Things to Consider if You Need an Elder Law Attorney

Things to Consider if You Need an Elder Law Attorney

As we age, there are important legal issues for seniors to consider in terms of health, wealth, and even family situations. Each of these areas may benefit from the assistance of an elder law attorney. If you’ve never utilized the expertise of this type of attorney, you may be unfamiliar with all of the legal services they can offer. Here are some things to consider if you need an elder law attorney in Florida.

What is an Elder Law Attorney?

An elder law attorney is a lawyer who specializes in helping individuals and families with an aging loved one. Their expertise covers a wide range of potential issues including health care, long-term care planning, guardianship, retirement, public benefits, etc. In addition, they assist with trusts, wills, probate, and probate avoidance. Elder law attorneys can draft important legal documents that may be needed such as durable powers of attorney, advance directives, and living wills.

When Should I Hire an Elder Law Attorney?

While there is no specific age for hiring an elder law attorney, it is recommended that you begin preparing important legal documents and advocating for the wishes of your estate as you age. When you hire an elder care attorney it allows you to protect your finances, navigate elder law issues regarding your estate, and have an advocate who can assist in family decisions or disputes.

Even if you or your aging family member has not encountered difficult health and/or end-of-life concerns, beginning your planning ahead of time can help ensure that your wishes will be followed and the impact of probate and court delays will be minimized. Establishing a relationship with an elder law attorney early means that you will have someone who knows your wishes for any life issues that may occur in the future. Ultimately, this type of preparation helps protect your family and your assets after your passing.

What Types of Questions Should I Ask an Elder Law Attorney?

There is a lot of specialization among attorneys. And even amongst elder law attorneys, they may have a specific specialty within the elder law field, such as Medicaid and VA planning. You want to ensure that the attorney you choose to hire for your loved one specializes in the kind of legal assistance that is relevant to your situation. Some questions to ask may include:

  • How long have you practiced law?
  • How much time do you devote to elder law?
  • Do you have a specific emphasis on elder law?
  • What information should I bring with me to our initial meeting?
  • How do you bill your clients?

What is the Difference Between Estate Planning and Elder Law?

Estate planning and elder law often get confused with one another because of the overlap that exists between establishing what happens to your money when you die (estate planning) and managing your money while you are alive but older and/or in poor health (elder law). While different, estate planning and elder law often go hand-in-hand because elder law attorneys are experts at estate planning.

If you need an elder law attorney, we can help. At The Law Office of Amy B. Van Fossen, P.A. we understand the nuances of the law related to the care and concerns common for older adults and can help you think through the many concerns that may arise. To effectively plan for the wishes you want to be carried out, contact us today.


Editor’s Note: This article was originally published in October 2021, but has been updated for freshness and accuracy.

Can I Prevent a Contested Will In Florida?

Can I Prevent a Contested Will In Florida?

A will is an important legal document designating an individual’s final wishes. While most wills are upheld, there are some valid grounds when they can be challenged. You may wonder, “Can I prevent a contested will in Florida?” Our experienced attorneys in Florida can help you learn more about this concern.

Who Can Contest a Will?

Not just anybody can contest the legal validity of someone’s will. The only people who can challenge a will are known as “interested persons.” These may include beneficiaries, heirs, fiduciaries, or others who may lose the potential inheritance.

What Are Grounds for Contesting a Will?

When evaluating a contested will, the courts consider motive. Simple disappointment is not enough, there must be legal grounds. The following are several of the most common legal reasons for a contested will:

  1. Undue Influence. In this case, it is suggested that the deceased person has left a considerable amount of their assets to someone who inappropriately influenced them. A common example would be a caregiver who may have inappropriately influenced the decedent’s final wishes.
  2. Mental Capacity. In cases like this, the decedent lacked the capacity to make decisions. If the deceased drafted a will or made changes when he or she was not of sound mind, this may be a consideration.
  3. Contrary Evidence. In some cases, the decedent’s family has convincing evidence to show that the will does not match the decedent’s wishes. If this evidence is strong enough, it may lead to a contested will.
  4. Technicalities. If a will was made before the age of 18, it may be contested. Additionally, the will must state it belongs to the person in question, include provisions for assets, and have an executor named or appointed by the courts.
  5. Witnesses. Wills must be signed and dated by two adult witnesses who do not stand to benefit from its provisions. Handwritten and/or unsigned or undated wills (known as “holographic wills”) are far more likely to be contested.

