Elder Law 2016-10-30T09:24:01+00:00

Elder Law

The term “Elder Law” applies to many different areas of the law that affect individuals over the age of sixty. JALA provides representation to individuals over the age of sixty in many areas of the law. Our case priorities change periodically depending on attorney availability, funding opportunities and changes in the law.

Please note that as much as we would like to help every client who applies for our services, we cannot accept every case due to limited resources. Case acceptance will depend on the circumstances of each case, whether all eligibility criteria are met, and staff availability. On the other hand, if you do not see your legal problem listed, it does not mean we will not consider your case. We are always interested in learning about new and different issues affecting our community.

JALA Services For the Elderly

Click topics below to expand for more information.

Advance Health Care Directives

A living will is NOT a “last will and testament.”  It is a document announcing your (the maker’s) intent and wish that no heroic measures be taken to keep you alive should you be diagnosed with a terminal condition, end-state condition and/or a persistent vegetative state and are incapable of communicating your decisions regarding your medical care.  A living will must be signed by the maker and two witnesses.  The living will document does not need to be notarized, but the more formal the document, the more likely it will be accepted by medical professionals. Whether or not you wish medical treatments to cease, respirators removed, feedings and/or hydration withdrawn are all items to be addressed in a living will.  Even if you do not desire any heroic measures, palliative care (comprehensive care that manages the physical psychological social spiritual and essential needs of a patient) can ease the burden for patients diagnosed with a terminal illness. The living will is an instruction to the health care professional on WHAT kind of treatment to provide.
A health care surrogate, also called a health care proxy, is a legal document created by the “principal” designating one or more persons (the surrogate/proxy) to make health care decision for the principal when the principal cannot make decisions for himself/herself.  This document is an instruction to the health care professional on who can make health care decision on the principal’s behalf.  Like the living will, the health care surrogate designation must be signed by the principal and signed by two witnesses.  The two witnesses cannot be the surrogate/proxy.
A Health Care Surrogate, also called a health care proxy, is a legal document created by the“principal” designating one or more persons (the surrogate/proxy) to make health care decision for the principal when the principal cannot make decisions for himself/herself. This document is an instruction to the health care professional on WHO can make health care decision on the principal’s behalf. Like the living will, the health care surrogate designation must be signed by the principal and signed by two witnesses.  The two witnesses cannot be the surrogate/proxy.
The decision to donate all or some body parts/organs can be designated by the donor in a last will and testament, a donor card, or a valid florida driver’s license/identification card. Once the designation is made by the donor, it cannot be revoked by someone other than the donor. If an organ donation has not been made, close family members may make a donor designation on behalf of the donor either shortly before or shortly after death. Who can make this designation on behalf of the donor is specified by Florida statute. The designation must be made with the requisite formalities if designated in the last will and testament.  If not made in the last will and testament, the organ donation designation can be executed with the signature of the donor and two witnesses.

Elders Caring for the Children of Others

Many grandparents, aunts, uncles and other family members often find themselves caring full-time for the child(ren) of other relatives. If you are a relative caring for the children of others, you may find it difficult to apply for public benefits on behalf of the minor children, enroll the child in school, or access healthcare for the minor child. In Florida, there is a law that allows relative caretakers to petition the family court to have temporary custody of minor children living in their household.  By applying to the court, the relative custodian will be awarded the legal and physical custody of the minor children allowing them to access all the benefits and responsibilities associated with being a legal guardian.  Only relatives “within the 3rd degree of consanguinity of the natural parent,” such as biological grandparents, great grandparents, aunts, great aunts, uncles, great uncles, cousins and siblings qualify to file this petition.  If you do not fall within the definition of “relative” for purposes of this cause of action, you may gain legal guardianship over the minor child by filing a guardianship proceeding in probate court.  Please see below under “guardianship.”

Guardianship

A guardianship is a legal proceedings in Probate Court in which a person is appointed to exercise legal rights of an incapacitated person.  The person’s incapacity can be age (a person under the age of 18 is incompetent due to being a minor); or by other condition such as mental state or medical condition.
Guardianship over a minor child may be necessary in several circumstances.  To apply for guardianship over a minor child, you must petition the Probate Court and ask to be appointed Guardian over the child.  Reasons for a guardianship may include that a minor child’s caretaker does not fall within the definition of “relative” for purposes of temporary relative custody or the minor child is the recipient of a large money settlement, an inheritance or a death benefit which requires an adult to be appointed to manage the money. You can be appointed to be a Guardian over the person, over the property, or over both person and property.
Guardianship over an adult requires the Court to find that the adult you are trying to gain guardianship over (the “ward”) is legally incompetent.  The Court usually considers documentation from the ward’s treating physicians to determine incapacity through an investigation done by a “committee” of two professionals and a lay person.  This committee will report to the Court as to whether or not the ward is incompetent.

