Living Wills and End of Life Care

Posted on December 10, 2012 by admin

One of the ‘standard’ estate planning documents I frequently draw up is a “Living Will”. Sometimes people confuse this with other documents; sometimes they will think this is a Living Trust or a Will that disposes of property after your death; it isn’t that. Sometimes people will think that this a Health Care Proxy or Health Care Surrogacy that names someone to make medical decisions if you can’t. While there are some combined Health Care Surrogacies and Living Wills that can do this, a plain vanilla Living Will essentially states that if you are dying or in an end stage condition or vegetative state (i.e., no brain activity) and two doctors agree that you are in such a state, that you do or do not want life prolonging procedures and/or nutrition and hydration, but only such care as to relieve pain and to make you comfortable. Florida’s Living Will statute appears below; note that while it does name an individual to carry out your wishes, this particular form is limited only to the wishes “regarding the withholding, withdrawal, or continuation of life-prolonging procedures”, it does not authorize them to necessarily make decisions regarding broader medical decisions; if you want someone to be able to make broader decisions regarding your medical treatment, you should have a health care surrogacy or a health care proxy.

Florida’s statutes on Living Wills:
765.302 Procedure for making a living will; notice to physician.—
(1) Any competent adult may, at any time, make a living will or written declaration and direct the providing, withholding, or withdrawal of life-prolonging procedures in the event that such person has a terminal condition, has an end-stage condition, or is in a persistent vegetative state. A living will must be signed by the principal in the presence of two subscribing witnesses, one of whom is neither a spouse nor a blood relative of the principal. If the principal is physically unable to sign the living will, one of the witnesses must subscribe the principal’s signature in the principal’s presence and at the principal’s direction.
(2) It is the responsibility of the principal to provide for notification to her or his attending or treating physician that the living will has been made. In the event the principal is physically or mentally incapacitated at the time the principal is admitted to a health care facility, any other person may notify the physician or health care facility of the existence of the living will. An attending or treating physician or health care facility which is so notified shall promptly make the living will or a copy thereof a part of the principal’s medical records.
(3) A living will, executed pursuant to this section, establishes a rebuttable presumption of clear and convincing evidence of the principal’s wishes.

765.303 Suggested form of a living will.—
(1) A living will may, BUT NEED NOT, be in the following form:
Living Will
Declaration made this day of , (year) , I, , willfully and voluntarily make known my desire that my dying not be artificially prolonged under the circumstances set forth below, and I do hereby declare that, if at any time I am incapacitated and
(initial) I have a terminal condition
or (initial) I have an end-stage condition
or (initial) I am in a persistent vegetative state
and if my attending or treating physician and another consulting physician have determined that there is no reasonable medical probability of my recovery from such condition, I direct that life-prolonging procedures be withheld or withdrawn when the application of such procedures would serve only to prolong artificially the process of dying, and that I be permitted to die naturally with only the administration of medication or the performance of any medical procedure deemed necessary to provide me with comfort care or to alleviate pain.
It is my intention that this declaration be honored by my family and physician as the final expression of my legal right to refuse medical or surgical treatment and to accept the consequences for such refusal.
In the event that I have been determined to be unable to provide express and informed consent regarding the withholding, withdrawal, or continuation of life-prolonging procedures, I wish to designate, as my surrogate to carry out the provisions of this declaration:
Name:
Address:
Zip Code:
Phone:
I understand the full import of this declaration, and I am emotionally and mentally competent to make this declaration.
Additional Instructions (optional):

(Signed)
Witness
Address
Phone
Witness
Address
Phone

(2) The principal’s failure to designate a surrogate shall not invalidate the living will.

Now, understand the following points;
First, no one has to sign one of these documents; if you are uncomfortable doing this, talk to your physician, your family, but ultimately, this is your life and your decision. No one can require you to sign this as a condition of anything.

Second: I, personally use a somewhat different form; and there are lots of other forms out there; but you need to be happy with the form; if you are not happy with what the form expresses, don’t sign it; if you want it changed, then contact a lawyer and have the lawyer draw up a document that reflects your wishes. I’ve had clients say they were comfortable with having surgery withdrawn but not having hydration and nutrition (food and water) withdrawn; and I’ve also had a few clients tell me that they were not going to go easy; that they wanted all available medical procedures to be used. And I’ve drawn up such documents. Once again, this is your life and this is your decision.

