Legislators Vote Against Seniors

When the U.S. Government provides a program funding care for seniors, states should accept the money and care for seniors. Begun in 2005 under President George W. Bush, the "Money Follows the Person" was designed to allow seniors in nursing homes to transfer home and still receive some level of care through continued Medicaid Funding.

The cost of nursing home care averages more than $5,000 per month; seniors' cost of care is Very Expensive.

BUT, how much more expensive is it to care for seniors in their own home rather than in a nursing home? NOT you might answer. Many seniors could remain in their home or return to their home, but for lack of funding. Medicaid will pay for the nursing home care, but it is very difficult to gain the same level of care at home without Medicaid assistance.

On June 24 this year, the Florida Legislative Budget Commission voted to REJECT $35.7 Million to fund care for seniors in their home. As Florida has one of the Highest Per Capita Populations of Seniors, you would think the Legislature would accept money from a program set up by President George W. Bush. Not so in today's political landscape. The Budget Committee voted to reject the federal money as "duplicative" of state programs and funding. Representatives Ed Hooper, Mike Horner, Matt Hudson, Don Gaetz, Garrett Richter, Stephen Wise, Rob Shenk and Denile Grimsley, all Republicans, voted AGAINST acceptance of the federal money.

When you are trying to find care for your senior adult, it is imperative that all resources be counted to see if they qualify for Medicaid. Unfortunately, "all sources of income" are NOT counted, or even accepted, by the state when they seek to balance the budget.

If you have a senior in need of nursing home care, selecting the right attorney practicing in Elder Law can be challenging. Please call me at 407-645-3297 or visit my website at www.aubreylaw.com

I look forward to speaking with you.

Change to Social Security Hours

In case you missed it, the Social Security Administration announced a change effective August 15 of this year. The announcement will no doubt affect services provided by attorneys as well as the Social Security Office. If your Elder Law Attorney or Family Law Attorney must deal with Social Security Issues as well, this is Not a welcome change. The announcement follows:

Effective August 15, 2011, Social Security field offices nationwide will close to the public 30 minutes early each day. For example, a field office that is usually open to the public Monday through Friday from 9 a.m. to 4 p.m. will close daily at 3:30 p.m.

“While agency employees will continue to work their regular hours, this shorter public window will allow us to complete face-to-face service with the visiting public without incurring the cost of overtime for our employees,” said Michael J. Astrue, Commissioner of Social Security. “Congress provided our agency with nearly $1 billion less than the President requested for our budget this fiscal year, which makes it impossible for us to provide the amount of overtime needed to handle service to the public as we have in the past.”

Most Social Security services do not require a visit to an office. For example, anyone wishing to apply for benefits, sign up for direct deposit, replace a Medicare card, obtain a proof of income letter or inform us of a change of address or telephone number may do so at http://www.socialsecurity.gov/ or by dialing our toll-free number: 1-800-772-1213 (TTY 1-800-325-0778).

In Elder Law, Family Law and Divorce, many people have to discuss how to allocate Social Security Benefits paid to children or dependents. Sometimes these are the only assets or income for the family. If you need help, Call me at 407-645-3297 or visit my website at www.aubreylaw.com

I look forward to hearing from you. Aubrey

Alimony, Child Support and Show Me the Money

Alimony, Child Support and paying bills go hand in hand. How do you move from one house to two, and pay twice as many bills with the same incomes? That is the most difficult question in Family Law. The reality is two households cannot have the same lifestyle enjoyed prior to splitting up. Financial affidavits showing twice as many bills from the same resources make poor budget plans.

This is your decision, but it will affect your children, your future and their future. Choosing the right attorney in your area is crucial. To maximize child support and alimony, you must thoroughly prepare and present your case to the judge or magistrate. Preparation for hearings also prepares you for mediation. Ultimately, you must decide how best to invest your fortune and you will be the one to suffer any poor choices.

