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!

Elder Law Major Seminar - OCBA

So this is what I have been working on for several weeks:

Elder Law Committee Major Seminar
Wednesday, May 27, 2015 , 11:30 AM - 4:00 PM
Topic: Probate, Guardianship & Grandparents' Right & Ethics
...

CLE: 4.0 CLE including 1.0 Ethics Approved; Certification Credits: Elder Law 3.0 and Wills, Trusts and Estates 3.0
Speakers:
- Hon. Jose Rodriguez
- Hon. Thomas Mihok (retired)
- Hon. Robert Evans (retired)
- Tiffany Moore Russell, Esq., Orange County Clerk of Courts
- Lisa Paige, Probate Clerk, Orange County Clerk's Office
- Nancy Veneble, Probate Clerk, Orange County Clerk's Office
- Aubrey Ducker, Esq.
- Randy Bryan, Esq. of Hoyt & Bryan
Cost: Members - $40; Non-members $50; OCBA government, law student, and paralegal student members - $25
Registration deadline: May 25, 2015
Lunch will be provided.
Register at the OCBA Store
Location: OCBA Center 880 N. Orange Ave, Orlando, FL 32801
URL: http://orangecountybar.org/products/seminars

Writing Makes Me Happy

Unfortunately, writing is also work! Saw this and had to add my 2 cents. http://www.infobarrel.com/22_Habits_of_Unhappy_People

Happy People Smile More!

On Friday, I saw a night of one act plays produced by Valencia Community College. http://valenciacollege.edu/

It did not hurt that my daughter was the star of the final act. The plays were Hilarious, Dramatic, Irreverent, Socially challenging, and most of all Creative.

13 playwrights, 29 actors, 16 directors, and one professor used "Resentment Falls" as the theme for the evening. Some chose dramatic interpretations of human interaction where one party's resentment eventually changed to respect, love, or something else. Others used the phrase 'resentment falls' within the dialogue. One referred to a fictional river leading to it; another used an onstage film crew. Tow used painters depicting the beginning and end of different relationships to milk the drama; two used Facebook https://www.facebook.com/  or Twitter https://twitter.com/ to hold distant conversations onstage.

In my most humble opinion, the most creative piece was a horserace between Pride, Anger, Serenity, Confusion, Resentment, Worry, and bringing up the rear, Flatulence. Of course after Resentment falls, taking out Pride and Anger, Serenity wins the day over the others.

My favorite however, was 'Assisted Living'. This play introduced the Resentment Falls Retirement Community, where all your disgruntled relatives can live to their hearts' contentment. Of course grumpy old men complain about everything and Resentment Falls promises to give them much about which to complain. I wanted to purchase the script for our Elder Law Section meeting! Instead, I have asked the director to bring his actors to our annual seminar to perform for 50 lawyers who work hard daily helping elders negotiate the end of life.

Unhappy people have many things in common, laughing at their situation is not one! I hope you can laugh about this blog; at least the work today was fun. Aubrey

Attorney Ratings are Important - Ask!

Attorney Aubrey H. Ducker Jr has Achieved the AV Preeminent^® Rating - the Highest Possible Rating from Martindale-Hubbell^®.

Aubrey H. Ducker Jr, a lawyer based in Winter Park, FL whose primary area of practice is Family Law, has earned the AV Preeminent^® rating from Martindale-Hubbell^®

Winter Park, FL (PR Newswire) January 28, 2014 - Martindale-Hubbell^® has confirmed that attorney Aubrey H. Ducker Jr still maintains the AV Preeminent Rating, Martindale-Hubbell's highest possible rating for both ethical standards and legal ability, even after first achieving this rating in 2012.
For more than 130 years, lawyers have relied on the Martindale-Hubbell AV Preeminent^® rating while searching for their own expert attorneys. Now anyone can make use of this trusted rating by looking up a lawyer's rating on Lawyers.com or martindale.com. The Martindale-Hubbell^® AV Preeminent^® rating is the highest possible rating for an attorney for both ethical standards and legal ability. This rating represents the pinnacle of professional excellence. It is achieved only after an attorney has been reviewed and recommended by their peers - members of the bar and the judiciary. Congratulations go to Aubrey H. Ducker Jr who has achieved the AV Preeminent^® Rating from Martindale-Hubbell^®.

Aubrey H. Ducker Jr commented on the recognition: "The Martindale-Hubbell AV Preeminent Rating is a credential highly valued and sought after in the legal world. It used to be a sort of secret among attorneys who used the rating as a first screen when they needed to hire a lawyer they did not personally know. Now, thanks to the Internet, the Rating is a great way for anyone – lawyers or lay people - to use to screen lawyers. I am thankful to my peers who nominated me for this distinction, and proud to have earned this, the highest possible Martindale-Hubbell rating."

