Portia B. Scott Elder Law Blog

And furthermore....

Thu, 02 Apr 2026 13:30:42 GMT

Another Warning from our Appellate Court Regarding Al

I hate to repeat myself, but....

The March 25, 2026 release of written opinions from our own Fourth District Court of Appeal (4th DCA) has another warning to persons venturing into the Court system.

As you may know, I wrote about a warning from the 4th DCA about a self- represented Appellant (person seeking to have the trial court's decision overturned) using Al and the possible, but not inflicted, sanctions which could have resulted.

Now, again, in Gouveia v. Meridian Financial Investments, LLC, the 4th DCA has again written to address this increasingly abusive use of Al in the Courts.

In this more recent case, there was a contract dispute and the trial court ruled in favor of the Plaintiff (the party making the complaint...get it? "Plaint-iff" based on "Com-Plaint?"). The losing side filed an appeal, asking for the 4th DCA to overturn the decision of the trial court.

Well, that went nowhere and the Plaintiff kept its win.

The story here is that the person who lost at trial and on appeal, in his case and appeal to the 4th DCA apparently used Al to help write his argument. The Al manufactured ("hallucinated") prior cases which did not exist or, if they did exist, did not stand for what the person said it did. It would be as if the person made reference to Roe v. Wade (a case which does exist) and told the appeals court that it stood for the legal principal that a Jack of Spades has a higher value in poker than the King of Spades (which is absolutely not what Roe v. Wade said). Is that straight-up nonsense? Yes and as absurd as that which was submitted to the appeals court as if it were true.

The Court issued another warning about the possibilities of sanctions if it is done again by the person submitting it, just like before.

But, as the concurring opinion in this case points out something else (a "concurring opinion" is a written opinion which agrees with the actual opinion but has more to say).

The concurring opinion points out how meaningless it is to threaten sanctions against someone who will most likely not be before the Court again. That means that the opportunity to misbehave for this person is greatly reduced. Most self-represented folks only appear once -if at all- before the appellate court.

The concurring opinion said that with attorneys, it is not a problem as sanctions will work against us, seeing how we are in court so often.

What is the solution? The writer of the concurring opinion doesn't know but suggests some pro-active steps. (Sanctions are, by their very nature, reactive - they are issued in response to something done.)

Perhaps forcing sworn statements from the parties that they have not used Al or, if they have, exactly what the Al included; that the party submitting the Al- generated document has double-checked the sources. Something which can help us all work with the rising tide of Al, Chatbots, LLM tools.

Stay tuned!

Appellate Court Issues Warning to Non-Attorneys Filing Appeals

Thu, 26 Mar 2026 16:40:40 GMT

The Florida trial courts' decisions are subject to appeal to a higher Court. This happens when a litigant (the Plaintiff or Defendant) believes the trial court made a mistake and that the mistake should be corrected.

The mistake believed to have been made by the trial court can be based in the facts of the case ("that is not what the evidence showed"), the law ("that is not what the statute or other source of law says"), or both.

A recent opinion from the 4th District Court of Appeal (which takes such claimed mistakes from the circuit trial courts in Broward, Palm Beach, Martin, St. Lucie, Indian River and Okeechobee Counties) dealt with an alleged mistake of law.

The person who was claiming the mistake (the Appellant), was representing herself. Without an attorney to help her write the appeal, she resorted to Artificial Intelligence ("AI"), as we can expect many people do or might start doing.

The decision came back from the 4th District Court of Appeal, disagreeing with her; the appeals court found no error by the trial court.

But for the use of Al, there probably would not have been any thing actually written. The 4th would have just said something like, "we find no error."

However, the Al tool had "hallucinated" what other, prior District Courts' had said. In the paperwork submitted by the Appellant, she had cited certain old cases saying that these cases were opposite of what the trial court had ruled. She claimed that the trial court had used the wrong law and that she should have won.

The problem, as you might have guessed, is that the cases did not exist - some of them not at all. Other cases she cited to the 4th were actual cases, but did not say what her Al asserted they said.

Here is the reason everyone needs to know this: Self-represented litigants are held to the same standards as an attorney.

