Florida Elder Law Blog - ElderLawAssociates.com

More than a third (35.4 percent) of individuals who recently purchased long-term care insurance are paying less than $1,499 a year for the coverage, according to a new report by the American Association for Long-Term Care Insurance, an industry trade organization.

The organization analyzed data on some 93,500 new long-term care insurance buyers. Age at the time of application plays an important role in determining the cost for long-term care insurance, the study reports. While 41.5 percent of buyers under age 61 pay between $500 and $1,499-per-year, only 20.8 percent of buyers who are ages 61-to-75 pay within this range. About one in 10 of all buyers (9.5 percent) are paying $4,000 or more yearly for their insurance, the report indicates.

"Individuals mistakenly have been led to believe that long-term care insurance costs thousands of dollars," says Jesse Slome, the Association's executive director. "A significant number of individuals today pay between $10 and $20 a week. That's a highly affordable way to protect $150,000 to $250,000 of future care." Slome notes that buyers in their 50s will be more likely to qualify for health discounts.

For more details, including tips for saving money when buying long-term care insurance, click here.

Labels: florida elder law, Florida Elder Law Attorney, Florida Long Term Care Insurance

Bessard v. Bessard, --- So.3d ----, 2010 WL 1875627 (Fla. 3d DCA May 12, 2010)

Durable powers of attorney (POAs) are an integral part of modern estate planning. The prevalence of POAs means they come up with some frequency in estate-related litigation [click here]. That's what happened in Bessard v. Bessard. What's interesting about this case is it's focus on F.S. 709.08(11),

a little-known subclause of Florida's durable POA statute entitling the prevailing party in POA litigation to attorney's fees and costs. Here's what the statute says:
(11) DAMAGES AND COSTS.-- In any judicial action under this section, including, but not limited to, the unreasonable refusal of a third party to allow an attorney in fact to act pursuant to the power, and challenges to the proper exercise of authority by the attorney in fact, the prevailing party is entitled to damages and costs, including reasonable attorney's fees.

In this case a father signed a durable POA granting his son ("Joseph") authority over his property while he underwent treatment for leukemia, tuberculosis and "other medical infirmities." The POA was challenged in court by Joseph's mother and two sisters. Before the court could rule on the merits of the case, Joseph's father died. At that point Joseph sought to have the case dismissed as moot. Joseph also filed a "renunciation" of his powers under the POA.

The trial court granted Joseph's motion to dismiss, but also granted a motion for attorney's fees and costs filed by his mother and sisters as the prevailing parties. On appeal the 3d DCA affirmed the trial court's attorney's fee order as follows:

As to the attorney's fees and costs awarded to the appellees as the prevailing parties, we also affirm. Section 709.08(11), Florida Statutes (2007), provides that the prevailing party in power of attorney litigation is entitled to attorney's fees and costs. The determination of the prevailing party for the purpose of awarding attorney's fees and costs is based on whether the party seeking fees succeeded on any significant issue(s) in the litigation. See Moritz v. Hoyt Enters., Inc., 604 So.2d 807, 810 (Fla.1992) (holding "that the party prevailing on the significant issues in the litigation is the party that should be considered the prevailing party for attorney's fees"); Boxer Max Corp. v. Cane A. Sucre, Inc., 905 So.2d 916, 918 (Fla. 3d DCA 2005) ("The 'prevailing party,' for purposes of attorney's fees, is a party which the trial court determines prevailed on significant issues in the litigation.").

Joseph contends that because the trial court never determined whether the signature on the power of attorney was executed by Mr. Bessard, and if executed whether it was done so knowingly and voluntarily, the trial court erred in granting the appellees attorney's fees and costs as the prevailing parties. We disagree. The appellees sought to have the power of attorney declared void, contending that the document was a fraud. When Joseph renunciated the powers granted to him under the power of attorney, agreed that the document be declared null and void, and destroyed the original and all copies, his actions necessarily mooted the complaint and was the functional equivalent of a judgment or verdict in favor of the appellees. See Augustin v. Health Options of S. Fla., Inc., 580 So.2d 314, 315 (Fla. 3d DCA 1991) (finding that when the defendant changed its position in the matter and made full payment as prayed for in the plaintiff's complaint, it necessarily mooted the complaint and was the functional equivalent of a judgment or verdict in favor of the plaintiff entitling the plaintiff to an award of attorney's fees as the prevailing party); see also Smith v. Adler, 596 So.2d 696, 697 (Fla. 4th DCA 1992) (holding that "it is [the] results, not [the] procedure, which govern the determination" of which party prevailed for purposes of awarding attorney's fees).

