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Elder Law

What to Know About Having Witnesses Present at Your Will Signing

By Elder Law, Estate Planning

When you create a Will, you must obtain signatures from at least two witnesses at the time you sign it for it to be considered valid. The purpose of having two witnesses is so that, if the validity of your Will is ever challenged, they can both attest to your state of mind. These witnesses do not have to read your Will or even be aware of its contents, they just have to be able to certify that you were competent when you signed it. If you are working with an attorney, they should make you aware of this information and help explain the process of having a document witnessed. However, it is good to know some general information regarding rules for witnessing so that you feel more prepared when the time comes to make your Will official or update it.

If you would like to choose your own witnesses, be careful who you pick. Select individuals that are credible and will likely live longer than you, in case they are later asked to testify about the validity of your Will. If possible, avoid having beneficiaries of your Will also be witnesses, as this could be considered a conflict of interest. However, having a beneficiary or interested person witness the Will does not automatically invalidate the Will. If you would rather not choose witnesses, the attorney that you have been working with will likely have paralegals or legal assistants on-hand that can serve as credible witnesses. This eliminates the added stress of having to choose your own witnesses and bring them to the signing. At Bach & Jacobs, members of our team generally serve as witnesses during Will and trust signings.

Make sure you have the right number of witnesses, as every state requires that you have two individuals sign your Will in order for it to be legally binding. Additionally, these witnesses must sign your Will in front of you. Generally, your witnesses will sign the Will immediately after you do.

 

February 9, 2018
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FINRA Introduces New Rules Addressing Financial Exploitation of Senior Citizens

By Elder Law

Recently, the Financial Industry Regulatory Authority (FINRA) issued Regulatory Notice 17-11, announcing that FINRA’s new rules addressing the financial exploitation of senior citizens would go into effect as of February 5th, 2018.  These new rules, which gained SEC approval, implement two important changes that are designed to help better protect senior investors.

The first change amends an existing Rule (Rule 4512) and requires that firms make “reasonable efforts” to obtain the name and contact information of a trusted person. This means that, when an investor that is 65 or older opens an account, the institution is required to ask them for the name and contact information of an individual that senior trusts with whom the institution may communicate if financial exploitation is suspected.  Additionally, the amendment to Rule 4512 states that existing senior customers will be asked this same question when their profile is updated. However, an individual is not required to list a trusted contact person and will not be prohibited from opening or maintaining an account if they refuse to do so.

The second change is the implementation of a new rule, Rule 2165, that allows member firms to place temporary holds on customer accounts when there is a reasonable belief of financial exploitation. This rule states that, if an institution suspects financial exploitation of someone 65 or older (or someone 18 or older that is disabled or considered mentally impaired), it can place a temporary hold of up to 15 business days on the disbursement of funds or securities from the account. This rule only applies to suspicious disbursement of funds or securities, not to securities transactions. Once this temporary hold starts, the institution has two business days to contact the customer as well as their chosen trusted contact person to investigate the matter.

Bach & Jacobs, P.A. employs elder law litigators who assist seniors and their families in combatting financial exploitation of the elderly.

February 6, 2018
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Beware of Marriage Scams

By Asset Protection Planning, Elder Law

If you have an elderly loved one that is newly involved with a significantly younger partner, this may arouse some suspicion. Do not ignore these feelings; it is not uncommon for individuals to prey on vulnerable elderly people in order to gain access to their finances or personal assets. As much as it is difficult to believe anyone would want to manipulate your loved one in this manner, it is important to address this issue and ensure their safety as well as financial security. A way to do this is to look for warning signs, which come in a variety of different forms.

First off, look out for an individual that seems too interested too quickly, especially if your loved one met this person online. If you think they are acting a little too eager, advise your loved one to let their relationship develop slowly and not to rush into anything.  If they don’t listen to your concerns and express a desire to marry or get engaged to this individual after only a brief amount of time, insist that they at least have their partner sign a prenuptial agreement. This may help prevent the younger partner from taking a large portion of your loved ones assets and leaving them in a financially desolate situation.

Another warning sign is any form of deceptive behavior or perceived feigning of emotions. Although you may think it will be easy for your older loved one to recognize that their potential life partner is not being genuine, they may not always see the same signs that you do. The risk of them not realizing their partner’s true intentions is increased if they have memory problems or any debilitating disorders, as these can affect their ability to think clearly. If you believe that your loved one’s partner is hiding their true intentions, express this clearly to your loved one. If they don’t listen, talk to other family members or trusted friends of theirs who may be able to get the point across. If you need to further convince your loved one, you can research their partner online and look for anything that demonstrates a questionable pattern of behavior. If you present them with findings that support your argument, it will make your points more difficult to refute.

Marrying for money is a form of elder exploitation, and can be extremely detrimental to individuals that fall victim to it. To help stop this form of elder abuse, recognize the signs and know what to look for.

January 16, 2018
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Tired of TSA Employees Confiscating Your Valuables?

By Asset Protection Planning, Elder Law

You may have seen recent news coverage of airport officials confiscating individuals’ precious metals, valuable coins, or even currency by alleging that these assets may have been obtained via criminal activity. In many of these situations, though no charges end up being filed, an individual’s belongings are never returned to them. If you plan on traveling soon with any of these items in tow and want reduce the risk of your assets being confiscated, familiarize yourself with the TSA’s webpage regarding Currency, Coins, Precious Metals or Valuable jewelry. If you have documentation that demonstrates where your assets originally came from and that states that you are the rightful owner of said belongings, bring it with you to the airport and keep it handy in the event that officials ask you to present it. If you want to be extremely cautious, it is a good idea to call the TSA office in advance before your flight and make them aware of what you will be bringing on-board. You can also ask for a private room for a bag search to be conducted and, once there, explain what you are carrying and why. Finally, do not try to put these valuables in checked luggage or attempt to sneak them through security in any fashion, as this increases the likelihood that they will be confiscated.

