Florida Law
Florida Elder & Social Security Law
- Elder & Social Security Law
Elder & Social Security Law
The law affecting the elderly cuts across a variety of traditional legal practice areas. Elderly citizens may require legal assistance in matters involving family law, consumer protection law estate planning, health care, government benefits, real estate law, or employment law. This chapter focuses on government benefits and health care.
Social Security
The Social Security Act, passed in 1935, created a retirement
program intended to provide financial support for elderly
workers who could no longer perform gainful labor.
Since that time, Social Security has expanded to include
disabled workers, dependents of persons qualified to
receive Social Security and survivors (widows, widowers
or children) of someone who has died but is still legally
eligible to receive Social Security. Thus, depending
on a person's circumstances, he or she may be eligible
for Social Security at any age. Approximately one out
of every six Americans today, or nearly 44 million
people, collect some form of Social Security. About
$27 billion is paid in cash benefits every month; that
is the equivalent of $888 million per day or $616 thousand
per minute. In Florida, three million persons receive
Social Security or roughly one-fifth of the population;
50 percent of those are retirees.
How Social Security Works
The purpose of Social Security is to provide a financial
safety net for retirees, disabled workers, dependents
of recipients and survivors, though it should be stressed
that Social Security is not intended as a recipient's
only source of income. Instead, it is meant to supplement
pensions, insurance, savings and other forms of income
accumulated during a person's working years.
The funds used to pay Social Security benefits are raised through Social Security taxes. Every payday, 7.65 percent of an employee's gross salary goes to Social Security (as of 1995). This deduction is usually labeled "FICA" for the Federal Insurance Contributions Act which authorizes the payroll tax. A person's employer is also required to contribute 7.65 percent of an employee's gross salary to Social Security. (If a person is self-employed, he or she pays 15.3 percent of his or her taxable income to Social Security, but half of that is deductible from federal income tax as a business expense.) Of the money received from Social Security payroll taxes, the largest portion goes to pay retirement benefits; smaller portions pay disability benefits and Medicare (see below for more information on Medicare). As of 1995, there were approximately 141 million people paying into Social Security.
Eligibility for Social Security Benefits
In order to receive Social Security benefits, a person
must have paid into the Social Security system (with
the exception of dependents and survivors who receive
benefits based on another's Social Security record).
As a person works and pays Social Security taxes, he
or she earns credits. As of 1995, for every $630 a
person earns, he or she receives one creditup to a
maximum of four credits per year. The Social Security
Administration (SSA), which operates the Social Security
system, uses a person's Social Security number to track
earnings over the course of his or her working career.
Most people require 40 credits (10 years of work) to
qualify for retirement benefits.
Retirement Age
Today, age 65 is considered full retirement age, entitling
a person to full retirement benefit. However, because
of longer life expectancies, the SSA is increasing
the full retirement age incrementally, from 65 to 67,
starting in 2003 (see chart). This change will affect
persons born in 1938 or later.
Though 65 is full retirement age, a person can retire as early as age 62 and still receive retirement benefits. However, the amount of benefits received is permanently reduced five-ninths of one percent for each month remaining before a person's full retirement age. For example, if a person's full retirement age is 65 and he or she signs up for Social Security at age 64, he or she would receive 931/3 percent of his or her full benefits. Though claiming benefits before a person's full retirement age reduces the level of benefits, it does permit a person to collect benefits for a longer period of time. Therefore, persons having reached the age of 62 should consider whether or not collecting benefits before full retirement age is advantageous for their particular situation.
Delaying retirement is also possible. If a person continues to work beyond his or her full retirement age and does not file for Social Security benefits until later, that person can increase the level of his or her benefits in two ways:
* Each additional year of work adds another year of
earnings to a person's Social Security record. Higher
lifetime earnings may result in higher benefits upon
retirement.
* The SSA increases the level of a person's benefits
by a certain percentage if he or she delays receiving
retirement benefits. These increases are added automatically
from the time a person reaches full retirement age
until he or she starts receiving benefits or reaches
age 70. Depending on a person's date of birth, up to
eight percent can be added annually.