Guardianship, Conservatorship and Rights

The Orange County Bar Association, Solo and Small Firm Committee met in Orlando today to discuss Basic Guardianships. I always enjoy a refresher course, so I attended. Wow! OK, so I knew most of this, but its nice to meet other attorneys for lunch and have an excuse to add a refresher to my Blog.

In Florida, any adult can file a Petition to Determine Incapacity against any other adult. This is coupled with a Petition to Appoint Guardian so the Alleged Incapacitated Person, or Proposed Ward, can be protected. But Protected from what?

As we age, our brains may not function correctly in all instances. Sometimes, Alzheimers, Dememtia, stroke or other disease may render one incapable of understanding the dangers of everyday living. When a person is incapacitated so they are a danger to themselves, the court can step in and remove some of their rights in order to protect them from self-inflicted harm. The harm may be physical in nature, or financial.

Many people try to take advantage of these normal aging processes and financially exploit seniors. Sometimes even family is guilty of exploitation. In fact, Many times the person being exploited is a close relation to the abuser. Financial exploitation IS ABUSE!

Once the Petition is filed, the court appoints a 3-person committee to evaluated the "Proposed Ward," or "Allegedly Incapacitate Person" to determine whether the AIP is competent to make life decisions. The 3 person "Examining Committee" includes two doctors and one layperson with experience in Elder Affairs. Llife decisions that may be impaired by the court include such major decisions as voting, marriage, living arrangements, donations to religious organizations, medications, surgeries. No less important are decisions involving who may visit the ward or where the ward may travel with visitors.

The Court also appoints an Attorney Ad Litem to represent the AIP or Proposed Ward. Sometimes the AIP has a longstanding relationship with an attorney who will represent him in the proceedings. Either way, the Proposed Ward is protected so that rights are only removed to the most limited extent necessary to protect the Ward. Often the Proposed Ward will have completed a Durable Power of Attorney that obviates the need of a Guardianship proceeding; a Preneed Guardianship is also available to help lower the cost of eventual Guardianship Proceedings.

If you have a Power of Attorney, it must be Durable in order to continue operation once a person is found to be incapacitated or what we think of as incompetent. If you thought everything was honky dorey, then watch out! Powers of Attorney come in many shapes and sizes and can even be purchased at Home Depot, Lowes, OfficeMax, Target and Walmart. They are NOT all the same. They are Legal Documents that include required formalities in the signing. I have had more than one client who brought a "Durable Power of Attorney" that was improper and ineffective. People have signed in the wrong space, forgotten to notarize signatures, "checked" the wrong box, and even paid an attorney for a "Durable" power of attorney which expired at incapacity. Please seek help in evaluating your needs.

If you have read this far, you may wonder what all these protections cost. A Durable Power of Attorney is certainly the least expensive.
Guardianships may cost between $1,500 minimum and several tens of thousands when competing interests are active in contesting the Guardianship. The filing fees alone are more than $600. Payment for the Examining Committee (between $850 and $1,500) and Attorney Ad Litem (between $500 and $5,000) make the process appear expensive to some. When you consider that a person is potentially losing their rights as a citizen, you may better understand the expense. Obviously your selection of an attorney is one critical factor in controlling these costs and making the necessary legal filings as efficient as possible.

When you have questions about the competence of your parents or elderly neighbors, Call me at 407-645-3297 or visit my website at www.aubreylaw.com

I look forward to hearing from you.

I didn't mean to Scare you!

"Congratulations, you are officially Divorced!" I said to my client.

"Thank you, you are Awesome," she said. (Really, that is what she said!)

"I am so glad we were able to get this done so quickly," I replied.

"Well after you scared me that first day, I did not have any unrealistic expectations and we could just get it done."

I really did not mean to Scare my client. I have always prided myself on being direct and honest with clients so they know what to expect from the Divorce Process and from the court system. I really don't want to scare anyone. Sometimes, clients come in my door having talked to not only other lawyers, but to friends and family who "know what to expect" and know "all the tricks in the book." Unfortunately, what is heard from your friend about their divorce may be colored and biased by their experience. They may feel the need to project unusual success or even put upon martyrdom. All the stories may in fact NOT be completely true.