Obviously, attorneys are not allowed to make up old cases and present them to a Court (trial or otherwise). If we do use Al to help find the old cases, we absolutely have to check to make sure that they are real and do exist. If we do not, we can be sanctioned - maybe even having to pay the other side's attorney's fees which, for an appeal, can easily be in the tens of thousands of dollars! That is a scary prospect. The self-represented litigant could have faced sanctions - just like her attorney would have had she had one.

In this particular case (Roussell v. Bank of New York Mellon, Etc., decided March 11, 2026), the appellate court did NOT sanction her, but easily could have. This was probably a decision issued as a warning to all.

The Deed, the Daughter, and the Paper Trail

Thu, 19 Feb 2026 13:50:31 GMT

For those of you who like history, consider the study and application of law. Studying history is, effectively, 90% of what we attorneys do.

When there is a lawsuit, for instance, you obviously want your client to win. The methods of winning are, of course, having the facts on your side but you also need to have the law on your side or, extremely rarely, you change the law.

The first question for the attorney is, "What does the applicable statute say?" followed closely by "How have other courts handled this question in the past?" These are the starting point for an attorney, once she knows (or think she knows) what has happened.

Let's take an incapacity determination as an example.

The worried daughter comes in after having spent some quality time with her father over the holidays. She indicates that her dad said and did some things which made her question if it is okay for him to continue to live alone.

The attorney asks questions about her father, including how long has he been living alone? Has he been diagnosed with anything? How about his physical abilities, are they impaired at all?

The daughter tells us that, after his wife died a few months ago, Dad suddenly spiraled downward. This may or may not be true, though it is certainly the daughter's perception. Was his wife actually covering for him for years and did such a good job no one noticed? Maybe.

We learn that father has a degree in accounting and supported himself and the family with an accounting business. Now, he does not seem to know how to balance his accounts. Still, when asked, he said he did not need to write it down. "It is all up 'in the cloud' now."

He needs a walker, but often forgets to use it. He has fallen twice in the last couple of months, but does not remember how long ago or that he went to the hospital, saying later, "oh, yes, but that was just the ER." He used to wear button down shirts but now only pull overs - saying that he wore a shirt and tie for too many years while he worked. But, he did mis-buttoned his shirt the one night when they went out for dinner.

He cannot figure out how to turn off his phone and sometimes confuses the handset from his land-line for the remote control for the television.

Specifically, the daughter met a young man who has been helping dad around the house and who says he can get insurance to pay for his help if dad will sign an "insurance" form. Dad's eyesight isn't so good, but the young man has been so helpful and he would like him to get paid from Medicare, so he signs. But, the young man won't give a copy to her father or the daughter.

The daughter is concerned about that happening again, with an unscrupulous person and, perhaps, this young man.

So, our first study of history is the father's own immediate past. Over the last 10 years, what has changed. For the answers to this, we need to consult with the daughter. Maybe he was always like this.

Once we know that, no, this is different, the daughter decides that, because Dad has a financial Power of Attorney and a Designation of Health Care decision-maker, there is no need for a Guardian. She just needs to make sure that Father cannot do himself any financial harm, unless he understands truly what he is doing.

Now, we start our next historical search. What are the standards which our elected officials over the past years (the legislature) have established for the Judges to observe.

After a review of the prior Legislatures' directions on how to proceed and who may do so, we perform quick up-date to see if that statutory law has undergone any changes and, if not, the real history search begins.

We need to look at the decisions prior courts have made about any special question. Does the fact that dad had not been diagnosed wth dementia prior to him signing the nice young man's

"insurance authority" matter? Especially now that we have discovered it was actually a Deed to his house? We find the cases which were argued and won by people in the daughter's position. Then we find the similarities and, equally important, the differences.

If our history lesson provides us with old cases, which have been approved time after time before us clearly reflecting the daughter's position, we can bring those cases to our judge's attention to be successful in our attempt to keep her father from signing away his house again, after being exploited by his illness and the young man's greed.

This is but one, tiny example of how our history is part of everything we, as attorneys do, day in and day out.

It emphasizes that we are history ourselves. Some day in the not-too-distant future, attorneys (or their Al assistants) will cite our very work either as an example of how things should be done or, heaven forbid!, how they should not be done.

