October is Domestic Violence Awareness Month

I received this today via Email.   Good afternoon, October is Domestic Violence Awareness Month, a time for each of us to reflect on the devastating impact that domestic violence has on our society. You can scarcely get through a day without hearing a news report about a violent incident in the community. The national conversation often revolves around high-profile instances of abuse, illustrating that money and success are not safeguards. We at the Clerk’s Office deal with those in fear every day as they come to us seeking a judge’s order of protection against someone they believe wants to hurt them. I am proud to say that our recent partnership with Harbor House of Central Florida has already resulted in getting quick help to more than 25 people who may otherwise have had to wait up to 72 hours for their cases to be heard. If you are dealing with assault or stalking, three days is a long time – maybe too long. In April, I began deputizing more than two dozen Harbor House employees. Taking the oath of office has allowed them to continue processing domestic-violence injunction petitions during the hours that the Clerk’s Office is closed. That means no one has to wait overnight or through a holiday or weekend for a Clerk’s Office employee to take their paperwork. “Having this opportunity to swear in our employees to save lives is our primary goal, since being able to process a domestic violence injunction when the Clerk’s Office is closed is crucial for a victim in a domestic-abuse situation,’’ said Carol Wick, president & CEO of Harbor House of Central Florida. “It also enables us to uphold no-contact orders at any Harbor House location, which eliminates one more barrier to protecting survivors and holding abusers accountable.’’ Through September, more than 4,800 people had visited the Orange County Clerk’s Office this year seeking court-ordered protection. If that pace continues, the year-end number will be higher than that of 2013. The paperwork is several pages long and is available at the Clerk’s Office and its branches. It is also available online at myorangeclerk.com, which allows the petitioner to fill out the forms privately and thoroughly, away from crowds and bystanders at the courthouse. I also recently made Affidavit of Violation paperwork available online. This is the form a survivor fills out if their attacker has violated an injunction order. To reach Harbor House of Central Florida after hours, please call 1-800-500-1119. Regards,

Eduardo “Eddie” Fernández Orange County Clerk of Courts

Excerpts from My Book

 Inside the Minds: Strategies for Family Law in Florida

Published by Aspatore Books, a Thomson Reuters business

 

Managing Family Law/Elder Care Law Nexus Cases Using Collaborative Law Strategies

. . . Guardianship in Florida is filed in the probate court. My first guardianship case involved a fifty-year-old deaf mute who had received a large settlement from a lawsuit, but because of his disabilities, the court did not want him to have access to that settlement. Therefore, a guardianship of the person was required and a trustee was appointed to manage his assets. (Funny how the Courts will sometimes set up problems for the people they are really trying to assist.)

 

I have also worked on cases involving long-term marriages—marriages of more than fifty years—where the parents were beginning to decline in health and their children were starting to apply for guardianships or having difficult conversations with their parents regarding what would happen to them in the future; i.e., where they would live, and/or if they would have to go into a nursing home. Many such “end of life” questions come up in the practice of elder law—i.e., how and where I am going to live out my life, and who is going to make decisions for me when I an incapacitated? In some cases, one or both of the parties are becoming incompetent due to dementia, Alzheimer’s, or other frailties of age affecting the decision making process and one spouse’s ability to care for the other spouse.

For example, I once had a case involving a couple who had been married for about sixty-two years. The wife wanted a divorce because she was concerned that her husband was trying to kill her. In all of her interactions with me she appeared to be perfectly competent, but during the divorce proceedings it became clear that she had some defects of the memory. The parties had been separated for two years and were living apart; they had homes in different areas of the state and in different states. They had three children; two were aligned with their mother and wanted her to receive all of the couple’s assets, and one child was aligned with the father. In my opinion, instead of talking to their parents about filing for divorce, the children should have been talking to me about filing a guardianship for both parents, because both parents had serious memory defects. Ultimately, the parents got divorced; and the children became engaged in what I refer to it as a pre-death probate process, because the children were basically dividing up their parents’ assets and aligning themselves with the parent who they were expecting to receive an asset from in future years.