Third; I am a Catholic. There are a number of “Catholic” living will forms out there. I am not a priest but if you are a Catholic and want a living will that is in accordance with Catholic teachings, you might want to talk to a priest or someone who is knowledgeable about the current thoughts of the Catholic Church on living wills. Not to be mysterious but there were various Catholic Living Wills that were in use in the 1990’s and early 2000’s that may not conform with current Catholic teachings.

The problem with the older versions is, in 2004 then Pope John Paul II issued a statement that very generally prohibited withdrawal of food and water under most circumstances; this called into question some older “Catholic” living wills that had broader language allowing withdrawal of food and water. To emphasize, I am not a priest, and I am not a Catholic theologian, and currently there are Catholic Living Wills that are approved by, for instance, the Florida Council of Bishops. I would assume that a living will that is currently approved by the Bishops complies with current Catholic teachings; just be aware that some of the older forms may not conform with current teachings.

If you’re a Catholic and have a question about living wills, talk to your priest. Or talk to an attorney who is at least familiar with the issues. One possible solution is to forego a living will per se but grant authority to make these sorts of decisions to a health care surrogate; someone that you trust, someone who will be able to take into account all of the facts and make an appropriate decision at the time based on those facts. The downside of this is, of course, that you are putting a burden on another person to make this decision.

If you have a question regarding living wills, health care surrogacies, health care proxies or advance directives in or around The Villages, Florida, feel free to contact my office.

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When spouses die

Posted on December 6, 2012 by admin

My most common question from potential clients is “my husband (or wife) died, what do I have to do?”

As I’ve mentioned elsewhere, it is going to depend on how property is held and whether there is a will, and what the will says.

Most often, the surviving spouse is listed as a co-owner on bank accounts, deeds, and is named beneficiary on life insurance contracts. The easiest thing to do in those cases is simply provide a copy of the deceased spouses death certificate to the bank, the agent, and record the death certificate in public records. It may very well turn out that there is no need for probate if all of the property passes directly to the surviving spouse.

There may be some property that does not pass directly; in which case probate will be necessary. How expensive and how complicated probate is going to be is going to depend upon the facts; it may be simple, quick and relatively cheap; it may be involved and fairly expensive. You need to talk to a lawyer at this point and let the lawyer figure out what needs to be done.

Once in a while, there is a nasty surprise for the surviving spouse; either the deceased spouse cut the surviving spouse out of the will entirely or transferred assets away from the surviving spouse outside of probate; typically by naming a child or other person as pay on death beneficiary. If this has happened to you then you need to talk to a lawyer who handles probate and you need to talk to them now. There are certain things that should be done quickly; there are some things that may be able to be done to avoid the transfer entirely or to elect against the estate and recover some assets; but it is critical that you talk to a lawyer about what can be done, and do so promptly. The worst thing you can do is ‘sit on your rights’ and not take action.

If you have a question about your rights as a surviving spouse in or around The Villages, Florida please feel free to contact my office.

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The Tangible Personal Property List- What happens to your “stuff” after you die

Posted on November 28, 2012 by admin

Florida allows the use of a ‘memorandum’ or ‘separate writing’ to leave ‘tangible personal property’ under a will.

But, there are a couple of wrinkles. First, the will must refer to a written statement or list of property; most lawyer drafted wills in Florida will include this statement as a matter of course. Second, the list must deal only with tangible personal property; this would not include any real property, such as land, or any ‘intangible’ personal property, which is property that ownership is represented by paper; such as bank accounts, CD’s, Insurance, or stocks and bonds. It may not even include such things as motor vehicles, cars, trucks, mobile homes and boats where ownership is proven by a certificate of title.

It does, however, include what most people would call “stuff”. Stuff that you can pick up and hold, stuff that you can point to; including furniture, antiques, firearms, stamps, collectibles, jewelry, pots, pans, and dishes. In other words, the stuff that you own other than land, investments and things that you drive or float.

The list needs to signed at the end by you; it should be dated, and it should list the property and state who the property should go to. Give some thought to how the property is listed and how you list the names of the people; you should do it in such a way as to make clear what item goes to who. In other words, don’t say “my good china goes to my favorite daughter” no one is going to know what your good china was and you will have a fight over who was your favorite daughter. Instead, say “the white china with the red roses goes to my daughter Mary Smith”.

