Elder Law - Simms Law Firm

Do You Have a Will?

A Will is the primary legal document for determining how your assets will be distributed and what would happen to your minor children on your death. But you can’t just place your Will in a fire safe box and forget about it: Review and update it regularly to reflect changes in your personal circumstances as well as other events.

For instance, you might add to or subtract from the list of beneficiaries, possibly because of births of children and grandchildren and marriages or divorces of family members. Or, you might want to replace the Personal Representative (Executor) you initially named in the Will. Also, your Will may need to be amended if and when significant tax reforms are passed.

And remember, don’t wait until it’s too last. You will no longer be able to change your Will if you are suffering from a disability that affects your thinking, such as a stroke or dementia.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more.

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

Why Seniors Should Not Share a Joint Bank Account with an Adult Child

Case Study: 85 year old Mom comes to see me because she received a notice from her bank that her entire savings account is frozen. There is a court judgment against her by VISA credit card. Mom does not have a Visa account. Grown-up son does. Mom put grown-up son on her bank account so he could “take care of her” if she got sick. What Mom didn’t know is that she made HER money now her son’s money, too. What Mom also did not know is that son did not pay his Visa credit card.

Beware seniors: you might think that by putting your child’s name on a bank account (or home) you are saving a trip to the lawyer’s office. Why do you need a power of attorney or will if your child is already on the account?

As you can see by the illustration above, adding a child to a bank account may expose the parent’s hard earned money to that child’s creditors.

Another reason not to take this short cut, if the child is married, and then gets divorced, YOUR money is his money and is subject to division in the divorce.

Need another reason? For even the best intentioned child, the temptations of money may be too great. Maybe they have an alcohol or drug issue? Maybe they need to pay off debts. The child may feel that there is no true harm by taking some money “early”.

Think again, Mom. Keep your money safe.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more.

Yes, there can be.

Many of my new clients tell me that they do not need certain estate planning documents because their adult child (or other trusted person) is a joint owner on their bank accounts. They believe that this will avoid the need for probate and will allow the other person to have access to the accounts if they become incapacitated.

Doing this is usually not worth the risk.

Risk #1: The joint holder will have complete access to your money because once they become a joint holder, it is their money too. The joint holder can also have your name removed from the account. This is done by someone you believed you could trust; however, most cases of elder financial exploitation are perpetrated by family members and trusted friends.

Risk #2: You could lose Medicaid eligibility for long term nursing care; when you put someone else’s name on your accounts, you are legally making a gift to them. This could cause you to be ineligible for Medicaid for up to 5 years from the date of the gift.

Risk #3: There are circumstances beyond the joint holder’s control which could put your property at risk. A judgment against the joint holder (think car accident) could result in the loss of your assets.

Risk #4: Putting someone else’s name on your primary residence is never worth the risk. In Florida, your homestead has constitutional protection against any creditor. But, if the joint holder does not live in the home, it is not their homestead. The creditors of the joint holder can reach this asset which could result in the loss of your home.

Risk #5: Adverse Tax Consequences. Gifting property to a beneficiary during your lifetime (and this is what putting someone else’s name on your asset means) creates certain tax consequences which are much less favorable than allowing your beneficiary to inherit the property.

My advice is that you not put property in joint names with persons other than your spouse. The avoidance of probate is not worth risking the loss of your assets. Consider other options to avoid probate such as a revocable trust or ladybird deed. Handle incapacity issues with a Durable Power of Attorney.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more.

CAN TECHNOLOGY KEEP YOU SAFE FROM ELDER ABUSE AND EXPLOITATION?

Elders lose millions of dollars per year according the latest statistics from the National Adult Protective Services Association. Ninety percent of the abusers are family members or trusted others. Sadly, it is also reported that only 1 in 44 cases of financial abuse are reported to the authorities. And 1 in 10 cases are so devastating that the elder victim must turn to Medicaid because their savings are deleted.

To help vulnerable adults, several companies are now offering concierge bill pay services, and some companies also monitor bank and investment accounts and credit cards. These companies establish a baseline from the elder’s historical spending and saving behavior so they can then identify erratic activity, like unusual withdrawals, missing deposits, and changes in spending patterns.

Elder Law attorneys can also assist victims by bringing lawsuits for civil theft on a vulnerable adult. Florida law allows the elder victim to recover triple damages in these types of suits.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more.

Many of us tend to procrastinate about making hard decisions. Unfortunately, with estate planning and elder care, this can have dire consequences.

Recently, an 80 year old lady came to see me about doing her Will. She was clear in her mind about who she wanted to leave her money to when she died and who should take care of her finances if she became too ill. And, she knew what kind of care she wanted if she could no longer live alone.

I was hired to do a basic Estate Plan for her – Will, Durable Power of Attorney, Health Care Directive, and Living Will. I prepared the documents and called her to come in to sign. No Answer. Next day, No Answer.

It turns out my client had a stroke and was unlikely to recover. She had no legal documents in place to authorize any of her children to handle her finances or make decisions regarding health care. The children could not agree, and a guardianship case was opened in court while my client remained in the hospital unable to communicate.

This is an all too familiar story in my Elder Law practice.

