The Law Planet Blog

What are the basics to creating a living will?

Wed, 22 May 2013 07:11:04 -0800

Having a will to dispose of assets is only the beginning of a well-thought out estate plan. Combining the advantages of a will, a revocable trust, a durable power of attorney and a living will is the best way to achieve your post-mortem asset distribution plan goals.

Below you will find some specific definitions and important points about living wills that will prepare you for your meeting with a Florida estate planning attorney:

What is a living will?

A living will is a legal document that a person uses to announce his or her wishes regarding life prolonging medical treatments when he or she is unable to communicate those wishes. The Florida living will is also known as an advance directive and is an extremely important document with substantial legal significance.

What is most important to include in a living will?

It is crucial that your living will not only includes directions for others to follow with respect to life prolonging measures but also includes the name of someone who can make healthcare decisions in the event of incapacity. Both aspects of a living will are necessary because generally, the life prolonging directions will only be followed when the patient is in an end-state medical condition. This leaves open the situation where someone may not be in the end-state but nonetheless, cannot competently make medical decisions.

Why should a living will be shared with others?

Once your attorney drafts your living will, it must be signed and filed at the attorney’s office. It is also very important to share the document. Providing a copy to your family, your physician and your close friends will ensure that someone you know will have access to the document in the case of your incapacity.

Is Signing an Affidavit Naming Paternity a Double-Edged Sword?

Mon, 20 May 2013 13:58:00 -0800

There are now more children born to single parents than to parents who are married. Florida has a statute dealing with unmarried parents that lists the father on the birth certificate. A lot of unmarried couples end up breaking up and having to deal with parental time-sharing issues along with child-support.

What happens when the mother declares during these proceedings that the "father" really isn't daddy? If the father wishes to contest that declaration and continue to be the daddy to a child that is not his, he now has more ammunition to fight that battle. The recent 2nd District Court of Appeal case of Van Weelde v. Van Weelde illustrates how this can be done.

If the mother signed an FS 382.013 affidavit naming someone as the father, she is prevented from claiming that man isn’t the father at a later date. Even if genetically the man is not the father, he can still establish his parenting rights, including time-sharing and joint custody. Obviously, he also will have the obligation of supporting this child throughout life as a minor. This case is good news for men who are faced with such challenges during litigation with the mother.

What Are Back Benefits For Social Security Disability (SSD) and Supplemental Security Income (SSI)?

Fri, 17 May 2013 11:13:29 -0800

Back benefits can be one of the more confusing aspects of Social Security disability for claimants. Although back benefits are confusing, they are also extremely important to the claimant because these benefits can reach to the tens of thousands of dollars.

Back benefits accrue from the date of the application in supplemental security income (SSI) claims. Back benefits can begin to accrue 12 months prior to the date of application for Social Security disability (SSD) claims. To qualify for back benefits for a year prior to your claim, you must establish an "alleged onset date" at least 17 months prior to applying. This is due to the fact that the Social Security Administration will not pay benefits for the first 5 months that an applicant is disabled.

To establish an Alleged Onset Date (AOD), the claimant must not be working and must be able to medically prove that he/she was unable to work on the AOD.

Due to the amount of money at stake, it is crucial to speak with a qualified Social Security Attorney prior to filing your claim.

The Legal Limit for Blood Alcohol Content (BAC) Levels May be Reduced

Fri, 17 May 2013 06:25:45 -0800

On May 14, the National Transportation Safety Board (NTSB) recommended that the legal limit for drinking and driving be lowered from .08% blood alcohol content to .05%. Every state in the union has laws on the books that a person is legally impaired by alcohol if their blood alcohol level (BAC) is over .08%.

A person having a .08% or higher and is in actual physical control of a motor vehicle is considered driving under the influence (DUI). The NTSB cites the reduction of DUI deaths and injuries when the BAC level for DUI was lowered from .10% to .08%. However, this process took more than 11 years to pass in every state, and not without blow back from restaurant, bar and entertainment lobbies.

Now the NTSB wants to lower the limit even further. This means an average woman who weighs 120 pounds would be DUI after two drinks and an average man of 175 pounds would be DUI after three drinks. Some favor the reduction. Others say it’s too conservative. In any event, this proposal will certainly spark a lively debate across the board.

In fact, the state of Michigan will be RAISING its limit back to .10% in October of this year. It is the aim of the NTSB and the insurance industry to lower the incidents of injury and death caused by drunk drivers. It is hard to argue with the number of reduced injuries and deaths as a result of the last lowering of the legal BAC. We live in a society that is busy and growing. Is it unreasonable to try to make our streets and highways safer by addressing DUI more aggressively? Regardless, DUI drivers are reckless and negligent. Lowering the limit may, over time, reduce the crashes, injuries and deaths they cause. There is a benefit in that for sure.