Retirement Benefit Estimate
The SSA provides benefit estimates to all interested
persons. To receive an estimate of retirement benefits
(or disability or survivor benefits), visit a local
Social Security office or call the SSA's toll-free
number (see the Resources section at the end of this
chapter) and ask for a Request for Earnings and Benefit
Estimate Statement. Once the form has been completed
and returned to the SSA, the SSA will send a detailed
earnings history along with a benefit estimate. The
average monthly Social Security benefit for a retired
individual in 1995 was $698; for a retired couple,
$1,178.
Benefits for Family Members of a Retiree
If a person is eligible for retirement benefits, some
members of his or her family can also receive benefits.
The following is a list of family members entitled
to benefits:
*Wife or husband age 62 or older
*Wife or husband under age 62, if she or he is taking
care of the retiree's child who is under age 16 or
disabled
*Former wife or husband age 62 or older
*Children up to age 18
*Children age 18-19 if they are full-time students through
grade 12
*Children over age 18 if they are disabled
There are limits to the amount of benefits paid to a family. Consult the SSA for more information.
Applying for Retirement Benefits
Applying for retirement benefits is as simple as visiting
the local Social Security office and filling out an
application. It is advisable to begin the application
process several months before a person wants to start
receiving benefits. Some of the documents which may
be required include:
*Social Security card
*Birth certificate
*Most recent W-2 form, or tax return if self-employed
*Military discharge papers
*Marriage certificate, spouse's birth certificate and
Social Security number (if spouse is applying for benefits)
*Children's birth certificates and Social Security numbers
(if applying for children's benefits)
All documents must be originals or copies certified by the issuing office. If a person does not have all of the necessary documents, the SSA can assist in locating the missing information.
Right to Appeal
If a person disagrees with a decision of the SSA regarding
benefits, he or she has the right to appeal and to
be represented by an attorney. There are three steps
to the administrative appeals process. The first step
is reconsideration. A member of the SSA who did not
participate in the original decision reconsiders the
matter and issues an opinion. If the reconsideration
is again negative, the second step is a hearing before
an administrative law judge. Here, the appellant has
the right to subpoena and cross-examine witnesses,
present evidence and read relevant SSA files. After
listening to both sides, the administrative law judge
issues a decision. In most cases, this will end the
matter, but if the decision is negative and the appellant
wishes to press his or her claim, the third and final
step is the Appeals Council. If the Appeals Council
decides to review the case (its jurisdiction is discretionary),
the council conducts a paper review of the entire matter,
looks over the relevant files accumulated in the two
previous steps and issues a decision. There is no opportunity
to testify, although the appellant may submit additional
documentation if necessary.
It is important to note that there are time limits in which to make an appeal. If a person is interested in appealing a decision of the SSA, he or she should not delay in contacting the nearest SSA office.
Supplemental Security Income
Supplemental Security Income (SSI) is a program administered
by the SSA which provides monthly financial assistance
to low income persons who are 65 or older, blind or
disabled. (Recipients of SSI must also live in the
United States or Northern Mariana Islands and be a
U.S. citizen or legally in the United States) Unlike
Social Security, SSI is based on need and not on a
person's work history. To receive SSI, an eligible
person must have a monthly income of less than $478
or less than $707 for an eligible couple.
Basically, the amount of a person's SSI benefit is determined by subtracting his or her monthly income from $478. For example, if an eligible person has an income of $200 per month, his or her monthly SSI benefit would be $278 ($478 - $200 = $278). When calculating a person's income, the SSA includes earnings, Social Security benefits, payments from pensions, any noncash items like food, clothing or shelter, and items that the individual may own. Some things, however, are exempt from consideration such as:
*A person's home (regardless of its value)
*Household goods and personal property (worth less than
$2,000)
*One wedding ring and one engagement ring
*One car (worth less than $4,500)
*The first $20 of most income received in a month
*Income tax refunds
*The value of food stamps
*The first $65 of earnings and one-half of earnings
over $65 each month
If a person receives SSI, he or she may also be eligible for other benefits such as food stamps and Medicaid. For more information about either of these programs, call the Florida Department of Health and Rehabilitative Services at (904) 487-1111. There is also a toll-free food stamp hot line available from Wednesday through Friday, 1:00 p.m. to 4:00 p.m., at (800) 342-9274.
