October, 2014 - Simms Law Firm

Frequently, my bankruptcy clients come to me after reaching out to debt consolidation companies. They wanted to solve their debt problems by avoiding bankruptcy.

I’m all for avoiding bankruptcy if possible, but are these companies legitimate?
Here is a typical scenario:

Clients have about $50,000 in debt. The net income is around $4,000 a month. The debt consolidation agency tells the clients if they pay $1,200 per month they could pay off the debt over a 52 month period. The service fees range from $50 – $150 per month or more.

Here’s my reaction: these companies are not doing anything the clients couldn’t just do themselves. They are paying $15 – $150 a month for somebody to make phone calls and send out checks.

But, I got to wondering – do they EVER work? So, I asked my friend, Sam, a debt collector. Here’s what he said:

“As a debt collector, I’ve had occasion to deal with a number of debt settlement companies, and can say I NEVER think it’s a good idea for a consumer to employ the services of such a company. First, these companies simply do not do anything for a consumer that he or she could not do for his or herself. (I thought so!) Second, it’s ridiculous for a consumer to pay thousands of dollars to such a company when those dollars could actually go to paying down debt. Third, and this is the big one, when a consumer hires a debt settlement company, collectors look at that action as an invitation to sue. Why? Debt collection success is predicated on communication with a debtor. If a collector cannot speak with a debtor, make payment arrangements, etc., there is nothing left to do but file suit.”

Then I asked Donna, a consumer advocate lawyer friend of mine what she thought about these companies. She said:

“HIGH potential for scam activity with these things. I’ve heard of them taking the payments and never giving them to the creditors – putting the debtor in an even worse situation.”

Then I asked her, “Can’t these folks just do the same thing for themselves?”

Typical lawyer, Donna answered, “Well, yes and no. Sure the debtor can talk to his own creditors and negotiate with them. But it’s about as effective as a non-lawyer representing himself in litigation. A lawyer or advisor who knows what he is doing will likely produce a much better result. Of course, it’ll cost something to achieve.”

Lastly, I asked my bankruptcy guru lawyer friend, Steve, and he added this to the debate: “The Fair Trade Commission added debt settlement to its telemarketing sales rule, but this only regulates a debt settlement company who talks to clients on the phone, including if a client calls them. It prohibits upfront costs, but there is no cap on the amount of fees they can charge. And, there is no regulation of internet companies.”

So there you have it! When the evil debt collector, the consumer advocate, and the bankruptcy guru all agree on something, you have to take notice!

Before you hire a for-profit debt settlement company, call the Law Office of Debra G. Simms. Toll free: 1-877-447-4667 for your consultation.

Debra G. Simms

Many of my clients come in and tell me that they want a living trust. Sometimes they say ‘revocable trust’.

I ask them, “Why?”

Their usual answer? “To avoid probate.”

“Why do you want to avoid probate”, I ask?

“Oh, my mother died without a trust and after she died, it was a mess. It cost a fortune and took forever.”

Is it true? Will a trust avoid probate?

The answer is: “It depends.”

If you have a lawyer prepare a document called a living or revocable trust AND you transfer your property to the trust, then you MIGHT be able to avoid probate. That usually means transferring real estate from your name to the trust by way of a deed AND transfering personal property such as bank accounts to the trust.

You probably also want to have a “pour-over” will so that your trust can be funded with your property after you die. After all, you could pass on to the next world having a winning lottery ticket in your pocket!

The point is: If you want to avoid probate so that your heirs can access your funds without obtaining a court order, then you must have a trust document AND you must transfer your property to that trust.

Sound complicated? A little. Your attorney, banker, or money manager should be able to help you without much added cost.

Point is, don’t just set up a trust. At the Law Office of Debra G. Simms, we make sure our clients are advised to properly fund the trust so that it works the way it is intended.

Call now for a consultation.

Debra G. Simms

The Guinness Book of World Records lists the shortest will in the world as “All to wife”. In 1948, there was a famous case where a farmer in Saskatchewan, Canada, was trapped under his tractor. He carved a will into the fender. The fender was probated and stood as his will.