Establishing Guardianship with Your Estate Planning Attorney

Thu, 16 May 2013 06:47:33 -0800

I have recently noticed a trend among younger individuals – it’s just not the elderly that are beginning to think about protecting their assets. Whether the reason is education, economy or the overall increased high net worth in my geographic area, my estate planning client base seems to be trending younger in age. I love to see this increased awareness in financial responsibility. Another result of this trend is increased inquisitions about the laws regarding guardianships. My “50 something” clients have parents that are at the age where guardianships become most relevant.

When I meet with clients who are concerned about a parent who is ill, elderly or just losing mental capacity, most often they ask informational questions about how to become a guardian, the responsibilities of the guardian and how someone is actually appointed guardian. Here’s the skinny….

Establishing a guardianship is a means to protect financial and legal interests of an adult, an elderly person or a minor who cannot manage their affairs themselves. In order to be appointed guardian, you will have to go to court. A judge will decide if guardianship is necessary based on the opinion of a panel of medical personnel. If indeed guardianship is deemed necessary, the judge will decide who is the appropriate guardian based on a best interest standard. The court will take its time on this decision as taking away someone’s rights is obviously not taken lightly by the judicial system. Finally, responsibilities will be delegated to the appointed guardian. Responsibilities are separated into two groups: financial affairs (paying the bills, investment decisions, etc.) and personal affairs (health care, living arrangements, etc.).

Although it is not mandatory, I highly recommend contacting an experienced guardianship/elderly care attorney to guide you through this process. Legal counsel can be especially helpful when proving to a medical panel and judge that you are the proper guardian and when trying to fend off others who may object to your request.

Landmark ADA Settlement Fixes Policies for Persons with Hearing Impairments

Wed, 15 May 2013 08:15:40 -0800

The US Department of Justice (DOJ) recently announced a landmark settlement with a Colorado Sheriff's Department regarding their procedures and policies in dealing with persons with hearing impairments.

The resolution, which is being hailed as a landmark agreement, will likely be used by other jurisdictions as a template for what proper procedures and policies police departments should have in place for dealing with persons with hearing impairments. The settlement also resolves pending Americans with Disabilities Act (ADA) litigation against this department. There has been a growing trend across the nation for focusing on ADA policies and procedures beyond the typical/historic "wheelchair issues litigation" that most ADA litigation is focused on. Most police departments have ineffective, incomplete and vague procedures for dealing with persons with other types of disabilities. This landmark settlement can be reviewed at the website www.ADA.gov (make sure to click on the "New to ADA" link).

It’s important to have an experienced ADA attorney on your side in these complicated situations. LaBovick Law Group has a long history of supporting and enforcing the rights of persons with disabilities. Free consultations are available to discuss such issues and to determine whether appropriate litigation is necessary.

Letters of Protection: the Good, the Bad and the Ugly... Everything Consumers and Doctors Need to Know About LOPs.

Tue, 14 May 2013 05:49:25 -0800

I am hot on the topic of LOPs. LOP stands for “Letter of Protection.” This is the common use name for a contractual lien that doctors have patients sign to assure payment for medical services related to an injury case. Before we can understand the problem with LOPs we should understand a bit about medical billing in accident cases.

Example: Ms. Linda Jones gets hurt in an automobile accident. She goes to Dr. Mark Smith. When Dr. Smith sees her he will want to know how he is getting paid.

There are numerous sources a medical provider must look to for payment in every accident case. Let’s start with the premise that few people have the money to pay for any significant medical care in cash. Some do, but they are usually wealthy enough to have great insurance, so they don’t need to.

If the accident case is from an automobile accident the doctor must first bill the mandatory PIP (Personal Injury Protection) insurance. PIP is automobile insurance for medical bills and lost wages, but it is limited to $10,000. Many times a patient’s PIP benefits will run out after the first hospital visit.

If the PIP limit is exhausted, or if the accident happened outside of a car, like in a department store, the doctor should look for a medical payments policy (called Med Pay). Med Pay does pay for any medical bills, but since it isn’t a mandatory insurance, only a few people purchase it. Even when it is purchased it is often in a very small amount, like $1,000 or $5,000. So Med Pay also runs out quickly.

After that, the doctor must look to health insurance. Health insurance has three issues:
1) First, many people simply don’t have health insurance. That leaves the doctor with
limited options.
2) Second, health insurance does not pay well.
3) And finally, third, health insurance, like government insurance (Medicare), wants to be
paid back after if the patient/victim/client gets any settlement money from the accident
case.

