Chirstmas Week and Chanukah Week, Together Again

Happy Holidays! If that makes you angry, stop reading and find a Blog you will enjoy more!
Happy Chanukah, as my Jewish friends are on day 5 (it began Tuesday, December 16, 2014 at sundown and ends Wednesday, December 24, 2014, at sundown) their holiday runs directly into the Christian Christmas Holiday.

One of the Icons of the Bankruptcy Community in Orlando, Jules Cohen, lost his dear wife of more than 50 years this past week. While Jules is Jewish, his wife is Christian. Their marriage speaks volumes of the ability of people in love to work through problems - even conflicts at the very basis of their beliefs.

Funny how divergent sources can come together for peace. Baptist News Global  included in an email on Friday a Huffington Post article, 36 Things I know after 36 years of Marriage. http://www.huffingtonpost.com/winifred-m-reilly/36-things-i-know-after-36_b_6321032.html?
 
Normally, Baptists and the Huffington Post seem to be from the opposite ends of the spectrum of opinion. Normally, opposites attract, right?
Even then, problems arise. What do you do with problems?
I like these excerpts:

2. Most marital problems are fixable. Really. Even the tough ones.

3. The D word (divorce) is a dangerous weapon. I suggest the F word instead: frustrated. Nobody's heart will be broken if you say, "I'm so FRUSTRATED I could scream!"
13. Marriage is a long negotiation about how two people are going to run things. Money. Intimacy. Parenting. Chores. You can battle, or you can collaborate. Collaboration is a lot more rewarding.

14. Even the most stubborn among us can learn how to yield. Trust me on this one.
36. One of you has to go first. Apologize first. Be vulnerable first. Yield first. Forgive first. Why not let that person be you?

Collaborative Divorce is a "New Thing" in the last 20 years. Still it has taken a LONG time to really gain traction. There is still no "Collaborative Law Statute" in Florida that would assist people in using this method. Collaboration is working together to make decisions that benefit the family - even if the family is separating.

Sometimes the changes people make in their lives require changes in others that others may not be able or willing to make. Freedom necessitates being free to choose to start over. If you need help, call me.

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

 

Making Sound Decisions

Most people assume that given all relevant information they can make the best decision. Knowing what information is relevant can be a tricky proposition. One of my colleagues runs a commercial in the Orlando area wherein she says, if an insurance company sends an adjuster to your home to settle a claim, YOU NEED A LAWYER. The Insurance Company employs Many attorneys, and investigators, (called adjusters) to value your claim. These employees of the insurance company owe loyalty to the company, not to you the consumer. YOU NEED A LAWYER!

When presented with a contract of any kind, whether it be to purchase and install a security system or water softener, to purchase piano lessons for your child, to purchase or lease a home, to settle a matter in court, to divide a business interest, You Need an Attorney!

Even people who have attorneys at their disposal, be they family members, close personal friends, or even retained attorneys, may be reluctant to call and ask the important questions, primarily, WHAT INFORMATION IS RELEVANT TO MAKING THIS DECISION?

Sometimes important information to one party in a transaction is not important at all to the other party. Many times, irrelevant information is presented as a reason for the decision to go a certain way. These negotiation tactics harm the consumer if the consumer is unaware. An Attorney, working for you, can help make the best decision by ensuring all RELEVANT information is considered, and all Irrelevant information is ignored.

If you owed money, you would pay it. If you are owed money, you should receive it. Sometimes the question of who owes money to whom can be more complex than one piece of paper would indicate.