........................................................................27
to run corrections the issue following
the error. Fair Hearings Reported ..................................................................................29
The deadline for the FALL ISSUE is November 1, 2011. Articles on any topic of
interest to the practice of elder law should be submitted via email as an attachment in
MS Word format to Patricia I. “Tish” Taylor, Esquire, [email protected], or call
Arlee Colman at 800/342-8060, ext. 5625, for additional information.
Advertise in The Advocate
The Elder Law Section publishes three issues of The Elder Law Advocate per year.
The deadlines are March 1, July 1 and November 1. Artwork may be mailed in a print-
ready format or sent via email attachment in a .jpg or .tif format for an 8-½ x 11 page.
Advertising rates per issue are: Full Page $750
COVER ART Half Page $500
Quarter Page $250
“Jellyfish” by Timothy B. Darby,
Darby Law Group PA, The newsletter is mailed to section members, Florida law libraries and various state
Lakeland, Fla. agencies. Circulation is approximately 1,900 in the state of Florida.
Interested parties, please contact Arlee Colman at [email protected] or 850/561-5625.
08/11
The next 20 years
The Elder Law Section of The pellate Lawyers and Administrative was a goal during the first 20 years
Florida Bar has passed its 20-year Lawyers. The skills of these sections’ of our section, will become a reality.
mark and is now embarking on the members will be important to us as This year, the Elder Law Section has
next 20 years with great focus and the Legislature and the courts con- its first Cuban-born chair, and other
purpose. Serving as chair this past tinue to “push back” on gains made minorities hold Executive Council
year has given me a unique opportu- in the past for assistance to those in positions. Our reaching out to law
nity to view what is becoming the new need of public benefits. students will bring in new members,
paradigm in the practice of elder law. As the World War II, Korean and accelerating our goal of diversity
I will not go as far as The Jetsons did Viet Nam veterans pass from the within the section. Programming will
40 years ago by predicting personal scene, a new population of veterans reflect cultural differences and will al-
flying transportation; however, I can from the Gulf Wars, Iraq and Afghani- low our members to reach all citizens
predict other amazing events. stan will be in need of services that of our state.
During the past 20 years, the El- will be difficult for some to attain and As we saw this year with our
der Law Section and the Academy of that will require legal representation members being quoted in the press,
Florida Elder Law Attorneys formed in greater numbers than ever before. we will increase our efforts to gain
the Public Policy Task Force for the public awareness on issues regard-
purpose of advocating for the rights
ing health care, housing, residents’
of our clients and to preserve our
rights, exploitation of the elderly and
practices. This year’s legislative ses-
public benefits. Legislators who want
sion taught us that advocacy is not
to reduce government regulation of
enough. In the future we will need Message
assisting living facilities and skilled
alliances with other groups with
from nursing homes and who want to
common interests as well as relation-
the limit access to health care and much
ships with key legislators. This is not
needed medical services will be the
outgoing
something we can wait to do at the
subject of more op-ed pieces in major
beginning of each legislative session; chair
newspapers. The voting public will
these alliances must be cultivated
know where their state senators and
throughout the year. Forming allianc- Leonard E. Mondschein
representatives really stand.
es can be accomplished by working
For many years there has been talk
with state senators and representa-
about a national bar exam, which
tives on proposed legislation, before Our section members will be trained
would allow attorneys to practice
bills are filed, so we are not reacting to help those veterans receive the
law across state lines. While multi-
but being proactive. benefits they are entitled to under
disciplinary practice has not come
Our committees, which have in- the law. This year’s vote to make
to pass in Florida, the relationship
creased in number during the first the Veterans’ Benefits Committee a
between elder law attorneys from
20 years, will be reduced to smaller bylaws committee positions us for
one state to the next has de facto
numbers but will have greater par- that future.