How Can I Avoid a Contested Will?

It is important to recognize that Florida, unlike many other states, does not allow a “no-contest clause.” This means if an heir challenges a will and fails, they receive nothing. Because a no-contest clause is not allowed in Florida, here are some tips to ensure that your wishes are followed and not contested.

  1. Use a Trust. Revocable living trusts are more costly and challenging to contest. They also make it more difficult for a potential petitioner to know essential information within the trust.
  2. Execute Properly. Wills are less likely to be challenged when they follow the safest legal process: typed, signed, clearly assigned to you, and witnessed.
  3. Start Early. It may be uncomfortable to think about end-of-life scenarios, but it benefits you to start early to assure your family and any potential challengers that you were of sound mind when you made those decisions.
  4. Regularly Review Your Will. Wills and/or trusts should not be a “one and done” situation. Every three to five years, review your will and make sure everything is up to date and relevant to your current situation and desires.
  5. Talk with Family. Surprises in a will can lead to frustrated heirs. When you have made your decisions, let your family know, so they can understand and have time to adjust.

At the end of our lives, we want our wishes honored, not contested. To speak with an experienced elder care law attorney about wills, trusts, or estate planning, please contact us at The Law Office of Amy B. Van Fossen.

EIN vs SSN When Funding Trusts

EIN vs SSN When Funding Trusts

When a trust is established, a Social Security Number (SSN) or an Employer Identification Number (EIN) is needed as a tax identification number. The type of trust established determines if you use an EIN or SSN when funding trusts. When you are seeking expert advice on trusts in Florida, The Law Office of Amy B. Van Fossen can help you and your loved one with these decisions.

SSN vs. EIN, What’s the Difference?

An SSN is an individual taxpayer identification number used to report income to the Internal Revenue Service for personal income tax purposes. Similarly, an EIN (Employer Identification Number) is a nine-digit number assigned to entities, like businesses. An EIN is also used for certain types of trusts, in order to report trust fund income and trust fund assets.

When Do I Need an EIN for a Trust?

Whether or not you need an EIN for a trust depends on the type of trust. Generally, grantor revocable trusts do not need an EIN. Any income taxes from a revocable trust is reported via the grantor’s SSN since the grantor can revoke the trust at any time and regain possession of the property. The grantor’s individual income report to the IRS remains connected to the trust assets and trust income.

In contrast, an EIN is required for an irrevocable trust. This is because the trust is a separate entity from the trust’s creator. Any income tax filings for trust income or trust assets are associated with the EIN.

EIN Quick Facts

  • EINs are required for all irrevocable trusts including Medicaid trusts, special needs trusts, and certain testamentary trusts.
  • If a grantor has several irrevocable trusts, each requires its own EIN.
  • If a trustee is added, removed, or has a change in personal information (i.e. a name change) the EIN does not need to change.
  • A change to the trust beneficiary does not require a change of EIN.

If you have questions about your specific trust needs in Florida, contact The Law Office of Amy B. Van Fossen. We can walk you through your options and determine the best plan for you and your loved ones. For more information about our services and expertise in trusts, estate planning, wills, elder care law, and more, see our blog.

Announcing Expansion Of Practice Interview

Announcing Expansion Of Practice Interview

The Law Office of Amy B. Van Fossen is pleased to announce the expansion of its practice to serve Indian River County, Florida!

Ms. Van Fossen said, “In response to client demand, we are eager to expand into Indian River County. We look forward to serving our neighbors with the same quality and compassion as we have in Brevard County since 2004.” This expanded practice area allows the experienced team of attorneys at the Law Office of Amy B. Van Fossen to represent more individuals along Florida’s eastern central coast.