To find out more or to contact Aubrey H. Ducker Jr of Winter Park, FL, call 407-645-3297, or visit http://www.aubreylaw.com.

As a result of this honor, American Registry LLC, has added Aubrey H. Ducker Jr to The Registry™ of Business and Professional Excellence. For more information, search The Registry™ at http://www.americanregistry.com.

Contact Information:
Aubrey H. Ducker Jr

Phone: 407-645-3297

Email Address: AubreyLaw@gmail.com

Website: http://www.aubreylaw.com

Attorney Aubrey H. Ducker Jr has Achieved the AV Preeminent^® Rating - the Highest Possible Rating from Martindale-Hubbell^®.

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

 

Elder Law and the Attorney

This is an article I drafted for the Orange County Bar Association "Briefs" to be published next month. www.orangecountybar.org

 

Elder law can be a very broad area of practice, as it primarily encompasses the client, rather than the issue. Elder law attorneys typically answer questions regarding Medicaid qualification, Medicare, social security, guardianships, estate planning, end of life planning, living wills, testimonial wills, trusts,  special needs trusts, qualified income trusts, Medicaid trusts, the list goes on and on. Elder Law speaks more to Client Constituency than individual issues handled. Elder Law Attorneys address issues of Competence and Guardianship, End of Life and Healthcare Directives, Medicaid Planning as well as Estate Planning. Over the past few years, a new area has emerged: Foreclosure of Mortgages against new nursing home residents. What does the average practitioner need to know to competently advise those asking questions?

Most important in any discussion of Foreclosure is what is the assets value, and what is actually owed. Because many houses in the Orlando area and surrounding communities have lost significant value as a result of the foreclosure crisis that began in 2008, many seniors who moved to Central Florida and put a sizeable nest egg into their homes have witnessed the evaporation of equity at unprecedented levels. In 2007, if you purchased a home for $200,000, it is probably valued at less than ½ the original purchase price. If a mortgage was used for the purchase, the balance due after 7 years may be significantly higher than the current market value. This Negative Equity may place seniors at risk due to limited income mobility, rising taxes and expenses and the inability to refinance to a lower interest rate. 

One issues many seniors question is that of their homestead and mortgages. In recent years, especially following the 2008 recession, seniors have witnessed a significant decline in the value of their homestead. In many cases, seniors watched their home equity evaporate, and their mortgage holder became under secured. The federal government has been active in addressing the foreclosure crisis resultant from this negative equity situation by passing programs such as  HAMP, HAMP 2, HAFLA and finally the National Mortgage Settlement. It’s unfortunate that in Florida our Attorney General opposed the National Mortgage Settlement, even though it has helped thousands of Floridians to modify their mortgage on much more favorable terms than they could have otherwise achieved.

            Attorneys have been instrumental in the mortgage modification process, from many different standpoints, notably the bankruptcy court began a mortgage modification mediation program and started in Central Florida, the Orlando Division of the Middle district Federal bankruptcy court. This mediation program through the bankruptcy court system allowed debtors in bankruptcy to force the mortgage holder to attend mediation. While mediation was an option in state court foreclosure process, the success rate of people being able to stay in their homes was significantly less than 10%, estimated at about 4% statewide.

In the Orlando Division middle district success is measured similarly, and those seeking mediation and completing mediation with the ability to remain in their homes, measured at 74% of all modifications signed. Additionally the mediation process in the bankruptcy court has allowed many debtors the dignity of negotiating to surrender the home, rather than just waiting until the bank foreclosure process is completed and they are eventually evicted. Many seniors are afraid of bankruptcy because they don’t realize how fully their cards are stacked against them with regard to credit.

I am proud to be a part of the Mortgage Modification Education Inc. MME provides training to attorneys throughout the State of Florida and has trained attorneys from Indiana, Tennessee, South Carolina, Georgia, Virginia and New Jersey. www.mortgagemodificationeducation.com is our website and training is scheduled for New York City in April. Please get the information you need and seek assistance of competently trained counsel.

A

Why Get Medicaid?

As   SABRINA TAVERNISE   writes in the New York Times today, Peace of Mind Is First Benefit for Many Now Getting Medicaid. http://www.nytimes.com/2014/01/21/health/peace-of-mind-is-first-benefit-for-many-now-getting-medicaid.html?hp&_r=0

This excerpt from the article says enough: As health care coverage under the new law sputters to life, it is already having a profound effect on the lives of poor Americans. Enrollment in private insurance plans has been sluggish, but sign-ups for Medicaid, the federal insurance program for the poor, have surged in many states. Here in West Virginia, which has some of the shortest life spans and highest poverty rates in the country, the strength of the demand has surprised officials, with more than 75,000 people enrolling in Medicaid.

