Author Archives: Debra Simms

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 Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

 

Protecting Your Disabled Child

A Supplemental Needs Trust, also known as a Special Needs Trust, is a document that is designed to provide a way for you to leave part of some of your estate to a disabled child and still preserve the public assistance benefits provided by any county, state, federal or governmental agency. (This is usually Social Security and Medicaid). You may leave properties such as cash, stocks, bonds, life insurance proceeds and real property to the trust.

An important consideration is identifying the proper individual or entity to manage the trust after your death. This is the Trustee.  This could be another family member, a close friend, or a trust company.  Being appointed and serving as a Trustee is a very serious undertaking. Every Trustee is held to a high standard of performance, considerably higher than the performance acceptable for an individual’s own affairs.  I recommend that the appointed trustee be part of the planning process so that the trustee duties are understood and accepted.

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.

 

Consider the following as you make your plans.

  • Consult with a Florida Bar Board Certified Elder Law Attorney. Many attorneys offer an initial free consultation for estate planning matters.
  • Those named in your Durable Power of Attorney should be aware of the document and have access to the document.
  • The person with dementia should name a successor (back-up) agent for the power of attorney in the event the agent may be unable to act. (Illness, resignation, death)
  • Once a power of attorney for health care document and a living will is in place, give copies to the person’s health care providers and agents.
  • Consider choosing an attorney or a corporate trustee (bank or broker) to manage the individual’s estate if the person lacks a trusted individual with time or expertise.
  • The person with dementia should discuss his or her wishes with the chosen agent to make sure the agent is comfortable carrying those wishes out.

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.

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.

Living Will

A living will is a document that expresses how a physically or mentally incapacitated person wishes to be treated in certain medical situations.

In a living will, the person states his or her wishes regarding artificial life support.  This document generally comes into play once a doctor decides that a person is at the end of life and unable to communicate his or her desires regarding life-sustaining treatment.

Advance Directives

Advance medical directives are legal documents that allow a person to document preferences regarding medical treatment and care.  This document allows a person with dementia to name an agent to make healthcare-related decisions on his or her behalf when he or she is incapable of doing so.  These decisions include choosing:

  • Doctors and other healthcare providers
  • Types of treatment

For a person in the late stage of dementia, the health care agent may also make end-of-life decisions, such as providing nutrition through a feeding tube or giving do-not-resuscitate (DNR) instructions to health care providers.

A Durable Power of Attorney is the legal document that allows a person with dementia to name an agent to make financial and legal decisions on his or her behalf when he or she is incapable of doing so.  These decisions include:

  • Choosing an assisted living or skilled nursing facility with a memory care unit
  • Applying for Medicaid, if applicable
  • Accessing bank or brokerage firms to handle finances
  • Hiring lawyers, accountants and private caretakers

When the time comes, these decisions can be difficult for families to make.  Help avoid disagreements and distress by having open conversations early on so everyone involved understands the plans.

The legal requirement for these documents varies from state to state.  Do not assume that your legal documents from another state are valid once you relocate.  Consult with an elder law attorney familiar with these issues.

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.

 

 

Before a person with dementia signs a legal document:

Talk with the person.

Find out if the person with dementia understands the document and consequences of signing it.  Make sure the person under the stands what is being explained and what he or she is being asked to do.

Ask for medical advice.

If you have concerns about the person’s ability understand, a doctor may be able to help determine the level of his or mental capacity.

Take inventory of existing legal documents.

Verify whether living wills, trust and powers of attorney were signed before the person was diagnosed.  He or she may not remember completing them.  Even if legal documents were completed in the past it is important to review them for necessary updates.

Do not delay.  Dementia can progress very slowly, but sometimes very quickly.  Failure to plan can lead to expensive and complex legal consequences.

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.

This is the first in a series of information on the legal issues associated with Dementia. 

While it’s Important for everyone to plan for the future, legal plans are especially important for a person diagnosed with dementia.  The sooner planning begins, the more likely it is that the person with dementia will be able to participate.

In many cases, time is of the essence.  If a person with dementia is able to understand the meaning and importance of a given legal document he or she likely has the legal capacity (the ability to understand the consequences of his or her actions) to sign the documents. The level of legal capacity required for a person to sign a particular document varies from one document to another.

It is very important to seek the services of an estate planning or elder law attorney as early on as possible.  Once dementia progresses, the client may no longer be able to understand and sign the documents.  I see this all too often in my law practice.

Legal Planning for persons with dementia includes:

    Planning for Long-Term Care and healthcare

  • ing arrangements for finances and property
  • Naming another person to make health decisions on behalf of the person with dementia
  • Executing a Will and/or Trust to make sure the person with dementia has control over who receive his or her property when he or she dies.

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.

Do You Know When it is Time to See A Lawyer? 

Often we turn to lawyers as a last resort after the contract has been signed, the spouse has walked out, or the parent has died.

The adage, “an ounce of prevention is worth a pound of cure” is as true with legal matters as it is with regular medical checkups.

Getting good legal advice is one of the greatest preventative measures you can take BEFORE you become ill or incapacitated.  Not only can you save money in the long run, but preventative legal advice can save you and your family from difficulties later on.

Make a Will and plan your estate before you become too ill to do so.

And if there are changes in your family status – marriage, divorce, the birth of children, now is the time to seek legal advice to update your existing plans.

Make a careful search for your lawyer and focus on who may be the best qualified to handle the issues in your case.  Board certification is one way to decide if a lawyer is right for you.  A Florida Bar Board Certified lawyer must have extensive experience, must pass a written examination in the specialty area, and be favorably evaluated as to ability and experience in that specialty by other lawyers.  And the certification must be renewed every 5 years to show that the attorney can meet the same requirements as for the initial certification.

Debra G. Simms has been practicing law since 1988 and is a Florida Bar Board Certified Attorney.

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.

Contact Us

Port Orange Office:
Prestige Executive Center
823 Dunlawton Ave. Unit C
Port Orange, FL 32129
Local: 386.256.4882