Senior citizens' lives are affected by many federal, state and local laws and regulations. Many depend on the government for such things as housing, basic income and health care. Many find it confusing dealing with government agencies. Sometimes help is needed with the "red tape" so that benefits are not lost.
But there is help, at little or no cost, to people 60 years of age and over who need legal assistance.
This article tells you about some of your legal rights and it explains how you can protect those rights. It cannot replace the advice of a lawyer, but it will tell you about some areas of your life that may need the advice of a lawyer.
Reasons You May Need Legal Assistance
- If you want to make a will. If you die without a valid will, the State of Florida will give your property to people according to a formula fixed by law. It may not be the way you want your property distributed.
- If you are buying or selling land or valuable personal property.
- If you have been discriminated against because of your age; if you have been fired, refused promotion or refused credit.
- If you are threatened with eviction or loss of your home.
- If your landlord will not fix your dwelling so it is safe and liveable, as required by Florida's Landlord and Tenant Act.
- If you are not receiving your full benefits from Social Security, Medicare, Medicaid, Supplemental Security Income, disability or the Veteran's Administration. If you are not satisfied with a determination by any of these agencies regarding the amount due you, and you want the review of your file you are entitled to.
- If your son or daughter divorces and your right to visit your grandchildren is threatened.
- If you are not getting the pension you paid for when you were working.
- If you receive any legal document or notice that you are being sued.
- If you have been cheated by a mail order house, a store, or by a door-to-door salesperson.
- If you are bothered by bill collectors at inconvenient or embarrassing times or places.
- If you or a loved one are about to be sent to a nursing home or hospital and you do not want to go.
- If you are moving to retirement housing.
- If your spouse or parent is becoming mentally incompetent to care for him or her self.
- If you have these or other legal problems, getting legal assistance is important - the sooner the better. A legal problem is one thing that doesn't improve with age.
Hiring an Attorney
You know that you should consult with an estate planning attorney to put your affairs in order. Perhaps you have an outdated, out-of-state will that does not reflect your current situation, or you have no will at all. You have heard of living trusts and living wills and possibly attended a seminar, but never followed through to create, with your attorney, an estate plan designed for your needs. Your children have been pressing you to see an attorney, but you delay. This booklet will set forth what you need to know before consulting with an attorney and will help you understand your rights when doing so.
You have an absolute right of confidentiality in conversations between you and your attorney. With few exceptions related to the prevention of crime, the attorney cannot disclose any information that you reveal, no matter how embarrassing or legally damaging. If, for example, you wish to make unequal provisions for your children in your will, your attorney cannot inform your children of these provisions. This is the case even if one of your children brings you to the attorney and pays the attorneys fees. You are the client, not your child. You have the right to speak to your attorney in private, and can be assured that these conversations will remain confidential.
As the client, you have the right to know your attorney's qualifications. You should ask him what are his primary areas of practice. The field of estate planning can be complex and a general practitioner who does not devote a large portion of his practice to estate planning may not be the best choice if you need a will or trust.
You also have the right to know what your attorney is charging you for his services. Ask the attorney what the fee will be in advance. You can then make an informed decision whether to retain the attorney. Have the fee confirmed in writing and state what services will be rendered for you. This will avoid any surprises or misunderstandings later when the bill arrives.
Not all attorneys are acquainted with the special needs of elderly clients. Make sure you inform your attorney of your particular concerns regarding planning for incapacity, planning for long term health care, preservation of your assets and providing for your loved ones after your death. Ask your attorney about the advantages and disadvantages of a living trust as compared with a will. Other documents to discuss with your estate planning attorney are a declaration on life support, otherwise known as a living will, designation of health care surrogate and durable power of attorney.
After the death of your spouse, you will likely retain an attorney to help you settle the affairs of the estate. Often, the attorney who handles probate administration is the attorney who drafted the will. Of course, you are not obligated to retain the same attorney, although he is probably the one most familiar with your family situation.