come together through the National
ticipation by our members. Increased Increased sponsorship from banks,
Academy of Elder Law Attorneys
participation will allow us to move health care organizations, pooled
(NAELA). The personal relationships
quickly, with strength, when it is trusts and other organizations that
and splinter organizations created as
needed. The committee members’ work with elder law attorneys will
a result of NAELA affiliation position
involvement may include brief writ- allow the section to grow our level
our specialty of elder law for any na-
ing, public speaking, federal litigation of advocacy so that we will have the
tional law practices that will result
and increased participation in Fair financial resources needed to fight
from a uniform bar exam. The federal
Hearings. “the good fight.” With increased spon-
underpinnings of social security law,
What began with some of our sorship, the Public Policy Task Force
Medicare, Medicaid and veterans’
section members participating on will be able to file rule challenges
committees with the Real Property, when needed, and we will be able to benefits will foster this interstate
Probate and Trust Law Section and increase our lobbying efforts. As a relationship.
continued with joint programming result of additional sponsorship, our Continuing legal education will
with the Health Law Section will con- CLE programs will have more to offer take advantage of recent technology
tinue with new relationships forming our members and, consequently, will with greater use of online program-
with other sections. Some of those increase membership. ming such as webinars and call-ins,
sections will be Trial Lawyers, Ap- Diversity of our members, which continued, next page
The Elder Law Advocate • Vol. XIX, No. 2 • Summer 2011 • Page 3
Message from the chair the remaining meetings to encourage as my friend and colleague, Enrique
from preceding page higher attendance. Zamora, our new chair.
In this last chair’s message, I have Thank you all for allowing me to
intentionally not mentioned specific serve as your chair this past year,
reducing the cost of continuing legal members and their accomplishments and let us all support Enrique as he
education by eliminating travel, because I have previously done so in begins the next 20 years of the Elder
hotels and time away from the of- past issues this year. Notwithstand- Law Section. I look forward to seeing
fice. While the use of technology will ing, I want to thank Arlee Colman, all of you in 20 years, arriving at our
eliminate some in-person meetings, our program administrator, for all her annual meeting in our personal flying
greater emphasis will be placed on help, support and guidance, as well vehicles.
Member news
Nicola Melby receives Academy of Elder Law Attorneys, 850/894-0152.
certification in elder law The Florida Bar’s Elder Law Section Mindy Stein is JARC’s
and the Florida and North Carolina Volunteer of the Year
Attorney Nicola
Chapters of the National Academy of
J. Melby of Mc- Mindy Stein was
Elder Law Attorneys. In both 2001
Guire, Wood & Bis- honored with the
and 2004, Melby was named Member
sette PA has suc- Volunteer of the
cessfully completed of the Year by The Florida Bar’s Elder Year Award at the
examination by the Law Section. She graduated summa Jewish Association
cum laude from the University of New for Residential
National Elder Law
Haven and received her JD magna Care’s annual gala
Foundation (NELF)
cum laude from Stetson College of on Mar. 13, 2011.
and has achieved
Law. Ms. Melby is a frequent guest The award was giv-
its national designation of Certified
speaker at support groups, commu- en for providing pro bono services to a
Elder Law Attorney. Available to
nity organizations and charitable and JARC resident whose family in New
clients through the firm’s Asheville
continuing education events. York was trying to force him to leave
and Brevard offices, Ms. Melby has
Florida and return to New York.
practiced elder law exclusively for
Twyla Sketchley is a “The ultimate result was the judge’s
16 years. Her practice areas include
FAWL Leader decision to allow appointment of a
elder and special needs law, estate
in the Law guardian advocate for the resident,
planning and administration, and
a cousin in Florida that was selected
guardianship and counseling for dis- Twyla Sketchley,
by the resident,” Ms. Stein says.
abilities. chair-elect of the
“Our resident had his day in court.
Ms. Melby began her practice in Elder Law Section,
The judge listened and the resident
North Carolina after receiving her has been named
prevailed. The appointment of the
license in April 2008. She is board one of the Flori-
guardian advocate means that the
certified in the field of elder law by da Association for
resident will be able to stay here at
The Florida Bar, having been licensed Women’s Lawyers
JARC for the rest of his life.”
to practice in Florida since 1992. 2011 Leaders in the Law for her JARC (http://jarcfl.org) is an
Melby holds an AV peer review rating involvement in activities that have independent 501(c)(3) nonprofit,
from the prestigious attorney listing bettered her community, activities nonsectarian organization that op-
service of Martindale-Hubbell, which as a positive role model in the legal erates 10 group homes for adults
is the highest rating an attorney can profession and her work to advance with developmental disabilities. The
earn from peer evaluations. She is a the cause of women in her community. homes are located in the Boca Raton/
member of the North Carolina Bar Ms. Sketchley is Florida Bar board Delray Beach area of South Florida.
sections on Elder Law and Estate certified in elder law and the man- JARC also offers apartment living
Planning and Fiduciary Law, and aging attorney for The Sketchley and vocational training for those who
is also a member of the National Law Firm PA. She can be reached at do not require 24-hour supervision.