To apply for SSI visit the local Social Security office or call the SSA's toll-free number (see the Resources section at the end of this chapter) to set up an appointment with a Social Security representative. Anyone applying for SSI should remember to bring along his or her Social Security card or number, birth certificate, information about his or her home, and income and ownership information such as payroll slips, bank books, insurance policies, car registration or any real estate titles.
Medicare
Enacted in 1965, Medicare is a federally funded health
insurance program meant to address the medical needs
of persons over age 65. Like Social Security, the purpose
of Medicare has expanded over the years. Today, Medicare
coverage includes persons under age 65 with disabilities,
certain family members of qualified recipients and
people of any age with permanent kidney failure. Though
the federal Health Care Financing Administration administers
much of the Medicare program, along with private insurance
companies, the SSA is responsible for disseminating
information about Medicare to the public and helping
in the enrollment process. Thus, detailed information
about Medicare can be obtained at any Social Security
office or by calling the SSA's toll-free telephone
number (see the Resources section at the end of this
chapter).
Coverage
Medicare has two parts, Part A and Part B, which provide
different types of coverage. Part A, commonly called
Hospital Insurance, covers necessary hospital and related
health care including acute care in hospitals, limited
skilled nursing home care and hospice care and inpatient
psychiatric care. Part B, known as Medical Insurance,
is designed to cover some of the costs not covered
by Part A, such as outpatient hospital services, outpatient
physical therapy, speech pathology services, ambulance
services and medical equipment.
Eligibility
Eligibility for Parts A and B is established differently.
Everyone who is eligible for Social Security old-age
benefits is automatically eligible for Part A. (Some
persons under 65, certain family members and persons
with permanent kidney failure are also eligible for
Part A insurancecontact the SSA for more information.)
Almost anyone who is eligible for Part A is eligible
for Part B. However, unlike Part A, which is financed
by Social Security taxes and usually free, Part B requires
payment of a monthly premium. In 1995, the general
monthly premium for Part B insurance was $46.10. There
are programs available to assist low income Medicare
recipients with premium payments. Consult the SSA for
more information.
Health Care Options
Medicare recipients have the right to choose how they
will receive hospital, doctor and other health care
services covered by Medicare. One option is the traditional
fee-for-service system. Under this system, the recipient
visits a hospital or doctor of his or her choice and
pays a fee for any services provided. Medicare will
pay a percentage of that fee, but the recipient is
responsible for certain deductible and coinsurance
payments. Most people covered by a fee-for-service
Medicare plan also have private insurance (commonly
called Medigap) to supplement their Medicare coverage.
Another option is to use a health maintenance organization (HMO). HMOs are organizations which offer a wide range of health care services in exchange for a fixed premium paid in advance. Medicare recipients enrolled in an HMO rarely require additional Medigap insurance since the HMO plan itself supplements Medicare. One drawback of an HMO, however, is that health care services can only be provided by a member of the HMO's health care network. Medicare recipients lose the freedom to consult any health care provider of their choice.
What Medicare Does Not Cover
Although Medicare provides coverage for an array of
health care services, there are a number of services
which are not covered. They include:
*Custodial care (care that could reasonably be given
by someone without medical training and is generally
intended to help the patient with his or her daily
living needs such as bathing, walking and dressing)
*Most nursing home care
*Dental care and dentures
*Routine check-ups and tests directly related to such
checkups (with the exception of some screening, Pap
smears and mammograms)
*Most immunization shots
*Most prescription drugs
*Routine foot care
*Services outside the United States
*Tests for and the cost of eyeglasses or hearing aids
*Personal comfort items
Persons interested in supplementing their Medicare coverage with additional insurance should call the SSA and ask for Publication No. HCFA 02110, Guide to Health Insurance for People with Medicare (see the Resources section at the end of this chapter).
