Elder Law - Simms Law Firm

Do you have more than one child or grandchild that you need to consider in your estate planning? In order to avoid conflict, many parents and/or grandparents decide to leave their children the same inheritance. While this makes it easy it may not be equitable.

The pandemic has increased the number of wills being drafted and executed, this issue is coming up more frequently.

There are many examples of this situation we can refer to, in particular one in which a family with multiple children felt that their primary caregiver should inherit more than the children who did not live near them and did not participate in their care.

This often causes disagreement and contention between family members, while it is a difficult conversation to have it is one that should take place to avoid costly drama after the fact.

According to a survey by Merrill Lynch Wealth Management and the consultant Age Wave, “two-thirds of Americans 55 and older said a child who provided them care should get a bigger inheritance than children who did not.”

Different families approach these situations based on what their personal definition is of fair. Some families decide to divide things equally between their family members to avoid conflict, others based on “merit” or who they feel earned more in the long run.

Equal is not always fair and fair is not always equitable.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more. We are currently offering free consultations via video conference to assist you with your needs.

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 Blog topics may or may not be updated and entries may be out-of-date at the time you view them.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 global pandemic of COVID-19 has all of us facing our own mortality. Some of us are realizing that we do not have the basic estate planning documents.

To protect yourself and your loved ones now’s a good time to make sure that you have the following four documents prepared and updated.

A will or revocable trust.
- We need to leave instructions as to who will inherit our assets and who will be in control of our estates. Revocable Trusts are a good tool to avoid probate.
Beneficiary designations on financial accounts.
- Many assets do not pass through a will or trust, such as an IRA, 401(k) account, or life insurance policy, and instead the proceeds go to the person you name as the beneficiary of that account.
Advance Directive for Health Care.
- This document will give the person you designate as your agent the ability to make the medical decisions you specify on your behalf.
Financial durable power of attorney.
- In the chance that you become incompetent, financial responsibilities continue. You can designate a trusted person to handle your financial and legal affairs if you cannot.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more. We are currently offering free consultations via video conference to assist you with your needs.

Some lucky retirees split their time between two different states. You do not need separate estate planning documents for each state, but it may make sense to do so.

While your Will should be from the state that is your primary residence, your Durable Power of Attorney and Advance Medical Directive from another state might present challenges.

Financial and health care institutions are used to the documents used in their states and may refuse to honor out-of-state documents. In the case of health care documents, other states may use different terms for the document, such as “durable power of attorney for health care” or “advance directive.” Durable Power of Attorney requirements vary significantly from state to state. (And the people reviewing your documents may not be willing to accept the other state’s language).

In the absence of a durable power of attorney and advance medical directive, family members often must resort to going to court for a guardianship. This causes delay and and unnecessary legal fees.

So, if you spend a part of the year in another state, executing a local durable power of attorney and a medical directive is a good idea.

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

Few decisions are more difficult than the one to place a spouse or parent in a nursing home. Most families try to care for a loved one at home for as long as possible, only accepting the inevitable when no other alternative is available.

The placement decision can be less difficult if, to the extent possible, all family members are included in the process, including the senior, if he or she is able to participate.

I recommend the following steps as you begin this process.

Try to have a family meeting, either with the family alone or with medical and social work staff. If you cannot meet in person, use the telephone or e-mail.
Research all options. Look at-home care, daycare, respite care, assisted living and skilled nursing.
Consider using an Elder Law attorney and a geriatric care manager to help with placement and cost decisions. Try using a senior placement service such as Assisted Living Made Simple in Florida– they know how to “match” the senior with the care facility.

These steps won’t make the decision easy, but they can help make it less difficult.

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

NURSING HOME MYTHS AND REALITIES

Many of my clients are worried about long-term costs if they ever need a nursing home. Most do not have any type of long-term care insurance.

These clients typically ask: Will the nursing take my house? Or they say: I don’t want to give all my hard-earned money to a nursing home!

What they are really asking me is how to get on Medicaid! Medicaid is the government assistance program that pays for long-term care. It is meant for folks with low income and few assets.

But… the Medicaid rules are complicated and there are ways to become eligible and keep many of your assets. For example, in Florida, your primary residence does NOT count as an asset when computing eligibility. There are many other types of assets that do not count as well. And if your income is too high, there is a type of income Trust you can create and still become eligible for Medicaid.

However, there is another reality here. Not all facilities accept Medicaid. And you are not likely to get your own room in a Medicaid facility. Further, you will not be able to use your own doctors. For health care, Medicaid patients must be in a managed care plan. And not all treatments and therapies are paid for by Medicaid.

So, no, you don’t need to give your house to the state, but Medicaid is a needs-based program and doesn’t have all the bells and whistles you might want.

Do you have questions or need help with planning for your future?

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

Facing the Realities of Aging

Getting older is definitely not a cakewalk. If there is one thing that is true for every living person on this planet it is that we all get older and eventually die. No one yet has ever figured out a way around this fact of life!