Common myths include:

"My divorce only cost $250."

"I didn't have to pay a penny in alimony/child support."

"My wife/husband got the kids, the house, and all my money."

"My husband/wife tried to get the kids just to force me to settle for less."

"I never get to see my kid's, their father/mother keeps them from me."

"My divorce cost us more than $100,000."

"Our attorneys were the only ones happy after our Final Judgment."

When your friends tell you these things, you really have to ask more questions and compare their life experience and marriage to your own before setting up your expectations.

Divorce filings cost $408.00 in all Florida courts. What your attorney charges is determined by many factors including time, experience, complexity, and most importantly, who is on the other side of the litigation.

Whether you have to pay Alimony or Child Support is entirely driven by the family situation inlcuding many different factors: length of marriage; number of children; earning ability of each party; lifestyle, and most importantly, what you are willing to accept or pay, just to name a few.

Negotiation over child custody, what we now refer to as "Timesharing," is remarkably direct. Who is best able to care for and keep the children? Who has done so consistently in the past? When one parent wants to "claim the children" as a negotiation ploy, it is imperative that the court be fully informed. A Guardian Ad Litem or GAL is essential to fully inform the court and make sure the children are represented both at the bargaining table of Mediation or in court. Parents who would use the children as pawns in a game, are not good parents, and GAL's are adept as seeing through people's behaviors to their motivations and goals.

If your divorce costs too much money, ask yourself who is causing the excess expenses? Even the most complex divorce can be handled in a reasonable amount of time and for a reasonable fee by seeking out attorneys who do not set up unreasonable expectations which must then be met or attempted. Collaborative Divorce is a great idea for those with very complex situations as it brings all decision makers to the table routinely, rather than filing, and waiting, and responding and waiting, and hearing, and waiting, etc.

If you have questions regarding Divorce, Child Support, Collaborative Divorce, Alimony, Spousal Support, Custody, Timesharing or any other Family Law matter, please visit my website at www.aubreylaw.com or call me at 407-645-5264. I will be happy to review your situation with you and most of all, I will try not to "scare" you! Aubrey

Cutthroat Legal Practice

When I hear of a "Cutthroat Attorney," I wonder, "who asked for that?" Admission to the Florida Bar requires an Oath, which states in part, "I will abstain from all offensive personality . . . unless required by the justice of the cause with which I am charged." Its possible you have heard stories of lawyers who need to review this oath again, perhaps daily.

Why people in court would want "the meanest, nastiest attorney they can find" escapes me. If you are known by the company you keep, well, lets just say, I prefer to keep company with the very best people around.

I have known attorneys who were easy to work with, and I have known lawyers who could not agree the sky is blue. Those who are easy to work with, I routinely mention to clients I am unable to assist. Attorneys who cannot agree on anything, I trust can survive without my assistance.

The meanest, nastiest attorneys tend to drive up litigation costs without significant benefit to their clients, while those attorneys who work with the other side and try to resolve conflicts tend to help their clients through the litigation process. We have all heard stories of divorces costing more than 20 or 30 THOUSAND dollars. I truly believe "Who wins" is NOT really as important as "If or Where" your children attend college.

Attorneys who know how to work with opposing counsel tend to achieve better results overall whether through settlement or in trial, in my humble opinion. Some of the most aggressive litigators in the Orlando area have been the easiest to work with when their clients have modest means. That is to say, even the nastiest attorneys can agree when they are not being paid well. I find this disappointing. If the client's goals are reasonable, why should the litigation change based on the attorney's paycheck?

Perhaps I am being obtuse. I think a fair price for an honest days work should be everyone's goal.

If you need an attorney, 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.

