Portia B Scott Elder Law Attorney Explains Elder Law Mediation

Elder Law Attorney Portia B Scott, J.D, L.L.M, of the firm Portia B Scott, Chartered, Elder Law represents seniors and others throughout the entire state of Florida. In her first appearance on the Great American Senior Show, she explains there is a growing practice of Elder Law Mediation in Florida.

As Ms. Scott explains, "It is very much like family mediation but with, possibly, more serious consequences for our elderly clients."

She also explains why it is extremely important that those approaching senior citizen status consider the needs of an Advanced Directive, Power of Attorney, and the importance of Medicaid Planning. 

Transcript

Sam Yates: 0:12

Hello, everyone and welcome to another exciting edition of The Great American Senior Show. I'm your grey haired host, Sam Yates. Today back on the road. I'm in Stuart, Florida, and I'm at the offices of Portia Scott. Portia is a an excellent elder law attorney practicing throughout the Treasure Coast. But as we all know, if you are an attorney in Florida, you can represent anyone anywhere in the state of Florida. So I'd like to welcome Portia to the program today. Portia, welcome.

Portia Scott: 0:41

Oh, well, thank you. Good morning.

Sam Yates: 0:43

One of the first things I always do with any guest and you're a special guest, is tell me a bit about yourself. And I know that you have some designations that go with elder law that are very special.

Portia Scott: 0:54

Right, right. So the name of the practices, the Elder Law Offices of Portia B. Scott chartered, which is a real mouthful just for me, but because I'm the only attorney that's involved in it, but the emphasis, of course, is on the elder law. Now I've been practicing, oh, my gosh, 2728 years long time. And I've always done this kind of law working with the elderly. But it wasn't until about, let's see 2022. So probably about 10 years ago, I decided to start focusing my practice on this special needs of the elderly, I can't tell you what a great decision that was. love working in the Elder Law area could not be better. So I went back to Stetson Law School, when my hair had already started to turn gray as well, and got my advanced law degree. It's called an LLM. So your regular law degree is a doctorate. This is more than that, in elder law, and I can't tell you how much I learned. The the hands on approach that Stetson takes and teaching this particular advanced degree was really, really helpful.

Sam Yates: 2:16

And I understand there's not that many elder law attorneys with that advanced degree in the state of Florida.

Portia Scott: 2:23

I don't know what the number is. But yes, it is not very many, there are plenty of attorneys who have gone back to get their LLM in a variety of subjects. But a lot of them end up being in taxation, which is not what

Sam Yates: 2:37

I do. And I think I did a little research on it. And I believe the number is fewer than 200. So a hearty congratulations to you as well. Now, when we talk about the name, Scott, and law, yeah, with the title, that's a designation that goes back quite aways for those who have all of us know on the Treasure Coast, and that is due to your father. Yeah,

Portia Scott: 3:01

my dad was named William R. Scott went by either WR in his political outings or Bill if you actually knew him. He came to Stuart in 1949 and joined with Ted Ottersen. Another really old Stuart name and started practicing there represented the county as the at the state legislative legislative level for a few years. And eventually this firm was named Otterson and Scott and Ottersen because Ted. Otterson's son graduated from University of Florida College of Law and started practicing as well. So eventually dad went out on his own in 1963, built that building there that's at the corner of MLK Seventh Street and Colorado, and set up shop there and practiced goodness. 50-60 years, a long time. Here's something fun. I the only thing that an attorney knows better than their bar number is the date that they became an attorney and nobody else cares about that date whatsoever. Nobody cares. But mine is September 23. It's my anniversary, right? So I was dealing in had seen that my dad had been still had an active bar page. I went and I looked and his date in mind was 1994 his 1949 So the same digits just switch and his was also September 23.

Sam Yates: 4:44

Isn't that amazing? Coincidence, coincidence? And those who know your dad, I and I say no, because the memories are still there. He has passed but one of the great things that I always cherish was when he was at a City Commission meeting and he was City Attorney among many, many other titles that he wore, and it was always a big deal to, let's see what socks bill is wearing today.