The attorney handling probate administration represents the court-appointed personal representative of the estate. If you, the spouse of the deceased, are not the personal representative, it may be beneficial for you to retain your own attorney to advise you of your rights with respect to the estate. Suppose, for example, your spouse leaves the bulk of their estate to their children. The will creates a trust for your benefit, from which you will receive income. Upon your death, the trust principal is distributed to your spouse's children, one of which is appointed as personal representative. You receive nothing under the will outright.
Under Florida law, if you have not waived the right by a pre-nuptial or post-nuptial agreement, you may elect against the will and receive 30 percent of the probate estate. The attorney handling probate administration, however, represents the personal representative, not you, and is under no obligation to inform you of this right. In addition, as surviving spouse, you have other rights. It may be advisable for you to retain an independent attorney, separate and apart from the attorney representing the personal representative, to inform you of your rights. You should ask your attorney about homestead rights, family allowance and, as discussed above, the right to an elective share.
Attorneys have a duty of loyalty to their clients, and they must act in accordance with this duty at all times. If you and your spouse hire an attorney to prepare estate planning documents for both of you, a conflict of interest may arise between what is in your best interest and what is in your spouse's best interest. This is especially true in a second marriage situation where one or both spouses wish to provide for children from a prior marriage. Feel free to discuss your concerns openly with your attorney.
Government Benefits
City, county, state and federal governments have laws that give benefits to their citizens. You may have the right under some of these laws to receive benefits. The law gives you a legal right, that a court can enforce, to receive the benefits.
Many benefit programs are based on laws and rules that are hard to understand. You may need a lawyer to help you get the benefits to which you have a right. The legal aid programs listed at the end of this booklet may be able to help you get your benefits.
Usually, you must file an application with an agency to get your benefits. Contact the agency before applying to find out what information they will need to decide if you are eligible for benefits. In most cases, the agency must decide within a certain number of days whether or not you are eligible for benefits.
If you think the agency's decision is wrong, ask for the reasons in writing and request an appeal. The law requires most agencies to let you appeal decisions you think are wrong. You may wish to talk to a lawyer to see if you need legal help with your appeal. If you want to appeal, it is very important to act quickly. Agencies place time limits on the days you have to ask for an appeal. If you do not agree with the appeal decision, in most cases you may then go to court. Again, there are limits on the days you have to go into court. If you think you want to go to court, it is very important to speak with a lawyer.
Please note that eligibility requirements for the following benefit programs can change as new laws are passed.
Social Security
The Social Security Administration is the nation's method of providing continuing income when a worker's earnings are reduced or eliminated due to retirement, disability, or death. If you are eligible for Social Security, you can receive a monthly check. The amount of the check is based on the amount the worker paid into the Social Security Fund.
Local Social Security Administration offices can give full details on how earnings affect Social Security payments in specific cases. They provide free brochures about Retirement, Disability (SSI) and Survivors.
The Social Security Administration office nearest you is listed in the telephone directory under U.S. Government, Health and Human Services, or you may call 1-800-772-1213.
Supplemental Security Income (SSI)
The Supplemental Security Income (SSI) is a benefit program to make sure that all disabled persons and persons over 65 years receive at least a small amount of income, SSI is different from Social Security because SSI is not based on a worker's earnings. People who receive SSI get a monthly check for an amount set by law. For more information on SSI, contact your local Social Security Administration office.
Medicaid
Medicaid is a state medical assistance program for low income persons. In Florida, if you receive SSI you are also eligible for Medicaid.
Medicaid covers most hospital and doctor bills. It may also pay for nursing home care, prescribed drugs, and transportation needed to receive health care. Medicaid patients are not required to pay for any covered hospital or doctor bills.
Medicaid pays medical bills directly to the provider of the service. Since Medicaid payments are made to the provider, not the patient, the provider must be approved by the state to receive Medicaid payments. However, not all providers will accept Medicaid. For more information, contact your local office of the Agency for Health Care Administration.
