Author Archives: Debra Simms

What is the difference between a Designation of Health Care Surrogate and a Living Will?

A Designation of Health Care Surrogate is a document that allows you to name an agent to make medical treatment decisions for you in accordance with your wishes if you are not able to do so yourself.

A Living Will is a document that allows you to address what kind of medical treatment you would like to receive if you ever face a terminal or irreversible medical condition. It is often referred to as the document where you tell the doctors to “pull the plug.” Most people request that all treatments other than those needed to keep them comfortable be discontinued or withheld so they can be allowed to die as gently as possible.

The main difference between the two documents is that the Living Will is where you actually express your own specific preferences as to the use of life-sustaining treatment, and the Designation of Health Care Surrogate is where you name one or more persons to make most medical decisions for you.

It is not uncommon to combine a Living Will and a Designation of Health Care Surrogate into a single form. Preparing the two documents as separate forms or as a single form are both valid ways to address the medical issues.

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

Do you use Facebook, Twitter, or Amazon?  Do you bank online?  Use Google, have an Apple account?

These are Digital Assets and they have personal and financial value to you.  Because they have value, these assets need to be identified and protected in the event you become incapacitated and when you pass away.

Gone are the days when your agent under a Power of Attorney or the Personal Representative of your Estate can stand by your mailbox and wait to see where you keep your money or what bills are due.  Most of us don’t even get much mail anymore!

Florida has recently enacted the “Florida Fiduciary Access to Digital Assets Act”.  This law allows gives our representatives the ability to access our digital assets by allowing us to direct the disclosure of these assets and in some cases, to obtain the content of these assets.  Prior to the enactment of this law, representatives often had to go to Court and obtain a Court Order directing the bank or social media company to disclose the incapacitated or deceased’s person’s accounts.

What this means is that your Will and Durable Power of Attorney should be updated to include the language required by the statute.  If your documents are older than 2016, and you do ANYTHING online, you should consult a lawyer to update your documents.  The cost should be minimal and far less than going to Court!

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

Comprehensive financial and estate planning is crucial for all families.  But, when a family includes a loved one with special needs, comprehensive planning is of utmost importance.

For example, families with special needs individuals must pay careful attention to the income and assets of the special needs individual and the method in which gifts or inheritances are received.  These financial matters can affect a disabled person’s eligibility for important government benefits – Supplemental Security Income (SSI) and most importantly, Medicaid.

Disabled individuals must meet asset and income limit tests in order to receive these benefits.  The resource test places a $2000 limit on a single person’s assets.  The income limit is more complicated and can count earned income such as wages, or money received from other sources like free food and shelter, gifts, and inheritances. The income limit is tied to the Federal Benefit Rate, which is currently $735 per month for an individual.  (Some types of income do not count towards this limit)

Thus, in order to provide their disabled loved ones with a better quality of life, families must take special care in leaving inheritances to them.

Special Needs Trusts, also known as Supplemental Needs Trusts, are used to shelter assets of a disabled person to allow them to qualify or keep their government entitlements such as SSI and Medicaid.  Importantly, these trusts are designed to supplement government benefits and not to replace or supplant them.  Therefore, the proper drafting of these trusts is of utmost importance to keep these benefits in place.

Special Needs Trusts are the legal centerpiece of a plan for a disabled person.  Elder Law attorneys are professionals equipped with to training to assist families with special needs individuals.

 

I was listening to the radio this morning and heard a woman, vacationing in Hawaii this past weekend, describe her fear and terror as she learned she was under threat of a (false) missile attack.  What was her first thought?  “I need to call home and tell someone where my Will is!”  So….

 Where is the best place to keep your signed original estate planning documents?

  1. 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.

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.

Should I give copies of my Will and other estate planning documents to my children and to the Personal Representatives of my estate?

  1. For some people, their estate planning documents are as private as their income tax returns, and nobody is ever given copies. For other people, estate planning documents are no different than a spare key to the house, and every family member and Personal Representative and/or trustee named in the documents is given a copy.

If you are the type of person who values your privacy, who does not especially trust your children, Personal Representative, or trustee, or if you have written a Will or trust which does not treat all the children equally, then it may not be a good idea to hand out copies. Also, you may have more money than your children expect, and depending on how your Will or trust is written, giving them a copy may be letting them know too much about your personal business.

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

We have had a federal tax on inheritances (the so-called “death tax”) since the Civil War. The modern estate tax has been on the books since 1916, but in 2016 the estate tax brought in only $18 billion, or less than 1% of U.S. tax revenue.  Even so, this relatively minor tax became a major battleground during last year’s tax debate.

Many Republicans wanted a permanent repeal of the “death tax,” saying it amounts to double taxation and unfair burden on family-owned businesses and farms.  Others say the erosion of the “death tax” is a giveaway to the richest Americans at a time of increasing wealth disparity.  Many of those in favor of the death tax see it as the best solution to reduce the trillion dollar national debt that threatens the financial security of future generations.  After all, the reasoning goes, the baby boomers will be leaving an unprecedented amount of wealth to their children, why not ask those same lucky souls to pay down the debt?