Seniors who have no hope of paying the costs of nursing home care rely on Medicaid or gifts from children who cannot afford to fund their parents' care along with their own planning for retirement.

Of course you have heard of the Medicaid Expansion as part of President Obama's Healthcare plan, the Affordable Care Act. You can see many of the arguments for an against it here: http://www.democratichub.com/medicaid.aspx?o=pv&gclid=CJqe4-fkjbwCFTNp7AodMlUAfQ

AARP, the American Association of Retired Persons has a great website that allows you to search for answers on all questions, not just Medicaid. Go to http://www.aarp.org/ for all your AARP answers.

Applying for Medicaid is different in each state; in Florida, go to the Agency for Healthcare Administration's website at http://www.fdhc.state.fl.us/
or just go here: http://www.goalbuilder.com/search/medicaid.html

If you are like most, the various websites and confusing applications can cause all the stress that is supposed to be relieved as noted in the NYT article. http://www.nytimes.com/

Save your stress, when you have questions, call 407-645-3297 or visit our website at www.aubreylaw.com
Thanks for stopping by to read, feel free to send me a comment or question.

Question: Do you have to pay Sisters who care for Mom and Dad as they grow older?

In Elder Care we often use home health aids whether trained or untrained. A new law scheduled for implementation January 1 of 2015 requires these workers be paid under federal minimum wage guidelines.

http://www.nytimes.com/2013/09/24/opinion/home-care-in-the-home-stretch.html?src=rechp

Attention Veterans: Many are Available to Help

I am a veteran. If you are too, you should check out this website:

http://www.veteransaidbenefit.org/

 

Do you know about Veterans Aid and Attendance benefits?

visit: http://www.veteransaidbenefit.org/aid_and_attendance_pension_benefit.htm

 

The VA is trying to help, many people are also trying to help.

 

VA Launches Incentive to Increase the Dollar Benefit for Disability Claims

On August 1, 2013 the Department of Veterans Affairs division of Veterans Benefits Administration announced a substantial two year-long incentive for veterans filing claims under the new fully developed claim system.  This initiative takes effect on August 6, 2013 and runs through August 5, 2015.  For first-time claims for disability compensation – using a fully developed claim – VA will grant an additional year of benefit, if the claim is successful.  According to Thomas Day, chief training officer of the Senior Veterans Service Alliance, this is a substantial incentive to use fully developed claims.  Mr. Day used an example of a veteran rated at 60% disability who would normally receive $12,312 in his first year of an award under the traditional claim procedure but who could receive $24,624 in his first year of an award using the fully developed claim process.  Mr. Day also pointed out that for attorneys or agents who assist with appeals, this example may result in up to an additional $2,462 in fees for that attorney or agent who successfully represents the veteran using a fully developed claim depending on whether the incentive also applies to fully developed claim appeals.

The Department of Veterans Affairs announced this week that Veterans filing an original Fully Developed Claim (FDC) for service-connected disability compensation may be entitled to up to one-year of retroactive disability benefits. The retroactive benefits, which are in effect Aug. 6, 2013, through Aug. 5, 2015, are a result of a comprehensive legislative package passed by Congress and signed into law by President Obama last year.