A guardianship over the person may exercise rights on behalf of the ward such as making medical decisions, decisions about where the ward will live. This type of Guardian is required to report to the Court yearly and submit a plan for the ward’s care.

A guardianship over the property is given authority over ALL of the ward’s property and can make financial decisions on behalf of the ward such as paying the ward’s bills, selling the ward’s property, and caring for other financial needs on behalf of the ward.  A guardian over property is required to inventory the ward’s property and account for it annually to the Court. The guardian over property must also seek the Court’s permission for certain financial transactions.

A guardian can request only to be appointed as guardian to deal with specific needs of the ward. If the guardianship is specific and limits the duties/responsibilities of a guardian, then this is called a limited guardianship.  A limited guardian can only exercise those duties/responsibilities specifically given in the Order Appointing Guardian.
A plenary guardianship is appointed by the Court if the Court finds that the ward needs total assistance in all daily living and all decisions (financial, medical, educational, etc.).  Plenary means “full” or “all” so a plenary guardian has all the powers that the Court can grant to take care of the ward.

Grandparent Visitation

The rights of grandparents to visit with their grandchildren are limited in Florida by statute and by the Florida and United States Constitution.  Under the United States and Florida Constitution, parents have a right to privacy that supersedes the rights of grandparents unless the grandparents can show that denial of court-ordered visitation would be detrimental to the minor children.  Currently, by statute, grandparents may petition the court for visitation with their minor grandchildren when it is the best interests of the minor child and (a) The marriage of the parents of the child has been dissolved; (b) A parent of the child has deserted the child; or (c) The minor child was born out of wedlock and not later determined to be a child born within wedlock.

Elder Abuse

Neglect and abuse of elderly persons in Florida means harm or threatened harm to an elderly person’s physical or mental health or welfare by actions or failure to act. The person who is guilty of abuse can be anyone, including a parent or spouse, adult household member, caregiver or staff person in a care facility or any other person who is responsible for their welfare.

We often feel powerless to stop the abuse or get help for the abused elderly person but there are ways you can help. If you know of an elderly person who is being neglected or abused or you are an abused elderly person, you can:

  1. Report the neglect or abuse to the State of Florida abuse hotline by phoning: 1-800-962-2873.
    Telecommunications device for the deaf (TDD) 1-800-453-5145 Department of Children and Families (DCF) must investigate the complaint within 24 hours by referring the complaint you file to DCF office in Jacksonville. DCF assigns your complaint to a staff person for further investigation and any necessary intervention to stop or prevent the abuse or neglect. DCF can intervene in many ways, such as providing services or referring to other agencies for service to stop the abuse or neglect; removing the abused person from the abusive situation and/or placing the abused person in a care facility or program that provides shelter and services.
  2. In the case of an elderly person living in an adult living facility (ALF) or nursing home, report the neglect or abuse by filing a complaint in writing or by phone with the Long Term Care Ombudsman Council for this area. The Ombudsman Council is a watchdog organization for persons living in care facilities and can be reached at:Long Term Care Ombudsman Council
    5920 Arlington Expressway
    Jacksonville, Florida 32211
    723-2058 or 1-800-342-9685The Ombudsman Council staff person in your area will assign your complaint to a member of the Ombudsman Council for investigation and necessary intervention to prevent abuse or neglect. The Ombudsman Council can request the facility be cited for violation, the license of the facility be placed in provisional status, the removal of the abused person from the facility and placement in another facility.
  3. If you are dissatisfied with or have complaints about the investigation of any abuse report, you can contact in writing or by phone the DCF Human Rights Advocacy Commission for your area. The Advocacy Commission is a watchdog organization for abused and neglected children, handicapped adults, elderly persons and mentally or developmentally disabled persons living in care facilities. The Advocacy Commission investigates any complaint about the way abuse investigations are handled and reviews all abuse complaints for persons who are in state run or state contracted institutions or programs. You may contact the Advocacy Commission for your area at:DCF Human Rights Advocacy Commission
    5920 Arlington Expressway
    Jacksonville, Florida 32211
    723-2057

The Advocacy Commission staff person in your area will assign your complaint to a member of the Advocacy Commission for investigation and necessary intervention to prevent the abuse or neglect.