Many doctors prefer not to use health insurance if there is another way to get paid. That is what leads us to the LOP. We will discuss that after we look at one final method of getting paid.

The last insurance the doctor can look to, assuming there is no health insurance, is government payments. Government payments are Medicare, which generally covers older Americans, and Medicaid, which is really akin to government charity for the poor. Getting paid by the government is the lowest reimbursement for the doctor. Therefore, the better doctors avoid using government insurance when possible. Similar to health insurance, the government must be repaid from the client’s/patient’s future verdict or settlement.

Finally! This is where the LOP comes into play. Doctors who were friends with personal injury lawyers came up with a better system of getting paid on accident cases. They created a contract between the patient, the doctor and sometimes even the patient’s lawyer. That contract says the patient instructs the lawyer to pay the doctor’s bill out of the settlement or verdict. On its face, that sounds pretty fair. The patient needs medical care and doesn’t have the funds to pay for the care. The lawyer wants the client to get good medical care because the insurance company for the defendant needs that information to make a settlement offer. So, the patient, lawyer and doctor can all cooperate to get the victim the best care.

The problem arises when a lawyer chooses the more important relationship at the end of the case… On such relationship is of the doctor and attorney. They may be buddies, and they refer patients/clients to each other. That creates a business relationship, where the doctor can charge higher than normal fees for their care, and the lawyer can help his friend by protecting his overinflated bill in trade for a steady stream of injured victims. The patient gets good care, but at an unreasonable premium.

The other option is that the doctor works in good faith, and at the end of the case the lawyer does his job and “zealously” represents his client’s interests. That means negotiating the doctor down to the lowest possible payment. That means the doctor took the risk that the case would settle, waited to get paid, treated the victim and in the end has to fight tooth and nail to get paid a reasonable fee. That is completely unfair to the doctor who is not accustomed to or isn’t set up for fighting over payments. So in the end, the doctor typically relents and gets paid a fraction of their true value to the client.

Our firm represents many medical providers. We represent the full gamut of medical providers, from hospitals to single-person physical therapy centers. We have clients in Massachusetts, Ohio and all over Florida. We are hoping to enter Kentucky and Minnesota and Michigan this year. The LOP is used by lawyers and doctors all over the USA. Most other jurisdictions don’t call them LOPs. They call them “BI Liens.” BI stands for Bodily Injury Insurance. That refers to the type of insurance that protects the defendant and gives money to the victims if a defendant hurts them in an accident. BI can be attached to an automobile or a building where it is typically called simply the Liability Policy.

Our firm has come to a simple conclusion: while the LOP/BI Lien is a generally accepted tool to get medical care for uninsured or underinsured victims, they lead to multiple problems for all parties. We are doing our best to avoid the LOP in all injury-related cases. While some doctors still insist on using this tool, we are trying to convince our medical providers they are best served in avoiding it when possible.

In my next blog I discuss: the conspiracy theory juries feel about the LOP.

Disabled veterans ARE entitled to benefits. Here’s what you need to know to qualify

Fri, 10 May 2013 07:06:16 -0800

Did you know, as a veteran of the United States Armed Forces you may be eligible for disability benefits provided by the US Department of Veterans Affairs (VA) if you are injured or sick as a result of your service in the military?

What are Veterans Disability Benefits?
Veterans disability benefits are monthly monetary payments that a disabled veteran receives from the United States government. This governmental group is known as the Veterans Benefits Administration, which is a division of the US Department of Veterans Affairs. The amount that a veteran receives is dependent on the severity of disability that the veteran suffers from. The VA allocates disability from 10% disabled up to 100% disabled. These payments are 100% tax exempt. In addition to monetary benefits, veterans are eligible for free medical and rehabilitative treatment.

To apply for these benefits a veteran must be diagnosed with a disease or disability, such as Parkinson’s disease, musculoskeletal disabilities, post-traumatic stress disorder, etc. The veteran must have suffered an incident that caused him or her to be affected by the disease or disability. The veteran must also prove that the disability is service related. This means that the veteran must prove that what happened to them while they were serving our country was the cause of their disability. This can be the most challenging of the three-pronged test and may require vast amounts of both medical and service-related records.

Low income disabled veterans, whose disabilities are not related to their service or veterans older than65 years may be eligible for a veteran’s pension. This is a needs based system similar to Supplemental Security Income (SSI). To be eligible, veterans must have served at least 90 days on active service and at least one day during war time.

Veterans who wish to apply for disability benefits may choose to have an attorney represent them through the complex bureaucratic maze. If you choose to be represented, your attorney cannot charge you a fee unless you are first denied benefits and later awarded them.