"VA strongly encourages Veterans to work with Veterans Service Organizations to file Fully Developed Claims and participate in this initiative, since it means more money in eligible Veterans' pockets simply by providing VA the information it needs up front," said Allison A. Hickey, Under Secretary for Benefits. "At the same time, it helps reduce the inventory of pending claims by speeding the process."
Filing an FDC is typically the fastest way for Veterans to receive a decision on their claims because Fully Developed Claims require Veterans to provide all supporting evidence in their possession when they submit their claims. Often, this is evidence that VA legally must attempt to collect on the Veteran's behalf, which is already in the Veteran’s possession, or is evidence the Veteran could easily obtain, like private treatment records.
When Veterans submit such evidence with their claims, it significantly reduces the amount of time VA spends gathering evidence from them or other sources -- often the longest part of the claims process. While VA will still make efforts to obtain federal records on the Veterans' behalf, the submittal of non-federal records (and any federal records the Veteran may have) with the claim allows VA to issue a decision to the Veteran more quickly. Typically, VA processes FDCs in half the time it takes for a traditionally filed claim.
FDCs can be filed digitally through the joint, DoD-VA online portal, eBenefits (www.ebenefits.va.gov). VA encourages Veterans who cannot file online to work with an accredited Veterans Service Organization (VSO) who can file claims digitally on Veterans' behalf. While submitting an FDC provides a faster decision for any compensation or pension claim, only Veterans who are submitting their very first compensation claim as an FDC are potentially eligible for up to one-year of retroactive disability benefits under the newly implemented law.
FDCs help eliminate VA's claims backlog because they increase production of claims decisions and decrease waiting times. Also, VA assigns FDCs a higher priority than other claims which means Veterans receive decisions to their claim faster than traditional claims.
VA continues to prioritize other specific categories of claims, including those of seriously wounded, terminally ill, Medal of Honor recipients, former Prisoners of War, the homeless and those experiencing extreme financial hardship. As part of its drive to eliminate the claims backlog in 2015, VA also gives a priority to claims more than a year old.
In May, VA announced a new partnership with Veterans Service Organizations and others known as the "Community of Practice," an effort that seeks to reduce the compensation claims backlog for Veterans by increasing the number of FDCs filed by Veterans and their advocates.
VA is continuing to implement several initiatives to meet the Department’s goal to eliminate the claims backlog in 2015. In May, VA announced that it was mandating overtime for claims processors in its 56 regional benefits offices to increase production of compensation claims decisions through the end of FY 2013. In April, VA launched an initiative to expedite disability compensation claims decisions for Veterans who have a waited a year or longer
As a result of these initiatives, VA's total claims inventory remains at lower levels not seen since August 2011. The number of claims in the VA backlog – claims pending over 125 days – has been reduced by 17 percent compared to the highest point in March 2013.
Veterans can learn more about disability benefits on the joint Department of Defense—VA web portal eBenefits at www.ebenefits.va.gov, and the FDC program at www.benefits.va.gov/fdc.

 

In August, the Government Accountability Office (GAO ) released the details of its investigation of accreditation practices of the Department of Veterans Affairs' Office of General Counsel. Accreditation allows attorneys to assist veterans in applying for claims, and is regulated by the DVA-OGC. No one may assist a veteran in the preparation, presentation or prosecution of a claim for veterans benefits without this  'Accreditation' authority.  Four senators responsible for veteran’s issues commissioned the report from the GAO – which was highly critical of the oversight provided by the Office of General Counsel in granting accreditation authority and in administering ongoing accreditation requirements as well as the handling of complaints relating to individuals who are or who are not accredited.

The GAO report recommends the DVA-OGC should address the following concerns:
1. Ensure appropriate level resources to implement the accreditation program, including options for utilizing other VA components and resources outside of OGC.
2. Strengthen initial and continuing knowledge requirements for accreditation representatives.
3. Enhance communications with claimants, including reports of complaints related to their representation. Explore options for incorporating information about representation and veterans’ rights into existing communications and outreach efforts.
4. Address potentially abusive practices by representatives who lack accreditation, charge inappropriate fees, or sell financial products to claimants that are not in their best interest. VA should consider additional authority for such practices and to enforce program rules.

VA generally concurs with the GAO that these issues need to be addressed and in some cases the department will be taking corrective action to provide better oversight. Of particular concern to accredited attorneys and accredited agents at this point are the following actions that VA may initiate in the near future.

• Doing a better job of conducting background investigations for applications for accreditation from attorneys and agents.
• Working through the current backlog of yearly certifications of good standing and taking corrective action towards those who are not in good standing or who have not submitted their certification.
• Working on a solution to notify agents and attorneys who are deficient in completing CLE to provide proper notification and follow-up action. VA does keep track of those individuals completing CLE but does not notify those who are deficient. In addition VA does not notify or identify anywhere on its website those individuals who have submitted CLE or acknowledge compliant completion of their training.
• Looking at better training for attorneys and agents in order to make them more effective in representing claimants. A major complaint about attorneys and agents is that most are deficient in the knowledge to adequately handle all types of claims. Veterans service organizations, in particular, complain about the number of claim questions they regularly receive from accredited attorneys and accredited agents.
• Coming up with a better system of notifying claimants of their right to complain about representation and about the unlawful charging of fees. VA will most likely pursue congressional legislation to put teeth into its ability to punish accredited individuals who are not compliant and go after non-accredited individuals who are taking advantage of veterans.