It is also a given that as our bodies age every one of us will be more susceptible to developing a disability or dementia.

But many seniors fail to plan for this. It’s certainly easy to put off making decisions about who will take care of our finances and make medical decisions if we need help. And what about end of life care? Who wants to think about that?

But failing to make a plan is planning to fail. Now is the time to see an elder law attorney. Don’t wait until it’s too late.

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

Annual Reminders

The end of the year is a great time to review various aspects of your estate and financial plan.

Request a free credit report through annualcreditreport.com
Consider placing a fraud alert on your credit cards.
Create or update a list of all your electronic user names and passwords. Properly safeguard this information.
Review your Will and/or Revocable Trust to ensure that you are comfortable with your bequests, Personal Representatives and Trustees.
Review agents named under financial and medical powers of attorney to ensure they are still appropriate. Review your Living Wills to make sure you are comfortable with your end of life instructions.
Review your beneficiary designations for your insurance policies and retirement plans.

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

Estate planning attorneys are often asked by their clients to prepare Wills that pass along their money with strings attached. I call this “dead hand control”.

A common example is making an inheritance contingent upon the beneficiary being married to a person of a particular religion. Another one is requiring that the beneficiary be drug-free for a period of time.

Is this legal? In general, courts tend to allow people to pass along their money with strings attached, provided that those strings do not foster behavior that is illegal or against public policy. In an Illinois case a few years ago, a man-made his grandchildren’s inheritance contingent on their marrying Jewish spouses. The Will was upheld by the Illinois Supreme Court.

Clients who want this are doing what they think is best for the beneficiary. But clients also need to understand that putting conditions on their bequests can cause their family pain.

Consider this Florida case: Grandma died leaving a sizable estate to her 3 granddaughters. The money was divided equally, but they would only get their inheritance if they were married to a person of Grandma’s religion. Two of the sisters were, but one was not -she was happily married to someone of a different religion and had 2 children. She would not inherit. All three of the sisters were shocked and angry. The Executor of the estate explained that its hands were tied and their only recourse was an uphill battle in the courts.

Conditional bequests, related to religion or anything else, should always be thoroughly discussed with your estate planning lawyer.

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

5 Tips for Securing Your Assets, Healthcare and Legacy

It’s your life and your legacy: Make sure you have an updated estate plan. And don’t wait until it’s too late!

Create or Update Your Estate Plan: avoid unnecessary taxes, family arguments, and creditors

Wills allow you to transfer property to your selected beneficiaries, permits a parent to name a guardian, can help protect beneficiaries against creditors, and reduces the burden on family
Revocable Trusts allow you to distribute your assets at death and can allow you to avoid probate.
Irrevocable Trusts can help you qualify for financial assistance if you need long-term care and can provide for strong creditor protection for you and your beneficiaries.
Special Needs Trusts allows you to leave assets to a disabled heir without risking the loss of Social Security, Medicaid benefits, or food assistance.

Create Your Durable Power of Attorney and Medical Directives.

A Durable Power of Attorney authorizes your named agent to act in your place for financial and legal decisions if you are incapacitated.
An Advance Medical Directive allows you to name someone to make health care decisions for you if you are incapacitated.
A Living Will allows you to express your desires about life-prolonging procedures if you are at the end of life with no hope of recovery.

Review and Update your Beneficiary Designations on your Life Insurance and Retirement Plans.

Consider New Laws. Do the new tax laws affect your estate?

Review Social Security and Retirement Benefits. What is your full retirement age? Should you delay your benefits to increase your monthly benefits?

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

The best place to keep signed original estate planning documents

The best place is probably in a safe deposit box because it will protect the documents from theft, fire, accidental loss, and most other types of damage or harm. A potential problem, though, is getting it opened after your death.

If you decide to keep your estate planning documents in a safe deposit box, consider naming a family member or your Personal Representative or trustee as a joint holder on the box. That should simplify matters following your death because someone will be able to get into the box without delay.

Another place to keep your original estate planning documents is with the attorney who drafted them. However, I have decided not to retain original documents because of concern over theft, fire, flood, storms, or other loss of the document. It would also be prohibitively expensive to store hundreds or thousands of original documents. Also, what would happen if I were to die or my law firm was to cease operations?

Many people keep their original estate planning documents at home in a secure place. If you have a safe at home, that can be a good place to keep them. Be aware though, when thieves enter your home and discover a locked safe, they often take the whole safe thinking they’ll find cash and jewelry. The last thing they want is a file containing your estate planning documents, but that’s one of the things they’ll get if you keep them in your safe. Therefore, unless your safe is bolted to the foundation of your house, it may not be the best place to keep your originals.

More people than you would expect keep original Wills and other estate planning documents in an air-tight plastic bag at the bottom of their freezers. Freezers are well insulated and heavy and have a way of withstanding fires, hurricanes, and tornadoes. Also, they don’t die or move away, and they are stolen far less frequently than in-home safes.

Most importantly, make sure your designated representative knows where they are!

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