Page 4 • The Elder Law Advocate • Vol. XIX, No. 2 • Summer 2011
Section
News
2012 ELS Retreat – All Day VA
The Florida bar Continuing Legal Education Committee and
The Elder Law Section present
AAllll DDaayy VVAA ––
TTiippss oonn VVeetteerraannss BBeenneefifittss ffoorr FFlloorriiddaa AAttttoorrnneeyyss
COURSE CLASSIFICATION: INTERMEDIATE LEVEL
One Location:
Friday, September 16, 2011 • The Breakers • Palm Beach, FL 33480
[phone] • www.TheBreakers.com
Course No. 1389R
Contact The Florida Bar to register (850-561-5831) or visit the section’s website at
www.eldersection.org for the entire brochure.
ThURSDAy SEPTEMbER 15 9:40 a.m. – 10:30 a.m. 1:50 p.m. – 2:40 p.m.
Introduction to VA Appeals DIC with A&A vs. NSC Pension with
4:00 p.m. – 6:00 p.m. Hal Youmans, Riverview A&A
Executive Council Meeting Brandon Arkin, North Miami
10:30 a.m. – 10:40 a.m.
6:30 p.m. – 9:30 p.m. break 2:40 p.m. – 2:55 p.m.
Member Dinner break
($30 per person/ children - free) 10:40 a.m. – 11:30 a.m.
Introduction to VA Application 2:55 p.m. – 3:25 p.m.
Process State VA homes
FRIDAy SEPTEMbER 16
Greg Glenn, Boca Raton Victoria Heuler, Tallahassee
8:00 a.m. – 8:30 a.m.
11:30 a.m. – 12:00 noon 3:25 p.m. – 4:15 p.m.
Check-In (Continental breakfast)
Questions and Answers with Evaluating IRA Choices for VA
8:30 a.m. – 8:50 a.m. Morning Speakers benefits
Welcome and Introductions Jim Swain, Washington
12:00 noon – 1:00 p.m.
Update on Current Changes to VA
Lunch (included in registration) 4:15 p.m. – 5:05 p.m.
Requirements
Current Status for Verification of VA
Jack Rosenkranz, Jacksonville 1:00 p.m. – 1:50 p.m.
Payments for Medicaid Eligibility
Tips and Tales in Application
8:50 a.m. – 9:40 a.m. Jack Rosenkranz, Tampa
Process
Department of Defense, TRICARE for
Alice Reiter Feld, Tamarac
Life and Champ VA
Karen McIntyre, Atlanta
CLE CREDITS
CLER PROGRAM CERTIFICATION PROGRAM
(Max. Credit: 8.5 hours) (Max. Credit: 8.5 hours)
General: 8.5 hours Elder Law: 6.5 hours
Ethics: 0.0 hours State & Federal Gov’t & Administrative Practice: 8.5 hours
Seminar credit may be applied to satisfy CLER / Certification requirements in the amounts specified above, not to exceed the maximum credit.
See the CLE link at www.floridabar.org for more information.
Prior to your CLER reporting date (located on the mailing label of your Florida Bar News or available in your CLE record on-line) you will be
sent a Reporting Affidavit if you have not completed your required hours (must be returned by your CLER reporting date).
The Elder Law Advocate • Vol. XIX, No. 2 • Summer 2011 • Page 5
Raise your client’s expectation for service.
The Regions Morgan Keegan Trust team can help you. You recognize your client’s need for locally delivered trust and asset
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© 2011 Trust Services are provided through Regions Morgan Keegan Trust, a trade name for the Trust Division of Regions Bank. Investments in securities and
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any federal government agency, and may go down in value.