This memorandum or list should be signed by you; it does not need to be witnessed; but it should be dated; and it should be kept in the same place as the will. And it can be done either before or after the will; and if you change your mind, or give away property or get new property, you can do a new list; just sign it and date it.

If you have questions about a personal property memorandum in or around The Villages, Florida, feel free to contact my office about how the memorandum works with a will and what happens in probate.

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What to do when a loved one dies, Part 2

Posted on November 26, 2012 by admin

Last time we looked at some of the steps to take when a loved one dies, gathering information and documents.
Now, we look at what you do with those documents to determine if a probate is needed.
As I explain here:
Do I need to bring a probate?
There are three ways that property can pass at death; and only one of those ways is probate.
What you need to do is determine what asset there are; look at bank accounts, CD’s, retirement accounts, insurance policies, any investment accounts, deeds, and any other assets that might be involved and contact the company who is administering the assets; the bank in the case of bank accounts and CD’s; the insurance company or agent in the case of life insurance; the broker or agent in the case of any sort of stock or investment, and provide copies of the death certificate to them.  They will probably ask for certified copies; provide them with those copies. They will tell you whether anyone was a joint owner or a Pay on Death or Transfer on Death beneficiary. If not, then that asset probably needs to be probated.
Frequently, what happens is that all property passes outside of probate, particularly in the case of a married couple; most married couples own all of their property as “joint tenants with rights of survivorship” but this is going to depend on what was set up during their lifetime.

If  you have questions about specific property, particularly whether real estate, needs to be probated, contact an attorney in Florida.  If you are in or near The Villages, Florida and have a husband, wife, mother, or father who died, feel free to contact my office.

 

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What to do when a loved one dies, Part 1

Posted on November 21, 2012 by admin

Last time we looked at what can be done when a loved one is dying; depending on the circumstances, it may range from simply waiting to doing some last minute estate planning.
What do you need to do after a parent, husband or wife passes away?  The precise steps are going to vary but typically will involve some or all of the following.
First,  you should get multiple copies of the death certificate. If you are dealing with a local funeral home, typically the funeral home will get these for you at or near their own cost.
Second, you should contact the Social Security administration, and any company that is providing any sort of pension.  Typically pensions either stop entirely or are reduced at the death of the person receiving the pension, but in some cases there are survivorship provisions, where some or all of the pension will continue to be paid to the surviving spouse. There may also be a death benefit under some plans.
Third, you should try to gather important papers; go through the house and see if you can find a will, any bank statements, any bills, insurance policies, annuities and see if there is any record of a safe deposit box.  If there are insurance policies, you should contact the company and provide a death certificate to them. In the case of bills, it will depend on the nature and amount of the bills.  Very generally, Florida only holds an estate responsible for bills for someone who has died to the extent that there are estate assets sufficient to cover those bills; and Florida has a definite hierarchy of who gets paid first, second and so on.  Additionally, under some circumstance Florida exempts certain assets from being used to pay bills of the person who died.  If there are a lot of bills and not much money to pay them, please talk to an attorney before using estate assets to pay bills.  Additionally, even if there are sufficient assets to pay the bills, whether you want to pay them will depend on the bill. Normally you would want to continue to pay any outstanding mortgage, but if the house is ‘upside down’, ‘underwater’ or is worth less than the outstanding mortgage it may not make sense to pay those bills.  This is particularly true where there was a ‘reverse mortgage’, where the parent took money out of the house during their lifetime; normally reverse mortgages are ‘non recourse’ loans and the bank or mortgage company cannot demand payment from other estate assets; all they can do is take the house back in foreclosure.
Likewise, if there are a lot of medical bills and few assets, or even credit card bills and very little money, the probate process can free up certain assets for heirs while providing that those bills go unpaid.  What assets are exempt and what bills get paid can get very complicated, but you need to consult with a probate lawyer to discuss this before you pay any bills.  If you have a Father, Mother or Husband or Wife who died in The Villages, Florida, call my office or call another probate attorney in the area.
Next time, we will look at determining if a probate is needed at all.

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What can you do when a loved one is near death?