I have had many people come to my office asking for a “simple will”. I’ve never had anyone ask for a “complex will”! All I write is simple wills -they are simple enough to provide the protection desired by the family. In some cases, they are short wills, in other cases, they are longer. In all cases, they always cover the needs of my clients.

Contact our office to learn more about setting up a simple will or schedule an appointment to discuss our estate planning services. Call 1-877-447-4667

Debra G. Simms

As a mother of four girls, the financial burden of college is a grim reality that I have had to deal with for the past 17 years. I am a proud lawyer mama with 2 children having already entered professions and 2 on their way!

Even though I am extremely proud of my girls’ accomplishments, I am aware of how the stress of payingback student loans is not only a concern for the soon to be launched student, but for their strapped families as well. The cost of college has greatly increased in the last decade and has risen beyond most families’ reach, making a vital piece of the “American Dream” less accessible to low and middle income families.

As a nation, we find ourselves in a student loan debt crisis. Young adults have relied on education loans to fund a college education, but not realizing the long term financial consequences, and facing a depressed economy, frequently find themselves with no job, but plenty of education debt. That wasn’t supposed to happen!

The student loan market is one of the least understood markets. Now is the time to have a national discussion not only about private and federal loans and how they work, but also a discussion about whether these loans should be treated any differently than other unsecured loans when the borrower is in crisis.

Unlike credit cards, cash advances, car loans, and even some tax bills, it is almost impossible to discharge a student loan in bankruptcy. To do so, you must show that payment of the debt “will impose an undue hardship on you and your dependents.”

Courts often look at different circumstances when evaluating whether a particular borrower has shown an undue hardship. The most common test requires a showing that the debtor cannot maintain a “minimal” standard of living if forced to repay the student loans, that there are other factors making the situation likely to persist for a very long time, (like permanent disability) and that the borrower has made good faith efforts to repay the loans.

If you have student loans, it is a good idea to first consult with a lawyer if you are considering bankruptcy. And even if you can’t prove undue hardship, repaying your loans through a Chapter 13 bankruptcy plan might be right for you. Be sure to mention your student loans in the first consultation.

Contact the Law Office of Debra G. Simms for your bankruptcy consultation.

Debra G. Simms

Florida provides for Advance Directives known as a Living Will and Designation of Health Care Surrogate. An advance directive is a witnessed document made by a competent adult which gives instructions and expresses desires concerning future health care treatment. There are plenty of forms available on the internet, but a Florida attorney can help you add specific information to the forms, making them fit individual needs not addressed in the forms.

Remember that we all have the right to understand treatment proposed by a health care provider, including risks, alternatives, and costs, before we consent to the treatment. This right is known as “informed consent.” And also remember that every patient has the right to refuse proposed treatment. If you do not have the mental capacity to do this yourselves, then your named surrogate in your Florida Advance Directive will make these decisions for you. In making these decisions, your health care surrogate is bound to follow your instructions and wishes, not those of the surrogate. Therefore, the more specific the directive, the more likely your wishes will be followed. The surrogate can be instructed to make health care decisions for you in accordance with your values and your religious and moral beliefs, at a time when you do not have the mental capacity to make the decisions for yourself.

A Living Will is a directive but you are not designating a surrogate to make decisions for you. Rather, with a Living Will, you are directing the medical providers to withhold or discontinue life support if you are in an end stage condition, terminal illness, or permanent vegetative state AND there is no hope of recovery. You are actually taking the burden of this decision away from your family and loved ones.

Do not assume that the living will and health care surrogate forms provided by the hospital, nursing home, doctor, the internet, or anyone else reflects your particular wishes. The forms in the statute are optional and have only the basic language required by the statute.

For example, in a Living Will the statutory definition of a “terminal condition” or “end-stage condition” can be expanded to include language such as “any condition which renders me unable to care for myself, such as a massive cerebrovascular accident, serve prolonged Alzheimer’s disease, Parkinson’s disease”, and so on. This language will not be found in the do it yourself forms you find on the internet nor will they be included in your hospital’s forms.

