Family Crisis Never Comes When Convenient

Family Crisis - Those words can strike fear in most adults.
A simple search of "Family Crisis, caring for the elderly" in the New York Times, www.nytimes.com finds numerous articles covering a wide range of options and alternative programs. http://query.nytimes.com/search/sitesearch/?action=click&contentCollection&region=TopBar&WT.nav=searchWidget&module=SearchSubmit&pgtype=Homepage#/family+crisis+caring+for+the+elderly/
So too, crisis within a family may take many forms.
Crisis may be in the form of Grandparents who suddenly have to take on raising their Grandchildren after years out of the Parental Melting Pot of School, Extracurricular endeavors like sports, dance, etc. http://www.nytimes.com/1997/03/30/nyregion/caring-for-the-grandchildren.html
Crisis may come from an accident or injury to a parent that suddenly makes them need care from their adult children.
Crisis may come from an adult child who suffers an injury and needs care.
Both of these situations may make Guardianship a necessary court intervention.

Of course, Interventions are by design adversarial, and Court Interventions are no less so.
The Court's process in a Guardianship begins with a "Petition to Determine Competence."
I doubt there is anything more harmful to family interaction than one family member going to court seeking to have the judge find another family member Incompetent.

Perhaps employing an Elder Care Specialist might be helpful. More than 4 years ago the times reported shortages in this area. http://newoldage.blogs.nytimes.com/2011/06/20/a-missed-opportunity-to-recruit-specialists-in-elder-care/

Typically, the adult children have been helping "Mom or Dad" in various ways and in varying amounts over many weeks, months or even years. One child takes them to the doctor, the pharmacist, and to lunch every Saturday. One Child does all their banking, making sure the doctor is paid, the pharmacist is paid and the credit cards are all paid. One child calls every day, hears about the trip to the doctor, the trip to the pharmacist, and even hears all about the luncheon on Saturday. Each child feels they are doing a lot, and all feel Mom and Dad need their help for this, that or the other task. Eventually, one child decides "something must be done" to either spread the burden of care, or establish authority for care, or once and for all to affirm to everyone else that "I am in charge!"

Sometimes people have to take time off of work. Many people still think Family Medical Leave Act provides payment for these "job vacations." Not true. What to do? http://newoldage.blogs.nytimes.com/2013/12/17/a-way-to-stay-on-the-job/?_r=0

At this point it is important to know that a Guardianship can be expensive. The legislature requires that people must be represented by an attorney in Guardianship Proceedings. This includes any individual seeking to become the Guardian, as well as any other party who wants to be involved in the process. Additionally, the Proposed Ward must be represented by an independent attorney, known as an Attorney Elisor, to protect the Proposed Ward's interests; after all, this proceeding may remove substantial rights of citizenship including the right to vote, the right to marry, the right to decide where and with whom to live, etc.

The Court will appoint 3 people to evaluate the Proposed Ward, including two doctors and one "layperson" with experience in evaluations of Alzheimer's, Dementia or Eldercare. These must be paid and must complete their evaluation in a timely manner, usually within about 30-60 days of appointment. Occasionally, these people meet with delays in completing their evaluations, and like all things in the legal world, delays may require additional time and fees.

Sometimes Family Crisis comes from Divorce. Other times the crisis comes from assets being hidden or bank accounts being frozen by the courts or by opposing parties. Even though they look similar, Financial abuse of the elderly can be a serious crime, but may simply be Medicaid Planning in a thought out (if not talked out) process.

What Family Crisis are You Facing today? Do you need help? If you have all the answers, please let the rest of us know. If you would like to discuss some collaborative, creative or essential solutions to a Family Crisis, call me, at 407-645-3297.  Or visit my website at www.aubreylaw.com
Thanks!

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

 

Some important Numbers for Taxes 2014

Just got another VERY INFORMATIVE EMail from one of my favorite CPA firms:

Hope your tax bill is HUGE because your Income was HUGE last year! That is my father-in-law's favorite blessing. He was a CPA. He always said he hated paying taxes but it was better than the alternative. Feel free to send me a note, aubreylaw@gmail.com or visit my site at www.aubreylaw.com