Homestead Equity Uses for the Elderly

Mon, 22 Sep 2025 15:02:51 GMT

For many families, the home is the single asset with the most value. I understand that financial planners do not like to include the equity in the home when making determinations of wealth, but sometimes it is worth considering.

Three questions and accompanying scenarios especially come to mind for the Elder Law practitioner.

First, how can a client use the equity in the home to fulfill the client's desire to age in place?

Second, does the client need to spend all of the home's value before Medicaid will help when moving into long term care?

Third, what, if anything, can be left by the client for the children once the client is gone?

In Florida, the answers are as follow.

If the client has significant equity in the client's home, a Home Equity Line of Credit ("HELOC") or a Reverse Mortgage are options to be considered.

The differences between the two are that a HELOC tends to be less expensive way of accessing the equity in the home, at least initially, but does require monthly repayments to be made on the loan. So, the borrower witl need to include some repayment in the monthly household budget.

The borrower has greater options about where the borrower lives. For instance, if the borrower chooses to go live in an assisted living facility, as long as the HELOC is being repaid, there is no issue. This means, among other things, the borrower could rent the property out and use the net proceeds to pay the HELOC. (There are other issues this would bring up including those regarding homestead, however.)

A Reverse Mortgage, on the other hand, tends to be more expensive (typically higher interest rates and, often, origination expenses) but does not have to be paid back until the borrower dies or otherwise stops living in the home. This means that if the borrower wants to live at home, the borrower can use the equity to pay for household expenses, taxes, home health aides or companions, lawn care and any other duties the borrower can not, or maybe just does not want to, perform.

Does the dient need to spend all of the home's value before Medicaid will help with long term care? Not in Florida, no.

In 2025 if a single persons owns a home with less than $730,000.00 in equity and that person need Medicaid to help with long term care bills (nursing home), as long as the patient otherwise meets Medicaid requirements, the patient may keep their home. When the person passes away, the family can inherit the home without worrying about that particular asset being subject to Medicaid State Estate Recovery ("claw back"). With the right plan in place, the last, possibly most valuable asset of the nursing home patient, the client can create the legacy for the children after the patient is gone.

More than $730,000.00 in equity? Maybe the client can borrow against the house and use the funds (not gifting the funds) thereby lowering the actual equity down to below $730,000.00? Buying a more expensive car, putting on that new roof the insurance company is going to require soon anyway, upgrading to impact windows, remodeling the kitchen with all new appliances and flooring throughout, taking a trip to see loved ones, paying estimated future income taxes: all of these are ways to spend that "excess" equity.

For a married couple when one of them is in a nursing home and the other is not and remains in the community, this community spouse does not have to spend down any of the equity of the house the couple owns.

Finally, if a homestead is left to someone who is descended from the homeowner's grandparent (l know, it is a long way to say blood relative), the home can be left to such a person without having to pay Medicaid any of the asset the homestead represents. Further, because of the "stepped up" basis in the house, leaving a home can truly create a way of ensuring an inheritance which many people consider very valuable indeed.

No, the Judge will not fix it for you.

Wed, 04 Jun 2025 14:12:49 GMT

I have, from time to time, an opportunity to review family law agreements when dealing with a probate estate proceeding or a Trust administration. These family law agreements can take the form of a Divorce Decree, Final Judgment of Dissolution of Marriage, a Post-Nuptial Agreement, an Ante-Nuptial agreement (often called a "Pre-Nup"), mediation agreements and temporary orders which might include temporary alimony payments plus of course, the common charging liens filed by attorneys involved.

I also get to review Qualified Domestic Relations Orders ("QDRO's") from time to time.

Many of these documents are drafted without the help of an attorney. Sometimes, they will have been drafted by a paralegal or another lay-person, sometimes by the parties themselves.

When I make inquiry of the parties about the documents, I often find the people who drafted them believe that, if there were a Judge involved in the underlying matter, the Judge would "fix" the document if it were wrong.

So, if a Pre-Nup calls for extra alimony in the case of one party's infidelity, and, if that is not something the law books would allow, they believe that the Judge would tell them so and strike it from the agreement.

Similarly, if someone's settlement agreement provides for one party to pay the other alimony even in the event of the remarriage of the party receiving alimony, the paying spouse believes that the Judge will tell them that Florida law does not require such payments to continue. The judge might similarly strike a provision for "permanent alimony" if the legislature had prohibited judges from ordering permanent alimony.

