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Elder Law

Why could a will be contested in Florida?

By Elder Law, Estate Planning, Probate

Out of several circumstances under which a will could be contested in Florida, the simplest is the will was not drafted using the proper formalities.  For example, if a will is not witnessed as per state requirements, it can be contested and thrown out.

Other grounds for contesting a will include:

  • If the writer is found to have lacked capacity at the time of its drafting.
  • Due to the testator being manipulated or exploited, especially during old age if “undue influence” occurs.
  • if the author of the will suffers “insane delusions” which cause them to change the beneficiaries of the will, such as if a person believes their husband has left them and decides to remove the husband from their will when in fact the husband visits his spouse every day.
  • If fraudulent activity occurs. For example, if someone lies about other family members or beneficiaries and these lies cause the slandered family member to be taken out of a will.

Wills must be contested very quickly, generally within 90 days of when the Personal Representative files and serves the Notice of Administration.  It is also possible for other testamentary documents besides wills to be contested if the situations listed above apply.

If you have questions about whether a will can be contested or to ensure your estate planning documents will not be contested, contact our office at (941) 906-1231 to speak to an experienced probate attorney.

September 1, 2015
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Appointing a Digital Fiduciary

By Asset Protection Planning, Elder Law, Estate Planning

            When planning for the transfer of your digital assets, you should be sure the person given the power to access and disperse information from your digital accounts is technologically savvy.  Most people appoint a surviving spouse or child who is financially literate to take care of many of their assets as personal representative or trustee.  If this person is not familiar enough with computers and the technology associated with your digital accounts, you can appoint a separate digital fiduciary to perform actions such as closing accounts, accessing photo storage, and transferring digital content such as videos or purchased books and movies onto DVDs.

The attorneys at Bach & Jacobs, P.A. make efforts to stay on the cutting edge of new technologies that assist our clients, including the Personal Representatives that we represent.  We recommend all trust and durable power of attorney documents specifically authorize access to digital information.   We can also help you identify your digital assets and ensure that they are fully accounted for in your estate planning documents.

To set up an appointment to review what estate planning method would be best to grant access to your digital assets, call our office at (941) 906-1231.

August 21, 2015
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What happens to my digital assets after death?

By Asset Protection Planning, Elder Law, Estate Planning, Probate

Digital assets such as online bill pay accounts, online investment management accounts, personal records, digital movies, books, games, airline rewards points, and photos must be accounted for in modern estate planning to ensure your loved ones can access and control your digital accounts as you wish.  As technology plays a growing role in our everyday lives, some of our assets carry personal value, such as photos and videos, and others, such as online blogs with paid advertisements, may even have monetary value.  In order to ensure that personal accounts, sites, and memories are available to the desired loved ones after death, who you want to be given access to your digital accounts and what type of control they may have over them must be included in your estate planning documents.

At Bach & Jacobs, P.A., we incorporate planning for the transfer of digital assets into our estate and end of life planning for clients.  Call our office today at (941) 906-1231 to set up an appointment to review how to make your digital assets a part of your estate plan and ensure access to these accounts is granted safely and as you desire.

August 14, 2015
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What is Considered Financial Exploitation of an Elderly Person under Florida’s New Elder Exploitation Laws?

By Elder Law

Legal protections for Florida’s elderly residents from financial exploitation were strengthened by a new law, effective October 1st, 2014.  This new law defines exploitation as occurring when 1) a misuse of a power of attorney or guardianship duties result in unauthorized transfer of property, 2) personal assets are taken without authorization, 3) a vulnerable adult’s money is misused or transferred, or 4) a vulnerable adult’s assets are not effectively used for their support and needs.

 

If you or someone you love has been the victim of financial exploitation against an elderly person, contact Sean M. Byrne, Esq. at Bach & Jacobs, P.A. to discuss your options for recovery of those assets.  Call our office at (941) 906-1231.

August 11, 2015
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How can I ensure my medical treatment wishes will be honored

By Asset Protection Planning, Elder Law, Estate Planning, Guardianship

An essential part of estate planning is setting up clear instructions for loved ones about your wishes with regard to medical treatment.  It is incorrect to believe that a Last Will & Testament contains information that will empower your loved ones to make decisions in line with your desires in the event that you are incapacitated or unable to communicate.  To provide your loved ones with information about your medical care desires and give them the power to make decisions on your behalf, you must set up advance directives.  It is recommended that you set up a living will, health care surrogate, pre-need guardian, and/or health care proxy to protect your wishes.  These documents should be put into place far before incapacitation occurs and discussed with loved ones so they are clear about your wishes.  If you would like to discuss what documents you should have in place to give instructions about medical treatment, please contact Bach & Jacobs, P.A. at (941) 906-1231.