Do You Know The Important Parts to Process your Social Security Claim?

Mon, 06 May 2013 07:38:43 -0800

By far the most critical part of a Social Security Disability application is the medical documentation. This is important for two reasons. First, if the claimant has continued to treat for several months or years it establishes that the claimant is truly sick or in real pain. Using your doctor’s records you can prove to Social Security that you have suffered from Lupus since 2010 or that you had a spinal fusion in 2011 and your pain continued for example. The medical evidence is the foundation on which your application is based. The second reason is important because it allows the patient the best chance of recovering and returning back to normal life.

We all know that medical treatment can be expensive without insurance and that continuing treatment after losing your job may not be possible. For those circumstances Social Security will send applicants to their own doctors for what is called a Consultative Examination. This is not ongoing treatment but a onetime evaluation by Social Security’s doctor in hopes of medical documenting your condition. No matter how much medical documentation you have your case needs to prepared by a professional who can make sure that all of the relevant evaluations are completed. If you have been denied for Social Security Disability benefits you can call the attorneys at the LaBovick Law Group to help you receive the benefits you are entitled to.

How to Plan for Your Estate in the Era of Digital Media

Tue, 30 Apr 2013 06:12:08 -0800

When most of my clients think of Estate Planning, they think of dividing up traditional type assets such as cash, stocks, bonds, jewelry, cars, family heirlooms, etc. Although this has been the norm for the most part, in today’s never ending pursuit of advancing technology, estate planning attorneys and their clients have a another very important classification of assets to consider: digital assets.

Since reading an article last year about the rightful ownership of songs on an iTunes account, I have done some research on this growing estate planning issue of digital assets. There are seemingly endless amounts of digital assets that need to be accounted for, and it is a great idea to keep a current list to include in a well thought out estate plan.

What are digital assets that need to be considered in planning for your estate? What about family photo albums that may have been converted to digital media, what about an extensive digital music collection, what about novel ideas with respect to inventions/writings/music that you have created. These are just a few items that you should consider while making an estate plan.

Although it is important that the aforementioned assets are accounted for in your plan, it is perhaps more important that the access to these items is apparent. If trustees and personal representatives do not have access these types of media, i.e. passwords to computers, the assets cannot be distributed. The passwords are also important for executors of estates to gain timely access to bank accounts, brokerage accounts, email accounts and social media accounts. Without passwords, access to these types of accounts may result in long court battles.

The creation and implementation of federal and state laws with respect to digital assets are relatively new and can be quite confusing. If you have not accounted for your ownership of digital assets in your estate plan or need help organizing those assets for the future, reach out to an expert estate planning attorney. A digital asset protection trust may be an option for you.

Good News, Noninvasive DNA Paternity Tests in Florida

Mon, 29 Apr 2013 06:51:51 -0800

Florida's paternity statutes allow a paternity lawsuit to be filed prior to a child being born. In theory, the Judge in the case can award attorneys fees and litigation expenses before the child is even born and a determination made that the person suit is actually the father! This aberration can now be cured through noninvasive DNA paternity testing using only blood samples from the pregnant mother and the purported father. The old amniocentesis method, which involves some risk to the baby and mother, is now old technology. New techniques allow laboratories to search for and find the babies cells in the mother's blood. DNA testing can then be done on those cells and the mother and father. Such DNA testing now all but guarantees that paternity can be established prior to the baby being born. Persons facing paternity issues and having questions should contact an experienced Family Law attorney.

West Palm Beach Social Security Office Closure Update

Fri, 26 Apr 2013 13:51:38 -0800

The Social Security Office in West Palm Beach has been closed since February of this year. This has inconvenienced thousands of people who rely on the office service. The Office in West Palm Beach is one of the busiest offices in South Florida which has one of the highest concentrations of people on Social Security in the country. The office closed due to problems with the air quality and is expected to open sometime this summer. Social Security has not done a great job of notifying the public of the closure. If you go to the website the only thing that would indicate the closure is a small disclaimer at the bottom of the page. With the closure of the West Palm Beach Office I direct most of my clients to the Delray Beach Office which has been inundated with people from all over the county. Cramming staff and the general public into one office has caused longer lines than usual. The Palm Beach Post reported that a 70 year old woman fell while waiting outside in the heat at the Delray Beach Office. This closure and failure to remedy the problem quickly is just one in mounting reasons why those applying for Social Security Disability or retirement are unable to get the services they need from their government in a timely manner.

