Do You Have a Living Will?

Clients come to my office to talk with me about planning for incapacity and death.  These are hard conversations to have, even in an elder law attorney’s office.

Of all the documents that I prepare, the Living Will, gives my clients the most trouble.

This document, a dying declaration, states what kind of end-of-life care you want when there is no medical probability of recovery.  Most people do not want to be kept alive artificially.

But what does that mean?  Do you want a feeding tube?  Hydration?  Blood transfusion?  How far are you willing to go?  And what about dementia?  Do you want to be force fed when you no longer have hunger or the ability to feed yourself?

And who should be your advocates or decisions makers?  A family member (who might not be willing to let you go) or a medical person that you trust?

Knowing your legal rights and putting them in writing will help ensure that your wishes are met.

An elder law attorney can help guide you through this difficult conversation.

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 Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

How to Dispose of your Personal Property When you Pass

Florida law permits the use of a separate writing referred to in a Will to dispose of tangible personal property if it is not otherwise mentioned in the Will. The separate writing must be signed and dated by the maker of the Will and must describe the items with certainty- think “my diamond ring with 2 side rubies”.

The writing does not need to be witnessed or notarized and may be prepared after the execution of the Will. It can be changed, but it’s a good idea to resign and re-date the new writing so there is no confusion as to your intent. The most recent writing will be deemed to revoke any prior writing.

There is no prescribed form for this writing- some lawyers provided sample forms, but you could use any paper-even the back of an envelope!
Tangible personal property does not include cash, bank accounts or real estate. A separate writing is commonly used for jewelry, art, or sentimental items of value to you or your loved ones.

While a separate writing can be altered or revoked by marking through the entry and then re-signing and re-dating, never do this on a Will or Trust. Codicils or amendments to your Trust must be made with the same formalities as the original instruments.

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.

Keeping Digital Assets in the Family

Nowadays, many of us have “digital assets”.  Digital assets include Bitcoin, blogs that earn income, reward points for credit cards or airlines, and those with sentimental value such as digital photographs and social media.

To make sure that these important files can be passed on to your heirs, you need to take certain steps.

First, make a digital asset inventory.  Second, ensure your spouse, heirs, or representatives can access them.

You can have a password manager on your computer or smart phone for these devices.  But federal privacy laws may prohibit others from accessing your account.

Some companies such as Google and Facebook now have settings where you can name a person who will take over your account after your passing. 

For other accounts, you should have an up to date Will, Trust, and Durable Power of Attorney which specifically permits your designated agent to access these accounts.  Florida is one of the states which now has a Fiduciary Access to Digital Assets statutes which governs and enforces these documents.

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.

AFTER THE DEATH OF A SPOUSE

After a spouse has died, it can seem impossible to focus on the details, let alone make important decisions.  Here is a list of what should not be delayed:

  • Connect with attorneys, accountants, and financial advisors
  • Secure your finances – most importantly find out what assets are immediately available to you
  • File paperwork to claim insurance proceeds and retirement funds
  • Locate the Will and/or Trust

Later on, focus on:

  • Estate administration- are there are tax returns to file?  Is a probate needed?
  • Analyze assets and cash flow needs – take a closer look at the full picture of assets available presently and in the future.  Have you inherited IRA’s?  Should a new investment adviser be consulted? 
  • Do you need to update your own estate plan?  Have you updated your beneficiary designations on your IRA’s and life insurance?

As you move from short to long-term considerations, take the time you need to make these important decisions and create your own team of investment and legal advisors.

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.

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.

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.

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.

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.

END OF LIFE OPTIONS

One of the services that I offer my clients is a Living Will. This document is a legal declaration of what type of care your wish to have if you are in the end stage of life and there is no medical probability of recovery.

Many of my clients struggle with this document-typically it is because they cannot decide whether they would want a feeding tube or artificial hydration at the end stage.

Here are some common myths that contribute to this difficult decision along with the response of Tani Bahti, nurse:

Myth: If people don’t eat, they should get a feeding tube or they will starve to death.

The needs of the body and its ability to process food changes in the final months of life.  People do not die because they are not eating, but rather they do not eat because they are dying.  Complications due to forced feeding and the use of tube feedings can actually hasten dying. 