New Tax Bill:

The tax bill that President Donald Trump signed into law doubled the amount of wealth that escapes the 40 percent estate tax. Starting in 2018, the new law exempts about $11 million for individuals and $22 million for couples (the exact amount depends on the inflation adjustment), but only until 2026, when the thresholds will revert back.

So, will the new tax bill affect your estate plan?  Unless you are worth more $11 million ($22 million for a married couple), it will not.

But, for those of you who have older estate plans, created when the tax exemption was much lower, say prior to 2010, you probably want to consider updates to and simplification of your plans.

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

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.

This Law Office will be presenting seminars on Living Trusts.  The upcoming dates are February 9th and February 23rd.  They will be held at noon in our Port Orange office and lunch will be provided!

Many people assume that trusts are only for the very wealthy.  That’s not true.  Trusts are useful tools to give you control over how your money and property is used and protected, no matter how much money you have.  Here are 4 potential benefits to consider:

  1. Avoid Probate. If you do not have a Trust when you pass, all assets in your sole name will need to go through the Court process known as Probate in order for them to be received by your beneficiaries.  Probate takes time and Probate can be expensive.
  1. More Control. You can use a Trust to set conditions about when and how your beneficiaries will receive their inheritance.  For example, you could establish a Trust that sets a specific age, say turning 30, or a milestone (like graduating from college) before the money is made available.  Trusts can also help you reach charitable goals or improve tax efficiency.
  1. More Protection. Trusts can ensure that your children or other loved ones receive their inheritance if you are remarried.  They can also help shield assets if you or your heirs are sued.
  1. Incapacity Planning. A Trust lets you designate someone you trust, a family member, friend, or professional money manager, to handle your assets if you are incapacitated.  This avoids the possibility of a guardianship.  Nobody wants to be a Ward of the State.

For more on Trusts, come to one of our seminars!  Call us today at (386) 256-4882 to reserve your spot!

 

Don’t forget Estate Planning!

My kids are Millennials.  So I know that when asked their list of plans, they say things, like getting married, starting a family, getting a great job, or going on a special vacation.

Folks in their 20’s and 30’s don’t have Estate Planning on the top of their mind.  If they think about it all, they think that Wills, Powers of Attorney and the like are for “older” folks in their 60’s or 70’s.

That’s a big mistake.  The reality is that EVERYONE needs to be thinking about estate planning.

For families with children, estate plans are especially important because a good estate plan will designate a guardian for your children should something ever happen to you and it directs who will be in control of your assets while your children are minors.

Parents should also have an advance directive for their children so that someone else can make health care decisions if the parent is out of town or ill.

Young adults should also have a Durable Power of Attorney and a Health Care Directive.  Accidents and illness can happen to anyone.  And Living Wills will ensure that you aren’t kept alive indefinitely if there is no hope of recovery.

And these days, many millennials live together but do not marry.   This means there is no state law in place to handle the division of assets or health care decisions unless the couple has entered into a Domestic Partnership Agreement.

Digital Assets is another area of growing importance.  Millennials usually do all their banking, investing and spending online.  It is practically impossible to access online accounts and social media without the proper legal documents in place.

Please do not delay in seeking legal advice because you are too young.  Life happens to everybody.

The Law Office of Debra G. Simms will be glad to assist you with estate planning no matter how old you are. Call us today at (386) 256-4882.

A common estate planning question is what (if any) assets are handled outside of probate?

There are a number of different kinds of properties that may pass outside the provisions of your Will.

The list includes life insurance, retirement plans, individual retirement accounts, and annuities. When you purchased or set up these types of assets and accounts, you were probably asked to fill out a form listing the beneficiaries who will receive payments upon your death. These investments will pass to the named beneficiaries regardless of whether you have a Will. However, if you don’t have a beneficiary named if the beneficiary named is your “estate,” or if all the beneficiaries are dead, then those investments will be paid to your estate and pass under your Will.

Certain bank and brokerage accounts will also pass outside your Will. For instance, payable-on-death accounts (sometimes called “POD” accounts) will be distributed to the named beneficiary. Additionally, accounts set up by one or more persons as joint tenants with rights of survivorship will pass to the surviving account holder or holders.

Some banks allow you to set up what they call trust accounts even though there is no written trust agreement. These types of accounts will pass to a named beneficiary without going through probate as well.

Not all joint accounts pass to the survivor. When joint accounts are set up as tenants in common, the portion of the account that was owned by the decedent passes under his or her Will.

Many people have decided to create revocable or irrevocable trusts as part of their estate plan. Virtually all such trusts are designed to pass directly to persons or other trusts named in the document rather than under a Will.

You may find that most of your estate consists of non-probate property. Therefore, it is extremely important to coordinate the beneficiaries of all these properties to make certain your assets will be distributed as you want when you pass away.

The Law Office of Debra G. Simms, will be glad to assist you with estate planning and ways to avoid probate. Call us today at (386) 256-4882.

 

 

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