Families in Indian River County needing expert care for their aging veterans will now have access to expertise in veterans affairs. Ms. Van Fossen said, “As an Elder Law firm, we offer a unique practice that assists in attaining public benefits. With three VA accredited attorneys on staff, we are able to serve our Veterans with knowledge and confidence in obtaining benefits.” Families in Indian River County needing expert care for their aging veterans will now have access to specialized care in this unique area of the law and a full range of elder law services.

The Law Office of Amy B. Van Fossen understands the deeply personal aspects of elder care law. The team provides practices in elder law, estate planning, guardian advocacy, case management, probate and trust administration, trust funding, Medicaid planning, and veterans benefits. 

Located at 211 E New Haven Ave, Melbourne, FL 32901, you can contact The Law Office of Amy B. Van Fossen at (321) 345-5945. To learn more about their full range of services, visit Learn more about monthly Seminars and Events or register for a VA Benefits Seminar, Medicaid Planning Seminar, Estate Planning Workshop, and Trust Follow-Up Seminar on the website as well.

What is the Difference Between a Simple Will and a Pour-Over Will?

What is the Difference Between a Simple Will and a Pour-Over Will?

How do you know which type of will is best for your needs? While most people likely assume a simple will or last will and testament will cover their wishes, it can provide great peace of mind to have this legal process secured before an emergency develops. Learn the difference between simple wills and pour-over wills by seeking legal advice.

Simple Wills

One of the most important estate planning documents is a simple will. For those who die intestate, i.e., without leaving a will, the cost to the estate can be significant. State law determines who will inherit the property of a person who dies intestate. (Family members are often required to cover the costs of funeral expenses and probate process.) Additionally, the state’s legal requirements may distribute assets in a way that the decedent never would have intended. All too often, disputes over property can cause family feuds.

A simple will or last will and testament can avoid some of these issues. A simple will is a legal document that states who you want to inherit your assets and belongings after you pass away.

Pour-Over Wills

Some people in Florida who have created an estate plan that is primarily based on a living trust might also want to make a pour-over will. The advantage of a pour-over will is that it can ensure that any assets not placed in the trust or passing through other means, such as a beneficiary designation, will become part of the trust when the person dies.

A pour-over will is intended to act as a safeguard. It is better to review an estate plan annually or when there are major changes to the family, care decisions, tax laws, or assets. A wise place to keep any type of will when it is not being used or reviewed is in a safe deposit box.

If a person does not have a pour-over will or a will that designates what will happen to assets not placed in the trust, those assets may be distributed according to state law. The result could be family members receiving assets they were not intended to have or being denied assets you wanted them to receive.

People who do not have a trust as part of an estate plan might want to discuss the advantages with an estate planning attorney. A trust may be useful to control how assets are distributed to a beneficiary who may be irresponsible with an inheritance, to a relative with special needs, or to a minor child, etc. A person can specify when distributions are made or set up the trust so that the trustee manages when distributions happen. There are several other complex ways to set up trusts to reduce estate tax or provide charitable contributions. In some cases, an irrevocable trust may be used to protect assets such as personal property, a life insurance policy, social security, etc. against creditors or debt collectors.

Learn more about Wills and Trusts at an Estate Planning Workshop. Please contact the Law Offices of Amy B Van Fossen for legal advice related to wills, estate planning, and more. 


Editor’s Note: This content was originally published in June 2021 and has been updated for freshness and accuracy. 


Private Duty Home Care

Private Duty Home Care

No one said the “Golden Years” would be easy but thank goodness Brevard County has a wealth of senior resources to get us through! One valuable resource to seniors in our area is the availability of home health services and we have quite a selection to choose from. As discussed in the previous article, check out for a complete list of licensed agencies and take time to review the information provided.