Even Celebrities Need an Estate Planning Attorney's Help

Wed, 24 Apr 2013 06:24:24 -0800

Living in South Florida sure has its perks. Enjoying the coastal regions and participating in the activities that accompany our wonderful year-round weather make our area so desirable to live in. Whether we like it or not, this attractiveness has made South Florida a favorite place for famous entertainers, athletes, executives and political figures to vacation and retire. Of course, when one of these “special people” passes away, the heirs of their fortune become the front page news. Some recent, highly publicized estate battles concerning deceased celebrities have cast a bright spotlight on the importance of having the proper estate plan.

I have recently read the book “Trial and Heirs, Famous Fortune Fights.” I recommend it to anyone starting to establish their estate plan or just reviewing an existing one. Regardless of the size of your estate, this book can help you understand some of the most common errors made in estate planning. The book will also aid in avoiding the nightmares that can occur and cause financial heartache and strain to your heirs. It is an easy reading book that uses examples of estate planning blunders that plagued famous people over the years. Some of the highlighted cases include Anna Nicole Smith, Marlon Brando, Gary Coleman, Michael Jackson and many others.

One would assume that celebrity, fame and the money that accompanies it would put these folks in a position to get their post-death asset distribution done properly. This is not necessarily the case. Learn from their mistakes, and if you attempt to create an estate plan on your own, have an estate planning attorney look it over before you finalize.

Do You Feel You've Been Held Responsible for Child Support Unjustly?

Tue, 16 Apr 2013 12:56:24 -0800

Florida has a series of statutes that allow a parent to disestablish paternity of a child. Chapter 742 of the Florida statutes contains provisions on the procedures for doing this. This series of laws was designed to address the growing problem of fathers being sued for support for children that they were not the genetic parents of. The procedure can be complex and should not be tried by someone without a child support attorney. However, assuming the proper proof is provided, such as DNA testing, Florida courts have the power to order that a prior birth certificate or support order is no longer effective because the father was not genetically the parent of the child.

However, how does this statute address child-support obligations? Candidly, the Florida legislature did a bad job of drafting this statute. The way it is written and recently interpreted, a court only has authority to cancel ongoing child support. It has no authority to cancel arrearages. How is this possible? Because of bad law writing. Perhaps this problem will be corrected down the road, but persons who suspect children are not theirs need to be quick with their rights and file a request for disestablishment of paternity in order to avoid this problem. LaBovick Law Group has a division dedicated to assisting fathers with disestablishing paternity and fighting fraud by the mother in claiming a child is theirs.

Social Security Disability for Epilepsy

Mon, 15 Apr 2013 14:02:30 -0800

If you have been diagnosed with Epilepsy you may qualify for Social Security Disability if you are not working and you are unable to work due to Epilepsy. To qualify for Social Security Disability for Epilepsy you must have been diagnosed with epilepsy and be on anti seizure medicine for at least three months. If you are taking anti seizure medicine and suffer from either Daytime episodes (loss of consciousness and convulsive seizures) or Nocturnal episodes manifesting residuals which interfere significantly with activity during the day. To qualify these episodes must be Grand mal seizures. To qualify for Social Security Disability you need to suffer from at least one or more episode a month after you have begun taking anti seizure medication. The seizures must either occur during the day or may occur at night but must then affect you during the day. This is because Social Security is chiefly concerned about your ability to work and therefore you must demonstrate not only that you are diagnosed with epilepsy but that the epilepsy must affect your ability to work. If you do not suffer from Grand Mal seizures you may be able to apply if you suffer from Petit Mal at least once per week. If you are unable to work and believe that you are entitled to Social Security disability you should contact an experienced Social Security disability attorney to represent you before Social Security disability benefits.

Creating and Funding the Revocable Trust – A Two Step Process

Wed, 10 Apr 2013 13:56:50 -0800

The first step in planning for the distribution of your estate is to contact an estate planning attorney and create a revocable living trust. Your friends and colleagues have all told you that it is a sound idea if you want your assets to avoid probate and want proper disposition of assets upon death assured. However, the creation of the trust is only half the battle. Now, you must embark on the second half of the process, funding that trust.
Funding the trust is the process of transferring the title of your assets to the trust and changing beneficiary designations to ensure they will be paid to the trust upon the death of the asset owner. Some examples of funding the trust are:
1. Designating the trust the “Pay on Death” beneficiary of a bank account
2. Designating the trust as beneficiary of life insurance contracts
3. Designating the trust as the “Transfer on Death” beneficiary of a brokerage account
4. Transferring title of a piece of real property to the name of the trust
Contrary to many beliefs, setting up a revocable trust does not entitle the grantor to the benefits of a revocable trust. If an asset has not had its title changed so that it is owned by the trust, that asset will not avoid probate. Also, be aware that a “pour over will” does not fund the trust. Those assets left to the trust in the will, still pass through probate administration before they land in the trust.
A revocable trust can fail for a number of reasons. However, the most frequent cause of trust failure is incomplete or lack of funding of the trust. Generally, the full benefit of the revocable trust can only be realized by transferring the majority of the settler’s assets into the trust prior to death. Beware of the legal advisor that suggests not fully funding your trust. Following that advice will almost assuredly land your estate in probate.