Portia Scott: 5:13

Right? Well, he was not a very tall man. And he wanted people to refer to him as the guy with a funny look and socks, rather than that short guy

Sam Yates: 5:24

over there. And indeed We did. Yeah, you know, that takes me back to the days of being a reporter covering news throughout Florida throughout the Treasure Coast. Your dad also was responsible for a delineation into Lake Okeechobee, that has everybody very happy. He Well,

Portia Scott: 5:41

except for Palm Beach County Commissioners. But yes, that's technically called the Scott as in my father's in my own last name, vertex and it is the point in the middle of the lake more or less, where the county lines if they were continued from the land beat to a point and that's the division of like Okeechobee prior to that. The entire lake was considered part of Palm Beach County, and your area of square miles and your county determined how much of the of the gas tax you would receive for road repair. So rather than just saying no, it's like nobody needs it. My father, while he was in the legislature introduced the concept that No, we should just divide it among the lakes that are there. So it was done. It passed and one Palm Beach County Commission meeting they presented him with a jug of Okeechobee water saying you might as well take this, you've gotten all the rest of it promise anyway. It by the way, that jug is at the Heritage Museum and Stewart. Awesome. I know.

Sam Yates: 6:47

That's awesome. And you know, history is important. And historically, I have to say that Portia and I go back aways as well. We've had a few celebrations on King Kamehameha Day, yesterday, we still celebrate Oh, you

Portia Scott: 6:59

know it office is closed, I have to notify people that you know, don't even think about it. And of course the staff gets the day off with pay because it is a celebratory thing.

Sam Yates: 7:09

Yeah. And you also are a Star Trek fan. And I mentioned that because the day that we are recording this on it doesn't necessarily play back the same day, folks. The day we're recording this on as Leonard Nimoy died.

Portia Scott: 7:24

Yes, it is. It's a it's an official recognized holiday in Boston, which is his environments where he from whence he came.

Sam Yates: 7:33

And for those of you who are listening right now, thank goodness for Google being unable to deliver on time, or I would be sitting here with Spock ears.

Unknown: 7:45

I think I haven't said at my desk.

Sam Yates: 7:48

So you know I I say that because Porsche is near and dear to me. With the elder law that you practice, you come in contact with lots and lots of people. And without elder law, a lot of them would be just absolutely in some dire straits. So let's talk about some of the things that Elder Law brings to the table, especially with may being Older Americans Month, senior citizens month and Elder Law month. So we want to talk about those things. One of the first that comes to mind advance directives tell us about why that is important. The primary

Portia Scott: 8:27

purpose of advanced directives is that you don't want to be in a position no one wants to be in a position where they're making an important decision is as an act of desperation. The idea is to contemplate these really uncomfortable situations prior to the time when it becomes an emergency when you are of clear mind, and you're not operating under the duress of life and or death. So Advanced Directives can take a whole host of different forms. One something is easy as a power of attorney where you appoint someone else to make financial decisions for you and empower them to actually act on those decisions. Or they can be much much more complicated, like the designation of a pre need guardian. Typically, nobody wants to have a guardian appointed for them. Think about Britney Spears. That conservatorship was actually what in Florida, we would call a guardianship. But nobody wants to be subject to a guardianship. And therefore, if there is a judicial determination, that is a judge has had a hearing and has found that someone is incapable of making informed decisions for themselves, then well, and that's important. It's that it's not just bad decisions. Everybody's allowed to make a bad decision as many people can attest throughout their entire

Sam Yates: 9:54

life. Their dogma. Yeah, exactly.

Portia Scott: 9:58

You can make bad decisions. That's correct. really different from not being able to make an informed decision. If you do lack the ability to make an informed decision, and the court finds it by a very heavy burden, by the way, you can't just come in and say, you know, Uncle Charlie's nuts, you actually have to say exactly what uncle Charlie has been doing and why you believe it. And there's a committee that's appointed that are that, honestly don't have a dog in the fight, they go out and make a determination and report to the court. There's an attorney who's represented for, in this case, Uncle Charlie, to make sure that his rights are not just rolled over. All of those things that people fear so much about the state. And what the state can do. There are safeguards put in place specifically for that they're not 100% Perfect, of course, but they are, as of now the best we can do. So let's let's put our thinking hats on and come up with some better ideas.

Sam Yates: 10:55

I started with advanced directives, because in my exposure to what has been going on within the senior communities here in Florida, and throughout the United States, that's probably the best place to start is getting that in place, is that a fair statement?