Page 6 • The Elder Law Advocate • Vol. XIX, No. 2 • Summer 2011
Section
News
The Joint Public Policy Task Force
A Partnership of
The Academy of Florida Elder Law Attorneys & The Elder Law Section of The Florida Bar
Thank You, Contributors!
These attorneys and firms financially support the Joint Public Policy Task Force.
The task force and your peers need your support to further the task force’s
accomplishments on all our behalf and for the future of our practices.
A Special Thank You to the following Major Contributors:
Guardian Trust
Elder Planning Income Concepts LLC
Benefactor $5,000 and above
Deeb Elder Law PA Hook Law Group
Founder $2,500 - $4,999
The Elder Law Center of Mondschein and Mondschein Elder Law Associates
Osterhout, McKinney, Prather & Swank Karol Hausman Sosnik & Finchum LLP
The Elder Law Center of Kirson & Fuller Kathleen Flammia PA
Carolyn Landon
Patron $1,500 - $2,499
Babette Bach Barbara S. Buxton Hoyt & Bryan LLC
Sawyer and Sawyer PA Colleen M. Duris Law Office of Norma Hand Brill PA
Michael D. Fowler Law Office of Emma Hemness PA
Sam W. Boone, Jr.
Sponsor $750 - $1,499
Patricia I. “Tish” Taylor April D. Hill Linda Solash-Reed PL
Paul I. Auerbach Victoria E. Heuler Mark W. Mazzeo
Burzynski Elder Law Vicki Joiner Bowers PA Miller & Brasington PL
Kotler Law Firm PL Pamela M. Burdick Robert M. Morgan
Walter B. Shurden Gerald R. Colen Laurie E. Ohall
Waldoch & McConnaughhay PA Law Office of Kevin M. Gilhool Jason A. Penrod
Glenda F. Swearingen Arlene Lakin Twyla Sketchley
Todd R. Zellen PA
Friend $500 - $749
Suarez & Taylor, Attorneys at Law DeLoach & Hofstra PA Sheri Lund Kerney
Behar, Gutt & Glazer PA Barbara A. Epstein Ailish O’Connor
Mary Ellen Ceely PL Kara Evans Julie Saieg
Marie S. Conforti John R. Frazier Senior Counsel, Attorneys at Law PA
Thomas R. Conklin Jennifer R. Howell Erik P. Shuman
Lillesand and Wolasky PL
Other Contributors
Nicola J. Melby Schofield & Spencer PA Dana P. Bowie
The Elder Law Advocate • Vol. XIX, No. 2 • Summer 2011 • Page 7
Section
News
Awards given at annual TFB convention
Section Chair Leonard Mondschein (center) of Jerry Solkoff accepts the Lifetime Achieve- Chair Leonard Mondschein presents the
Mondschein and Mondschein in Miami presents ment award from Chair Leonard Mond- 2011 Elder Law Section Member of the
the Lifetime Achievement Award to Ray Parri of schein. Jerry’s son, Scott Solkoff (not Year award to Emma Hemness of Emma
Raymond L. Parri PA in Clearwater and Jerry pictured) of Solkoff Legal in Delray Beach, Hemness PA in Brandon.
Solkoff (right) of Jerome Solkoff PA in Delray a past chair of the section, was a proud
Beach. Dan Parri (left) of The Parri Law Firm onlooker.
PLLC in Clearwater accepts the award on behalf
of his father.
Before taking office as 2011-2012 chair,
Chair Leonard Mondschein presents Randy Bryan (right) accepts a plaque rec- Enrique Zamora (right) of Zamora & Hillman
the Charlotte Brayer Award to Jack ognizing his work on the Elder Law/AFELA in Coconut Grove is presented an award for
Rosenkranz of Rosenkranz Law Firm Joint Task Force. his work as co-chair of the 2010 Elder Law
in Tampa. Section Retreat.
Page 8 • The Elder Law Advocate • Vol. XIX, No. 2 • Summer 2011
Section
News
Chair Leonard Mondschein presents Ellen
Morris of Elder Law Associates PA in Boca
Raton with a plaque recognizing her contribu-
tion as co-chair of the 2010 Elder Law Section
Retreat.
