Category Archives: Elder Law

An old saying goes that there are only two things that certain in life – death and taxes.  While neither of these things is anyone’s favorite subject, they both point towards the importance of Estate Planning.

When we talk about Estate Planning, we automatically think about Wills, Trusts, and other types of legal documents.  However, your estate planning documents will do little good if your family or trusted friends do not know where to find them.

Once you have put the finishing touches on your written estate plan, I recommend setting aside some time to talk about it with your family.  Tell them where your documents are kept and explain your wishes clearly.  While this might be an uncomfortable conversation, it can save your family from additional stress and confusion down the road.

If you need advice on estate planning, call the Law Office of Debra G. Simms today at 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 Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

 

The Dangers of “Do It Yourself” (DYI) Estate Planning

Whenever I speak about estate planning at a seminar or before a civic group, I am asked this question:  Why can’t I just use the forms I can find online?

My answer:  You can.  But, remember, you get what you pay for.   You CAN do it yourself – but it’s really not a very good idea.  DYI estate planning breeds mistakes because when it comes to legal issues, one size never fits all.

My experience with reviewing DYI documents is that people tend to make mistakes when they fill out their own forms online.  Answering one question incorrectly or overlooking something such as appointing a guardian for children can lead to major problems down the road.

One of my prospective clients asked me to prepare a deed putting her home in her trust.  When I reviewed her trust, I saw that it was prepared according to community property and California law.  This lady lived in Florida and had never lived in California.  She sheepishly told me she found the trust on a celebrity money manager’s website.

Another client had a very well drafted trust he found online, but he had never funded the trust because he never received legal advice to do so.  Had he died before consulting with me, all of his assets would have gone through probate, even though his intent in doing a trust was to avoid probate.

Most people use online forms to save money.  I get that.  I like saving money, too.  At the Law Office of Debra G. Simms, we charge a flat fee for estate planning.  It is far more costly to fix mistakes than to do it right the first time.

If you need advice on preparing such documents, call the Law Office of Debra G. Simms today at 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.

 

Protect Yourself Against Elder Abuse!

Florida is home to many senior citizens.  Unfortunately, this makes Florida a magnet for criminals who take advantage of the elderly.

Many elder abuse scams take the form of offering estate planning or financial services to vulnerable elderly adults.  The scammers convince victims to pay them thousands of dollars for various types of estate planning services such as in-home personal care and companion services, and insurance policies to cover long-term care.

Earlier this year, the Florida Attorney General sued a Broward County couple who allegedly stole a quarter of a million dollars from senior citizens throughout the state of Florida by offering long-term care programs and services.  The bulk of the funds were diverted to the scammers for their personal use.  The Attorney General’s office is suing under “deceptive practices” laws.  The case remains pending.

Proper estate planning can help protect against such abuse by ensuring there is a designated agent available to manage a vulnerable adult’s personal and financial affairs.  A Durable Power of Attorney or Trust are excellent tools to manage such situations.

If you need advice on preparing such documents, call the Law Office of Debra G. Simms today at 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.

 

Many legal forms (Power of Attorney, Living Will) can be completed without professional help.  However, if you have a complex situation or questions, it’s a good idea to seek legal advice and services from an attorney specializing in elder law.

Elder Law focuses on disability planning, guardianship, estate planning, and other legal issues that typically affect older adults.

If you have a family attorney, he or she may be able to refer you to an elder law attorney.  Other resources include:

When you meet with your lawyer be sure to talk to your lawyer about the following key issues as well as any other concerns you may have:

  • Options for health care and long-term care decision-making for the person living with dementia
  • Options for managing the individual’s personal care and property
  • Possible coverage of long-term care services, including what is covered by Medicare, Medicaid, veteran benefits and other long-term care insurance.

The laws vary from state to state; make sure you understand your local laws and have any out-of-state documents updated in your new state.

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.

A Dementia Living Will is specifically designed to address advance care planning in cases of dementia.  In order to be effective, the document must be combined with a Designation of Advance Healthcare Surrogate and a Living Will.

For many people with dementia, there can be a number of years between losing the ability to make medical decisions and the point at which a living will would take effect.  Multiple medical issues can occur during those years, and a lack of information leaves your healthcare surrogates unprepared.

The purpose of the Dementia Living Will is to provide information to your health care surrogate in case you develop dementia.  It is intended to serve as a communication tool so your surrogate is aware of your medical choices regarding medical issues that are common during dementia.

The document can be completed by anyone over the age of 18 and is particularly helpful for those who are concerned about a diagnosis of dementia in the future and those individuals who have been diagnosed with early dementia are still capable of making their own medical choices.

Disclaimer:  If properly drafted and executed with witnesses the document should comply with Florida law.  However, with any new legal document, there may be some legal issues.   In the case of any challenge to legality, a signed and witnessed documents will provide a presumption of “clear and convincing evidence of the principal’s wishes”.

The Law Office of Debra G. Simms now offers a Dementia Living Will.

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.