Legal dispute of lottery winnings

Wed, 03 Apr 2013 07:18:27 -0800

A dispute between former paramours over $1,000,000 lottery ticket has now taken over 5 years to get through the legal system. On July 4, 2007 a million-dollar lottery ticket was won by the plaintiff's girlfriend. She cashed in the winning ticket and refused to share it with him. The allegations in the lawsuit were that the parties had been living together since 1993 and had a verbal agreement to split any lottery winnings. The 2007 million-dollar winning payout has now been tied up for over 5 years and the recent decision now requires a jury to decide whether there was a verbal agreement.

The moral to the story? If you're going to buy lottery tickets with another person, put everything in writing and trust no one. Winning lottery tickets have a habit of developing the worst in some people and finding out you have made a deal with the devil after your request for your share has been rejected is going to take years of litigation and substantial attorneys fees. One can only guess what the attorneys fee contract with the rejected former boyfriend looks like.

Disputes between non-married couples are often times no different than in divorces. LaBovick Law Group has a dedicated division dealing with family law and divorce issues. In today's world, with more people choosing to not be married, disputes between former paramours are much more common. Hiring a lawyer with sufficient divorce skills and experience is of utmost importance when breaking up such a relationship.

Why does Social Security Disability take so long?

Mon, 01 Apr 2013 06:46:03 -0800

The most frustrating part of the Social Security disability process, is waiting for Social Security to make a determination on your claim. When clients first come into my office and tell me that they would like to file an application for disability I begin the conversation by telling them to be successful they have to be patient. I tell clients that their claim will most likely not be resolved for more than 18 months. The process takes this long because first the claimant must file an application which can take Social Security 90 days or more to make a decision on. During this time Social Security is reviewing your application, requesting medical records, and sending you to see one of their doctors. After all of this work Social Security denies more than two thirds of applications at this stage.

If your application is denied it is not time to give up your claim. Most people who apply for Social Security disability are denied, this does not mean you are not entitled to benefits. Appealing denials is the single most important thing you can do to increase your chances of success. The fist appeal is reconsideration, during this stage you application is reviewed by the same office that denied your application. This step can often times take 3 more months. If you are denied at reconsideration then it is time to request a hearing before an Administrative Law Judge. This is the stage that takes the longest, often times 12-13 months before you can see a judge. This is also the most important stage; applicants have the highest chances of success at the hearing. At the hearing is your chance to humanize your application. You will be face to face with the person making the decision on your claim. You will be able to bring a witness, be represented by an attorney, and provide testimony. In order to reach the hearing you must be patient and allow your claim to progress to this stage.

Being represented by an experienced Social Security Disability Attorney will give your claim the greatest chance of success. Your attorney will be able to assist you in timely responding to Social Security’s numerous questionnaires. Your attorney will also help you develop the evidence you need to prove your claim. The process is already long enough don’t take any chances that you will have to go through it twice because you weren’t represented the first time.

Will Same-Sex Couples Have Equal Marriage Rights Federally?

Thu, 28 Mar 2013 14:49:14 -0800

So the California Supreme Court upheld marriage as a fundamental right for "all couples" in California! All couples means ALL couples, regardless of gender. Now same-sex marriages, which started in May 2008 are 100% safe in California. OR ARE THEY ?

In November 2008, the California Congress passed Proposition 8 in the Defense of Marriage Act. This defined marriage as between a man and a woman. Doesn't this effectively overturn the California Supreme Court’s decision?

Maybe the US Supreme Court will give us the answer. This month the Supreme Supremes heard oral arguments in U.S. v. Windsor, which is the case concerning the validity of the Defense of Marriage Act (“DOMA”). DOMA provides that only a marriage between a man and a woman will be recognized by the federal government -- That means Medicare, Social Security and IRS, among others. In Windsor, two married women had a question when one died had the "marriage" was not recognized for purposes of the federal estate tax marital deduction. This caused the surviving " spouse" a higher tax burden when inheriting the estate.
The case has far-reaching implications for same-sex couples.