During the passing of the gavel, Immediate Past Chair Leonard
Mondschein accepts accolades from incoming Chair Enrique
Zamora.
David Hook (right) of The Hook Law Group in New Port Chair Leonard
Richey and Collett Small (center) of the Law Offices of Mondschein thanks Arlee
Collett P. Small in Pembroke Pines are recognized for J. Colman, program
their work as co-chairs of the 2011 Elder Law Certifica- administrator with The
tion Review Course. Florida Bar, for her work
on behalf of the section.
The Elder Law Advocate • Vol. XIX, No. 2 • Summer 2011 • Page 9
Elder law attorneys provide testimony on
Florida Medicaid managed care
Thank you to these fine elder law attorneys who partici- PENSACOLA
pated in the AHCA public hearings on Florida Medicaid Steve Quinnell, Glenda Swearingen, Jason Waddell,
managed care, held June 10-17, 2011. C. Jason White
ST. PETERSBURG
FORT LAUDERDALE
Stephanie Edwards, Travis Finchum, April Hill, David
Pamela Burdick, Barbara Buxton, Greg Glenn, Elaine
Lillesand, Bob Nordstrom, Charlie Robinson
Schwartz
TALLAHASSEE
FORT MYERS
Jana McConnaughhay, Twyla Sketchley, Glenda
Teresa Bowman, Norma Hand Brill, Heidi Brown,
Swearingen, Lauchlin Waldoch
Brandon Bytnar, Grace Crawford, Steve Kotler, Mark
Mazzeo, Britton Swank TAMPA
Rebecca Bell, Ann Cholowski Debra Dandar, Ben
GAINESVILLE
Darby, Kara Evans, Emma Hemness, Dana Kemper,
Sam Boone, Monica Brasington, John Clardy, Shannon
Miller, Nancy Wright Laurie Ohall, Jack Rosenkranz
JACKSONVILLE WEST PALM BEACH
Vicki Bowers, Deborah Knauer, Robert Morgan, Ailish Greg Glenn, Lisa Klein Goldstein, Sheri Greenblatt, Carolyn
O’Conner, Julie Saieg, Jennifer Williams Landon, Ellen Morris, Mindy Stein, Tish Taylor, Todd Zellen
MIAMI
And a special thank you to our region team leaders,
Jackie Schneider, Elaine Schwartz, Steve Taylor,
Sam Boone, Jill Burzynski, Barbara Buxton, John
Marjorie Wolasky
Clardy, Patti Fuller, Jana McConnaughhay, Laurie
ORLANDO Ohall, Charlie Robinson, Elaine Schwartz, Scott Se-
Randy Bryan, Aubrey Ducker, Patti Fuller, Meena lis, Mindy Stein, Glenda Swearingen, Jason White,
Hirani, Carolyn Sawyer, Linda Solash-Reed Jennifer Williams and Marjorie Wolasky.
MARk YOuR CALENDAR!
September 15-17, 2011 (New Date!) Thursday, April 12, 2012 • 6-7:30 p.m.
ThE ELDER LAW SECTION RETREAT SECTION ExECUTIVE COUNCIL MEETING
The Breakers, Palm Beach, Fla.
* * *
Thursday, September 15, 2011 • 4-6 p.m. Friday, April 13, 2012
SECTION ExECUTIVE COUNCIL MEETING ANNUAL PUbLIC bENEFITS
LIVE WITh SIMULTANEOUS WEbCAST
Thursday, September 15, 2011 • 6:30-9 p.m.
Tampa, Fla. (hotel to be announced)
ALL MEMbER DINNER
* * *
* * *
Friday, June 22, 2012
January 12-13, 2012
ELDER LAW SECTION ANNUAL MEETING
ELDER LAW CERTIFICATION REVIEW
Reunion Resort, Orlando, Fla. Section Chair’s Training – 11 a.m.
* * * Awards Luncheon – 12 noon
Thursday, January 12, 2011 • 6-7:30 p.m. Section Executive Council Meeting – 2 p.m.
SECTION ExECUTIVE COUNCIL MEETING
Page 10 • The Elder Law Advocate • Vol. XIX, No. 2 • Summer 2011