Elder Law FAQs
Orlando Elder Law Attorney
Q: Do I need a will?
A: Do you have anything that you want to pass on to a charity? Siblings? Children? A person other than your spouse or children? Do you have children under the age of 18 for whom you would like to assign a caregiver or guardian should something untimely happen to you? These are many of the reasons to have a will. There are numerous others. Perhaps you have a pet, a dog, cat, horse, or bird, that you would like to provide care for after you die. Most of these issues can be resolved through your will. If, however, all of your assets are held as joint property and all of your survivor rights are clear, then a will may be superfluous for you.
Q: Can I avoid probate?
A: Do you really want to avoid probate? Many people are afraid of something they know absolutely nothing about. Probate can, once and for all, answer questions of title to property, how much interest is held in property through a bank account or to whom proceeds should be delivered. Many people are afraid of probate because they are worried about excessive attorneys’ fees; however, attorneys’ fees are limited by statute a very small percentage of the estate, based on the work involved. If, however, the estate is complex or there are challenges to the estate, many funds can be wasted litigating in the probate court. Our firm always takes a position of a mediated settlement with which you agree is better than wasting assets fighting in court and leaving the decision to a judge who has a thousand other cases.
Q: My father/mother/parents are beginning to drive erratically and I am concerned about them behind the wheel. What can I do?
A: Many times children can be worried about liability for their parents’ driving and for all the wrong reasons. So long as an adult holds a valid driver’s license and maintains proper insurance on the car, the State is responsible for ensuring that he is properly qualified to drive. If, however, you have specific information that a person is no longer qualified to drive, his doctor can make recommendations to assist you. Many times elders are not as concerned with not being able to drive as they are with not having input to decision-making about their lives. Often, elders are less concerned with their rights being taken away than they are with the manner in which action is taken.
Q: Can I be held liable for my parent’s bad driving?
A: Under most circumstances, no. But, if certain factors are true, you might be. You can confidentially request that the Florida Department of Highway Safety and Motor Vehicles investigate drivers’ abilities to determine whether they are still safe drivers; DHSMV can restrict or revoke licenses as appropriate. You can read more information about dealing with older drivers in your family at www.floridagranddriver.com.
Q: Do you represent me or my children?
A: I routinely meet with elders who ask me, “who are you working for?” or “why are they doing this to me?” I can always ensure the elder that I am his attorney, not his child’s attorney, and I represent him, but I will not allow him to endanger himself or those around him. My role as attorney is to give him advice that will help him live out his life according to his wishes. When he refuses to take that advice, I work very hard to negotiate with him, to help him understand why certain advice is in his best interest and why people are concerned about certain issues. I have dealt with many elders whose children called them unreasonable, stubborn, hard to get along with, old-fashioned, and other descriptions indicating difficulty in working together. Many times, the parent-child relationship is difficult for elders to navigate. Parents will always see their child as a child, and parents will refuse to take advice from a child because they are the parents and should know best. However, when a trained professional gives them the same advice or similar advice, or explains the reasons behind the advice in a manner they understand, they will many times accept that as the best course of action. Sometimes, just hearing from a third party is sufficient to allow a comfort and ease with the people suffering from the minor ailments that all elders encounter, but that may cause great stress in their lives.
Q: How much does a guardianship cost?
A: Depending on the situation, a guardianship may be as inexpensive as $1,000 or may be as expensive as several thousand dollars. When a child needs a guardianship, it is usually inexpensive, as normally a parent, grandparent, or other close relative can become the guardian in an uncontested manner. Many times, however, due to family dynamics and circumstances beyond either party’s control, family members can come into conflict over who has the right to make decisions for a parent, child, or disabled adult in need of a guardianship. In such cases, many times the judge will appoint a private guardian, which can be both a blessing, when it relieves conflict, but it can also be a very expensive result, when there are other adults who are ready, willing, and able to perform the same services.
Q: Does it have to be so expensive?
A: Many times people are afraid to ask questions or give information to their attorney for fear that it will complicate matters or make things more expensive. The greatest expense in attorney’s fees comes from attorneys finding out later what they should have found out early, such as when clients take certain actions without telling their attorney because they know the attorney would disapprove or they are afraid the attorney will direct them otherwise. Many times those actions cause excessive time and fees to correct those errors. Clients with the best of intentions can cause sometimes irreparable harm to their own causes when acting outside the advice of counsel. Many times if an attorney knows all the facts, all the reasons, and all the people involved, a solution can be found that minimizes the court aspects of litigation. Your priorities and the reasons for those priorities are critical to the attorney helping you to meet your goals. Many times stated goals are not the true priority. If the goal is to be the final answer in caregiver questions, that’s fine. If the goal is to maintain control over the wealth or assets, that is a fine goal, but it can be accomplished through many different ways. Psychologists talk about fear of loss and desire for gain as motivations and many times the fear of loss is a much stronger motivator than the desire for gain. Many times the desire for gain is expressed but the fear of loss is much more important. We work with clients in all situations to represent their interests properly and achieve the outcomes they desire.
Q: My mother lives alone and is beginning to forget things. I’m afraid she may need to enter a nursing home. What do I do?
A: This is a sensitive issue and if handled well, it can facilitate a very healing time. However, mishandling the issue may result in an extremely strained relationship between you and your mother. You should seek competent counsel to assist you. There are many options to explore, some that would even allow your mother to remain in her home, and your attorney can help you find the best solution for your situation.
Q: My parents are resisting my attempts to care for them. Do I need to have them evaluated for competency before I can make decisions about their care?
A: This is a sensitive issue and if handled well, it can facilitate a very healing time. However, mishandling the issue may result in an extremely strained relationship between you and your parents. You should seek competent counsel to assist you; your attorney can work with you and your parents to make sure that your parents receive the care they need and you receive valuable peace of mind.
We take pride in our ability to craft creative solutions for each client’s unique situation. We welcome your inquiry about any type of elder law question and will use all the tools at our disposal to help. Please contact us today for a flat-rate consultation with an attorney, either at our offices or the location of your choice. We can be reached by telephone at 407.645.3297 or by submitting the intake form on our Contact Us page.