Medicare
Medicare is a federal health insurance program for persons who are disabled or 65 years or older. The four kinds of Medicare are:
- Hospital Insurance (Part "A"), which covers hospitalization and related care;
- Medical Insurance (Part "B"), which covers physician care and other health services, such as ambulance, rental/purchase of durable medical equipment, etc;
- Medicare Advantage Plans (Part "C"), which is a medicare plan offered by a private company; and
- Prescription Drug Coverage (Part "D"), which is presription drug coverage.
The Medicare website has a wealth of information about the various parts and eligibility. They also publish a handbook, Medicare & You that may be obtained from the website or odered by calling 1-800-MEDICARE (800)-633-4227.
Food Stamps
Food stamps are coupons which can be used to buy food for members of a household. All households which meet certain income and other eligibility requirements are entitled to receive food stamps. Participants do not have to pay for their coupons. The stamps are issued in an amount based on the household size and total income less certain allowable expenses. If you qualify for SSI you are likely to also be eligible for food stamps.
If you think you may be eligible for food stamps and would like more information, contact the Florida Department of Children and Families. If you are 60 or older or disabled, you can request that the interview to determine your eligibility be held at your home or by phone call.
Publicly Supported Housing
The federal government finances housing in a variety of ways, including public housing programs administered by local housing authorities and a rent subsidy program for private housing. Many programs allow elderly residents to have higher income levels and larger households than young residents. You may not be able to identify federally subsidized housing projects yourself. Your local housing authority, the local office of the United States Department of Housing and Urban Development (HUD), can give you information about such projects, whether units are available and if you are eligible for them.
Federal law gives certain rights to tenants and applicants for publicly supported housing in addition to the landlord-tenant rights available to all residential tenants. For example, a tenant in a public housing project who doesn't approve of the way something is done might pursue a grievance procedure which may avoid taking the case to court.
Other Benefits
There are a variety of other benefits - federal, state and local - which may be available to you. Sometimes they are improperly denied, but most often people are simply not aware of the programs available to them. The best place to find out what is available is the district office nearest you of the Florida Department of Children and Families or your local area agency on aging.
For information on veterans' benefits, contact the nearest Veterans Administration office or County Veterans Officer.
For information on Social Security, SSI and Medicare, contact your local Social Security office or The United States Government Social Security Office, Tallahassee, Florida 32304.
For information on federal income tax benefits for older Americans, contact the local office of the Internal Revenue Service for their special publication about these benefits.
Other Rights
Legal rights affect your relationship not only with the government, but also with other private citizens. It is important for you to have a general idea of what your legal rights are and how they can be exercised. The following are some situations where you have legal rights which you may assert through the specific agencies listed, an attorney, or both.
Pension Rights
Many employers offer pension programs which provide income to their workers after retirement. Your former employer(s) can tell you if any pension program existed when you worked there, and if you are eligible for a pension. If you paid money into a retirement program, but are not receiving benefits from it, an attorney may help you determine whether you are eligible for benefits. In some cases, your pension rights may be protected by law even though your employer says you are not eligible.
Jobs
Florida's Department of Elder Affairs has the program, Senior Community Service Employment Program, to assist low-income persons who are 55 or older with part-time community service positions with a goal of transitioning to unsubsidizied employment.
Florida's Department of Economic Opportunity is required by law to make special efforts to help older persons find job. They have special resources for seniors seeking employment.
Age Discrimination
If you feel you have been refused a job, promotion, or training opportunity because of your age, contact The Florida Commission on Human Relations of the U.S. Equal Employment Opportunity Commission (EEOC).
Wills
You should consider making a will regardless of how little property you own. If you wrote your own will or it was written for you in another state, it may not be valid in Florida. If your will was made many years ago or if there have been changes in your family because of birth, adoption, marriage, divorce, or death, your will should be reviewed by an attorney to determine if it should be updated or changed to express your current wishes. For a free pamphlet on wills is available to read or download on the Florida Bar Association website or by sending a self-addressed, stamped legal-sized envelope to Consumer Pamphlets, The Florida Bar, 651 E. Jefferson St., Tallahassee, Florida 32399-2300.
