DISCLAIMER: Before I go on further, none of what you are about to read is considered, nor it should be construed as, legal advice. If you have any questions regarding this or any other legal issue, please by all means see an attorney who is licensed by the Florida Bar.
Once an ALF finds someone with a substantial amount of assets, an ALF has struck a vast pool of Texas Tea. Or an underwater Gulf of Mexico goldmine. Let the financial feast begin!
Speaking of medical records, despite federal privacy laws such as HIPAA in place, the examining committee can look at not only the medical records from the alleged incapacitated person’s physician, but records maintained by other entities such as the Medical Information Bureau as well as Milliman for prescription drug histories and FICO (you got that right, FICO, the same company that gives you your credit score) for the FICO Medication Adherence Score, a scorecard as to how well a patient complies with doctors’ orders by taking the medications as prescribed. All it takes is a legal subpoena, of which the maintainers of the alleged incapacitated person’s medical records must comply with once served.
The professional guardian goes to work immediately on whatever assets can be converted into cash in order to pay the recurring monthly ALF fees such as room and board among other things. A house which has been the home of your parents – and which you more than likely grew up in – is sold and the proceeds go to the professional guardian which eventually ends up in the hands of the ALF – usually after the professional guardian helps himself/herself to a share of the proceeds as professional guardian fees.
The same thing goes for all other assets the parents had: Money in banks, money received as a result of receiving government benefits, family heirlooms – and the list goes on and on.
Once all the assets are spent, then it’s time to apply for Medicaid. Once Medicaid is approved, the financial lifeline in the ALF’s favor thanks to your parents is still intact.
You are kept out of all decision making as far as your parents are concerned. The only time the ALF or the professional guardian overseeing the affairs of your parents will contact you is if your parents passed away. In other words, you are kept in the dark regarding your parents.
Once your parents pass away in the ALF, it’s game over for all the players that have overseen your parents’ care. Then the ALF finds its next “victim” and the wheel of guardianship spins all over again.
So what can you do for your parents when it comes time to think about making the transition from home to ALF?
First and foremost, arrange a meeting with an attorney, preferably an attorney that knows both wills, trusts and probate as well as elder law. Most attorneys can give you a 30-minute consultation either for free or for a small fee. This cannot be over-emphasized enough: Check the attorney’s qualifications and expertise as well as his or her courtroom track record before you hand any sum of money to an attorney when you sign that retainer agreement.
Be sure that the attorney you select is licensed by the Florida Bar. Much better, an attorney licensed by the Florida Bar and certified in probate and elder law matters is much more favorable.
A competent attorney will show you the ways that your parents’ assets can be structured to prevent their being taken by professional guardians. Steer clear of attorneys who think that guardianship is the only way to preserve assets – just remember what happened to a Clearwater resident whose name is Carol Kinnear as far as the unintended consequences of a guardianship are concerned.
Next, research ALF facilities in your area by starting online and visiting the individual ALF websites. Narrow down your list based on their reputation (how do I find out? Do a Google search for (name of ALF facility) complaints) and contact them to arrange for a tour of the facility.
When you take a tour of the ALF facilities, you may want to take your parents along. While you are there, you will get a first impression of what the facility is like. All I can say here is trust your instinct – if while you are touring an ALF facility you have any concerns about placing your parents there, the best thing to do is to err on the side of caution and leave the facility.
The only time that your parents give out their personal information is when the decision is made to enter a specific ALF and the paperwork is completed. In fact, have your attorney review all ALF paperwork before signing anything.
In fact, work with your attorney to discuss safeguarding your parents’ assets before your parents sign the ALF paperwork.
Now what if, despite your best efforts, your parents resist your efforts to place them in an ALF? According to Linda Hurtado of ABC Action News your parents do not have to go to an ALF, unless adjudicated incompetent in a guardianship proceeding.
In other words, your parents are legal adults with all the rights and privileges appertaining thereto, the same way when you turned 18 and became an adult yourself. The only way the rights and privileges as an adult can be taken away from you – other than being convicted and sent to prison – is the guardianship process as defined in Chapter 744 of the Florida Statutes. Then again, a person under guardianship has much less rights than a convicted felon.
So please, before you make the ALF decision for your parents, speak to an attorney first. After all, your parents took great care of you, and someday the time will come when it’s time for you to take care of them.