Football Season Starts Tonight

The Winter Park Wildcats take on East Ridge at Showalter Field at 7 p.m. The game was moved up due to Hurricane Irene. Families working together for years get to see the first efforts of their children on the field as they Cheer for the Team or Play on the Field.

Unfortunately, there will be some children whose parents cannot put aside their differences and attend the event without causing great stress to everyone else involved. You know the type, all they do is talk about how bad the other parent is. Why do people think that the world wants to know the "hell" they endured being married? Please do your child a favor. Do not disparage your former spouse in any way that the child can know. If you take the high road, perhaps the other party will abandon the low road as well.

I personally know parents who will attend tonight's game and sit in the stands very close to their former spouse without any hint of conflict. I know parents who will work together in the concession stand or on the field to support the team even though they could not stay together in their marriage. I applaud these efforts.

Many other people will be watching the game while thinking of their own parents, relatives or friends who are diabled by age, dementia, alzheimers, or other problems. These parents may not know there is help available. Please reach out and ask questions. There are resources available and people who know how to access those resources for your benefit.

If I can help, please call me at 407-645-3297 or visit my website at www.aubreylaw.com

I look forward to hearing from you.

When do you Call a Lawyer?

The time is NOW! If you are wondering whether or not to call a lawyer, an attorney or as I prefer, Counselor at Law, then you should call. We are here to answer your questions.

Many people will ask their friends, family, and even strangers on the street what they think of a problem.

Lawyers are trained to answer questions of a legal nature. Attorneys are adept at asking the followup questions that provide real meaning to the questions. Counselors at Law can help you interpret and apply the law to your situation in a way you may have not considered and can discuss the impact decisions may have on other areas of your life. In Central Florida, one attorney advertise on TV that "a free 5 minute call will answer all your questions." If that is true, Call!

In my practice most questions are more involved than a short phone call. They usually involve multiple family members and the impact on each can be different. In Divorce, the children must be a consideration. In Elder Law, the Parents are ususally the major consideration. Guardianships can affect many different life decisions.

If you have questions of a legal nature, Call an attorney.

Visit my website at www.aubreylaw.com or call me at 407-645-3297. Make an appointment to come in and review your situation and the many different ways and possible outcomes that can relieve the stress you are feeling. Aubrey

Let's try to work without argument

When you receive an email, does it make you sweat? If an ex-husband sends an email, do you just hate to read it? When your ex-wife sends a text message, does your pulse and blood pressure go up dramatically?

Communication with a former spouse can cause all manner of physical impacts. Blood pressure and heart palpitations are certainly extreme examples, but what can you do when you are required to communicate with a former spouse about the children and it really is difficult?

Inevitably, you will offer to pick up the children at 4 and he insists it be 5:30. You offer to feed the children dinner and she insists she has already prepared their meal. Sometimes there was a good reason you got divorced in the first place, and the ongoing communication necessary to coparenting is difficult.

In divorce, communications may stray from the business at hand to rehashing old arguments, lobbing the same tired insults, or making the same veiled threats that began the process initially.

Sometimes the problem is not communication, but many urgent emails and text messages demanding answers ASAP! What do you do when you receive 5 emails before you have even read the first one? Or, you change plans based on one email only to have a followup email request a different plan.

Try this: Send an email saying, "From now on I will read all emails from you at 4:30 p.m. To the extent I can respond, I will; however, if you choose to insult, threaten or otherwise abuse the privilege I will stop reading and will simply forward to my attorneyfor a response to your attorney. Please send only important communications regarding our children. Thank you for your understanding." By setting ground rules for communication, many problems can be avoided. Additionally, if abuse via email is attempted, your attorney is the best person to address the problem.

Remember, if you keep doing what you have always done, you will keep getting what you have always received.

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

Aubrey Ducker

The Law Offices of

Aubrey Harry Ducker, Jr. PLC

2020 Mizell Avenue

Winter Park, FL 32792

www.aubreylaw.com

Fla. Bar No.: 173680

Phone: 407-645-3297

Fax: 407-645-3298

I look forward to hearing from you.