Posted on November 16, 2012 by admin

Sometimes I get phone calls asking about what to do when someone is dying.  Typically, the person is in the hospital, or a nursing home, or hospice, and it’s apparent that they are near the end.  Family members want to meet with me and discuss what comes next.
What you can do, what you should do, ‘pre-death’ as it were is going to depend on several factors. First, if the person is both conscious and competent, you might want to do some last minute estate planning, if it is needed.  I’ve seen cases where there was an existing will but it left everything to the spouse; however, the spouse unexpectedly predeceased the person who is in the hospital. Or, frequently, the person has no will; they are intestate.  In which case the state sets out who gets what.
If the person is able to communicate, and if the person desires it, you may be able to draft a will; the lawyer is going to have to make certain, though that this is what the person actually wants, that they are not being strong-armed by a family member, that this isn’t the drugs or the pain doing the talking. Nonetheless, it can be done. Likewise, sometimes it can be useful to execute a power of attorney and/or a health care surrogacy, when it is apparent that the person is currently competent but is at risk of going downhill and becoming incompetent or uncommunicative in the near future.  Once again, this is something that needs to be evaluated by the lawyer; while a last minute estate plan is probably better than none, last minute estate plans could be seen as suspect, as the result of “undue influence”, depending on the exact circumstances.  Not always; it is going to depend very much upon the facts, but this is why you need to talk to a lawyer.
All of this, however, is assuming that the person is awake, alert, able to communicate, and can express their wishes. Sometimes people are outright comatose, unconscious, or simply so far gone as not to be competent to make or execute documents. If that’s the case, frankly, there is not much anyone can do except to wait until the person passes, short of bringing a guardianship action.  If there are certain documents, particularly powers of attorney and health care surrogacies in place, then those documents may be able to be used to smooth certain things over; making medical decisions, paying bills, filing tax returns and such, but if there aren’t any documents and the person is unable to execute documents, then pretty much all  you can do is gather what documents you can, and  wait until the person dies, and then move to open a probate.
Frankly, a lot of this is easily avoided; I do realize that a lot of people don’t like to think about death and are reluctant to make a will or make plans for their own illness and decline; but it is a lot easier on the family if you’ve got these documents in place ahead of time.  I can, and have, done last minute estate planning, but it is a lot easier to do this while no one is under pressure.
If you have a parent or other loved one  in or around The Villages, Florida,  who is in the last extreme, feel free to contact me regarding can and should be done; I may be able to be of assistance.  But really, the better plan is to try to have this stuff in place while you are well.  This is absolutely critical to make plans ahead of time. If you are in Marion, Lake, or Sumter County Florida, and have questions regarding estate planning, wills, powers of attorney, health care surrogacies or living wills, please contact my office.  It is a lot smarter to have this stuff done before you need it.

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How Deep Can You Pile It? Pyramid Schemes

Posted on November 13, 2012 by admin

Last time we looked at the Ponzi Scheme, where a con man takes your money, and  pays it back to you over time, convincing  you, and others, that he has invested it.
There is another very common sort of scam, and that is the Pyramid Scheme.  In it’s simplest form, a Pyramid scheme depends on multiple layers of sales or distributorships; someone has a product that is supposed to set the world on fire, and starts signing up people to sell it.  That’s fine, so for as it goes. But instead of the manufacturer selling directly to the salespeople, or via a distributor, that is, someone who the manufacturer sells the product to wholesale, and the distributor marks the product up somewhat and then sells in turn to the salesmen, it involves multiple distributorships; each time the product is marked up.
Understand, there is nothing wrong with distributorships; many, many companies operate on a distributorship model; nearly all Firearms manufacturers will not sell directly to a gun dealer, but will sell to various distributors who in turn sell to gun dealers. Likewise, years ago, the Big Three Car Companies in this country used to operate through a distributor system; Cadillac in particular; Cadillac would sell to regional distributors, East Coast, Southern, Midwest, and such, who in turn would distribute the cars to the dealers after marking them up. And, it is my understanding that at least some Foreign car manufacturers still work on a distributorship model. Many manufacturers like this model because they don’t have to deal directly with either the consumer or the sales people; the distributor is normally responsible for paying the manufacturers bill, for dealing with returns, seeing that the supply is equitably distributed and otherwise handling the headaches.  All the Factory has to do is make the stuff, sell it to the distributors and get paid by them.
However, what sets a pyramid scheme apart are multiple levels of distributorship and the fact that they are usually more interested in selling distributorships at various levels than actually selling product. As an example, you may have manufacturer who sells to a national distributor who sells to a regional distributor who sells to a state distributor who sells to a county distributor who sells in turn to the sales force.  Each time the item is marked up.  Additionally, the distributors are typically charged a lot of money for the right to distribute to the next lower level of distributor.  And the sales pitch rarely focuses on the item being sold; it usually focuses on how much money you can make by becoming a distributor.  Sometimes these are called “multi level marketing”.  The Federal Trade Commission has information on these sales schemes here:

FTC Website

It is really very good advice.
Not all multi level marketing is necessarily a pyramid scheme, but all pyramid schemes involve multi-level marketing.  They’re called Pyramid Schemes because a lot of people are at the base, paying money upward, to an ever decreasing number of people, and the people at the top are usually the ones who make all or most of the money.
What can you do to protect yourself?
First, is the product really something you will be able to sell?  And sell at a rate enough to recover any fees you have to pay?Is this a recognized brand? What sort of support will  you get in advertising, selling and marketing?  As an example, Baskin Robbins, the well known Ice Cream store, charges $25,000 as franchise fee; for the right to sell Baskin Robbins ice cream.  There are a number of other costs associated with the franchise, but the basic right to sell their ice cream costs $25,000.  Baskin Robbins has national and local advertising, is an extraordinarily well known brand, has a proven track record, and they will provide considerable training and support; they will teach you what you need to know to run a Baskin Robbins.  $25,000 is not a particularly small sum of money, but you are getting something for that money.
What do they want to charge you for the right to sell the item?  What sort of training do they have? What sort of national and local advertising of the product is there?  Have you ever heard of it? And, do they seem to be trying to ‘upsell’ you to other, higher levels of distributorships?
If you’re approached about this sort of investment, think about it. Talk to people you trust; friends, family, professionals such as lawyers and accountants. Take a very close look at the FTC website above and ask those questions.

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Gone, Baby, Gone: The Money, That Is. A Primer on Ponzi Schemes.

Posted on November 8, 2012 by admin

Most Villages residents are of an age to remember a movie starring Paul Newman and Robert Redford, The Sting, involving a very complicated confidence job on a gangster.  If  you’ve seen it, you remember it; if you haven’t seen it, it is definitely worth seeing; get it on DVD or catch it on cable or satellite. It’s hugely entertaining. One of the things that makes it entertaining is seeing a bad guy get taken by con men.
However, when a con man takes you, it’s not very funny.  And there are all sorts of confidence men and confidence jobs out there.  One type of con job is called a “Ponzi Scheme”.
Essentially, how a Ponzi Scheme works is the trickster approaches a victim and pitches a sale for an investment; convinces the person to invest money, and after they’ve invested the money, they get paid back a high rate of return.  They actually get some of their money back.  What makes this a con job is that the money they are being paid back supposedly as interest or dividends is not actually interest or dividends; they are being paid back their own money.  There is no investment; the con man is simply returning a portion of money to the person who gave it to them.
The problem with this is threefold; first, obviously, at some point the money is going to run out; if it’s not invested but just being returned, sooner or later there isn’t going to be any money left. Second, the con man is not doing this just to take money and pay it back; he’s spending the rest of the money on himself; buying fancy cars, boats, houses, jewelry, or whatever. And, third, the con man uses his existing victims to get other, newer, victims to invest in the fraud.  The existing victims are the best salesmen; they invested money, they’re getting money back, and they will usually brag about it. They’ll tell their golf buddy, their neighbor, their business partner, or whoever about this great investment they got; and most people are going to be interested in getting in on a good deal.  The problem is, sooner or later there is no money left; sometimes the whole scheme collapses, sometimes the con man figures it’s time to get out and liquidates everything and flees overseas somewhere that the United States has no extradition with.  Either way, at this point the money is gone and all of the victims are left with little or nothing.  But it can get worse; under the law, some early investors, the people who got in on the ground floor and got the most money out of the scheme, can be sued under a “clawback” provision of the bankruptcy code; in other words they have to turn over money that they got from the payments from the Ponzi scheme.  This can get really complicated and I’m not going to go into the details, but it is perfectly possible for someone to lose twice; first, they lose their original investment, and then they wind up being sued for the money that they wound up getting from the fraudulent scheme.  If you are being threatened with a ‘clawback’ lawsuit you definitely need to talk to a lawyer, specifically a lawyer who handles this sort of case, which I don’t handle.
Here’s a link to someone who discusses this in more detail:

Clawbacks

What I do want to discuss is some warning signs of Ponzi schemes. I’m not trying to scare anyone, but a certain degree of paranoia and suspicion can go a long way to protecting you.  Ponzi schemers are confidence men; they gain your trust; they tend to be smooth talkers, they  are believable, and they are very affable.  The whole point behind them is that they gain the trust of people; usually by acting like and coming across like the person they are targeting; they aren’t going to be obvious about it; they aren’t going to have a gold tooth, unless the type of people they are targeting have gold teeth.
The most recent big Ponzi scheme that was in the news involved Bernie Madoff; a New York City businessman and investor.  Madoff was a very well known, well liked guy; he donated money to all sorts of charities, he hobnobbed with his victims, he was active in his religion. And these were exactly the sort of people he targeted; he targeted members of his congregation, Jewish charities.  People trusted him; he was good guy and he offered really significant returns on investments; typically running 12 to 15 percent per year, year in and  year out. Nothing succeeds like success; people turned their money over to him, he gave them a good rate of return, those people recommended him to other people and organizations, who in turn invested with him.  And then the whole house of cards fell, and a bunch of people lost nearly everything they had invested with him.
The Madoff scheme has gotten a lot of press; and the scale was gargantuan; but the problem with Ponzi schemes is that they are relatively easy to run; they don’t require much beyond a smile and a sharp business suit, and maybe a nice office; there is no actual investment behind them.  And as a result, there are a lot of Ponzi schemes out there; the bigger ones tend to make the headlines but a lot of the smaller ones don’t make the news very much. Nonetheless, even if it’s a small scheme involving a few dozen people, if you lose money on it, you’re still out of luck and may be subject to a clawback lawsuit.
And people in The Villages may be particularly vulnerable to this sort of thing; residents of The Villages have a reputation as being rich, they tend to be very sociable and vulnerable to a slick salesman, tend to trusting of other Village residents, and everybody likes a high rate of return on their money, particularly in this economy.
So, here’s some warning signs that something may be Ponzi scheme; it is possible to be a Ponzi scheme without all or even some of these signs but if  you see any of these signs, you really do need to stop and think and fully investigate; remember, no one goes around with a sign hung on their neck saying “Ponzi Schemer, Look Out”.
First, don’t get greedy; Ponzi schemes typically involve either a higher rate of return or a more regular rate of return than standard investments; or a combination of both. What’s a unreasonably high rate of return? It’s going to depend; but if it’s more than what  you could get in an standard investment, this may be a Ponzi scheme; in the Madoff case he was consistently delivering 12 to 15 percent; which for what amounts to a passive investment is quite high.
Second, the scheme will frequently involve something slightly exotic; it may be something that is in the news; but it is almost certainly going to involve something that most people aren’t going to understand the details of and it is going to be difficult to actually verify what is going on.  Frequently, it may involve something “overseas”, some sort of foreign investment; and it may be something just a tiny bit shady; there may be some sort of “partner” who’s involved.  As an example, it’s not going to be anything too exotic; it’s not likely to involve, say Peruvian Llama Wool Futures, which most people are going to raise an eyebrow over; but it could very well involve some sort of foreign extractive industry, such as Oil, Gas, or Gold; it may involve Mexican Oil Wells, or some sort of Silver Mine in South America.  Also, the shady part typically will explain the secrecy, why this is not being sold to the public; the explanation may be that “this country doesn’t allow outside investors, but I’ve got a partner there who is using the money to invest in this thing”.  Of course, there is no “partner” and there is no investment; but it’s a plausible sounding explanation.  And every body likes to bend the rules, don’t they, and get away with something.   And it may involve something that is in the news; “Green” energy, maybe Fracking, something that people will recognize as an up and coming industry, but that most people don’t know much about beyond the headlines.
Third, face to face or word of mouth sales; the con man approaches you at your church,  your country club, or whatever, and says he’s got a great investment but he’s only offering it to a select or special group of people.  Or someone you know contacts you and says basically the same thing: “Oh, I got my money with this guy, he’s great, he’s paying me back my money at this rate of return, every month, every quarter, but the deal is on the hush-hush because whatever”.  Understand, the person does not know it’s a Ponzi scheme; they trust the guy; and as far as they’re concerned, he’s legitimate; they’re getting paid what they were promised, if it was a rip-off the guy wouldn’t be paying them this money, right?  And they’ll swear up and down that this is legitimate. But it isn’t legitimate. The con man is depending on trust; they are a member of your social set; they’re a member of your church, your synagogue, they belong to your country club, the guy plays in your foursome. Of course he’s legitimate;  you know the guy, he’s a good guy, or the guy you play golf with knows the guy.  That’s why they’re called confidence men; they gain your trust,  your confidence.
Look, if you’re approached on this sort of deal, pay attention to your instincts, your gut feelings, your nose. If it smells too good to be true, it probably is; if it’s being offered to only a few ‘special’ people, you need to ask why this is not a public offering; why isn’t this a registered security or being offered over the counter to the general public. Everybody likes to feel “special” but this is precisely how people get taken in; by being told they’re part of a select group.  You need to do your due diligence on this. If you’ve got questions, ask those questions. Talk to a legitimate investment counselor about this; a stockbroker, a bank officer, or even a lawyer.  Which is not to say that smart people can’t be taken in, but if someone starts asking too many questions and demanding too many details, the con man may  drop or withdraw the offer; he doesn’t want someone sniffing around.  If the deal is withdrawn, it’s entirely possible that this was a con job from the start.