August 7, 2015
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How does a dementia diagnosis affect my ability to do estate planning?

By Elder Law, Estate Planning, Guardianship

Estate planning involves signing legal documents which those who are incapacitated due to a dementia diagnosis often cannot do.  For estate planning documents to be valid, they must be executed by a person with “testamentary capacity.”  This is why proper estate planning before capacity is lost or diminished is critically important in ensuring assets will be passed on to the desired beneficiaries.

However, a diagnosis of dementia does not always entail an immediate loss of legal competency or the right to sign contracts and undertake estate planning.  If a diagnosis of dementia is made and estate planning documents are not already in place, it is important to meet with an estate planning attorney right away to assess the necessary legal capacity or competency and discuss an estate plan before it is too late.

If you need help with estate planning for you or a loved one, contact Bach & Jacobs, P.A. at (941) 906-1231.

July 31, 2015
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Modifying an Irrevocable Trust

By Asset Protection Planning, Elder Law, Estate Planning

Florida’s Trust code allows courts to modify irrevocable trusts which are unambiguous but which have terms that are considered contradictory or wasteful.  Courts can modify trusts if the trust’s purpose no longer exists, if the modification is not inconsistent with the purpose of the trust, or if the current trust is wasteful or impracticable to fulfill under the current terms.

Modifications to irrevocable trusts can be made to preserve the intent of the original trust in changing circumstances.  If you have questions about setting up or modifying trusts, contact one of our experienced estate planning attorneys at (941) 906-1231.  Our firm represents trustees and beneficiaries of trusts and can advise you on your options and rights with regard to the trust.

July 28, 2015
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What are the changes to Florida’s guardianship laws?

By Elder Law, Guardianship

The most important aspect of the new legislative changes to the Florida guardianship law is the modification of the method of appointing an emergency temporary guardian.  Under the new law which takes effect July 1st, 2015, a person who is allegedly at imminent risk of physical harm or of having their assets wasted and misappropriated and therefore in need of emergency guardianship protection must be notified along with their attorney at least 24 hours before the emergency court hearing.  Previously, advanced notification was not required which left many unprepared for proceedings.  This advanced notification is especially important as it has historically been difficult to contest the need for a guardian after one is appointed on an emergency basis as the ability to make a decision to change attorneys or access financial assets is often hindered.  Emergency temporary guardianship often led to a permanent guardian being appointed.  Now, an emergency guardian will no longer be given preference in hearings appointing permanent guardians and emergency guardians cannot be appointed to permanent positions without a request from the ward or their family.

Another change to the law is that if the ward’s condition improves and they could have some of their rights restored, the guardian is required by law to notify the court.  Lastly, a guardianship cannot suspend the power of attorney.

Babette Bach worked for the past year on this new law and is a legal activist for the elderly.  If you have questions about the new guardianship law or would like set learn about setting up a Designation of Pre-need Guardian, contact our Florida Board Certified Elder Law Attorney Babette Bach, Esq. at (941) 906-1231.

July 21, 2015
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Changes in Florida’s Elder Exploitation Laws

By Elder Law

A new Florida law seeks to better support elderly residents who are at risk of exploitation.  Previously, exploitation could only technically occur if an elder was exploited through intimidation or deception.  Now , an elderly person can be deemed exploited if he or she has been either temporarily or permanently deprived of their assets for the benefit of someone else.  An exploiter is defined as a person who has the trust of a vulnerable adult and uses that trust to obtain assets.

If you or someone you know has been the victim of financial exploitation against an elderly person, contact Sean M. Byrne, Esq. at Bach & Jacobs, P.A. to discuss your options for recovery of those assets.  Call our office at (941) 906-1231.

July 17, 2015
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Medicaid Planning and Qualified Income Trusts

By Elder Law, Estate Planning, Medicaid Planning

Even if your gross income (prior to deduction) is above the minimum required to qualify for Medicaid ($2,199 for 2015), you may be able to become eligible by setting up a Qualified Income Trust with the assistance of an attorney licensed in Florida.  The income you receive in excess of the minimum income requirement for Medicaid eligibility can be transferred into a Qualified Income Trust account and, as long as you continue to transfer this income every month, you may be able to qualify for Medicaid coverage.  Unlike Medicare, Medicaid can be used to pay for long term care services, such as assisted living facility or skilled nursing facility bills, which can very quickly become extremely costly.

To find out more about becoming eligible to receive Medicaid benefits to cover long term care, contact Board Certified Elder Law Attorney Babette Bach, Esq. at (941) 906-1231.  Babette is experienced in giving Medicaid eligibility advice and navigating the process of applying for and receiving Medicaid benefits while protecting your assets to the highest degree possible.

July 10, 2015
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