The following table provides some important federal tax information for 2014, as compared with 2013. Some of the dollar amounts change due to inflation. Other amounts are changing due to legislation. Social Security/ Medicare 2014 2013 Social Security Tax Wage Base $117,000 $113,700 Medicare Tax Wage Base No limit No limit Employee portion of Social Security 6.2% 6.2% Individual Retirement Accounts 2014 2013 Roth IRA Individual, up to 100% of earned income  $5,500 $  5,500 Traditional IRA Individual, up to 100% of earned Income  $5,500 $  5,500 Roth and traditional IRA additional annual "catch-up" contributions for account owners age 50 and older  $1,000 $  1,000 Qualified Plan Limits 2014 2013 Defined Contribution Plan limit on additions on Sections 415(c)(1)(A) $ 52,000 $ 51,000 Defined Benefit Plan limit on benefits (Section 415(b)(1)(A)) $210,000 $205,000 Maximum compensation used to determine contributions $260,000 $255,000 401(k), SARSEP, 403(b) Deferrals (Section 402(g)), & 457 deferrals (Section 457(b)(2)) $ 17,500 $ 17,500 401(k), 403(b), 457 & SARSEP additional "catch-up" contributions for employees age 50 and older $  5,500 $  5,500 SIMPLE deferrals (Section 408(p)(2)(A))  $12,000 $ 12,000 SIMPLE additional "catch-up" contributions for employees age 50 and older  $2,500 $  2,500 Compensation defining highly compensated employee  (Section 414(q)(1)(B))  $115,000 $115,000 Compensation defining key employee (officer)  $170,000 $165,000 Compensation triggering Simplified Employee Pension contribution requirement (Section 408(k)(2)(c))  $    550 $    550 Driving Deductions 2014 2013 Business mileage, per mile 56 cents 56.5 cents Charitable mileage, per mile 14 cents 14 cents Medical and moving, per mile 23.5 cents 24 cents Business Equipment 2014 2013 Maximum Section 179 deduction $  25,000* $500,000 Phase out for Section 179 $200,000* $2 million Transportation Fringe Benefit Exclusion 2014 2013 Monthly commuter highway vehicle and transit pass  $  130** $   245** Monthly qualified parking  $  250 $   245 Standard Deduction 2014 2013 Married filing jointly  $ 12,400 $ 12,200 Single (and married filing separately)  $  6,200 $  6,100 Heads of Household  $  9,100 $ 8,950 Personal Exemption 2014 2013 Amount $ 3,950 $3,900 Personal Exemption Phaseout 2014 2013 Married filing jointly and surviving spouses Begins at $305,050 Ends at $427,550 Begins at $300,000 Ends at $422,500  Heads of Household Begins at $279,650 Ends at $402,150 Begins at $275,000 Ends at $397,500 Unmarried individuals Begins at $254,200 Ends at $376,700 Begins at $250,000 Ends at $372,500 Married filing separately Begins at $152,525 Ends at $213,775 Begins at $150,000 Ends at $211,250 Domestic Employees 2014 2013 Threshold when a domestic employer must withhold and pay FICA for babysitters, house cleaners, etc. $  1,900 $ 1,800 Kiddie Tax 2014 2013 Net unearned income not subject to the "Kiddie Tax" $  2,000 $  2,000 Estate Tax 2014 2013 Federal estate tax exemption $5.34 million $5.25 million Maximum estate tax rate 40% 40% Annual Gift Exclusion 2014 2013 Amount you can give each recipient $ 14,000 $ 14,000

Why Collaborative Divorce?

There are MANY reasons to choose a Collaborative Divorce, Costs, Timeliness, Process, Control, CHILDREN.

The Costs associated with asking a Judge to decide major issues in a divorce case can range from hundreds to tens of thousands of dollars. Most attorneys know what the judge is likely to decide given the limited facts the judge will ultimately hear. So why should you give aways your children's college fund in order to risk the judge seeing things your former spouse's way? You should not.

Timliness is how long it will take to have the Judge make a decision. Just getting on the calendar for a hearing may take several weeks to several months. At hearing, if your attorney runs short of time, either because he did not prepare or because the other side managed to distract and stall the presentation of evidence for your case, you may have to wait several more weeks or months to finally have the Judge hear all the evidence allowing a ruling. That ruling may be subject to appeal, or the Judge may take some time to reduce an oral ruling to writing, delaying a few more weeks, or in the case of appeal, several more months.

In a Collaborative Case, time is determined by your attorney's scheduling with the other team members who are all working to Resolve the situation, not to delay decisions! This Collaborative Process puts YOU in Control of the Decisions. Having a Communications Coach, and your legal advisor, helping You Make the Decisions saves time, and ultimately results in a Much less Stressful process for your family. Ultimately, Collaborative Divorce results in Less Drama for children as Parents can learn to work together even though they are no longer married and living together. The reduction in stress in the household, along with new communications styles and mediums may have a lasting effect on your family, and especially your Children. Call me 407-645-3297 or visit my website at www.aubreylaw.com

Still not convinced, according to Lauren Hansen, there are at least 9 more to consider when Children are involved:

9 negative effects divorce reportedly has on children

The Week – Thu, Mar 28, 2013

http://news.yahoo.com/9-negative-effects-divorce-reportedly-children-220900169.html

Just in case you missed it - Divorce brings on a world of issues for children.

We like to think children are resilient and can adapt easily, but in reality, childhood trauma manifests itself for YEARS to come in their lives.
Make the Decisions Now so in the future, your children will Thank you.

Case Law Update 2012

Learning goes on and on and on . . .
Today, I attended the Webinar provided by the Florida Bar on Family Law Issues from cases this year.
Always good to update your knowledge regarding what the courts are doing, and what the appellate courts are saying about what the courts are doing.
In the past year, Grandparents' Rights, Alimony, adultery, Parenting Plans, Timesharing, paternity, domestic violence, Enforcement and Fees were only a few of the issues considered for the courts' action this year.
When you are selecting an attorney to represent your family in court, ask what courses of study have been completed to remain up to date on the law of the state. 
The 5th DCA clarified the Relocation statute as to the 50-mile rule.
The 2nd DCA clarifited allocation of outstanding expenses for child support to the proportion of income of the parties rather than 50/50 as many agree.
The First DCA clarified a "supportive relationship" and whether it would end alimony.
These are but a very few of the 20 pages of cases reviewed. If you have questions of a legal nature call an attorney.
If you have questions regarding Collaborative Divorce, Elder Law, Family Law or Guardianships, Call me! 407-645-3297 or visit my website at www.aubreylaw.com