This week is National Health Care Decision Week.  It is a perfect time to think about making sure you have someone who can legally make health care decisions for you if you become ill and lack the mental capacity to make your own decisions.

In Florida, this is done with a legal document called an Advance Medical Directive.  My office routinely prepares these documents for clients and they include the Designation of Health Care Surrogate, the HIPPA Release, and the Living Will.

These documents should give the person you name as your surrogate the authority to obtain your medical information and make any and all health care decisions for you in accordance with your values and moral beliefs.  The Living Will allows you to make decisions about withdrawing or withholding life-sustaining treatment at the end of life when there is no probability of recovery.

These documents are state-specific and it is important that you have Florida documents if you are a new resident of Florida.  Documents should also be updated if your decisions change or if you need to name new surrogates.

You should provide a copy of these documents to each of your doctors and you should also give a copy to anyone who would likely be called in an emergency.  I also recommend that you take a copy with you when you travel.

To minimize any confusion or doubt about your wishes or the surrogate’s authority, the documents should be as specific and explicit as possible.  One size does not fit all.  Do not use online or form documents.  They may not be valid in Florida and even they are valid, they might not contain all the language you need for your specific wishes to be carried out.

Finally, your situation might be unique.  I can customize your documents to address any concerns you might have about particular procedures, such as artificial hydration, feeding tubes, chemical treatment, and invasive diagnostic tests.

Questions? The Law Office of Debra Simms is here to help. Call us today 386.256.4882

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 Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

 

I have a will. Why do I need anything else?

Having only a will may not be the best plan for you and your family.  A will does not avoid probate when you die.  A will must be filed and admitted to probate before it can be enforced.

What is Probate?

Probate is the legal process through which the court sees that, when you die, your debts are paid and your assets are distributed according to your will.  If you don’t have a valid will, your assets are distributed according to state law.  These laws are known as the intestacy laws.  Through the intestacy laws, your assets will be distributed to your spouse, descendants, or next of kin.  This might not be your plan!

What’s so bad about Probate?

It can be expensive.  Legal fees and other costs, such as filing and publication fees, must be paid before your assets can be fully distributed to your heirs.  If you own property in other states, your heirs could face multiple probates, each one according to the laws in that state.

It takes time, usually at least 6 months or more.  This is because nothing can be distributed or sold without court or personal representative approval until the creditor notice period has elapsed.  In Florida, the creditor period is 3 month from the first date of publication.

There are privacy issues.  Probate is a public process, any “interested party” can see what you owned and who you owed at the time of your death.

What is a Living Trust?

A living trust is a legal document that, just like a will, contains your instructions for what you want to happen to your assets when you die.  But, unlike a will, a living trust avoids probate at death.  When you set up a living trust, you also transfer assets from your name to your trustee.  Legally, you no longer own your assets, everything belongs to your trust, so there is nothing for the courts to control when you die!  This simple estate planning tool keeps your heirs out of the courts.  And Living Trusts are private arrangements; they are not part of the public record.

Do you lose control of your assets that are in your Living Trust?

Absolutely not!  You keep full control of your assets. As the trustee of your trust, you can do anything you could do before- buy, sell, reinvest, and you even file the same tax returns.  Nothing changes except the way the assets are titled.

Doesn’t joint ownership avoid probate?

No, it usually just postpones probate.  When the first owner dies, full ownership does transfer to the survivor without probate, but when the survivor dies, or both die at the same time, the asset must be probated before it can go the heirs.  There are other problems with joint ownership, for example, the creditors or ex-spouse of the co-owner could be entitled to these funds.  With real estate, if you own it jointly with another, remember that all owners must sign to sell or refinance.  If a co-owner is unwilling or becomes incapacitated, the court will become your new co-owner.

Why would a court become involved with you or your property if you become incapacitated?

If you cannot take care of your own personal, legal, or financial affairs due to a physical or mental incapacity, only a court appointee, in Florida, called a guardian, can do so.  Guardianships are a public process and can be expensive, embarrassing, time-consuming and difficult to end if you recover.  It does not replace probate at death, so your heirs may have to go through the probate court again.

How can you avoid a Guardianship if you do become ill?

A Durable Power of Attorney can prevent a guardianship.  A Durable Power of Attorney lets you name some you trust to manage your financial and legal affairs if you are unable to do so.  These are very powerful documents – it is like giving someone a “blank check” to do whatever he or she wants with your assets- so it should be well thought out, and the person you name should be someone you completely trust.  You can also have a Pre-need Guardianship Designation, which allows you to name your own guardian if that is ever necessary.

A Living Trust is another technique to avoid court intervention if you become incapacitated.  As mentioned, when you set up a living trust, you transfer your assets to the trustee of the trust.  Legally speaking, you no longer own the assets, your trust does.  Your successor trustee will have the legal authority to manage your assets according to your instructions in your trust and will not need court approval.

Isn’t a Living Trust expensive?

It does cost more to have a trust than just a will.  But you can pay for it now, or you can pay the courts and attorneys to do it later.

 

For more information on how you can avoid probate and guardianship with a living trust, contact our office for a free consultation.

(386) 256-4882

 

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.