Lesson learned?

Litigation can be very expensive. Any time your client has a shot at getting the losing side to pay his or her attorney's fees, it's a BIG deal. Just as importantly, the downside risk of F.S. 709.08(11) needs to be understood by all at the outset. This disclosure should be prominent in your retainer agreements.

Posted on Florida Probate & Trust Litigation Blog by Juan Antunez.

James is 88 years old and his mental and physical health has been declining steadily over the past several months. As a result, he can no longer manage his financial or personal affairs or independently care for himself. A few of James' so-called "friends" began taking advantage of his declining mental capacity and stealing his money. Fortunately, James had engaged in careful estate planning before his incapacity and executed advance directives in the event of his incapacity.

James' nieces, Jane and Anna, are named as his Attorneys-In-Fact, Health Care Surrogates and Successor Trustees under his revocable trust. They hired us to advise them on accepting appointment as their uncle's fiduciaries and the steps they should take to safeguard their uncle's finances while ensuring his personal well-being. We advised and assisted Jane and Anna in taking control of and managing James' finances and commencing in-home health services for James on a 24/7 basis.

Our clients were concerned about James' "friends" who continued to interfere with his care and persistently attempted to financially exploit him. Jane and Anna again turned to us for help. We mailed warning letters to the individuals and changed James' telephone number to impede further harassment. Thankfully the attempted exploitation ceased. With our assistance, Jane and Anna have successfully protected James' finances for his own use and put in place appropriate in-home health and care-giving services.

Labels: florida elder law, Florida Elder Law Attorney, Florida Health Care Surrogates

Congratulations to Ellen Morris and Howard Krooks for being named to Florida Trend magazine's Florida Legal Elite 2010.

More consumers are buying shorter-duration policies as a way to keep the cost of long-term care insurance affordable. For example, in 2009 almost one-third of individual buyers purchased a three-year benefit period policy, according to the American Association for Long-Term Care Insurance. But is that sufficient coverage or is the policyholder likely to run out of benefit dollars?
According to a new consumer guide by the industry trade association, the risk of running out of benefits on a three-year policy is small, particularly for men. Overall, of people who bought a policy with a benefit period longer than three years and made a claim for long-term care, only 13.1 percent needed that care for longer than three years. Only 7.6 percent of those with a policy that paid out longer than four years actually needed care for longer than four years, and only 4.5 percent of those buying policies lasting longer than five years needed care beyond five years.

Men with a three-year policy who begin a long-term care claim at age 82 (a typical age) have a 12.4 percent likelihood of exhausting their benefits, while women face almost twice the risk (23.5 percent).

The guide reports that a policy that pays benefits for three years costs between 42 percent and 54 percent less than one that will pay claims for an unlimited number of years. A two-year policy is 51 percent to 64 percent cheaper than an unlimited policy, while a five-year policy brings a 30 percent to 39 percent savings.

However, if you are one of the individuals whose claim goes past the expected number of years of your policy, you can expect to need care for anywhere from two to six more years, the guide reports. A 55-year-old man who exhausts a three-year policy can expect to need long-term care for another 3.7 years, while a woman of the same age would need an average of 5.3 years of additional care. An 82-year-old who exhausts a three-year policy can expect to need long-term care for another 1.9 years (men) to 2.9 years (women).

The new guide combines comprehensive claims-related data from various studies conducted over the past year by the trade group. In addition, the guide includes findings of a special study conducted for the association by the consulting firm Milliman, Inc.

"Before they buy, people want to know their real risk of using their insurance policy," said Jesse Slome, the association's executive director.

Copies of the guide are available only to association members, but it can be read for free online by clicking here. Click here to go directly to the PDF online version.

Of course, before making any decisions, it is wise to consult a qualified Florida Elder Law Attorney.

Labels: florida elder law, Florida Elder Law Attorney, Florida Long Term Care Insurance