Appeals
Like Social Security, Medicare has an appeals process
for a wide variety of disputes. Appeals may concern
the reimbursement rate for medical care and services,
denials of eligibility for services, or limitations
on the level of eligible services (see the Social Security
section above for an overview of the appeals process).
If a person is dissatisfied with the quality of care
he or she is receiving, the Florida Peer Review Organization
(PRO) should be contacted. PROs are made up of doctors
and other health care professionals paid by the federal
government to review the care given to Medicare patients.
The Florida PRO is Florida Medical Quality Insurance,
Inc., 1211 North Westshore Boulevard, Suite 700, Tampa,
FL 33607, (800) 844-0795 or (813) 281-9024.
Medicaid
Medicaid is often confused with Medicare. They are,
however, two separate programs. Medicare is a medical
insurance program for which, like Social Security,
eligibility depends on a person's work history. Medicaid
is a need-based medical assistance program primarily
for low income persons age 65 or older, disabled and
under 65, or visually impaired and under 65. In Florida,
if a person is qualified to receive SSI, he or she
also qualifies to receive Medicaid. Medicaid patients
do not have to pay for any covered hospital or medical
services. The Medicaid program pays the health care
provider directly. However, not all health care providers
will accept Medicaid. For more information, call the
Florida Health and Rehabilitative Services Department
at (904) 487-1111.
Advanced Health Care Directives
An advanced directive is a legal tool used to help persons
plan their future medical care in the event of illness
or incapacity. Not only do advanced directives enable
a person to have a voice in health care decision makingeven
when he or she is unconscious or too ill to communicatebut
they provide guidance and some degree of comfort to
loved ones who may be called upon to make difficult
health care decisions. There are basically two kinds
of advanced directives: a living will and the designation
of a health care surrogate.
Living Will
Despite its name, a living will is not a will at all.
A living will is a document specifying what medical
procedures should be taken to prolong a person's life
in the event that he or she becomes terminally ill
and unable to communicate. Properly prepared, a living
will provides a definitive statement of a person's
wishes and a clear guide to family members and attending
physicians who must decide how aggressively to use
medical treatments to delay a person's death.
Under Florida law, a living will must be signed in the presence of two witnesses, one of whom is neither a spouse nor blood relative. If a person is physically unable to sign his or her own living will, one of the witnesses may sign for the person at his or her direction.
Designation of a Health Care Surrogate
A health care surrogate is a person authorized by another
(the principal) to make health care decisions on his
or her behalf in the event that the principal is incapacitated.
This authorization is also known as a health care proxy
or a durable power of attorney for health care.
Florida law specifies that any designation of a health care surrogate must take the form of a written document, signed by the principal in the presence of two witnesses, one of whom is neither a spouse nor blood relative. The person designated as the surrogate cannot be a witness. The document designating the surrogate may also designate an alternate surrogate should the surrogate be unable or unwilling to perform his or her duties.
When choosing a surrogate, it is important that the principal choose someone with whom he or she feels comfortable, someone who appreciates and understands the principal's religious and moral beliefs, and who is willing and emotionally capable of assuming responsibility on the principal's behalf. (To obtain more information on advanced directives see the Resources section.)
Using both types of advanced directives is probably the best way to prepare for the possibility of incapacity. A living will provides a clear statement of a person's wishes, while a health care surrogate permits a trusted friend or family member to consider any new variables unanticipated during the drafting of the living will.
Surrogate Financial Management
Should a person be unable or unwilling to manage his
or her own financial affairs, he or she may want to
provide for the appointment of a financial surrogate.
There are several common methods.
Power of Attorney
The power of attorney is essentially a contract in which
one person (the principal) legally authorizes another
(the agent) to manage the principal's financial affairs.
The power of attorney can be very broad and give an
agent control of all of a principal's assets, or it
can be narrow and permit an agent control over a single
checking account. It is important to point out that
the power of attorney is usually valid only while a
principal has the mental capacity to oversee an agent's
activities. Once a principal becomes incapacitated,
the power of attorney dissolves.
