Florida Estate Planning Lawyer Blog

December 27, 2008

Jacksonville Florida Guardianship Process

Having a Florida Guardian appointed involves two separate court determinations. The first court proceeding is the Incapacity proceeding where the Florida court determines whether the person is incapacitated as defined by Florida law. The second Guardianship proceeding is where the Florida court actually determines who will serve a guardian. All Guardians are required to be represented by a Florida Lawyer (See Florida Probate Rule 5.030(a) ), submit to a criminal background check, and take an 8 hour course in Guardianship duties within 9 months of being appointed.

Step 1: (Determine Capacity). See Florida Statute

Florida’s Guardianship Statutes have been written to protect our freedom and independence. Therefore, the courts presume a person has capacity and is able to make decisions on their own until adjudicated by the courts to not have capacity. (See Florida Probate Rules 5.550 and Florida Probate Rule 5.030(a)” target=new>Florida Statute 744.3201 for what must be contained in the Petition to Determine Capacity).

December 20, 2008

Electronic Service through Socail Networking site

by David M. Goldman

Recently an Australia Judge allowed a defendant in a law suit to be served copies of court papers by their Facebook account. The Legal Blog Watch has an article posted by Carolyn Elefant – Court Papers Served By Facebook

After the judge was satisfied that the defendant was the same person who owned the Facebook account and the defendant was unable to be located, the judge allowed the defendant to be served through their Facebook account.

December 19, 2008

Confusion over 2008/2009 RMD Suspension by Congress

by David M. Goldman

There seems to be articles misquoting the Suspension of RMDs by Congress. Congress has not suspended the 2008 RMDs. As of this time The Worker, Retiree, and Employer Recovery Act of 2008 is awaiting the President’s signature.

One of the provisions of the bill is the suspension of required minimum distributions (RMDs) for 2009 ONLY.

This applies to all RMDs from IRAs and employer plans for account owners AND beneficiaries. This temporary suspension will not affect an individual’s required beginning date. An individual who turns 70 ½ in 2008 and chooses to defer their first distribution to April 1, 2009 must still take that distribution.

December 18, 2008

Mediations can save time and costs

by David M. Goldman

When is a Jacksonville Mediator helpful in resolving a Florida lawsuit?

After your Jacksonville attorney has filed suit, or you have been served with one you may quickly find that thousands of dollars are spend in attorney’s fees and costs. There are fees for pleadings and counter-pleadings, requests and responses to interrogatories and requests for admissions, depositions and motion hearings. Typically after all of these fees your attorney sets the case for trial only to then inform you that the court has ordered mediation by a Florida Mediator.

Florida Clients often ask, Why are they are now having to meet with the other party to discuss settlement after paying all this money and waiting all this time for a trial? They wonder if they could have met much earlier in process and saved thousands of dollars. If you are in a lawsuit you should ask your Florida Lawyer early if the court will be ordering a mediation and when the proper time to have the mediation would be. Often an early mediation can save both sides substantial fees and lead to a good resolution of the issues involved in the case.

December 18, 2008

Guardianship of the Elderly in Florida and other States

by David M. Goldman

Guardianship is a relationship created by state law in which a court gives one person or entity (the guardian) the duty and power to make personal and/or property decisions for another (the ward).

An article written by Brenda K. Uekert and Thomas Dibble. The article, “Guardianship of the Elderly” will appear in the next issue of Court Manager magazine where the author discusses the:

purpose of guardianships;

Abusive guardianships that often exploit the elderly;

December 18, 2008

Florida Attorney General Warns Seniors of dangers with “Free Lunch” investment Scams

by David M. Goldman

Senior citizens in Florida are being warned to think before going to financial planning seminars and estate-preservation workshops that offer a “free lunch” or “free dinner” to lure seniors to attend.

The Florida AG’s Office has received more than a dozen complaints from seniors enticed to attend a free meal that actually turned out to be a high-pressure sales pitch for investments that may be entirely inappropriate based on age and financial circumstance.