I give no opinion or endorsement to the Supremes here. The case is a real coin toss. But I would bet in this: they won't make a decision based on any "moral" basis. Rather they will either come down on States rights or on the Congress's right to take authority over the issue. Interesting felines for conservatives who I am sure are loathe to strike the DOMA.
States that recognize same-sex marriages could give federal recognition, which would mean that tax and estate planning is the same for both traditional and non-traditional married couples.
States that do not allow for same-sex marriage could face a constitutional right for same-sex couples to marry!
This is one of the most interesting and far reaching decisions of the year. I'm excited to hear its resolution.

Drafting Prenuptial Agreements... A Multi-Practice Endeavor

Tue, 26 Mar 2013 06:25:11 -0800

In a recent meeting between potential husband and wife I encountered a number of questions that prompted this short discussion on prenuptial agreements. Although these types of agreements can be uncomfortable and sometimes even embarrassing to draft, they are nonetheless a great idea in the right situation. These are extremely sensitive matters that need to be handled delicately, and by the right team of attorneys.

At first look, one may argue that the prenuptial agreement is simply a matter for a family law attorney. However, on a second glance it becomes clear this is a multi-practice endeavor. Let me explain and I think you will be persuaded.

First, we all can see why a Family Law attorney would be the initial choice to draft this agreement. The Florida Statutes addressing prenuptial agreements, alimony, asset distribution, and child support and custody are all issues that are traditionally dealt with by Family Lawyers.

Second, an Estate Planning attorney must be consulted while drafting a prenuptial agreement. A lawyer familiar with probate, elective share and spousal rights is crucial to drafting this document properly. Also, it will not hurt that the Estate Planner will have a good working knowledge of retirement plans and other investments. More likely than not, the couple’s financial advisor will also be a necessary component of the team.

Lastly, isn’t a prenuptial agreement essentially, just a contract between two individuals. Contract Law is therefore prevalent in determining whether the agreement is enforceable. Both parties must agree to all the terms and conditions and there must be the basic contract formalities of an offer, and acceptance and consideration. Also, contracts made under duress/coercion are generally unenforceable as well. This, in some cases, is very easy to prove in a prenup case.

In conclusion, it is best to attack the drafting of a prenuptial agreement utilizing the expertise of attorneys and even non-legal professionals of multiple disciplines. Employing all the experts will help ensure the client’s objectives are achieved as planned.

Florida's Legislature Changing Custody/Time Sharing Laws

Mon, 18 Mar 2013 12:34:28 -0800

The same bill in the Florida legislature that seeks to do away with permanent alimony is also trying to mandate equal time-sharing/custody as the presumed norm instead of the historic exception to the rule. Given the current formula used to calculate child support, such provisions would significantly reduce child support in most cases. I think most parents would hail this bill as a good thing, but few would realize the ramifications of being a 50-50 parent when operating two households and two budgets. Economically speaking, unless both parents are fairly well-off, this proposal will definitely affect both parents, but if both parents are actually splitting time-sharing and expenses 50-50, then perhaps it is a good thing. Only time will tell if this proposal makes it through the Florida legislature. There are large grassroots campaigns established by both sides espousing the wisdom and evil of the proposal. As a parent and longtime family law lawyer, I have conflicting thoughts on this proposal. Only time will tell as to whether these proposals will pass and, if they do, whether they will work.

Florida Changing Alimony Laws

Fri, 15 Mar 2013 16:00:08 -0800

The Florida Legislature, comprised of quite a few lawyers and/or middle-aged men who pay alimony, is in the process of trying to change Florida's alimony laws. A recent bill working its way through the system would completely abolish permanent alimony, limit alimony to 50% of the duration of the marriage, and severely restrict Judges’ discretion on how to tailor such awards to each specific case. Permanent alimony is a rare thing in divorce court. However, the sponsors of this change seem to think that they are curing an evil that no one recognizes exists. The way this bill is written, it will probably be declared unconstitutional as it provides an avenue for someone who agreed to pay non-modifiable alimony to seek a modification. The bill also allows for splitting up cases so that the divorce order can be entered first and then subsequent hearings will occur to tidy things up.

Big mistake! Allowing litigants to conduct piecemeal hearings will only cause more expense and clog up an already overburdened system. Under the language proposed, parents could push through their actual divorce and worry about the children and child support later. Does this sound strange? It certainly does to me, as the legislature ought to be focusing on getting children issues resolved first and then let the parents battle it out.