Durable Power of Attorney
Durable power of attorney is identical to power of attorney
except that it continues during a principal's incapacity.
A document creating a durable power of attorney must
expressly state that the agent's power is not affected
by the principal's incapacity. The durable power of
attorney remains valid until the principal dies, revokes
the power, or is found to be legally incompetent. Like
the regular power of attorney, a durable power of attorney
can be broad or narrow; it may also include power to
consent on the principal's behalf to medical, therapeutic
or surgical procedures. In this case, the agent would
be authorized to manage the principal's financial and
medical affairs.
Living Trust
A living trust is a legal instrument in which one person
(the grantor) authorizes another person (the trustee)
to manage specified properties for the benefit of the
grantor and his or her heirs. In the trust agreement,
the grantor can provide detailed instructions as to
how the trustee should manage the trust property. Therefore,
if the grantor becomes incapacitated, his or her wishes
regarding the trust property can still be fulfilled.
Living trusts may also have special tax advantages.
Guardianship
If a person does not authorize another to manage his
or her affairs, a Florida circuit court may have to
appoint a guardian in the event a person becomes incapacitated.
A legal determination of incapacity can be initiated
by anyone who petitions a court with sufficient factual
information to warrant an incapacity determination.
The court will appoint two health care professionals,
usually physicians, and a lay person to examine the
person and report their findings to the court. If the
examining committee concludes that the person is not
incapacitated in any way, the court will dismiss the
petition. If the examining committee finds the person
to be incapable of exercising certain rights, the court
will conduct a hearing to determine to what extent
the person is incapacitated. A guardian is usually
appointed at the conclusion of this hearing.
Guardians have the responsibility of managing any property owned by an incapacitated person (also called a ward). A guardian has a duty to invest or manage the property prudently, use it for the ward's support, and to account for it by filing detailed annual reports with the court. Guardianship is not necessarily a permanent condition. If the ward recovers, in whole or part, from the condition responsible for his or her incapacitation, a court may restore some or all of the ward's rights.
Resources
The Social Security Administration operates a toll-free
telephone service providing information on Social Security
and related government benefit programs. The telephone
service is available 24 hours a day. To reach a service
representative, call between the hours of 7 a.m. and
7 p.m. on business days. The telephone number is (800)
772-1213.
The Social Security Administration also publishes a number of pamphlets explaining different types of government benefits. They include:
*Understanding Social Security (SSA Publication No.
05-10024)
*Retirement (SSA Publication No. 05-10035)
*Disability (SSA Publication No. 05-10029)
*Survivors (SSA Publication No. 05-10084)
*SSI Supplemental Security Income (SSA Publication No.
05-11000)
*Medicare (SSA Publication No. 05-10043)
The publications are available at any local Social Security office or by calling the toll-free telephone number above. For on-line information, visit the SSA's World Wide Web Site: http://www.ssa.gov.
The Florida Department of Elder Affairs maintains an Elder Helpline for persons seeking information or services related to elders. Elder Helpline staff have information on many subjects, including in-home services, nutrition and meal programs, adult day care, Medicare and Medigap, educational opportunities and consumer protection. The Elder Helpline can be reached at (800) 96-ELDER or (904) 414-2000.
The Association of American Retired Persons (Florida office) can be reached at 9600 Koger Boulevard, Suite 100, St. Petersburg, FL 33702, (813) 576-1155. AARP also has on-line services: America Online: keyword: AARP. List Box: Social Security and Medicare; Compuserve: Go AARP; Prodigy: Jump AARP. Category: Finance.
The Florida Health Care Cost Containment Board has a toll-free hot line for consumer complaints regarding excessive hospital charges. The toll-free number is (800) 342-0828.
For information regarding advanced health care directives, call Choice in Dying at (800) 989-WILL. Choice in Dying sends free sample living wills and power of attorney documents.
The Florida Bar has pamphlets available on guardianship and the legal rights of senior citizens. For copies of these pamphlets, call (904) 561-5834.