Even if a QDRO was ordered to divide up one party's 401(k), some people believe the Judge will create the QDRO.

None of this is true. If you come before the Court with an agreement, you can actually change the law as it applies to your own case.

So, if permanent alimony has been ended by the legislature, but you agree to it in your settlement agreement, the Judge is not going to advise you that you are going against what authority the Court would have if you had not settled and had gone to trial. The Judge may ask you if you really agree to these terms and, if so, enter the Order requiring more than the Judge could ever have ordered at a contested trial.

The best you can hope for from a Judge is when the judge sees the document - if the Judge reads it- is for the Judge to tell you to consult an attorney.

If a Judge ever does tell you something like, "you really should talk to an attorney," this is a big red flag and you should take the Judge's advice. The Judge cannot, may not give you any advice other than to recommend you speak with an attorney.

The long and short of it is there are reasons why it can often end up being less expensive to consult an attorney than to do some work for yourself.

Florida Powers of Attorney

Tue, 01 Apr 2025 20:51:23 GMT

Myths V. Facts

Of the many documents variations of which can be found on the internet, we have Powers of Attorney (“POAs”). As is the old saying, a little bit of knowledge can be dangerous.

With this writing, we are going to explore some of the most prevalent myths about POAs which are, at best, troublesome and, at worst, catastrophic to your plans.

Myth 1 : A POA strips from the person who signed it (the Principal) all authority and vests that authority in the person who receives it (the Agent).

The nightmare I have seen are an Agent waiving the POA around, declaring “I am in charge now,” and “you have to do what I say” regardless of the wishes of the Principal. This is simply untrue.

A POA will allow another to perform your financial duties. Typically, a POA does not require you to be unable to make informed decisions in order for the POA to be used. The POA duplicates in another person the authority you have over your finances but does not strip from you any of your rights and powers. Now, if you are declared to be incapacitated by a Judge, that would strip you of your authority and the POA could be used to fill in the gaps in your financial care, but the execution by you of a POA does nothing to your own authority.

The POA will be effective even after a Judge, if there were an Incapacity matter filed, says you are incapable of making informed decisions regarding your own finances.

Myth 2 : A POA is effective after your death.

It is not. Since a POA duplicates in another person whichever financial authority you chose to give the Agent, and, since when you are dead you cannot do anything, the POA’s usefulness is over. A dead person cannot write checks and neither can his/her Agent using a POA.

In fact, it would might be considered a fraud by the Agent to use the POA after the Principal’s death; it certainly would be void once discovered.

Myth 3 : An Agent gets to make the decisions about how the Principal’s money is spent.

Though generally an Agent can spend the Principal’s money, the Agent may only spend the Principal’s money on the things the Principal wants. So, if the Principal wants to send her granddaughter a $100.00 birthday gift and asks the Agent to write her a birthday card with a check in it, that is fine. However, the Agent may not decide to write the check for $1,000.00 nor to include all of the grandchildren. Especially, the Agent may not write herself a check because, she needed the money. If the Agent were to borrow money from the Principal, the Agent should back that up with an I.O.U. (a promissory note) from the Agent to the Principal and keep a record of it.

Certainly, unless there are extraordinary circumstances, the Agent cannot change title to a car or house or boat from the Principal to the Agent or ever to the Agent and Principal together without breaching her fiduciary duty to the Principal.

Myth 4 : The Agent can give away some of the duties granted under a POA to another person.

The State of Florida specifically prohibits the Agent from delegating the authority under a POA. If the Agent can not do the act authorized, only the Principal can.

These are just some of the common wrong-headed beliefs regarding Powers of Attorney. These POA can be very useful in many circumstance, but they do not grant “carte blanche” to the Agent.

Talk to an attorney about the bounds of a POA, especially if you have been appointed and do not understand the limits on your power thereunder.

