Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-1120 _____________________________ JAMES MADDOX, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES. Circuit: 01 (Escambia) Unit: 88113, Appellee. _____________________________ On appeal from the Department of Children and Families. Melissa Roedel, Hearing Officer. [Date] B.L. THOMAS, J. Appellant appeals a final order denying him Institutional Care Program Medicaid benefits for the months of July through November 2018. Appellant also contests the determination of the Department of Children and Families (the “Department”) that his Durable Power of Attorney and Qualified Income Trust were invalid. Appellant’s daughter established a power of attorney for Appellant. Appellant’s daughter also established an irrevocable qualified income trust for Appellant. The wording of the trust stated that Appellant’s daughter established the trust “at the direction and upon [Appellant’s] request,” rather than relying on the power of attorney. Appellant’s daughter corrected an error within the signature block of the trust with an Affidavit of Scrivener’s Error. Appellant filed an application for Medicaid benefits with the Department on July 31, 2018. The Department denied Appellant’s application for July, August, September, and October, stating the Department did not receive proof of the value of Appellant’s assets. On September 10, 2018, Appellant submitted a request for hearing and also sent in a new application for benefits. The Department denied Appellant’s benefits for September, October, and November. The denial reason provided was failure to submit proof of the value of assets and failure to receive all information needed to determine eligibility. An administrative hearing on this matter was held. The Hearing Officer issued a final order upholding the Department’s decision to deny Appellant benefits. The Hearing Officer found that the power of attorney did not contain the necessary language to allow Appellant’s daughter to establish an irrevocable trust and concluded that the Department thus appropriately denied the petitioner’s application. Although the issue of Appellant’s capacity was raised during the hearing, it was not addressed by the Hearing Officer. This Court reviews a Hearing Officer’s findings of fact for competent substantial evidence and reviews conclusions of law de novo. Longhi v. Dep’t of HRS, 691 So. 2d 583, 584 (Fla. 1st DCA 1997). Under 42 U.S.C. § 1396p(d)(2)(A), a trust is established if the assets of the individual creating the trust were used to form all or part of the trust and if any of the following individuals established the trust: (i) The individual. (ii) The individual’s spouse. (iii) A person, including a court or administrative body, with legal authority, to act in place of or on behalf of the individual or the individual’s spouse. 2 (iv) A person, including any court or administrative body, acting at the direction or upon the request of the individual or the individual’s spouse. Additionally, the Department’s guidelines for reviewing income trusts allow an attorney, as well as the four people established in 42 U.S.C. § 1396p(d)(2)(A), to create a valid trust. The trust established by Appellant’s daughter was prepared by an attorney, and it was established “for the benefit of JAMES L. MADDOX at his direction and upon his request, by LINDA M. SOLICE, as permitted under 42 U.S.C. § 1396p(d)(2)(A)(iv).” The Hearing Officer determined that the wording of the trust showed that Appellant’s daughter established the trust at Appellant’s direction and upon his request instead of relying on the power of attorney. Despite this finding, the Hearing Officer concluded that the Department appropriately denied Appellant’s application. The Hearing Officer did not present any findings to support her conclusion that the trust was invalid and thus erred by concluding that the trust was invalid under 42 U.S.C. § 1396p(d)(2)(A)(iv). This case is remanded to determine whether Appellant had the requisite capacity to give his daughter the authority to sign the qualified income trust. REVERSE and REMAND. WOLF and MAKAR, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Michael T. Heider of Michael T. Heider, P.A., Clearwater, for Appellant. 3 Katie George, Assistant Region Counsel State of Florida Department of Children & Families, Pensacola, for Appellee. 4