DON'T DO IT
by, Jerome R. Siegel, P.A.

A friend next door in the condo tells you that you need to quit-claim your condominium to your children because it will avoid probate. Should you? DON'T DO IT!

A friend next door in the condo tells you that you need to quit-claim your condominium to your children because it will avoid probate. Should you? DON'T DO IT! Your cousin from Elmhurst calls you up and says, "You know, my friend gave a Durable Power of Attorney to his children so that they can help him as he gets older". Should you? DON'T DO IT!

Finally, you find yourself alone in life - your spouse is no longer with you, but you have a best friend who has helped you in so many ways since your children are not near you and they are out of touch sometimes. You and your friend have talked about your putting her on all your accounts or making her your trustee or giving her the right to your assets when she is not entitled to same. Should you? DON'T DO IT!

All the DON'T's listed above are actual cases that I have encountered on many occasions during the course of my thirty-two years of practicing, especially in the area of Elder Law, Probates, Guardianships, Will and Trusts. It is very difficult when you are alone, have lost a loved one that you spent your life with or you have family or friends that you now rely on. It is a very natural and human process to rely on these people and to give them rights to take care of you and your assets as you get older, and in many cases, it is the right decision for you. However, you should never give up your rights to control your own assets without getting proper legal advice from an elder law attorney. Should you consult with an elder law attorney before giving up any of your rights? DO IT!

Quit-Claim Deeds can be a very effective tool to transfer an interest in property if you wish to avoid a probate or guardianship. However, by signing a Quit-Claim Deed without having proper legal advice concerning all of the assets you have and what the effect of transferring your property would be, is not a wise and prudent thing to do. The signing away of your property can affect and/or make you give up government benefits, your homestead exemption, reduction in taxes and your right to live on the property for as long as you choose. If there is a need or will be a need in the future to receive government benefits, the giving up of the homestead property you live in, may result in your not being able to receive benefits since your homestead property may be one of the only exempt assets you may have if you do receive government benefits. Additionally, once you quit-claim property away, you can never get it back unless the party you have quit-claimed it to physically deeds it back to you. This can be a very dangerous situation. Please do not agree to quit-claim any of your property without the proper legal advice.

Durable Powers of Attorney can be a very effective way to insure that when you are not able to transfer property and assets, someone you trust will be able to do it for you. HOWEVER, a Durable Power of Attorney can also be a very dangerous document if put into the wrong hands. Once you sign a durable Power of Attorney, and that Power of Attorney is given to your attorney-in-fact, and that attorney-in-fact actually has the Power of Attorney document, there is no way you can prevent that person from transferring assets without your permission. Even though you may know that the person you have appointed can only do so upon your being found to be incapacitated, third parties such as banks and insurance companies may have no idea that the person presenting them with a Power of Attorney document does not have the legal right to make the transfers to whomever they wish to transfer to. Because of this, it is extremely important that if you have a Durable Power of Attorney prepared for you, that you do not give the original of that Power or even a copy of that Power to the person appointed as your Attorney-in-Fact without legal advice first. DON'T DO IT WITHOUT ADVICE!

A friend next door in the condo tells you that you need to quit-claim your condominium to your children because it will avoid probate. Should you? DON'T DO IT! Please understand that the advice an attorney gives you or the documents the attorney draws up for you and you sign, are only as good as your ability to follow the advice of the attorney after you sign the documents. For instance, if I were to do a Revocable Living Trust for you, and if I were to tell you to make sure each and every asset is placed into the trust or it will be subject to probate, and you then purchase property and left it in your own name, that stock or other property in your own name would have to be probated. Likewise, if I advise you not to quit-claim a property or not to put assets in someone's name, and after this advice you do it anyway, then you bear the risk of possibly having your assets or property jeopardized.

I have always found it interesting that as a lawyer, who holds a doctorate in juris prudence, my clients do not always take my advice. However, if I was a doctor who held a doctorate in medicine, in all likelihood you would listen to everything I told you and follow my advice. In many ways, the loss of assets or your security can be as unhealthy as your failing to follow your doctor's advice or as your having a serious illness. In many cases, the illness can be cured or controlled. In most cases, if you give away your property or your assets, it is unlikely you will be able to obtain them back.

As I said at the beginning, all of the above that I have talked about means DON'T DO IT, unless you are absolutely sure, based on sound legal advice, that it is the right course for you to take. Additionally, I have previously spoken about getting a document check-up, and I once again, urge you to have any and all documents that you had previously prepared by an attorney, including Wills, Trusts, Powers of Attorney, Health Care Surrogates and other documents reviewed now, since laws have changed and the legal effectiveness of the documents you had done in the past may not be effective as of today.

As always, my office stands ready to help you with advice and any of your legal needs. I would be more than happy to review documents and suggest any changes that may be necessary, if any are necessary. I would be more than happy to also consult with you regarding any legal problem you may have. In the event I cannot help you due to the nature of that problem, I will direct you to a capable and ethical lawyer who can.

Please feel free to call us at 954-229-2226. Our address is 500 West Cypress Creek Road, Pinnacle Corporate Park, Suite 300, Fort Lauderdale, Florida (between Powerline Road and Andrews Avenue). My website is sfloridalaw.com and my e-mail address is attorney@sfloridalaw.com.