Why do people procrastinate about these important planning tools? It’s simple:

No one wants to think about mental incapacity or death.
No one likes to pay attorney fees.
No one likes to expose their personal life to another person, even an attorney.
No one wants to give a child the authority to “put them in a home”.
Sometimes it’s not easy to decide how to divide your estate.

It’s wise to start your estate planning early. Here are some top reasons:

The top reason, of course, is my 80 year old client. You might lose your ability to sign documents.
Like my client, you might lose your ability to communicate your wishes to your family or doctors.
Keep harmony among family members – my client’s children could not agree what to do – they went to court!
You might need someone to handle your finances if you cannot.

After watching my client and many others like her, I know how important it is to plan ahead.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more.

What actually is your estate?

An estate is your net worth on your date of death.

It includes all property that you own or control such as bank accounts, real estate, life insurance policies, stocks, and personal property like artwork, jewelry, and vehicles.

And, an estate also includes your debts, such as car loans, mortgages, and credit card debt.

What is an Estate Plan and Why is it so Important to have one?

No one likes to think about death, but, it is important to be prepared when the time comes so that your loved ones have a clear understanding of your final wishes.

Estate planning is making a plan in advance that provides details of how you want things handled when you pass.

So, basically an estate plan is a set of written instructions that describes how and to whom you want your property to be distributed after you die.

An estate plan may also provide other details such as funeral arrangements and care for pets when you have passed.

Complete estate plans should also include health care instructions if you should become ill or disabled before you pass. You should also direct who can make financial and legal decisions for you if you become ill or disabled.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more.

Essential Legal Documents for Unmarried Same-Sex Couples

Because unmarried same-sex couples are legal “strangers”, it is essential to have certain legal documents to protect each person’s interests and rights:

Domestic partnership agreement
Advance Medical Directive
Living Will
Durable Power of Attorney for finances
Co-parenting agreement (if no adoption by second parent)
Wills
Trusts
Nomination of guardian for adult and minor child
HIPPA (Privacy Law) authorization
Authorization for disposition of remains and funeral arrangements

These documents create the core of planning for unmarried same-sex couples.

Additionally, there might be estate or gift tax issues facing unmarried couples who cannot avail themselves to favorable tax treatment for married couples.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more.

Problems With Probate

What is Probate?

Probate is the legal process that wraps up a person’s legal and financial affairs after their death. During the probate process, property is identified and given a value. Outstanding debts and taxes are paid. It can be a complex process filled with very specific legal requirements.

If a person dies with a valid Will, the probate court must ensure that the person’s assets are distributed according to their wishes.

If a person dies without a Will, the probate court sees that the person’s assets are distributed according to the laws of the State.

Probate Process

Probate can take a long time – form months to more than a year.

Probate can be expensive. The attorney fees are usually calculated on the value of the estate, but legal costs can rise if there is real estate to be sold, the will is contested, or for a variety of other reasons.

Probate is public. The Will, Inventory, and other documents are filed in a public court. Many of these documents can be viewed by the public.

Avoiding Probate

Assets can be structured so they may not have to go through probate in order to be distributed to your beneficiaries. Here are some of the ways:
Jointly held property
Death benefits from life insurance
Retirement accounts with a named beneficiary
Assets with a payable on death designation
Property held in Trust

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more.

AGING SOLO? BUILD A TEAM!

Many of my senior clients live alone – some never married, some are widowed or divorced, and many of my clients never had children or their children are deceased or estranged. With no family member to rely on, they need someone trustworthy to pay bills and make critical decisions if they become ill.

Here are a few suggestions:

Think creatively when selecting someone who can manage your affairs. It might be a cousin or niece or nephew, or maybe a trusted financial or legal advisor.
Try to select a health care agent who lives nearby or who can easily travel to you if you are ill. If not family, perhaps a close friend or clergy would be willing to help.
Simplify your financial life by consolidating your assets. This makes management easier for you or anyone who takes over.
Consult with an attorney about a Living Trust and Durable Power of Attorney. If you do not have a family member or close friend to serve as trustee or agent, talk to your attorney about a financial institution or other professional. You can name co-trustees, say, a financial institution and a relative or friend, and require them to act together.

What’s most important is – have a plan. Failure to plan is planning to fail.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more.

Here at the Law Offices of Debra G. Simms, we provide complete Estate Planning services. Our revocable trust is not the “one size fits all” document that comes in an expensive leather binder. We consult with you, assess your situation and prepare your trust to meet your needs and goals.

We will also make sure that your trust is properly funded. It is not enough to have a piece of paper titled “Trust”; you must properly title your assets in order to avoid probate. We will prepare deeds and work with your financial advisors and banks to make sure all assets are titled in the trust.

The initial consultation for Estate Planning services is free. There is no pressure, no selling and no obligation. Just education. Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more.

Contact Us

Port Orange Office:
Prestige Executive Center
823 Dunlawton Ave. Unit C
Port Orange, FL 32129
Local: 386.256.4882
Toll Free: 877.447.4667

New Smyrna Beach Office:
817 E. 7th Ave
New Smyrna Beach FL, 32169
Local: 386.256.4882
Toll Free: 877.447.4667