ADA LAWYERS FINALLY TAKEN TO TASK FOR FRIVOLOUS LAWSUITS

Tue, 12 Mar 2013 13:27:10 -0800

A South Florida Federal Judge recently held order to show cause hearings in regards to the litigation tactics of a local professional plaintiff ADA lawyer. It seems Judge Zloch had finally had enough of the litigiousness and aberrant behavior of one of South Florida's most prolific ADA lawyers. Examples of the behavior include demanding over 25 hours worth of compensation yet only having less than 10 hours of billable time, lack of candor to the court, lack of candor to opposing counsel, and filing or pursuing matters that were deemed to be frivolous.

A study that was done years ago revealed that the largest groups of cases filed in federal court are ADA cases, driven by the almost automatic attorneys’ fee provisions when these cases are successful or even establish one demonisms non-ADA compliant conditions. With the advent of the United States Supreme Court case of Buckhannon vs. West Virginia School Board, many thought that these professional plaintiff lawsuits would go away or be substantially reduced. Unfortunately, that has not been the case. However, Buckhannon requires plaintiffs to actually obtain a successful decision or agree to a consent decree which always provides for attorneys fees. By forcing these plaintiffs to prove their case in court, many businesses and property owners can win the battle but lose the war.

Federal court litigation is extremely expensive and most of these lawyers know it. LaBovick Law Group has a division dedicated to the defense against these cases. Attorney Joseph R. Fields, Jr., Esq. has been successfully defending these cases for the past 15 years. He is the only attorney to have testified in United States Congressional hearings regarding the abuses of the ADA perpetrated by these groups and their attorneys. To review his testimony before Congress, please go to the website LaBovick.com and click on the ADA defense link. Mr. Fields and his staff are available for consultation in regards to defense of these cases. There are many tactics that can be used in order to significantly reduce the overall exposure that a business or property owner might have.

Local Unscrupulous Personal Injury Attorneys Get Sued for Misdeeds

Mon, 11 Mar 2013 08:25:17 -0800

Recently it was announced that a major insurance company has settled a lawsuit against some local doctors for fraud involving certain surgical procedures that were over inflated in price. It is rumored that the doctors will be paying the company upwards of $20 million for their misdeeds. Evidently, the doctors in conjunction with some local unscrupulous personal injury attorneys, concocted a plan whereby the doctors would receive a portion of the settlement, and in exchange they would perform an arguably unnecessary non-invasive percutaneous discectomy procedure on the patients/ clients. Thereafter, the doctors would seek upwards of $35,000 per procedure. It should be noted that each procedure lasted approximately 20 minutes and was noninvasive.

The lawsuit was a result of several years of investigations from collective insurance companies. It is now been revealed that the same doctors have paid other insurance companies in similar threatened litigation. I'm sure that what the doctors had to pay back the insurance companies is a drop in the bucket to what they have made over the years involved in this racket.

This is the kind of situation that gives honest, hard-working, ethical lawyers and doctors a bad name. The personal injury arena has become rife with law firms that use runners, distasteful advertising and promises that could never be delivered. The litigation practice, when I first became an attorney, was an honorable one. I am proud to be a lawyer, and I am proud to serve my clients ethically, professionally and competently. We are able to stay in business because of our reputation as hard-working good lawyers. A significant sum of our business comes from a referral sources that are happy with the work that we have done in the past. Additionally, we are referred cases from other members of the community who know our reputation and respect us. Nevertheless, we find ourselves fighting a never-ending and perhaps losing war against the unscrupulous few who have taken so much from so many to the benefit of themselves.

Just when the Florida Bar Association and legislation could have done something by tightening the solicitation rules, they have broadened the rules to include testimonials by former clients and non-party spokespersons.

Notwithstanding, it is my belief that there will always be a place in the practice of law for ethical, honest and hard-working lawyers like those at our law firm. I am still proud of what we do and especially within the confines of our firm.

Should Small Business Owners Apply for Social Security Disability?

Wed, 06 Mar 2013 06:38:36 -0800

One of the more difficult types of applications for Social Security Disability comes from small business owners. Often times they call our office and have a fairly typical situation. Joe the small business man was doing well supporting himself and his family. He has had the business for sometimes 20 plus years. Then Joe is diagnosed with a disease, depression, bipolar, lupas, or neuropathy. All of a sudden Joe’s business declines. Joe does not close his business but instead just watches it shrink, a business that may have afforded Joe $100,000 per year in profits before his illness is now only earning $5,000 a year.

This can happen to a small business person because once they stop marketing for new business, or if they are unable to service existing clients, their business dries up. The hard part of these cases is that many small business owners keep the shop open and essentially work for free. In these cases it is important for the small business owner to speak with a Social Security attorney early on. The attorney will be able to evaluate your claim and craft an application and appeal to the Social Security Administration that conveys that your business declined due to illness, and therefore disability, not because of the economy.