Further, you might want to ask for or specifically decline certain “life-prolonging procedures” such as CPR, artificial administration of nutrition and hydration (forced feeding and fluid through tubes), mechanical breathing assistance, chemotherapy, blood transfusion, and certain invasive diagnostic tests. Again, you cannot rely on pre-made forms if you want to be specific about your desires. You will need to consult with a Florida attorney, one who is experienced in drafting these documents to meet your specific needs.

At the Law Office of Debra G. Simms, we have over 25 years of experience helping individuals meet their estate planning and advance directive needs. It is important to act now; too many of us wait until it’s too late.

Debra G. Simms

At what stage should you start the planning process to specify what to do with your assets when you die?

After 23 years of practicing law, I can tell you- it’s never too early, but when it’s too late, it’s too late.

Parents with young children: Who will take care of your minor children if both parents die? At a minimum, you should have a will to name a guardian to take custody and care of your children. If you do not designate a guardian, the court will do it for you. You might also want to specify at what age your children should have control over their inheritance. You can do this in your will; it’s called a testamentary trust.

Single adults: Do you have nieces and nephews that you would like to care for? Do you have pets? What about a bequest to a charitable foundation? Remember, if you have no spouse and no children, your “heirs” as defined by statute will inherit your assets. These folks might not be the ones you would have designated.

Same-sex or life partners: If you are in a relationship, but not legally married, the State of Florida will determine where your assets go at death if you do not have a will or trust. Unmarried partners can not inherit any “spousal share” under the statutes. Equally important: unmarried partners should have durable powers of attorney and advance health care directives to ensure their partners are not shut out of the decision-making process in the event of illness or incapacity.

Elderly or Ill: You should take immediate steps to write a will or trust. If you already have an estate plan, this is the time to update. You should also prepare or update your power of attorney , advance health care directive, and living will. Once you lose capacity to do so, it will be too late.

Call the Law Office of Debra G. Simms. We offer consultations to help you decide what estate plan is best for you.

Toll free: 1-877-447-4667

Debra G. Simms

Just divorced? Divorced for years? You and your ex-spouse may have Wills, Powers of Attorney, and Medical Directives that make absolutely no sense for you now.

Sometimes assets that were once nonprobate because they were jointly titled in both spouses’ names become subject to probate when they are solely owned by one spouse.

Often the most valuable asset a couple had was the retirement plan. Has the beneficiary designation been changed? Does the existing estate plan need to be reviewed to consider the consequences of this? What about your life insurance? Does your settlement agreement mandate that child support or alimony be insured? How does this impact your estate plans?

Many of my clients are traumatized after divorce. Dealing with an estate planning lawyer is the last thing on their mind. But, don’t wait until it’s too late. When it comes to estate planning, when it’s too late, it’s too late.

Consult the Law Office of Debra G. Simms today for your estate planning consultation.

Call Toll free:

1-877-447-4667

Debra G. Simms

Last month, New York took the plunge and legalized same sex marriages. At the stroke of midnight on Sunday, July 24, same sex couples were allowed to make their relationships “official” as weddings were held in city offices and at Niagara Falls. While government offices are not usually open on Sundays, this day was an exception, and by the end of it hundreds of couples had said their vows.

The legalization of gay marriage in New York, while only technically affecting those in the state, really has nationwide impact for those in same sex couplings. The legalization of same sex marriage in New York doubled the number of Americans who live in a state where gay and lesbian couples can wed. Gay-rights advocates are setting their sights on Maryland to be the next state to legalize same sex marriage, but they have a long way to go there and around the rest of the country.

Currently, in the majority of states, same-sex partnerships are generally overlooked by the law. Only six states, now including New York, have legalized gay marriage, and only a handful more include any form of freedom of religion and fair marriage acts, which allow those involved in a same-sex civil union to receive rights similar to those of married couples. Those in other states have to be aware of their rights when it comes to day to day worries – anything from child custody, support and visitation, second-parent adoptions, school related issues, estate planning, wills, powers of attorney, and partnership agreements. In all cases, it is in the couple’s best interest to speak to a lawyer in order to figure out where they stand on these issues.