Probate
The term probate refers to a process for notifying creditors of a person's death, settling debts and claims, and distributing property according to a will or - if there is no will - then in a way prescribed by law. Probate gives the estate certain benefits and protections and is usually of reasonable cost. Florida law provides a simpler way to distributing modest estates. An attorney can tell you if those provisions apply. To obtain a pamphlet about probate, write. The Florida Bar, at the address listed in the previous paragraph on Wills.
Guardianship
In guardianship, a court gives one person (a "guardian") supervision over another person (a "ward") who has physical or mental impairments which make the ward unable to handle his or her own affairs. The court entrusts the guardian with the custody and control of the ward's person or property or both. The ward may lose many rights, such as the right to sign contracts and to make a will.
If you are capable of handling your own affairs, you have the right to resist efforts to appoint a guardian for you. You have a right to an attorney to represent you in a guardianship proceeding. If you cannot afford an attorney, the court is required by law to appoint one.
If you feel a guardianship is necessary, an attorney can help you begin the process. Contact The Florida Bar for a consumer pamphlet on guardianship.
Advanced Directives
Florida has numerous tools to help people plan their futures in the event of illness or incapacity, as well as death (see wills section). These planning tools, called advanced directives, include durable power of attorney, trusts, declarations of pre-need guardian, health care surrogate and living wills. An attorney can help you in such planning, which may also prevent or delay the need for guardianship.
Institutionalization
You cannot be committed to an institution against your will (except temporarily in an emergency) unless a court authorizes the commitment after a hearing. At the hearing, the court must determine that you are mentally ill and either unable to care for yourself or a danger to yourself or others. You have the right to be represented by an attorney at the hearing. If you cannot afford an attorney, the court must appoint one. If you sign a document waiving your rights to a hearing and to an attorney, you can apply to the court at any time to have those rights reinstated.
If you have a problem or concern regarding the care of someone who resides in a nursing home or adult congregate living facility, contact the National Long Term Care Ombudsman Council or Florida's Long-Term Care Ombudsman Program at 400 Esplanade Way, Tallahassee, FL 32399-7000, 1-888-831-0404.
Criminal Matters
If you are arrested, you have a right to remain silent and to contact and be represented by an attorney. If you cannot afford an attorney, and there is a possibility you may be sent to jail, the court must appoint an attorney for you.
If you are the victim of a crime, contact your local police, county sheriff or state attorney's office. Some counties have established Citizen's Dispute Settlement Centers which provide informal, free mediation as an alternative to court action. Both parties agree to have their case heard by a trained mediator, and to abide by the mediator's decision.
If you need to report abuse, neglect or exploitation, assistance may be provided by calling the Florida Abuse Hotline at 1-800-96-ABUSE (1-800-962-2873).
Consumer Protection
Senior citizens at home can be victims of dishonest door-to-door and telephone salespersons. The best rule for consumer protection is this: NEVER SIGN ANYTHING YOU HAVE NOT READ AND FULLY UNDERSTAND. Make sure the written contract describes exactly what you think you are buying. If you do not understand a contract, do not rely on a salesperson's explanation: Ask someone other than the salesperson to explain it before you sign.
When you buy goods from merchants, you have certain rights which exist unless you sign them away or "waive" them.
You also have rights which you cannot sign away even if you try. Here are some examples:
- "Cooling Off" Period . If you buy something on credit costing more than $25 from someone away from a place of business (for example, from a door-to-door salesperson), you have a right to cancel the sale until midnight of the third business day after the credit agreement is signed. You must give the seller notice of this cancellation in writing.
- Protection from Unfair or Deceptive Trade Practices . For example, a merchant cannot "bait and switch." That means the merchant cannot advertise a product or service without a good faith effort to sell it, as an inducement to sell you something more costly.
- False, Misleading and Deceptive Advertising . Anything advertised as "free" must be free. No strings can be attached unless they are stated with equal prominence on an advertisement.