This article will focus on two types of home health providers – Skilled Home Health and Private Duty Home Care – and the differences between each that might make one a better fit than the other. Though, you can have both at the same time! We’ll get there…

Let’s start with a common scenario.

Seniors would rather age in their own homes than move to a senior living community. When seniors exercise that choice, with it comes certain compromises in health, nutrition, medication awareness, and safety. The perfect storm of these compromises can result in what will be referred to as a “qualifying event.” More specifically, a fall resulting in an injury that requires hospitalization and possibly surgery and a short-term skilled rehab stay.

Skilled Home Health Care

After a short-term rehab stay, whether the senior individual returns home or relocates to a senior living environment that offers more oversight, there is often a doctor’s order for Skilled Home Health Care. The skilled home health care may be providing nursing care for a post-surgical wound and, most likely, continued therapies that were received while in skilled rehab – physical, occupational, and speech therapies. These services will be provided through a Home Health Agency that provides licensed providers in each of these areas and progress according to a written plan of care will be reviewed periodically with the doctor.

These services will be limited to the duration as approved by Medicare or insurance, whoever is paying the bill. If additional therapy services are desired after a Medicare or insurance benefit has been exhausted, the senior individual can contract to receive services on a private pay (out-of-pocket) basis with a provider who is licensed to provide these services on a private pay basis.

If additional therapy services are wanted, ask your Skilled Home Health Care Provider for a referral for Medicare Part B services, if appropriate. Sometimes you can even keep the same therapist while using the benefits of your Part B Medicare coverage. This will keep you from paying privately for therapy and may satisfy the time you needed to fully recover.

In most cases, the senior can successfully complete therapies and no longer need nursing care for a post-surgical wound but still need a little… something. If they have returned home, this is almost guaranteed, and even if they have returned to a senior living environment with more oversight, additional assistance while recovering from a qualifying event like a fall is a good idea.

Private Duty Home Care

Private Duty Home Care through licensed agencies or registries provides certified nursing assistants or home health aides to assist clients wherever they reside with activities of daily living (ADLs) such as bathing, dressing, grooming, medication reminders, and toileting. A private duty licensed nurse (LPN or RN) can also fill a pill box for a senior living at home. Companions/Homemakers can do light housekeeping, meal preparation, and transportation but may not provide hands-on assistance with ADLs according to the limits of their agency license. This extra assistance can often make a huge difference in the day of a senior individual recovering from a fall.

Who Pays for Private Duty Home Care?

Private Duty Home Care is a private pay situation. If you have a long-term care insurance policy, you may want to check the requirements of coverage to file a claim. If applicable, VA Aid & Attendance provides limited reimbursement for Private Duty Home Care – see a local elder law attorney that specializes in VA benefits for full details.

Without the benefit of long-term care insurance or VA Aid & Attendance, Private Duty Home Care can be expensive, so it is important to evaluate what your needs are and make inquiries to a couple of agencies. If you only need assistance with housekeeping and meal preparation, a Companion/Homemaker would be appropriate, and they may be less expensive than a certified nursing assistant or home health aide providing hands-on assistance. Minimum hours of service will apply for most agencies, so be aware of what each agency’s minimum requirements are when calculating the cost on an ongoing basis.

The “Golden Years” can be rough, but most situations can be worked out with the forethought of a plan.  Take time to consult with an elder law attorney and create a financial plan to prepare for out-of-pocket costs that arise as you age. When you have a plan, you take pressure off yourself and your family. Knowledge is power! Take the time to explore options before you encounter a crisis.

Have questions on Home Health or creating a financial plan for a senior? Call the Law Office of Amy B. Van Fossen, P.A. We are here to help!


About the Author:

Kara Anderson, BSW, is a seasoned professional in the assisted living industry. A social worker by degree, Kara has spent over twenty-five years helping seniors and their families in a variety of senior services roles – including management, administration, and development of numerous assisted living facilities both in Florida and Georgia. An educator and advocate at heart, Kara currently owns an assisted living information and referral company and serves as a Florida State certified trainer for assisted living administrators.