Everyone should be aware that the Office of General Counsel generally recognizes that attorneys can charge a pre-filing consultation fee that is related to a claim but is not a part of the preparation, presentation and prosecution of a claim. The OGC allows that any accredited attorney or agent may charge a fee for any services not related to assistance with a claim. Of course, accredited attorneys and accredited agents can charge a reasonable fee for assistance after a notice of disagreement has been filed or if they are engaged for a fee to provide an initial claim by a disinterested third-party. Claim representatives of veterans service organizations are absolutely prohibited from charging any fee of any kind.

 

 

Happy Labor Day!

Since I will not be in the office on Monday, I wanted to wish you all a Happy Labor Day!

Of course the protests going on Thursday, detailed in the New York Times here: http://economix.blogs.nytimes.com/2013/08/29/marching-at-mcdonalds-for-a-15-wage/?hp
As you probably know, the Labor in Labor Day celebrates those that make the country prosperous. The WORKERS of America have always been the backbone to our greatness.
For the history as written more than a century ago, look here: http://query.nytimes.com/mem/archive-free/pdf?res=F3091EFD3E5911738DDDA80B94D0405B828CF1D3
 A few years later, Samuel Gompers, the President of the American Federation of Labor, the AFL in our current AFL-CIO, penned this: http://query.nytimes.com/mem/archive-free/pdf?res=F30612F7355D16738DDDAD0894D1405B808DF1D3

When workers are abused, mistreated and underpaid, Unions begin to look pretty good. The Unions negotiated wonderful employment packages for the Steel Industry, the Auto Industry, and many others that formed the backbone or our manufacturing society right up until the "Union busting 80's" came along and encouraged opposition to unions at all levels of society. You may recall the Air Traffic Controllers' strike that Ronald Reagan oversaw as President of the United States. When he fired all the air traffic controllers, their union was done. Later free trade agreements allowed U.S. industry to move overseas without paying any import duties. The work force in other countries does not have the history of union organization that protects their poorest workers.

Of a more recent vintage: http://www.nytimes.com/2010/09/06/opinion/06mon2.html

Finally, from a school assignment come these questions:

–What does “union” mean?
–Why would an employee want to join a union?
–Why might some employers discourage their employees from joining a union?
–What different types of workers’ unions exist?
–What laws regulate the workplace, and why were they instituted?
–What events in history have illustrated the need to identify and protect the rights of workers?
–How might workers in a union voice that they do not like some of the things happening at a workplace?
–What might happen if a worker in a union goes against a union decision, such as working during a strike?
–How has the development of unions affected the United States economy?
–What issues still exist in the workplace that unions might want to change?

How you answer these questions says as much about your background as it does about the future of our great country.
Have a Happy Labor Day. If you need assistance with legal issues such as Collaborative Divorce, Elder Law, Family Law, or Guardianships, call me or visit my website at www.aubreylaw.com

I love the New York Times

Recently on a trip to New York City, I had the opportunity to see a baseball game. The Yankees were NOT in town as is so often the case when I am in NYC, so as I always do, I went to a METS game. The Mets colors match my Florida Gators and they had a promotion going on where you could get a free Jersey for subscribing to the New York Times. The Jersey was Black, with orange and blue trim. My Winter Park High School Wildcats team colors are Black and Orange, the same as my son's school, Tusculum College. Win the Trifecta of Spectator Apparel!

The cost of subscribing to the New York Times was only $17 per month, less than 1/4 of the price of the jersey in the store. Win again!

Now, I get the Sunday NY Times each weekend. I get the daily electronic version http://www.nytimes.com/ of the paper on my computer each day. Win Again!

Best of all, I really Love the New York Times. The articles are well written, informative and in depth. For example, in my Elder Law practice, I often deal with grandparents who have lost touch with their children and grandchildren. An opinion piece today, related one person's experience with similar situations. http://opinionator.blogs.nytimes.com/2013/08/28/forgetting-grandma/ Elders can always find additional assistance with the National Academy of Elder Law Attorneys, NAELA, and in Florida, Florida Academy of Elder Law Attorneys.
Some stories appear just entertaining but as you read them you notice so much more and learn more than you ever planned to consider. http://www.nytimes.com/2013/04/28/fashion/weddings/divorce-whisperer-mediating-with-parents-isnt-easy-field-notes.html

A story just two weeks ago really set me thinking about my Family Law practice. http://www.nytimes.com/2013/08/10/your-money/from-a-divorce-in-the-affluent-class-lessons-for-all.html?pagewanted=all In high asset divorces, the emotional impact may be the same as others, but the financial wrangling can overwhelm parties who are accustomed to little worry over daily finances. I have worked to promote Collaborative Divorce in my area of practice and today saw the benefit first hand as my client walked into court, answered a question from the judge and walked out with her divorce 20 minutes later. Yes, we had filed the case 60 days ago. Yes, there were other meetings between the parties and their attorneys. Yes, there were many complex papers to complete; however, for the clients, we removed most of the stress of being in court and having others decide what would become of their lives. The Clients were the only ones making decisions about their family. The Lawyers, the Judge, the System did NOT decide who got what or paid how much to whom.