Sumptuary Laws

portia@pbselderlaw.com (Portia Scott) — Thu, 27 Feb 2025 22:00:10 GMT

The Odd Use of Sumptuary Laws in Old England’s Fashion

Sumptuary Laws are laws or codes enacted to restrict what a government might consider excessive expenditures or improper posturing. Of course, in these United States, we have nothing which would prevent us from buying a dozen jet planes if we wanted to do so and many wealthy folks have collections of interesting cars and boats and all sorts of conspicuous consumption. Although, it is illegal for folks to wear certain uniforms to which they are not entitled: military and law enforcement, for instance. But, in the middle ages England, there were laws which limited, among other things, what kind of fabric one could wear, based on the person’s social status and identity.

You may have known that at that time, unless royal, people could not wear the color purple - it was strictly forbidden and wearing it could result in an accusation of treason, and we all know what happened to folks accused of treason against the crown. (Just one of the outrages surrounding Anne Boleyn’s romance with Henry VIII: she showed up at Court wearing purple before she was married to him, proclaiming herself as royal - which she was not yet - and the King had bought her the fabric: scandalous!)

However, when it came to fashion in merry old England, there were many other similar taboos.

Even if you could afford it, you could not wear cloth of gold (a fabric with actual gold woven into it) or certain furs, unless you were Royal. Similarly, if you were the wife of a knight, you could wear damask, silk, or taffeta, but you could not if you were of a lower rank.

Everyone could wear linen, but knights were prohibited from using weasel fur in their clothing. Only Royalty and Peers could wear ermine, and one still had to be Noble to wear fox hides.

Only knights and higher social status folks were allowed to wear satin or velvet.

But these laws were not just limitations; there were also compulsory items. Woolen caps had to be worn by males over age 6 on Sundays for anyone lower than a noble; it was mandatory.

Speaking of wool, even the type of wool was restricted to different classes or ranks.

Beyond that, even if you were of the correct rank, you also had to have a certain level of income to be allowed to wear what you wanted.

There were other aspects of Sumptuary Law beyond fabrics and accessories. These could include restrictions on the cut of woman’s gown, gemstones and precious metals, the style of carriages or furniture, the permitted length of a man’s sword, even what food one could eat.

The reasons given for these rules were stated as minimizing English money going abroad for fabrics and to keep folks from overspending for the good of their souls, but it also allowed people to know each other’s rank and status at a glance.

Odd Laws - Iceland

Fri, 31 Jan 2025 15:41:49 GMT

Odd Law - Iceland

In either 999 or 1,000 CE (the records conflict) the meeting of the makers of the Laws in Iceland met. These meetings, which had been going on for about 70 years already, occurred each year and were called “Althing,” Some scholars consider this the oldest Parliament.

At these meetings, the chiefs of the sundry family groups would sit outside (so we can assume it was in the Summer) in a circle. Sitting in front each of the group leaders, facing each other was a warrior of the chief and behind him, at least two counselors. This may well signify that for every battle to be fought, there were two voices, in addition to the chief himself, considering the wisdom of the fight.

During the meetings, the “Speaker of the Laws” (alternatively the “Knower of the Laws”) would recite each and every law the nation had. Each law was, one by one, considered by the assembly. Should they continue having this law? Could it be altered if it was not meeting its goal or were there unforeseen consequences which could be avoided by a modification. Should that particular law be removed from the society totally?

For those scholars among you, this might sound a lot like James Madison’s belief that every law, including the Constitution, should expire at the end of 19 years, to be revisited. Well, the Icelandic peoples did just that.

The Althing of 1, 000 (or, maybe 999) was of a different character though. The law makers were trying to decide if they should accept Christianity as their religion, divesting themselves of the older pagan religion, worshiping the Norse gods of Odin, Thor, Loki, Frigga and the rest. (You all know that Thursday is named after Thor and Friday is named afer Frigga, right?)

There had been several violent bouts with Christians wanting the change and about half of the population were, by that time, Christian themselves, whether by spiritual conversion or conversion by the sword.

The leaders were much divided among themselves and, after much negotiation, agreed to let one man make the decision for the entire nation. This man, reasonably enough, was the Speaker of the Law, Thorgeir Thorkelsson (friends all just called him “Thor”).

He isolated himself for a long while and came back with his pronouncement:

Iceland would be Christian....with a couple of exceptions:

1. They would continue to eat horsemeat (outlawed by that particular branch of Christianity - Roman Catholicism in 732 CE - don’t know how the Eastern Orthodox thought of it);

2. They would continue to be able to “get rid of their unwanted children” (usually considered to be exposing babies who were not the desired gender for the time or were misshapen in any way); and

3. You could still have your pagan religious ceremonies in private; and, most importantly,

4. Don’t get caught doing any of the first 3.

This was eventually named the kristnitaka.