As it turned out, some of the assets that the parents claimed to own were, in fact, non-existent, even though we had done due diligence in that area. For example, both spouses had certificates of deposit and bank statements that showed that they had a certain amount of money in the bank; we later learned that the parents had subsequently taken that money out of the bank and used it for their daily living expenses. Consequently, instead of having $200,000 in the bank, the couple only had $20,000. Indeed, between the time of the signing of a marital settlement agreement that had been negotiated with everyone’s full disclosure and knowledge and the time we appeared in court for a final judgment, it became apparent that both spouses had delusional notions regarding the extent of their assets. Therefore, the couple was probably not competent with respect to making decisions concerning a divorce; and we should have been pursuing guardianship issues instead.

In a similar case, I dealt with a couple who had been married for fifty-six years, and the wife had full-blown Alzheimer’s dementia. She did not know on a day-to-day basis where she was or who she was with; she did recognize her husband and her children, but only to a minimal extent. It was clear that she was fully incompetent. Her husband had been taking care of her for several years; and unfortunately, he had made some statements to his adult children, who were in their fifties, complaining about the care that his wife required. The children had interpreted the husband’s concerns and complaints as a reluctance to care for his wife; and one day, they simply took their mother out of her home, claiming that they were taking her to the beautician to get her hair done, and she was never returned to the home. Although the children were seemingly trying to protect their mother from neglect by her husband, they wound up destroying both parents’ lives. The husband died just nine months later, having never seen his wife again because of the actions of his children.

I believe that we are likely to see more guardianship cases in the elder law area in the future, largely because as our life expectancy increases we will see more couples who have been married for fifty, sixty, or even seventy years. Many of those couples have adult children who have been married for twenty to forty years; and those children are becoming the caregivers of their parents in much greater numbers than in previous years. Ultimately, as adult children become caregivers conflicts will arise over the definition of appropriate care. Indeed, we are seeing a growing number of conflicts over where elderly parents should live and who should be providing their care. Unfortunately, I am also seeing more cases involving parents who are outliving their retirement savings. When they retired twenty or thirty years ago they had significant assets, but now that they have become dependent on nursing home care their assets are gone and their children are applying for them to be enrolled in Medicaid.

All too often, the children of elderly parents receive bad advice that leads to very confusing family law issues, especially when you have one party to a marriage who may be suffering from dementia or Alzheimer’s and may be incompetent, and their children want to control the care of their parent but they do not really know how to go about doing that. For instance, in the case I referred to where the adult children took their mother away from the home where she had been living with her husband of fifty-six years, those adult children started cleaning out bank accounts so that they would have sufficient assets to take care of their mother. The husband then went to an attorney who advised him to file for divorce so that the court would freeze the couple’s assets, thereby ensuring that that husband would be able to protect his half of the assets. However, that was not an effective strategy—in fact, the children used the divorce filing as evidence that their father no longer wanted to have anything to do with his wife. In this case, the husband’s original attorney wound up making his client’s problem far worse than it was to begin with. When the husband consulted me we immediately withdrew the divorce petition and filed a guardianship petition instead. Unfortunately, the children had already used the divorce petition which was filed in Florida as evidence in their case for a conservatorship in California, where they had taken their mother by plane, even though she did not know where she was going; and she never returned to Florida until after her husband’s death.

My Name: Aubrey Harry Ducker Jr.            

My Firm Name: The Law Offices of Aubrey Ducker, PLC
My Title: Managing Member
My Phone #: 407-645-3297
My Email: Aubreylaw@gmail.com

My Website: www.aubreylaw.com

Business Address:  2020 Mizell Avenue, Winter Park, FL 32792

Aubrey Harry Ducker, Jr., is a member of the Orange County Bar Association and the Florida Bar  and the American Bar Association. He has received a AV Preeminent Peer Review Rating from Martindale-Hubbell.  Mr. Ducker serves by court appointment as a Guardian Ad Litem, advocating for children in contested custody and abuse or neglect cases. After serving six years in the U.S. Navy onboard the USS George Bancroft, SSBN-643, Mr. Ducker attended the Valencia Community College, the University of Central Florida and the University of Florida Levin College of Law in Gainesville.  