Portia Scott: 11:10

It's all part of the overall plan. And there are some points of the plan where you can come in at the beginning, which is where you do your advanced directives. And if you miss that opportunity, and you have to come in late, then we they aren't Advanced Directives anymore. And that's where under the circumstance of the guardianship, for instance, that's where they didn't do a designation. They didn't, the person who is the subject of the guardianship, didn't do that designation didn't do any of those things and is moving forward blindly. And that's where the emergency and the more expense comes in.

Sam Yates: 11:47

And those are things that have to be done correctly, there is a process and a procedure. And I, I want to underscore that, because a lot of our seniors are computer literate, and they look at not only Dr. Google, but attorney Google, and they could really be in a world of hurt if they do something online and say, Oh, I've got this form, this is fine. It's not that simple.

Portia Scott: 12:10

I can't agree more I have and take this the wrong way. But I've made so much money on people thinking that they had everything in place, and they just executed the documents incorrectly. The documents don't apply to Florida, because we have every state is different. There are a duck, they have the wrong people witness it, right. I mean, there's 1000 ways you can mess it up. And, of course, that doesn't do any good. Even free is a bad price if it cheats you of what you're trying to get to.

Sam Yates: 12:42

And I guess that's what I like to point out. In talking with you and other people that do it right the first time, you may save $1 or two or may not want to spend any money. But if you don't, it has the potential to be devastating put you on a waiting list for a whole bunch of things or just totally ruin the rest of your life. It is that important.

Portia Scott: 13:05

Well, that that leads nicely into the concept of Medicaid planning. Yes, let's just give an example where you've got someone who has got$210,000. That's all the money they have in the world, they've worked their entire lives, to save up for it. And now they're told it's time to go into a nursing facility for full time skilled nursing care. And they're told that they have to spend all of that money, spend it down completely popper themselves before the state will come in and help at all. Well, it is a harsh reality for people. And what many people will do is they will take that as the final answer rather than asking more questions. Yes.

Sam Yates: 13:51

So what is the next question they should ask if someone tells them that? What are

Portia Scott: 13:55

the alternatives. And one of the alternatives, of course, is that you can use your own funds to make your life better now. And if that includes something as easy as getting a better TV, in your hospital room, in your nursing home room, to get a better bed, one that actually works for you instead of against you something that could maybe even keep you in your home a little bit longer. If you could use those funds instead of for full time nursing care at a nursing home, have somebody come in and help you a lot of the times the problems with the people which are diagnosed is oh, you need to go into a nursing home right now, aren't they? I'm not saying that the doctors are wrong I'm saying is that the circumstances in their life are misunderstood. If they have enough money to hire somebody to come in and check on him once or twice a day and make their meals for him dude simple stuff that allows them to stay in home. Nobody wants to die in a nursing home you know everybody wants to die. At home, in their own bed in their sleep, the way that God intended,

Sam Yates: 15:05

that concept of aging in place is extremely, extremely important because we saw during pandemic, that people avoided nursing homes, whether it was a an independent living facility, and I use the term nursing home because of their progression independent into a skilled into an assist. So by the time they got into some of those facilities, and they didn't want to be there because of COVID. So they stayed at home. And we found out that they can live more comfortably at home and with less contagion in the case of COVID. So Aging in Place is a big thing.

Portia Scott: 15:46

Yeah. And it's it's ultimately the goal with my father, at the end of his life, my mother passed away, and my father lived in their ridiculously oversized 3600 square foot house with him and a little old dog, and it was just the two of them. But you know, they've lived there since the 50s. So, when that became unmanageable, we were lucky enough to be able to have dad come and live with us. And because of the veterans benefits to which he was entitled, it was feasible, and it was workable. So I because my dad was coming to live with us, that's when I decided that maybe I really did need to go ahead and get my LLM. Since I was going to learn all this stuff anyway, I might as well have some more initials after my name. So dad came and lived with us, and I got to learn firsthand about how the progression of need exists. You know, when he first moved in, he had his own two or two bedrooms and bath on one side of the house, it was his independent living space, which is to coin a term of course. And as his need progressed, it became more and more until it became basically a nursing facility with we didn't have round the clock care, but we almost did, right. And so it was a learning experience for me. And the issues. And the challenges, which I saw my father face are very, very comparable to many of the clients that come in and tell me what their stories are and how I actually have a chance to say not only can I understand, but here are some things that worked for us.