Even a simple search on the New York Times finds support for the Collaborative Process. http://query.nytimes.com/search/sitesearch/#/Collaborative+divorce/ More than 30 articles appear, and the list keeps growing, showing the financial, psychological and Family benefits of Collaborative Divorce. Every now and then, I am truly proud of what we do in helping families improve their lives.

I love spending just a few minutes reading the paper each day. Now I have to be careful not to get caught up in following one great article after another in the NY Times. If I can be of assistance to you or your family, please call me at 407-645-3297 or visit my website at www.aubreylaw.com

Adultery, Blasphemy, Christians and Divorce

A, B, C, D, E, F, G . . . elemenope . . . If only Life were as simple!

A client came to my office recently and told me that her "Christian" mother had called her an Adulterer and kicked her out of the house. We filed her divorce several weeks ago and she was living with her mother following domestic violence in her marital home. Unfortunately, her mother feels she should simply endure the violence because "what God hath brought together, let no man put asunder," to quote the traditional wedding vows blessing.

Blasphemy is defined as either an untruth or taking god's name in vane. I consider using "Christian" language in decidedly unchristian manner as a form of Blasphemy. Obviously her mother was referring to Matthew 5:31, 32 (It was said, 'Whoever sends his wife away, let him give her a certificate of divorce'; but I say to you that everyone who divorces his wife, except for the reason of unchastity, makes her commit adultery; and whoever marries a divorced woman commits adultery.)When someone says, "I want a Christian Attorney." I usually reply, "No you do not." or "I don't think you do." If you wanted a Christian Attorney, you would settle with your adversary far from the courthouse as Jesus himself instructed in other verses in Matthew. "If anyone wants to sue you and take your tunic, let him have your cloak as well. Whoever forces you to go one mile, go with him two." You can do your own research at https://www.bible.com/bible/100/mat.5.nasb

Christians sometimes tend to view Jesus' words as being important. They are, but must be placed in context of the Roman Empire and the Province of Judea where Jesus lived and taught. Roman law allowed a man to put away his wife by divorce for any reason. Women had no such right to seek a divorce as they were mere chattel to be bought or sold by their fathers. Men could divorce their wives, but women could not, even for domestic violence, adultery, neglect, abandonment, etc. Since Women were tied to their father, husband, or son, they were destitute without such patriarchal support.

Divorce has been around for more than 3,000 years, but a Woman's Right to sue for divorce is quite new. Today in Florida, the only reason needed for a marriage is "the Marriage is Irretrievably Broken." When a spouse physically abuses and violates his or her "true love" how can the marriage survive?

Every now and then I see a story in the news that makes me want to help. Some friends have put together a seminar on Domestic Violence. Associated Baptist Press reporter Bob Allen writes: American Baptist Women’s Ministries will lead an online “virtual mission encounter” on the topic of domestic violence Sept. 23-27.
“Garlands instead of Ashes: Domestic Violence” is the third of four learning opportunities in 2013 allowing women to meet online and share their passion for mission without the expense of travel and having to take time off work. http://www.abpnews.com/culture/social-issues/item/8786-domestic-violence-focus-of-virtual-tour#.UhYEYTbD-M8
No person should be forced to live with an abuser, and especially not for "Christian reasons."
 
If Domestic Violence is a part of your life and you want it to stop, call me at 407-645-3297. I may be able to help, even if I don't like the phrase "Christian Attorney." You can also visit my website at www.aubreylaw.com for more information and links regarding Divorce, Child Support, Alimony, Equitable Distribution, and many other topics. I am an Attorney, licensed in Florida, practicing in the areas of Collaborative Divorce, Elder Law, Family Law, and Guardianships. I have helped numerous husbands and wives seek a fresh start.

Whose Interests Do You Represent?

As an Attorney, I am required to advance the interests of my client. Sometimes that doesn't appear clear from one perspective or another. Many, MANY times, the opposing party to litigation will try to convince my client that I am in fact NOT advancing their interests, but either I am working against them, or not working at all - claims of Dilly, Dally and Delay P.A.

What are my client's Interests? Perhaps a better description would be, my client hopes, dreams, and desires for their family. What my client wants, as the outcome of litigation is the primary "Interest" I must support. So long as my client is not seeking litigation just to harass the other side, or just to delay the inevitable resolution, I must follow the Client's direction.