Mr. Ducker’s practice focuses on Collaborative Divorce, Elder Law, Family Law and Guardianships. He also shares Mortgage Mediation Education Inc. as a co-owner and lecturer on Ethics. Mr. Ducker is previously published under the Aspatore Label with Inside the Minds, Strategies for Family Law in Florida. He also serves on the board of Director of several non-profits and Chairs the Board of Christian Ethics Today.

Mr. Ducker previously served as Attorney for the City of Eagle Lake, Florida

 

1629 Miles for Thanksgiving

This year for Thanksgiving, we drove to Signal Mountain, just outside Chattanooga, Tennessee, to spend the holiday with my family. My parents still live on a farm there and my brother and his wife had their second child, a boy, the Thursday before Thanksgiving. I planned to cook the traditional Turkey, dressing and cranberry salad at my mother's then take dinner to my brother and his family in the valley.

Just before we left for the trip, my wife learned of her college roommate's mother's passing in Greenville, Tennessee, about 3 1/2 hours north of Chattanooga. Since we were also planning to drive to Durham, NC for the Duke v. Miami game, we made the detour for the funeral. This meant Four days of driving over a 6 day holiday weekend. We left Florida Tuesday evening and made it almost to Macon, Ga., before spending the night. Waking up in Cordell, we drove most of the morning to reach Tennessee; however, just before leaving Georgia, we stopped for lunch at my sister's house for lunch with her and her 3 wonderful children. Later that afternoon, we finally arrived at my Grandfather's farm on Signal Mountain. The evening centered on making the oyster dressing and cranberry salad with groceries brought from Florida.

Thanksgiving Day, I spent most of the morning walking around the farm after putting the turkey in the oven to roast. Mom, Dad and I surveyed the back fence lines and tried to find one corner so we could put the final fence up between my mom's property and that sold to a new owner. After we ate lunch, my brother finally arrived with his 2 year old son, so Andy and I walked the fence lines again to verify proper markings corresponded to the deeds issued by the probate court. After it got dark, Andy took dinner home to his wife and baby, and we planned to follow to get a look at the newest Ducker. Unfortunately, as we went to get in the car, I realized I did not have my keys. Fearing I had dropped them somewhere over the miles of fence line I had traversed today, all woodsy and briar filled, I was rather apoplectic. Thankfully my wife found the keys right where I had dropped them in our room.

On Friday morning, we left about sunup to drive to Greeneville for the funeral. My wife's college roommate's mother had been living in Greeneville, Tennessee, to be near one daughter who could take care of her to prevent having to go to an assisted living facility or nursing home. Ironically, the funeral occurred at Tusculum Baptist Church, across the street from Tusculum College, one of the schools my 17-year old is considering. We drove around before the funeral taking in the beautiful campus and sports facilities.

I'll have to write more tomorrow! If you need assistance in selecting an attorney in the Central Florida area for a Collaborative Divorce, Elder Law, Family Law, Guardianship or other question, please call me at 407-645-3297 or visit my website at www.aubreylaw.com

Thanks, Aubrey

Collaborative Law in Orlando and Winter Park

July 15 and 16, I attended the Interdisciplinary Collaborative Law Training at the University of Florida Levin College of Law. While I relish any opportunity to return to law school, this trip was particularly helpful. Co-Sponsored by the Institute for Dispute Resolution and the Center on Children and Families, the Gainesville Collaborative Divorce team spent two full days reviewing the Who, what, when and where, as well as the hows and whys of Collaborative Divorce.

For almost 12 years as an attorney, I have always tried to work in a cooperative way with other lawyers. I find little is solved by acrimonious debate as harsh litigation tends to prolong litigation and impoverish the parties more than solve the issue at hand. While I have always tried to be cooperative, I have never been "officially" trained as a "Collaborative Attorney."

Not anymore. There are new tools in the shed. There are many more choices when considering divorce. Ask yourself, what is best for my family?