In quoting Attorney General Bill McCollum, the Naples Daily News reported that “The last thing our seniors need during this economic climate when their retirement savings may be dwindling is an investment scam that further depletes that nest egg”. “Too many of our seniors are finding that these free meals can cost them dearly.” The invitations often arrive by phone or mail and promise tips on earning great financial returns with minimal risk, eliminating taxes or avoiding probate. After a high-pressure presentation, salespeople then try to schedule follow-up visits in the homes of those who attend so they can continue the pitch. In addition to losing money, consumers who complained to the Attorney General reported being badgered by many unsolicited phone calls and frustrated by misrepresentation of the seminar’s purpose.

December 17, 2008

Floirda Medicaid and New Caregiving website

by David M. Goldman

Leanna Hamill, a Massachusetts Estate Planning and Elder Law Attorney, has an article on a new website Videocaregiving.org. She states that the videos are designed to be short, simple, and direct. They easily accessed by users 24 hours a day and cover the tasks and daily activities for caregivers.

If you need help with a Florida Medicaid Application Contact a Florida Elder Law Attorney

December 17, 2008

Uniform Probate Code Authorizes Notarized Wills

by David M. Goldman

The UPC or Uniform Probate Code has been modified to accept a Notarized Will as valid. Lawrence W Waggoner, wrote an article “The UPC Authorizes Notarized Wills”, 34 ACTEC 83 (Fall 2008). (This article was brought to my attention by Gerry Beyer of the Wills, Trust & Estate professor Blog)

The article begins by reviewing the history of attested wills which were derived from the English Statute of Frauds Act of 1837. The requirements state that the will must be (1) in writing, (2) signed by the testator, and (3) witnessed by attesting witnesses. The UPC also popularized the concept used in Florida of self-proved wills. A self-proved will allows the testator to execute a will and attach an affidavit to the will, notarized and signed by the testator and the attesting witnesses.

In 1990- the UPC adopted another new concept, the harmless error rule. Under the harmless error rule, a will that does not strictly comply with the statutory requirements for an attested will is treated as if it had been properly executed if the will is proved by clear and convincing evidence that the decedent intended the document to be his or her will. So far Colorado, Hawaii, Michigan, Montana, New Jersey, South Dakota, Utah, and Virgina have adopted statutes based upon the Harmless-Error Rule.

December 15, 2008

Florida Probate: Am I entitled to an inventory and accounting.

by David M. Goldman

In Florida if you are a beneficiary a potential heir, you are entitled to an inventory and accounting. As An Atlanta Georgia Estate Planning Lawyer wrote in their article AS A BENEFICIARY OR HEIR OF A GEORGIA PROBATE ESTATE, YOU ARE ENTITLED TO AN INVENTORY AND ACCOUNTING IN GEORGIA PROBATE COURT – REMEMBER, “POSSESSION IS NINE-TENTHS OF THE LAW”, SO ACT QUICKLY AND WITH KNOWLEDGE, it is important to act fast.

It is often frustrating for beneficiaries that this doesn’t happen quickly or automatically. Often beneficiaries only receive these documents after a Florida Probate Attorney makes a formal request for them.

If you have not received an inventory or accounting relating to a Florida Probate Contact a Florida Probate Lawyer

December 14, 2008

Problems with Trust Kits

by David M. Goldman

A Michigan Estate Planning Lawyer Blog has written another article on Problems with Michigan Trust Kits. While we have reported on these issues many times in Florida, there appear to be similar problems in other states. Christopher Berry, a Michigan Estate Planning Attorney, points out that Michigan citizens have lost over $200,000 because of poorly drafted Revocable Trust .

In addition, many of these Estate Planning Kits do not take Elder law issues into account when filling out the generic forms for individuals and their families. Please contact a Florida Estate Planning Lawyer to discuss your individual needs.