A great note on Interests can be found here: http://be-fulfilled.org/post/2012/11/17/Helping-Clients-Understand-Interests.aspx

When you want the advice of an attorney, call me.

Don't be afraid to call; I assure you that many others have been in the same position and needed help. Bo Prosser likes to say the two most basic prayers are Please Help, and Thank you. I like that! Feel free to visit my website at www.aubreylaw.com and send me a message. You will be glad you did! Aubrey

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

Attorney Suspended for Loan Modification Business

The August 15th, Florida Bar News reported an attorney in South Florida was suspended for operating a Loan Modification Business with several non-lawyers. The Lawyer admitted to the Bar that he had between 2,500 and 3,000 cases, so many he did not know all of his clients or the status of their cases.

Talk about Too Big to Fail!

The Florida Supreme Court granted an Emergency Suspension because the facts clearly and convincingly established the lawyer was causeing "great public harm."

What do you do when the Lawyer you trust to assist in your time of need, becomes the problem?

The Lawyer in question charged his clients between $1,500 and $3,000 in "up front fees" which the non-lawyers primarily set in each case. Worse, the lawyer was paid more than $26,000 in fees by another law firm to take over its cases. The non-lawyers solicited clients on behalf of the lawyer on a nationwide basis, even though the lawyer is only admitted to practice in the State of Florida.

The hiring of an attorney is an important matter that should not be based solely on advertising.

Selecting an attorney should certainly not be based on nonattorney solicitation. When you hire an attorney, you are establishing a relationship time-tested by the courts to protect you. Decisions should be based on referrals from other attorneys, trusted friends or colleagues, and most of all, the attorney's ability to handle your problem in a time effective manner. You are the final link; you must have a comfort that this is the attorney for you.

My practice has included Elder Law, Family Law and Guardianships for more than 10 years. The current recession has required that I also include Mortgage Modification and Foreclosure Defense for many of my clients. Further, I have been somewhat involved in assisting the Bankruptcy Court of the Middle District of Florida in establishing the Mortgage Modification Mediation Program, one of only three in the country, and one of the most effective programs nationwide addressing the Mortgage Foreclosure Crisis.

If you need assistance in any area I practice; Divorce, Guardianship, Probate, Custody, Medicaid Qualification, Timesharing, or Domestic Violence Injunctions, please call me at 407-645-3297 or visit my website at http://www.aubreylaw.com/

I look forward to hearing from you.

Welcome Back

Recently someone said, "Aubrey Ducker, why haven't you updated your blog in a while?"

She continued, "I was looking forward to your answer to a Family Law Question! What happens when a child decides she wants to go live with her father? I have been taking care of her for the past 8 years, without any help! Now that she is 12, her father is encouraging her to stay at his house more and more. He gives her everything she wants and I'm the one who has to make her do homework, study for tests, clean her room, etc. . . "

You can see where that is going! If only children would remain under our control and direction! Unfortunately, they decide right or wrong that they want to decide what is "best for them" rather than listening to some old people who didn't even have facebook when they were young. Have you been through this? I have! With my own children and with many, many clients!

It is never fun to lose control!

Then there are the Elder Law questions: How can I make sure my children don't argue about who gets what? That question is so much better than the corallary promise, "My children won't argue about it. They would never go to court to challenge ___________________as the Personal Representative."

Funny how many times I hear that and how many times I see adult children wanting nothing more than to "tell it to the Judge" regarding the actions of their sibling as Power of Attorney or Personal Representative.

Talk about losing control.

You may have read in the papers, (do you actually read the Newspaper anymore?) the Florida Legislature is trying to balance the budget by cutting into court funding. Removing funding for the Guardian Ad Litem program and other "services" that to legislators seem "unnecessary" is no way to protect the bottom line in Florida. The services being cut may save a few dollars this year, but in the years to come, those savings will be offset by enormous costs associated with unmet needs in disfunctional families. The results may be increased incidence of domestic violence, child abuse, neglect or more violent crimes.

Please encourage your representatives to look to fair funding principles. When corporations like GE have NET profits in the range of $14.7 Billion, and pay less than 1 million in taxes, something in the tax structure is way out of whack. Cutting spending to make the budget work, while corporations pay next to nothing in taxes harms all citizens, especially the most vulnerable. Maybe I should write more often so I could break this up into several Blog posts. I'll try that next time.

Peace.