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Nursing Homes, Medicaid and Homesteads in Florida

Posted on November 1, 2012 by admin

A very common question from potential clients has to do with nursing homes and homes.  Specifically, what happens if someone has to go into a nursing home; does the state ‘take’ the house?
I understand that in many other states, when an elderly resident has to move to a nursing home and applies for financial assistance from the state to pay for the nursing home, under the Medicaid program, the state will either expect the house to be sold, or place a lien against the house for the amount spent by the state on the nursing home.  And sometimes people will jump through a lot of hoops to avoid this; and frequently they will wind up not eligible for assistance from the state precisely because they tried to shelter the home.
I, personally, do not do Medicaid planning in Florida; this is a very technical area and there are some attorneys who do this sort of thing. And if I get a phone call regarding Medicaid planning, I will always refer it out to a local attorney that I know that does Medicaid planning.
Nonetheless, I will tell you that normally, Florida neither requires the sale of the personal residence nor will Florida enforce a lien for Medicaid against the homestead provided the homestead goes to either a spouse, or a relative after the death of the person in the nursing home.   However, what can get people into trouble is where they try to avoid the Medicaid lien and start transferring the house to the children prior to going into the nursing home; Florida will look at all transfers of assets within a period of time prior to the application for Medicaid; and under most circumstances, if the house has been transferred to someone, this may render the person ineligible for Medicaid.
The lesson here is, don’t try ‘do it yourself’ legal planning; these rules are very specific and very technical; if you try to plan this on your own, frankly,  you may wind up putting yourself in fix that is going to be very difficult and expensive to get out of.  If you or a loved one may have to move to a nursing home, call an attorney who handles this sort of thing; don’t try doing this on your own, and don’t look for advice from non attorneys; a lot of people offer Medicaid planning; some of them are good, but a lot of  them are more interested in selling you a particular product that they sell rather than looking after your best interest.  As I said, I don’t do this sort of law; I don’t have any interest in selling you a particular product and in fact I will refer it out; but I will tell you that you need to talk to a lawyer about this.
If  you have a question about nursing homes and Medicaid in The Villages, feel free to contact my office and I will be happy to give the names and numbers of attorneys who handle this;  there are things that can be done to protect assets and if there is a spouse, to protect the spouse; but this is something that you want a lawyer to handle and I will be happy to send  you to one.  Please, though, do not try to handle this on  your own.  There is a real chance you may do something that will be very difficult to fix.

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Liability of a revocable trust for estate debts in Florida

Posted on October 22, 2012 by admin

There is some confusion out there regarding revocable trusts in Florida; for some reason some clients think that a revocable trust will not have to pay money owed by the person who died.
This is incorrect.  Florida makes revocable trusts liable for the debts of the estate to the same extent as the estate would be responsible.
I explain this in more detail here:

Will a revocable trust provide asset protection for me in Florida?
And why a revocable trust can actually trigger a probate under some circumstances, here:

Why living trusts don’t avoid probate in Florida
But, to be blunt, the regular, plain vanilla, inter vivos, revocable living trust that many people have in Florida will not escape paying debts of the decedent just because it is a trust.
There are ways to avoid most creditors claims against an estate in Florida; this gets complicated and you should consult with an attorney about how to do this, this is not something  you want to try to do it  yourself; but an ordinary revocable trust is not one of the ways to do this.

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