One area where we might see rapid growth is in consumer issues. (Read my lips-it’s the economy, stupid!) Insurance company Esurance is an early adopter to the civil union changes when considering car insurance. Already, its company offers savings to couples in California, Oregon, and Washington, and with the Illinois Religious Freedom Protection and Civil Union Act that went into effect in June 2011, it offered couples in that state the opportunity to sign up for the “married” car insurance rate instead of just the “single” one if they are in a civil union, giving them an average of 10% savings on their annual insurance bills.

If Esurance can do it, why not other companies? It will be interesting to see in the future what problems are alleviated for same sex couples when considering the issues they have faced with not only insurance but also with other legal battles.

The Law Office of Debra G. Simms offers consultations to same-sex couples for a variety of issues, including property agreements, custody, wills, powers of attorney and medical directives. We now also offer Small Business Planning for Domestic Partners.

Call for a consultation to know your rights.

Debra G. Simms

Altamonte Springs, FL

Toll free:-1-877-4667

Debra G. Simms

Many of my clients are asking about the federal estate tax. This is one of the Bush tax cuts set to expire at the end of this year, contributing the fiscal cliff we are hearing so much about.

Here’s what will happen on January 1st: The current $5.12 million per person exclusion from the federal estate and gift tax will go back to $1 million and the tax on the transfer of wealth will go from 35% up to 55%.

Some believe that since the estate tax exemption has never gone down, it will only dip temporarily and then Congress will likely let it stay where it is. Others believe that since our government is in desperate need of more tax revenue, it will likely fall back to the 2011 exemption of $3.5 million. (This is favored by President Obama)

I would expect Congress to also extend the special tax break for married couples that is scheduled to go over the cliff. This is also known as portability.

Remember, the estate tax is based upon your gross estate when you die. That includes life insurance proceeds payable to someone else and your retirement funds. Most of us are worth more dead than alive, so if you have the potential to pay an estate tax, now is the time to visit our office to learn about your estate planning options. Don’t wait until it’s too late.

Debra G. Simms

Attorney at Law

Orlando

Daytona Beach

Toll Free: 877-447-4667

Debra G. Simms

Many of my clients ask whether they are responsible for their parents’ nursing home bills. Many times they have already been asked by the nursing home Administrator to sign a personal guaranty. Now they are worried. Are they responsible for their parents’ debts? That’s not the way it’s supposed to work!

Depending on where you live, your state may indeed have a “filial support” law that could be used to go after you, the adult child, for your parents’ unpaid nursing home bills!

Pennsylvania is one those states that routinely uses the law to get families to pay for their elder’s bills or apply for Medicaid on their parents’ behalf. In many cases, nursing homes in Pennsylvania are using the law as leverage to get children to gather up their parents’ financial information and disclose their parents’ assets, including those transfered to their children’s names.

Usage in other states has been rare. But these powers exist and could be employed by providers and states getting more desperate for payment from overstretched Medicaid programs.

Florida does not currently have a filial responsibility statute, but that may change as Florida retirees, many of whom are living on Social Security income alone, age and require greater care.

For information on which states do have filial responsibility laws, see this helpful chart provided by AARP:http://assets.aarp.org/www.aarp.org_/articles/bulletin/interactive/filialpiety/index.html

The best defense agains such laws is Elder Law plannning. If your parents aren’t milliionaires, then early advice is essential. Possible early strategies include buying long-term care insurance before health issues begin. Setting up a Medicaid compliant trust might also work for your family, but this must be done long before the elder needs the nursing care.

Without planning, medicaid planning is in crisis mode – there may be fewer options to protect the family’s assets and adult children may be at the mercy of these filial support laws.

If you need help, call our office and ask to speak with our qualified Elder Law attorney. We are members of the National Association of Elder Law Attorneys.

Call Toll Free:

Debra G. Simms

1-877-447-4667

Orlando

Daytona Beach

Debra G. Simms

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

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New Smyrna Beach FL, 32169
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