Although the names sound similar, Medicaid and Medicare are very different government programs.  Medicare is an “entitlement” health insurance program which makes health insurance available to all individuals over the age of 65 who have paid their Medicare taxes.  It is also available to younger disabled persons who have a work history and have paid their Medicare taxes.

Medicaid is a “need-based” program which helps individuals with Long-term Care.  Medicaid is available to those who can show a medical need for long-term care and who have limited financial resources.

It is important to understand that Medicare does not cover care in an Assisted Living Facility and covers care in a skilled nursing facility up to 100 days of residency.  There are co-pay requirements after the first 20 days, but supplemental insurance can be purchased to cover deductibles and co-pays.  Home care can be covered by Medicare, but only if ordered by a physician.

Medicaid provides very limited coverage for home health care and all Medicaid medical and financial requirements must be met.

Another difference between the two programs is that Medicare is administered totally by the federal government.  Medicaid is a joint program between the federal government and the state.  In Florida, the program is administered by the Florida Department of Children and Families in conjunction with the Florida Department of Elder Affairs.  A Florida Bar Board Certified Elder Law Attorney can assist you in understanding the complex rules which apply to Medicaid eligibility.

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 help a lot of Senior citizens and their families find placement in Assisted Living Facilities and Nursing Homes.  I make it my business to know about the quality of care in the facilities in my community.  This is part of my job.  But most families have no idea how to obtain reliable information about nursing homes and often make regrettable decisions.

Most of us have heard about the 12 nursing home residents that died from heat and neglect in a South Florida nursing home after Hurricane Irma.  But lesser known examples of nursing home neglect abound throughout the State of Florida, a state with over 70,000 nursing home residents.

Last February, an Orlando nursing home sent 9 of its residents on an outing to a supermarket with only one assistant to supervise.  All of the residents needed round the clock care and five of them were in wheelchairs.  The story ends with all of the residents suffering from neglect and one falling and breaking his hip.  The facility was fined for this and for other actions, including failing to provide kidney dialysis to another resident.

The Trump administration is pushing to soften fines against the nursing home industry.  And the State of Florida has begun making nursing home inspection reports less transparent to the public.  State law requires these facilities to carry liability insurance, but not at specific levels.  Many nursing home resident advocates say that residents in nursing homes have far fewer rights than someone living outside one.

All of this has prompted a proposal to revise the Florida Constitution to include a Nursing Home Bill of Rights.  It is Proposal 88, and if approved by the state’s Constitution Revision Committee, after a series of public hearings, it will go before voters in November.  The proposal is being opposed by the Florida Health Care Association, which represents the nursing home industry.

To learn more about this proposal or for information on attendant at the public hearings, visit: Nursing Home Bill of Rights

The Law Office of Debra G. Simms will be glad to assist you with your elder care and estate planning questions. Call us today at (386) 256-4882.

 

 

 We have been talking about scams both here on the blog and on our social media. Sadly, there are more and more scams out there targeting the elderly and the vulnerable. Be aware and protect your elderly parents from these common scams.

 Computer scams:

Your best protection is common sense.  Be careful what you click on. Don’t be too social on social media.

Be cautious about opening messages or attachments regardless of who sent them.  These files can contain viruses or other malware that can compromise your computer’s security.  Delete them.

Home Improvement and Contractor Scams:

Do not do business with anyone who approaches you door-door or comes from out of state.   In Hurricane season, everyone is vulnerable. Get bid contracts from several contractors and READ them.

Government scams:

Social Security Scam: be aware of fraud scams that target personal information. Identity thieves obtain the personal information of SS beneficiaries and use that information to open a “my Social Security” account on the SSA website.  They then use that account to redirect the beneficiary’s check to their own account. Protect your personal information

Protect your Medicare card; Review your Medicare summary notices carefully; only give Medicare information to your doctors and suppliers; beware of offers of free medical equipment, services, or goods. Shred papers with medical information; remove labels on RX bottles before you put them in the trash.

 Sweepstakes and Lottery Scams:

You cannot win a sweepstakes or lottery that you did not enter.

Be suspicious of any pressure to send funds via wire transfer or a pre-paid loadable card

 Grandparent Scams:

If a caller is claiming an emergency, before offering to help a grandchild or another relative or friend, be sure to telephone that person at a number you know to be valid to find out if the request is legitimate.

Consider it a red flag if the caller insists on secrecy.

 Identity Theft:

The epidemic is going to get worse before it gets better.  Tell your parents to be alert and to monitor their bank and credit card statements.  Shred all personal documents with a crosscut shredder.

Be mindful of those who may be “shoulder surfing” –trying to look over your shoulder- while you use ATM.  Don’t carry too much information in your wallet – only what you need.  Driver’s License, 1 credit card, 1 check. Do not have personal information printed on your checks.

Protect your incoming and outgoing mail.  If your mailbox is not in a secure location, use a post office box or promptly remove your mail.  Have new checks delivered to your bank, not your home.  Never leave mail in your box with a red flag.

Missing a financial statement one month could be a sign that someone has stolen your mail and account information and may have changed your mailing address.