When reporting abuse or neglect or filing a written complaint you should give as much of the following information as possible:

  1. Information on the person who is being abused or neglected, such as name, address, phone number and age of the elderly person. Also, if you know of any disabling condition they may have, whether or not they live in their own home or a care facility. If the person lives in a care facility, try to provide the name, address, and phone number of the care facility.
  2. Any information on who you suspect of neglecting or abusing the elderly person,
    including their name, address, phone number, and relationship to the elderly person.
  3. A brief description of the neglect or abuse that has taken place, when it occurred and if it’s an ongoing pattern of abuse or a single incident.

Last Wills and Testaments

If you have any real property or personal property, and you want to designate, before you die, where your property goes (to relatives, loved ones, charities, etc.), then you should have a last will and testament.  Unless you have a last will and testament, you do not have the power to determine where your property goes at the time of your death and the distribution of your personal and/or real property will be made according to state law.
If you die without a will, you die “intestate.”  Dying intestate means that the state laws of intestacy will determine who gets your property.   Intestacy is based on your familial relationship of the deceased to the deceased heirs.  Many times, when people die without a will, or intestate, their property is not distributed in a way they would want.  Therefore, it is important that you obtain a last will and testament if you have specific wishes as to who will receive your property at the time of your death.
In order to have a valid will in Florida, it must be written, witnessed by two people (who should preferably not be beneficiaries under the will), and notarized.  In order to avoid having to call the witnesses to probate court after your death, you can execute a self-proving affidavit as part of your will that asserts that you were competent at the time of signing your will.  The maker of the will (“testator”) must be at least 18 years old and must be legally competent (of sound mind and body).
An executor and personal representative are terms that can be used interchangeably.  The executor/personal representative is someone that you may designate in your last will and testament, or someone appointed by the Court to handle the terms of your will the distribution of your property at the time of your death.
At the time that you sign your will, you should give a copy of your will to the person that you choose to be your executor/personal representative. When you pass away, your personal representative can take the will to Probate Court and file an action to have your estate (property) probated (distributed).
Your personal representative must notice all creditors that may have a claim against the property in your estate.  A creditor must make a claim against a person’s estate within a particular time by law. If a probate proceeding is filed, the creditor generally has 3 months in which to make a claim. If there is no probate proceeding filed, the creditor has two years to make a claim against your property.  The personal representative is also responsible for paying your debts through the money that is in your estate.  There are some debts that are exempt from being paid from your estate.
A will that is self-proving contains an affidavit at the end of the will that is signed and notarized by the testator (person making the will) and the two witnesses.  The affidavit states that the testator 18 years of age or older, of sound mind and body, and the will was executed (signed) by the testator and by the witnesses in the presence of the testator.

Medicaid/Medicare

Medicaid is a government health insurance program for the poor.  If you are on Supplemental Security Income you automatically qualify for Medicaid. Most older adults receive Medicare which is available at the same time that an elderly adult begins to draw Social Security. Medicaid is implemented by the State by the Agency for Health Care Administration (AHCA) but partially funded and regulated by the Federal government. Applicants may apply for Medicaid through their local Department of Children and Families office.
Medicare is a federal government health insurance program for people over age 65 or disabled.  If you are disabled and are receiving Supplemental Security Income (SSI) you will receive Medicaid instead of Medicare.  There are several parts to Medicare.  Part A covers hospitalization, Part B covers physician care and other health services, Part D is a new program that covers prescription drugs.
Medicaid is a program administered through the State of Florida, Medicare is a program administered by the federal government.  Medicaid is a public benefit and you must be within certain poverty guidelines to qualify for Medicaid.  Medicare is usually for people who have worked a certain number of years during their lifetime and are either retired or disabled.  Medicaid covers most health insurance costs for the beneficiary/recipient.  Medicare is more like a private health insurance programs with different plans and benefits to choose from.

What other services are available to help elderly persons

You may also wish to contact one of the many local agencies that provide special services for elderly persons that may prevent neglect or abuse by providing services to the elderly Person. The following are some suggested sources of services in Jacksonville:

Jacksonville Area
Legal Aid, Inc.
(904) 356-8371
State of Florida Department of
Children & Families Adult Services
(904) 723-5700
Elder Source:
The Area Agency on
Aging for Northeast Florida
4160 Woodcock Dr., Ste 200
Jacksonville, FL  32207
(904) 391-6600
www.myeldersource.org
Urban Jax Community
Care for Elderly
(904) 798-9500
Jacksonville Senior Services
Nutrition Program
(904) 630-0932
City of Jacksonville
Adult Services Activity
(904) 630-3651
Meals on Wheels
(904) 381-6700
Jacksonville Homemaker Program
(904) 356-1844
Lutheran Social Services
(904) 448-5995