Rest and Relaxation - Vacation or Respite Care

Everybody needs a break. I just returned from a very busy vacation. Although it included a couple of telephonic hearings and several face to face meetings with attorneys in Tennessee, as well as a three day convention in Charlotte, NC, I returned refreshed!

In only 7 working days out of the office, I returned with new energy. Sometimes work is so overwhelming, we need to step back and let others take the reins while we ride along enjoying the view. My very capable staff managed to address all the client issues that arose in my absence without having to trouble me with calls and emails of any urgent nature.

For many of my clients caring for their aging parents or disabled children, vacations and time away are almost impossible. Although caring for aging parents can tax a person beyond their comprehension, sometimes the caregivers may not even recognize how truly exhausting their job can be. Many do not think others are willing or capable to provide the care; some may simply feel no one else will do the job, or do the job correctly.

Respite care is used to provide care for the caregiver. Most Assisted Living Facilities have programs to allow seniors in need of care to stay for a few days or even weeks to allow the caregivers the time to unwind and relax on vacation. In home healthcare providers also can provide the necessary down time to caregivers when the invalid is unable to leave the home for any reason.

In my own life, my mother took care of my paternal grandmother for 8 years until just before her death in 1987. During that time, I only remember one time she was away from home for more than 24 hours. Although my father had 8 siblings, no one offered a break.

My mother again was the caregiver and took care of her own father for more than 5 years until his death in 2008. In that time, her sister provided two separate vacations of 1 week each when she provided care for her father. Again, siblings seldom see the needs or offer the support so necessary to provide care to disabled parents. More often than not, the love and affection that spurs such care is ignored in the Will or asset allocations of statutes.

If you are in need of assistance, call me. My number is 407-645-3297 and I will be happy to help you. Either by pointing you to resources in your area, or by assisting in setting up your own will so the people providing the care needed are not trampled in the rush to divide the assets after your death, I help people every day to solve some of life's most pressing issues.

www.aubreylaw.com has many Frequently Asked Questions and other resources to provide you needed information.

What Not to Expect from Your Attorney

Guarantee: No Attorney should Ever "Guarantee" a certain result from a court. Many times courts rule on issues in line with past rulings; however, a Guarantee of any certain result is prohibited by the rules of ethical conduct. The Attorney can never forsee every possible occurrance or testimony in a given case. With the facts at hand the attorney may recommend a course of action, but any "Guarantee" of what the court will do, is quite simply bad advice.

Promise: Like a Guarantee, for an attorney to "Promise" a certain result is not allowed. The attorney has no control over the other party, and no control over the court.

Advise that the Client Lie: Attorneys are forbidden to illicit testimony they know to be false. This means, if the attorney asks the client a question under oath, such as at trial or deposition, and the client answers in such a way as the attorney Knows the answer if False, the attorney must correct the situtation. There are ethical rules every attorney MUST follow to ensure the integrity of the court system. The most important is not to allow the client to lie to the court.

Willingness to Lie for the Client: Just as the attorney cannot encourage or permit the client to lie to the court, so the Attorney if Forbidden to Lie for the client. If your attorney is willing to lie for you, how can you trust that your attorney will not lie TO you?

Dishonesty: At the heart of the Attorney-Client privilege is the notion that the attorney cannot adequately represent the client without full knowledge and honesty from the client. The Client therefore Must be able to Trust the Attorney to Fully and Fairly answer questions posed. In order to protect the client to fully reveal information that may help or harm the case, the attorney-client privilege prevents the attorney revealing or using the information to the client's detriment.

Perfection: The PRACTICE of Law is truly an art, not a science. Statutes are continually amended by legislatures, interpreted by courts, and exposed by attorneys. Sometimes what has always occurred doesn't and many times the court has not had a question posed in this way. Attorneys may not have all the information necessary to completely anticipate every possible problem. But we try!

If you can accept attorneys are only human, you may be able to accept their assistance!

Take Care of Yourself

Much has been written about the "Sandwich Generation" - those caught between caring for their children while simultaneously caring for their parents. Many people feel the crunch of time and demands and forget that while caring for others, the caregiver also needs care.

Balancing a full-time job with child care is exponentially more difficult when aging or incapacitate parents enter the mix. Children may not understand having to be second or even third on the list when Grandpa or Grandma requires precedence. Family stress compounds when siblings are pressured to provide care without compensation because it is "more convenient" due to proximity to the marital or parental home. When Fathers and Mothers become the burden, HELP IS AVAILABLE!

Please look to community resources for counseling and assistance. If you find yourself overwhelmed with caring while being forgotten, give me a call. Aubrey Ducker, 407-645-3297 or visit my website at www.floridaguardianattorney.com

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!