Door to Door

Utilities always notify you first before sending someone inside your home.  Assume that unsolicited offers for a free energy audit will lead to a hard sell for possibly unnecessary but expensive improvements.

When it comes to scams, remember the gazelle.  When he senses a lion, he runs.  He does not stand around trying to rationalize it otherwise he would be the lion’s lunch!

The Law Office of Debra G. Simms will be glad to assist you with your elder care and estate planning questions. Call us today at (386) 256-4882.

I often get calls from folks who need to make financial and legal decisions for an aging or ill spouse or parent.

The first question I ask is:  Are you the agent under a Durable Power of Attorney?

If the answer is no, and the parent or spouse still has the mental capacity to understand and execute a Power of Attorney, then I urge them to do so before it’s too late.

Unfortunately, often times the call comes when it is too late.  The loved one no longer has the mental capacity to understand the nature and effect the document.  The only option left is a Guardianship.

A Guardianship is a type of legal proceeding where the Court determines that an individual (called the “Ward”) is legally incapacitated and also appoints a Guardian, usually a family member, but sometimes, a professional guardian, to manage the Ward’s personal and financial affairs.

The Courts look at a number of factors in determining legal incapacity.

First, let’s look at how Florida law defines incapacity:

Florida Statute Section 744.102 (12):

“Incapacitated person” means a person who has been judicially determined to lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of the person.”

The Court makes the determination of incapacity by appointing an examining committee to meet with the alleged Ward and also to review prior medical records.  The members of the examining committee then file a detailed report with the Court as to their determination and an explanation of how they reached their decision.  Some of the factors the committee members consider are:

  • Can the individual make and exercise informed decisions regarding his right to contract?
  • Can the individual make and exercise informed decisions regarding his right to manage property or to make a gift?
  • Can the individual make and exercise informed decisions regarding his right to determine his residence?
  • Can the individual make and exercise informed decisions regarding his right to marry or vote?
  • Can the individual make and exercise informed decisions regarding his right to have a driver’s license or operate a motor vehicle?

This list is not exhaustive and the Court can always consider any other relevant factors.

Furthermore, the alleged Ward has the right to their own counsel and can object to any evidence introduced which supports a finding of incapacity.

If the Court makes the determination of incapacity, the next step is to appoint a legal guardian.

This is a complicated and costly process.  It’s not always unavoidable, but in most cases, a Durable Power of Attorney is a much better alternative.

We, at the Law Office of Debra G. Simms, are glad to assist you with a durable power of attorney and planning for incapacity. Call us today at (386) 256-4882.

LADY BIRD DEEDS

Many of my clients do not have Revocable Living Trusts.  Therefore, upon their death, any real estate they own will have to go through probate (unless it is owned jointly with a spouse or partner).

An option is an Enhanced Life Estate Deed/Lady Bird Deed as part of the estate plan. But, clients must be aware of the advantages and disadvantages of using this type of deed.

When you own property, you may execute a deed retaining the right to the property during your lifetime, with the right for someone else to receive the property after you die. The right to have the property during your lifetime is called a life estate. The right to receive the property after you die is referred to as a remainder interest.

For many years, in order to avoid probate, parents would have deeds prepared retaining a life estate in themselves, granting a vested remainder to their children. This worked well in avoiding probate, as well as preventing reassessment of their property for real estate tax purposes. It also preserved a step-up in tax basis at the death of the parent, since the property wasn’t considered transferred until death.

The disadvantages of this type of deed are that you could not easily undo the transaction. If the parent wanted to mortgage or sell the property, the parent would need the child to sign the mortgage or the deed. If the parent changed his or her mind and wanted to add or remove a child, the consent that child would be required. Even worse, if the child had financial issues and a judgment was recorded against him or her, that judgment could be a lien on the parent’s property. In addition, if any of the children died, his or her share could require probate.

Also, if the parent needed to apply for public benefits such as Medicaid to help cover the cost of Long-term Care, the transfer would be considered to be a transfer of assets which would create a penalty period hampering the parent’s ability to qualify for Medicaid.

The Enhanced Life Estate Deed/Lady Bird Deed adds language in the deed which basically says that the parent has the right to revoke the deed and sell the property to another person without the consent of the child. And, fortunately, this type of deed does not trigger a penalty period for Medicaid.  This type of deed transfer still avoids probate.

However, the law is presently unclear about other issues.

For one, if a parent wants to sell or mortgage the property, some title companies or lenders require the children to sign the deed or mortgage. Any judgment against the child is still, in some cases considered a lien on the parent’s property. This is a very controversial issue and is typically decided on a case by case basis by the title company or lender. Moreover, if the parent changes his or her mind and wants to add or remove a child, the consent of the existing children is still required by many title companies. Finally, if one of the children dies, his or her share may still need to be probated.

While the advantages mostly outweigh the disadvantages, it is important to understand the pros and cons of using an Enhanced Life Estate Deed/Lady Bird Deed.

We, at the Law Office of Debra G. Simms, are glad to assist you in determining if this is the right plan for you. Call us today at (386) 256-4882.

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