 

National Health Care Decisions Day is April 16th.  This day is designated by the National Hospice and Palliative Care Organization (NHPCO) to inspire, educate, and empower the public about the importance of advance care planning.

Advance care planning involves making future healthcare decisions which involves selecting an agent to express your healthcare decisions if you are unable to speak for yourself, and also allows you to express your preferences and clarify your values.

Advance care planning starts with “The Conversation” – talking about your health care concerns with your loved ones, health care providers, and even your friends.  These conversations will relieve your loved ones with the need to guess what you would want if you are facing a medical crisis.

Next, you need to complete your Advance Directives.  In Florida, these are called Advance Health Care Directives, HIPPA Releases, and Living Wills.

These documents are state-specific and are designed to meet each state’s statutory requirements.  If your legal documents were prepared out of state, you should meet with a Florida attorney to discuss whether new documents should be completed.  The documents will do you no good if your doctor or hospital will not honor them.

Questions? The Law Office of Debra Simms is here to help. Call us today 386.256.4882

 

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.

 

 

 

 Probate is the name of the court process for passing ownership of a deceased person’s property to his or her beneficiaries.

For real estate, there are two types of probate administration under Florida law: formal administration and summary administration. Even if you have a Will, your property must pass through probate before your beneficiaries can obtain legal title to your property.

Summary Administration is available if the value of your property subject to probate in Florida is not more than $75,000, and if you have no creditors.  Summary administration is also available if the date of death is more than two years prior to opening the estate.  Summary Administration is usually less expensive and less time consuming than a formal probate.

If the total value of your estate is more than $75,000 or if there are actual or potential claims against your estate, then your heirs or beneficiaries will have to open a formal probate. This process is more expensive and usually much more time consuming than a summary probate.

In either event, your heirs or beneficiaries will need to hire a lawyer, pay court and other costs, file a publication notice, and wait until the Judge signs the required Orders before they can own or sell your land.

Even the simplest of probate estates must be open for at least the three-month creditor claim period; it is reasonable to expect that a simple probate estate will take at least five or six months to properly handle.

There are a number of ways to avoid this costly and lengthy procedure.

If you have a Revocable Living Trust, you can transfer your real estate to your Trust.  If you do not already have a Trust, it is a good idea to consult with an attorney to determine whether this solution is right for you.  Once you have a Trust, a deed must be prepared and recorded, transferring the real estate to your Trust.

Another option to avoid Real Estate is to consult an attorney about a “Lady Bird Deed”.  This is a type of deed used in Florida to transfer real estate to your intended beneficiaries automatically upon your death without the need for a probate.

If you own your real estate jointly with another individual, with rights of survivorship, or as Husband and Wife, then upon your death, the other individual will automatically own the property and no probate will be required until the second individual passes away.  You can still have a Lady Bird Deed if you own the property with another individual as long as you both agree on who will receive the property when you both pass away.

If you own the real estate with another individual, but the deed does not say “husband and wife” or “joint tenants with rights of survivorship” then your share of the property must pass through probate before your heirs or beneficiaries can receive it.

Questions? The Law Office of Debra Simms is here to help. Call us today 386.256.4882

 

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.

 

 

 

I am often asked to review client’s existing medical directives.  (sometimes called a Health Care Power of Attorney or Designation of Health Care Surrogate)

They don’t always work.

Here are the most common problems with these documents:

  • The document was created in another state and does not follow the Florida laws
  • The document does not contain HIPPA law language (the privacy law)
  • The client’s preferences have changed but the documents have not been updated
  • The document designates agents (substitute decision makers) who might not be alive or able to do the job
  • The document is vague or ambiguous and can easily be misinterpreted by the family or medical personnel
  • The document does not discuss certain modern medical interventions that the client might or might not want
  • The Living Will does not contain a provision regarding the use of feeding tubes and hydration when the patient is dying

And here is another problem that has nothing to do at all with the paper it is written on:  Many people may feel that creating and signing an advance directive means they can avoid awkward conversations with family members about their health care wishes.  The actual result may then be that the document is not helpful at all in a medical crisis.

Questions? The Law Office of Debra Simms is here to help. Call us today 386.256.4882

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.

 

It is important for estate planning lawyers to be able to assist persons with disabilities.  A common problem for persons with disabilities is unemployment or underemployment.  Therefore, their available funds may be the only resources they will have throughout their life.

A Special Needs Trust will preserve eligibility for Supplemental Security Income (SSI) and Medicaid and will supplement the amount of funds a person has throughout their lifetime.  In Florida, the loss of SSI would adversely affect the ability to obtain Medicaid, which might be the only health coverage available for that person.  Additionally, the Trust could be used to pay full price for private health insurance premiums which could then give added benefit (usually superior) to the disabled person.

A Special Needs Trust can also provide legal protections for the person’s assets instead of a Guardianship.  In Florida, Guardianship laws are complex and the process is very costly.

There are various types of Special Needs Trusts, usually depending on the source of the available funds.  Seeking assistance from an Estate Planning or Elder Law attorney is critical when planning for a person with disabilities.

Questions? The Law Office of Debra Simms is here to help. Call us today 386.256.4882

 

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.

 

Contact Us

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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:
629 N. Dixie HWY
New Smyrna Beach, FL 32168
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