December 8, 2017
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Babette will be speaking about Medicaid at The Academy of Florida Elder Law Attorneys UnProgram in December 2017

By Elder Law, Firm News

December 1-2, 2017

Babette Bach will be attending and, this year, speaking at the The Academy of Florida Elder Law Attorneys UnProgram in December at the Hyatt Regency in Orlando. She is looking forward to lecturing there on Saturday, December 2nd, 2017 on the subject of “Advanced Medicaid Planning & Techniques”. Please contact AFELA at 850-296-8089 or www.afela.org  for further information on this event. Please contact our office on 941-906-1231 if you would like to schedule a consultation with Babette for advice on Medicaid and Asset Protection Planning.

November 20, 2017
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Florida is a Mandatory Report State for Elder Abuse

By Elder Law, Health

Florida law requires that knowledge or suspicion of abuse, neglect, or exploitation of vulnerable adults (whether elderly or disabled) be reported. The issue of Elder Abuse is taken seriously here in Florida, where we have a high population of senior citizens. If you suspect or know of any elder abuse that is occurring, you should report it immediately to the Florida Abuse Hotline, which receives reports 24 hours a day. You can also call 1-800-962-2873 or visit https://reportabuse.com.dcf.state.fl.us and file a report online. Elder abuse is one of the most underreported crimes and, because of this, only about 800 people have been charged with elder abuse and neglect in Florida over the last five years. Of these, approximately 370 have been convicted. It is everyone’s responsibility to help end Elder Abuse and to make our world a safer place for the Senior Citizens in our lives.

November 14, 2017
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The Florida Electronic Wills Act Vetoed By Governor

By Elder Law, Estate Planning

The Florida Electronic Wills Act, which the legislature intended to take effect on July 1st, 2017, was vetoed on June 26th by Florida’s Governor. This Act would have allowed remote technology to assist in the witnessing and notarization of Wills. It also included the specification that electronic Wills of residents and non-residents may be probated in Florida. The Governor stated that his reasons for the veto were that the Act would have displaced safeguards against fraud and would overly burden the court system in Florida. He also urged legislatures to address the issues that he identified and create improved legislation that would solve these problems.

 

If you need assistance in developing a Will or with any other Estate Planning matters, please contact our office at 941-906-1231 to schedule an appointment with one of our attorneys.

October 6, 2017
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Florida Congresswoman Proposes An Elder Abuse Registry

By Elder Law

In her time as a Florida U.S. Representative, Congresswoman Gwen Graham introduced legislation to create a national registry that identifies individuals who have been convicted of elder abuse. Under this proposal, the Justice Department would develop a registry that individual states could use to create their own list of offenders. This list would be public and searchable, so that any person or company looking to hire a care-giver for an elderly individual would be able to see if any of their potential hires had committed elder abuse in the past.  Supporters hope that if this registry were to be implemented, it could help to greatly reduce the instances of elder abuse by keeping individuals convicted of this crime from working with the elderly. Across the country and in Florida especially, elder abuse is a highly prevalent issue that cannot be ignored. The safety of our seniors’ matters; it is important to explore ways to end the cycle of elder abuse and to hold individuals who commit crimes against the elderly accountable for their actions.

September 8, 2017
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Duties of an Agent under a Power of Attorney

By Elder Law, Estate Planning

An agent, or “attorney-in-fact,” is authorized under a power of attorney document to make decisions and undertake financial and business transactions for the person executing the power of attorney (the “principal”). An agent can fill a role and perform certain tasks authorized by the power of attorney.

An important step in fulfilling your role as agent is to follow the instructions in the power of attorney document. It is imperative that in every decision you make for the principal, whether it be medical or financial, it is in the principal’s best interest. It is a good idea to keep a detailed record of your transactions undertaken on behalf of the principal. Depending on the restrictions specified in the power of attorney, the agent typically has the authority to control the principal’s financial affairs. These authorities could include cashing checks, opening and closing bank accounts, paying bills, entering into contacts, etc.

Some principals choose to include specific authorities in their power of attorney documents. The agent can only make these actions if the document specifically authorizes them. Some examples of these powers include making a gift; changing a beneficiary designation; creating, amending or revoking an inter vivos trust; and disclaiming property.

To discuss the creation of a power of attorney as part of your estate planning or if you are an agent appointed under a power of attorney, consult with an attorney at Bach & Jacobs, P.A. that can advise you of your rights and obligations.

May 5, 2017
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Is an Agent under a POA Entitled to Compensation?

By Elder Law, Estate Planning

Many individuals who are agents under a power of attorney also are expected to provide caregiving services to the principal when he or she can no longer do so. Some agents have to quit their jobs or take time out of their week to help care for the principal. From being a primary caregiver to driving the principal to doctor appointments, agents can be responsible for several tasks and financial matters.

Typically, agents under a power of attorney are entitled to “reasonable compensation,” with some exception. However, some power of attorney documents specifically prohibit compensation and some agents are specifically prohibited by law for receiving compensation for serving as an “attorney-in-fact.” Due to the vagueness of the term “reasonable,” one way to approach this matter is to enter into a written caregiver contract with the principal.

Contact an attorney at Bach & Jacobs, P.A. to discuss how you can help minimize risk and liability by creating a caregiving agreement that includes services undertaken as an agent under a power of attorney. This is especially necessary if you are employing private duty caregivers directly rather than through an agency.

May 2, 2017
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