MEDICAID IN FLORIDA Part I

Tue, 11 Jun 2024 13:38:49 GMT

Medicaid planning is a complicated concept with many moving parts, all of which need to work in tandem and cohesively together to achieve the goal of providing quality long term care and/or nursing services to a Floridian in need.

People often merely state that Medicaid is always a payor of last resort, but that expression needs to be defined and discussed as part of an over-all plan.

The first issue addressed, then, is what is meant by “The payor of last resort?”

Medicaid is, indeed, the payor of “last resort.” Briefly, this means, when all other medical assistance care is gone, Medicaid may step up and help pay for some uncovered medical expenses.

Although Medicaid is a Federal program, it is administered on a State-by-State basis. When Medicaid was first being created, each state in the Union submitted their own plan on how the funds available to their own State’s Medicaid applicants. Florida submitted its plan which continues (with some tweaks) as to be used by Florida’s Medicaid system.

If the applicant (the “patient”) otherwise qualifies for Medicaid in Florida, the State’s Medicaid program will help pay the expenses of Long Term Care, including Nursing Home Care.

So, if the patient has a privately purchased policy for Long Term Care Insurance, those benefits will have to be fully depleted before Medicaid will provide any financial help.

If the patient has more than $2,000.00 in “countable assets,” those will need to be spent before Medicaid will help. (We do mean “spent,” too; not gifted away!)

If the patient is on Medicare, Medicare will step back and no longer pay once Medicaid has taken over. This means that the patient’s Medicare premium will no longer be deducted from any Social Security payment, increasing the net income of the patient.

Further, there will no longer be a need for supplemental health insurance since the policy (Medicare) which was being supplemented, no longer is paying.

When good planning has been implemented, including, at times, some of the countable assets of the patient having been legally and permissibly transformed into uncountable assets, Medicaid will step in to help pay for the Long Term Care Nursing Home expenses.

This is what is meant when the term “payor of last resort” is used.

NEED FOR REAL ESTATE BUYERS' ATTORNEY AT ALL TIME HIGH

portia@pbselderlaw.com (Portia Scott) — Wed, 20 Mar 2024 19:30:01 GMT

With the National Association of Realtors' Settlement of the Anti-Trust case, we wonder how will this all shake out.

First, What is an "Anti-Trust" suit in the first place? That is right: time for a little history lesson.

In 1890, the Congress of the United States passed the first such legislation. It was specifically aimed at curbing the immense concentration of power in private industry. The idea was to encourage competition and restrict monopolies. Just like anyone who has played the board game, a monopoly enables the person who has the monopoly to demand higher prices for whatever it is they are selling. In the board game, it is rent, but it applies equally well to oil companies, telephone companies and, of course recently, social media companies. You can get more when you are the only game in town.

The danger of these so-called "trusts" (i.e., the monopolies) is that the entity with the monopoly has all of the power. So, in this case, a group of Sellers were complaining to the Courts that they had been charged to pay for the Agent who represented the Buyer of their house.

The way it had been working is that the Seller of the home would hire an Agent who would list the house for sale, agreeing to pay a percentage of the eventual purchase price to the Agent- usually 6% for a house. One of the ways the "listing" agent would advertise the house was by placing it in the Multiple Listing Service (the "MLS").

An agent who had a client looking for a house would look at the MLS and find a few houses in their client's price range, neighborhood of interest, right number of bedrooms, that kind of thing. The would-be Buyer's agent would then look to see how much of that 6% the Listing Agent was getting from the Seller was available to the Buyer's agent. Typically, the Listing Agent would split the 6% with the Buyer's Agent.

The Buyer's Agent would set up appointments, not only for the Buyer to see the house, but, if an offer was made to buy the house, would also help coordinate any inspections and negotiate the terms of the purchase, looking out for the Buyer's interest.

