March, 2018 - Simms Law Firm

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 Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

After a lifetime of hard work, many people have a large portion of their wealth tied up in their IRA’s. But, they might not think it wise to leave such a large sum of money to certain heirs or beneficiaries. Most money managers tell their clients that they can only name individuals on their IRA beneficiary forms. Is this true?

No. You can leave your IRA assets to a beneficiary in trust. But, here’s the catch…it must be a Retirement Benefits Trust which contains specific language that satisfies the IRS because these assets have not yet been taxed.

If properly drafted, a Retirement Benefits Trust can preserve your assets for your beneficiary and the tax deferral treatment will not be lost.

I recommend the use of a Retirement Benefits Trust in a variety of circumstances such as:

• You have remarried and want your new spouse to have the use of your IRA income, but not control over the principal
• You have minor children or your children are not responsible with money
• You have a beneficiary who is in the middle of a lawsuit or in the middle of a divorce and subject to alimony
• You have a beneficiary with Special Needs

There might be other circumstances where it is not appropriate to leave your Retirement Benefits outright to a beneficiary. The use of a Retirement Benefits Trust can preserve these assets and the tax benefits for your loved ones.

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

Is Your Will a Private Document? NO!

In Florida, a Will must be filed with the Clerk of Court in the county where you are residing at the time of your death. A Will is a public record. Other documents that must be filed during the probate process are the Inventory and Accounting-documents which contain very specific information about your assets.

This issue was recently in the news when The New York Times filed a lawsuit seeking access to the sealed Will of Harper Lee, author of To Kill a Mockingbird. The Times argued that “Ms. Lee’s privacy concerns were no different from those of others whose wills are processed through the court system.” The Times won, and Harper Lee’s Will is now a public record.

You can avoid this public process and keep your affairs private through the use of a Revocable Living Trust. Like a Will, a Trust’s main purpose is to control the disposition of your property at death, But, unlike a Will, one of the advantages of a Trust is that there is no Probate and no public airing of your assets in a filed Inventory.

With a Revocable Living Trust, your property and their values remain private.

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

As an Elder Law Attorney, families often come to see me when a loved one is sick and time is limited. Handling a death in the family is always difficult, but handling the legal details is the last thing you will want to do in a time of mourning. The death of a loved one is not only terribly painful, but the aftermath can be complicated, expensive, and a lot of work.

Here are some tips to help you minimize the stress:

Discuss and arrange funeral arrangements ahead of time. Discuss burial and cremation. Cemetery plots are sometimes already purchased, especially when the other spouse has died; if not, try to discuss your loved ones’ preferences and do as much as possible in advance.

Funerals are expensive. Hopefully, your loved one has made pre-paid funeral arrangements, but if not, discuss the details. Since life insurance proceeds and inheritances may take a while to receive, discuss how the funeral will be paid. Did your loved one put some money aside that is easily accessible? Remember, you won’t be able to use their credit card after they are gone.

The sooner you discuss the details, the better. Talking about death is easier when it feels farther away.

Legal documents should be located. If anything is needed to pass on property and assets after death, do it now. As long as your loved one has mental capacity, Wills, Trusts, and Medical Directives can be prepared or updated. Try to take steps to avoid probate. Probate is the last thing you want to deal with after your loved one dies. Probate is not only stressful but time-consuming and expensive. Seek out legal counsel before it’s too late.

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

It is now “The Law of the Land” that same-sex marriages are legal. This means that your same-sex spouse, unlike a same-sex partner, has certain rights to your property when you die.

In Florida, same-sex spouses are entitled to inherit a certain percentage of your estate and have rights to your homestead property even if your Will says otherwise.

For this reason, it is important to consult with an attorney before the marriage takes place. It is possible to enter into a prenuptial agreement to avoid unintended consequences. If the marriage has already taken place, an attorney can help you prepare a post-marriage agreement.

A same-sex marriage is a sensible time to review the arrangements you have made in all of your estate planning documents. This is a good time to reconsider who you will appoint as your substitute decision maker for financial and health decisions if you become incapacitated.

In Florida, if you do NOT have a valid Advance Medical Directive, then your spouse will be your decision maker by default. For some families, the new spouse is not always the best person for the job.

A Florida Durable Power of Attorney is an important part of your estate plan. This legal document gives control over who will manage your property during periods of lifetime incapacity.

Recent changes to the Florida Power of Attorney statute make this an excellent time to re-evaluate and possibly update existing powers of attorneys.

A Power of Attorney is a powerful document. People create these documents to ensure continuity of their financial affairs in the event of future incapacity, naming trusted family members, friends, or professional fiduciaries who can step in to manage what is needed.

Unfortunately, these individuals can and do, sometimes abuse their authority. Updating your Power of Attorney can give you additional protections.

First, who is your designated agent? Is this person still the person that you trust the most? Have you named a successor agent in case your named agent is unwilling or unable to serve?

Second, the new Florida Power of Attorney gives added protections for the Principal (the person creating the document) by requiring the Principal to specifically grant or withhold certain powers. For example, if you are creating a Power of Attorney under the new law, you can decide whether or not to allow your agent to make gifts, or change beneficiary designations on your accounts.

If you created a Power of Attorney under the old law, your document is still in effect. However, since the new law includes many advantages over the previous one, it is a good idea to create a new one to obtain the added protections under the new law.

Many of my clients live in a Manufactured Home. They are concerned about how to avoid Probate if the home is not titled jointly. Probate is certain to be required if you are not leaving the home to your spouse, all children equally, or if your children cannot amicably agree among themselves upon a division of this asset. You will also need a Probate if your estate has any debts.

A solution for this problems is to put your Manufactured Home in a Revocable Living Trust. First, of course, you must contact an attorney to create a trust for you if you do not already have one. Then, you must contact the Florida Department of Motor Vehicles to change the registration. There are forms to fill out and processing fees to pay, but the process is relatively easy and much less expensive than Probate.

If the Manufactured Home is your Homestead, you will not lose this valuable exemption simply by putting it in a Trust.

Also, sometimes the owner also owns the land underneath the Manufactured Home. If this is the case, then a deed will also need to be prepared and filed with the Clerk of Court. If you own the land, another option is to “retire” the title to the mobile home by filing certain documents with the Clerk of Court and the Department of Motor Vehicles. If this step is taken, the mobile home can be transferred by deed to the trust.

Taking the above steps will give you some peace of mind in protecting your beneficiaries from Probate. It will save your beneficiaries time and large legal fees, and allow for the smooth transitions of your assets

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