- Right to Keep Unsolicited Goods . Free papers or periodicals are gifts and you have no obligation to pay for them or return them.
- Unconscionable Contracts or Clauses . If a contract or clause is "unconscionable" (that is, unfair because it is too one-sided), a court can refuse to enforce it.
Protection from Garnishment and Assignment
Sometimes a creditor may try to garnish your wages, that is, to take money you owe out of your paycheck before you get it. In Florida, the law protects many persons from garnishment of wages, including heads of households. An attorney can explain other restrictions which may protect your wages from garnishment.
Creditors can also try to freeze your bank account and try to get the money in it. Federal law says that creditors cannot take Social Security, SSI, Railroad Retirement, or Veteran's Benefits even after they are deposited in a bank.
In Florida, you also have other rights to protect your home and your personal property from creditors. You must, however, assert both your state and federal rights or the creditor might collect the debt.
Consumer Self-Help
Besides taking legal action, you can get agencies and consumer groups to help you with consumer complaints. For general consumer information, contact the Florida Department of Agriculture and Consumer Services, Division of Consumer Services, 1-800-435-7352. You may also contact the Division of Consumer Services to find out whether there is any record of consumer complaints against a particular company before you make a purchase. For criminal violations, contact the state attorney's office listed in your telephone directory.
If you have a claim against someone for less than $2,500, you may also want to consider bringing an action in your local small claims court. Proceedings in these courts are designed to allow you to represent yourself without the aid of an attorney. The clerk at the county courthouse can explain the proper procedures to you.
The local Better Business Bureau, the Chamber of Commerce and newspaper, radio or television consumer advocates (such as "Action Line") may be available in your area to help you.
Landlord/Tenant
If you rent a house, apartment or mobile home, you have certain rights under the Florida Residential Landlord and Tenant Law. You still have these rights even if the lease you sign waives them. For a free booklet on the Landlord and Tenant Act, write: Florida Department of Agriculture and Consumer Services, Division of Consumer Services, 1-800-435-7352.
Where to Obtain Legal Assistance
If you can afford a private attorney but do not know how to locate one, contact your local lawyer referral service listed in the yellow pages of your telephone directory under "Attorneys" or "Attorney Referral Services." If there is no lawyer referral service in your area, you can call The Florida Bar Statewide Lawyer Referral Service at 1-800-342-8011. This service will provide the name of an attorney in your community who will charge you $25 for a 30-minute consultation, (Local bar associations have lawyer referral programs which charge between $20 and $50 for the initial consultation.) You are not required to hire that attorney, but if you do, the fee for any additional service can be arranged during the consultation.
The Bar's referral service also offers a special program of legal services for low-income senior citizens in some areas. These lawyers help persons over 60 on a low or fixed income by providing the initial 30-minute consultation free of charge. This program usually includes reduced attorney's fees.
Legal Aid
If you cannot afford a private attorney, contact your local legal services program listed in your telephone directory or you may obtain the number through directory assistance. If you meet income and eligibility guidelines, you will be able to obtain free legal assistance. Some legal aid programs have special units to assist persons age 60 and older. These programs are listed at the end of this booklet. If there is no program in your area, the nearest legal aid office can direct you where to find help. For a free pamphlet on legal aid or lawyer referral offices in Florida, write Consumer Pamphlets, The Florida Bar, 651 E. Jefferson St., Tallahassee, Florida 32399-2300..
Legal Aid Programs
There are legal aid programs in each county. Many of these legal aid programs have special programs for senior citizens. These programs receive funding through the Older Americans Act. A list of legal aid offices can be obtained from the Florida Bar Association or from local county bar associations.
Conclusion
Senior citizens often have special needs when it comes to seeking legal assistance. Florida, like many other states, has special agencies and programs to provide legal services for seniors. The senior citizen need only ask organizations like, Department of Elder Affairs or the Florida State Bar Association, and they will be directed to an agency or individual who can help.