In law school at the University of Florida, Dean Richard Matasar stressed the collaborative process as a way to make the practice of law more fulfilling to attorneys. Many of us got into this practice because we want to help people; unfortunately, for many people, divorce is the most disagreeable practice in law. Dean Matasar taught many of his students that you don't have to be disagreeable when your opinion differs from the other side of the courtroom. Following his example, I have always tried to work with opposing counsel in a cooperative manner. Since completing the training program this summer, I am now officially trained in Collaborative Law practice.

I look forward to offering this new service in Collaborative Law in Divorce cases, as well as Guardianship cases. The Collaborative Process allows the parties to work out their issues with a trained professional, usually a Mental Health Counselor, a financial professional trained in divorce accounting and valuation, a mediator if necessary and two collaboratively trained attorneys, rather than litigating and leaving ultimate decisions to the Judge.

While the above listing of professionals involved may sound expensive at first blush, most participants in a collaborative divorce will agree that the process itself is more healing and conducive to protecting the parent to parent relationships necessary when children are involved. Also, in a litigated divorce, most professionals (Valuation, Accounting and Mental Health) will be duplicated as each side employs their own "hired guns" to best present their case. The Experts hired by each side will inevitably argue and reinforce their own opinions rather than working with all parties to facilitate a mutually beneficial result.

Collaborative Law may not be for everyone, but for many families with children, the process allows the parents to work out the best interests for their children rather than leaving it all up to the judge.

If you have questions, call me at 407-645-3297, or send an email to: aubrey@aubreylaw.com

I look forward to hearing from you.

How Many Attorneys Does it Take?

I know this sounds like a joke, but I was actually serious. How many attorneys you consult about a problem gives an indication of your interest and trust. How many should you consult? If you receive a recommendation from a trusted friend, and the attorney is competent to handle your case, you may not want to waste time getting second opinions.

Most good attorneys, like any good doctor, will be happy for you to seek out a second opinion. Once you have consulted and aquired a number of opinions, in choosing an attorney you should consider a several questions:
Who do you trust more?
Who makes you feel most comfortable?
Whose advice will you most easily accept?
Who has the simplest fee structure?
Who expects the most up front money, or Retainer?
Who has the expertise in your area of law?
Who has been in practice longer?
Who is most up to date on the Law?

In answering these questions, you will be able to select the attorney most competent to handle your case.

Do not be afraid to ask hard questions, such as:
How much will this cost?
What are the negative possibilities?
Am I liable for any other costs or fees?
Will the court order the other side to pay your fees?
Most important when suing for money damages, child support, alimony, or equitable distribution, what are my chances of actually collecting from the defendant?

In the end, the more answers you have at the beginning, the more likely you are to understand the process and potential outcomes.

So, how many attorneys does it take to change a lightbulb? Just One, but it has to be a good Case.

OK, here is the joke: How many attorneys does it take to change a lightbulb? Four. One to change the lightbulb. One to climb the ladder, one to shake the ladder, one to sue the ladder company.

Durable Power of Attorney

Do you have one? Do you need one? Who has access to YOUR MONEY?

I asked these questions at a seminar today with the Boost Your Brain Program of the Crosby YMCA Wellness Center in Winter Park. Meeting with 41 Y members allows me to meet new potential clients. It also allows me to hear what questions concern them most. Many questions begin with either "my friend" or "my parent" and relate particular issues being dealt with daily. They continue asking "is doing this, that or the other thing OK?" In a seminar setting I can answer general questions common to many caregivers in a minimum of time by comparison to an office consultation. The information passed out to a large group is by nature very general and may apply in peculier ways to any given set of circumstances.

More complex questions are best answered in the office during a personal consultation session. One persons actions with regard to care and keeping may differ radically from another person's situation. If you have questions, Call an Attorney. We are here to help. Many times a question over the phone can prevent major complications that could impact Medicaid Qualifiation, Taxes, Inheritance, Probate, Guardianship, etc.

A few of the members had questions regarding how to pay bills when sharing a residence with their mother, brother, etc. Dividing bills and paying 1/2 to the other person may seem reasonable today, but when the IRS audits your taxes, or when applying for medicaid, or when going through Probate administration, the answers may radically alter treatment in the individual case.

Bottom Line: Ask the question of a professional. Do not depend on the advice given to a friend by their former whatever. Be Careful out there! And I am Proud of You!