Myth: Not drinking leads to painful dehydration.

Natural dehydration is comfortable and releases endorphins which promote comfort. Unlike in a healthy person, providing artificial fluids near the end of life may actually increase discomfort.  Natural dehydration results in less chance of nausea and vomiting, swelling, and lung congestion.

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.

Most estate plans include advance directives that state your wishes for health care and end of life decisions.  But, as some families are finding out, these advance directives may not be specific enough for certain diseases, such as Alzheimer’s.

Without a specific directive, some families facing this issue have had to go to court.  The results are usually not favorable for the families.

One such case recently occurred in Oregon.  In this case, the Alzheimer’s patient had previously signed an Advance Directive after being diagnosed with early onset Alzheimer’s disease.  She wanted to prevent her life from being prolonged once the disease became severe.  Her Advance Directive stated that she did not want to be fed through tubes and other mechanical assistance.

However, she was being kept alive by spoon feeding by her nursing home caregivers.  The woman’s husband went to court arguing that his wife would not want to be kept alive in this manner and that her acceptance of food was an automatic response and not a change in her wishes.

The Court found against the family.  The judge said she would not order the facility to stop spoon feeding Nora.

“It’s not a happy decision for me, said the Judge to the husband.  From what you have told me, your wife would hate this.”

The judge went on to say that the advance directive form only speaks to artificial nutrition.  It does not specifically mention food or water presented by hand.

The Law Office of Debra G. Simms can prepare an Advance Directive specifically for dementia and dementia-related diseases such as Alzheimer’s.   This new advance planning document allows sufferers of such diseases to record the specific difficulties associated with these illnesses and to detail what type of health care you want to be followed once you are no longer able to make your own quality of life decisions.

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.

The Role of an Estate Planning Attorney

Planning for end of life is a difficult but necessary process.  Part of this planning is the creation of a legally binding estate plan that dictates your wishes and appoints certain people with the responsibility of carrying out those wishes.

Using an experienced estate planning attorney is advised. The attorney can walk you through the process from start to finish, prepare the documents, and make sure that the documents are properly executed.

Another advantage of using a professional estate planning attorney is to ensure that your real estate and other assets are properly titled to be certain that legal title is clear and assets can be transferred to your selected beneficiaries. This process can include advising on deeds, pre- and post-nuptial agreements, and marital settlement agreements after divorce.

An experienced estate planning attorney can also advise you on other end-of-life choices, such as financial and medical directives, organ donation, disposition of remains, and similarly important decisions. Without an estate planning attorney’s assistance, you may find yourself setting your family up for more hardship as the result of poor planning.

An attorney can also advise clients about how to best provide for beneficiaries with special needs, educational requirements, or other considerations. The attorney can also create a plan for meeting philanthropic goals and include charities or other organizations in your estate plan.

Planning ahead is important for everyone, no matter how large or small the estate. Using an experienced estate planning attorney will ensure that your plans can be carried out.

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.

Estate Planning for Singles


Single people with no children are usually able to save more money than others and yet it may be likely that they have not put much effort into their estate plans.

Here are 4 simple tips for single clients:

  • Execute a durable power of attorney and a healthcare advance directive.
    • Even those without children do not live forever, even though mortality may not be showing in their faces like those with children! Establishing a durable power of attorney and a healthcare advance directive will allow another person to make important financial and medical decisions for a single client, if it becomes necessary to do so.
  • Make a will.
    • With no direct descendants nor a spouse, a will is necessary in disposing of assets. The client can name the executor/personal representative to handle the affairs, and the will can name the beneficiaries. 
  • Create a revocable trust.
    • A trust can be used to avoid the costs and delays of probate.
  • Consider estate taxes.
    • Singles have no direct descendants, so any beneficiaries will be receiving a windfall. If giving these beneficiaries more and the government less is important, the single individual should consider charitable giving as a means to lower taxes.

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.

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:
629 N. Dixie HWY
New Smyrna Beach, FL 32168
Local: 386.256.4882
Toll Free: 877.447.4667