Sam Yates: 17:25

Great advice, great advice. I want to ask before we get too much further into the program, because I tried to keep these around 1520 minutes long. And we've just scratched the surface of things we want to talk about. Can you come back for another episode? Well, I

Portia Scott: 17:40

I'd be delighted. Thank you.

Sam Yates: 17:41

Absolutely going to make sure that you do that, ladies and gentlemen, because we love to hear her information. Before we before we go too much further, though wills and trusts. Yes. There's confusion about wills and trust. Explain a little bit to us. All

Portia Scott: 17:57

right. So here's my favorite thing is, this is true on every single aspect of life for everything, there is a cost and for everything, there must be a benefit. The people who need wills are not necessarily the same people who need trusts and vice versa. However, even if you have a trust, chances are you will need a will. A trust is a vehicle it does avoid probate, there is no judicial oversight. Those are the differences. Sometimes people want that sometimes people don't want that. So if you have a will, and you in your will nominate someone to be the personal representative also called in other jurisdictions a executor or an administrator or something like that. In Florida, we call it a personal representative because that way you can't tell the gender of the person as opposed to an executor tricks versus an executor. And you nominate this person to be appointed by a court, a lot of people have a misconception that if they were nominated under the will that that automatically gives them authority. It gives them authority to make distribution of the decedents assets under the well, that is not true at all. And you can get in a lot of trouble. A will empowers the person who's nominated as the personal representative to go in front of a judge and say, Judge, this person has passed away. They've nominated me Is it okay, will you appoint me? The court will then usually appoint the person as the personal representative and then give them the court orders that give them the authority to actually do the job. That's that's actually a big thing. I posted that on my on my Facebook posting the other day because so many people have that misunderstood. So there is judicial oversight with a personal representative. They have to apply for the court. They have to file an inventory of the things that have come under their control as the personal representative. They have to pay the claims that are filed against the estate. They have to pay the taxes if there are any do they certainly have to file a tax return they have All of those wrapping up things that our society requires. That's all avoided by a trust. Ownership of an asset, which is put into a trust, a trust is, I like to describe it as it's like a car, it doesn't do any good. And if you're using it to transport something from A to B, if you never put anything in it, so the trustee is the person who's empowered under the trust to do all the things that are necessary and are called called for under the trust. So even if you have a trust, you still want to have a will that just says, oh, and just in case I die with a winning winning lottery ticket in my pocket, I need to make sure that whatever is in my estate, which is what is controlled by the will gets given over to the trust. So it's called a pour over because it pours it out of the estate into the trust. So it's a pour over provision. So you should have a will if you don't have a will, though, it's not the end of the world, the intestate statutes of Florida control, and the intestate statutes provide that we assume you love your spouse, and we assume you love your kids equally. And that's how, what will happen. This whole thing about the state determines what happens to your assets when you die. It's true. But the state presumes that what you want to have happen to your assets is some go to your surviving spouse and some go to your kids. So if you don't like your kids, you need a well.

Sam Yates: 21:27

And the other thing is if I am reading what you say, Trust go into effect immediately when you do them. But wills only go into effect when you pass

Portia Scott: 21:38

wills only go to into effect when you die in a court set. And the court says yeah, that's that's the important aspect of that. trusts can go into effect immediately. trusts can also be not not effective until you pass. It's there's a lot more flexibility and a trust and you can continue to control from beyond the grave. You can continue to control the assets that are put in the trust the car, right the stuff you put in the car, you can still decide where it goes and who's driving it and who takes different things out and gives them to different people along the route. There's a lot of opportunity for control in a trust, which you will not necessarily have under a will. Of course we do always have that rule against perpetuities, which is the thing that makes law students bang their heads against the wall. But luckily Florida has a very grand rule against poke too it is and it would really take a bad attorney to violate that.

Sam Yates: 22:43

Always good advice. Portia, I want to thank you for being here on the program. Today. We are going to come back and do another episode and look into some other things because I do have a list of topics that I would like for us to cover. And we are certainly going to do that. So my thanks for being here on the program tonight. Oh, it's a pleasure to see you, Sam. Until our next episode. I'm Sam, eh your gray haired host of The Great American Senior Show. And that's the way our program ends.

Unknown: 23:12

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