Well, now, all that has changed. The settlement reached now prohibits the listing agent from offering any of their commission (the 6%) to a Buyer's Agent in the MLS. The idea is that, with the Seller's agent no longer being allowed to use the MLS to let the buyer's agents know what they can expect to get paid, the Sellers' Agents will charge less than 6%. This may be true; it may not.

The Sellers' Agents may think that they will have to do their own work as well as the work which used to be done by the Buyers' Agents. They may think double the work, double the money they should receive and keep the whole 6% to themselves. This is a problem for the Buyer, though, as they no longer have an Agent on their side. The only Agent in that plan is the Seller's Agent.

The Buyer's Agent might seek to get paid up-front before they put the work in to finding the perfect (well, the best available) house for the Buyer.

Further, this means that Agents who used to represent Buyers, advocating for them, arranging to show them multiple houses, getting any inspections done and helping get the deal done, will face 4 options:

1) get the Seller to pay them directly to represent the Buyer's, not the Seller's, interests;

2) get the Buyer to pay them directly, thereby limiting the money available for a down-payment;

3) get the listing Agent to share the commission after finding the house for the Buyer;

4) get a new job.

If the job of Buyer's Agent goes the way of the Dodo Bird, then the importance of having an attorney in your corner becomes of paramount importance.

BEFORE YOU SUBMIT AN OFFER DRAFTED BY THE SELLER'S AGENT, give it to our attorney and discuss how to best protect yourself and understand the costs associated with your offer.

The Seller's Agent is interested in getting the house sold with the very best deal for their own client, the Seller, as quickly and for as much money as possible.

Living Wills

Mon, 01 Aug 2022 17:43:41 GMT

Living Wills: One of Florida’s Available Advance Directives

Florida Statutes specifically authorizes a person to execute a Living Will. Interestingly, the Living Will Statute is under the general sections of law regarding Civil Rights. This implies very, very strongly that the right to have a Living Will is a Civil Right held by Florida resident. But, before we get to that, What Is A Living Will anyway?

Briefly, a Living Will is a declaration by a person (reasonably, though not particularly imaginatively called “the declarant”) indicating ahead of time what his or her wishes would be under certain specifically stated situations in the event he or she is not able to express those wishes when the time comes. The Living Will creates a rebuttable presumption to the clear and convincing legal standard of the declarant’s wishes and direction. (Okay, maybe that wasn’t so brief.)

What conditions? Well, end of life conditions are generally the ones we are talking about here. So, if the patient has a terminal condition, an end-stage condition, is in a “persistent vegetative state” or if recovery is unlikely, these are conditions which must be determined by the patient’s primary doctor and another doctor.

Let’s use the example of a terminal condition. The patient is non-communicative and dying of cancer, all treatment options have been exhausted. The death is soon, possibly in the next few days or even hours. Those doctors each examine the patient and come to the same conclusion: death is near. This is a medical determination of one of the conditions which can trigger the use of the Living Will.

Now, on top of the poor patient being at death’s door, he develops appendicitis and they need to come out, immediately.

Knowing there is a Living Will, before the surgery commences which will not save the patient’s life from the cancer killing him, the doctors look to the Living Will. In it, the doctor sees a clear, unambiguous statement contemplating this scenario. The declarant thought about it and opted to skip the appendectomy and just asked for pain relief.

Likewise, other unpleasant circumstances can arise and be dealt with as well. Further, the patient, through the Living Will, may opt to have a feeding tube removed and other changes from on-going care, once the determination has been made.

Unlike a Medical Power of Attorney, which authorizes someone else to make decisions for the declarant, a Living Will is the declarant’s own decision, just pre-made. (Also, a Medical “POA” usually empowers another person not only end of life decisions but also other areas of medical care.)

The beauty of a Living Will is that the patient/declarant has the opportunity to consider his or her wishes before the emergency is at hand and, additionally, provides the patient’s loved ones with a roadmap as to what the patient would want, if he or she could speak. The Living Will represents the cool-headed decisions of the declarant.

Importantly, assuming the patient is in his or her right mind and capable of making decisions otherwise (that is, not in a coma), the patient can change her mind and opt for “heroic” measures to be taken to save her life. She can change her mind, if she wants.

Living Wills are a very useful tool and one of the regular documents created for those of us contemplating our own path. They are especially helpful if the declarant has not appointed a Health Care Surrogate or Proxy - but that is another article.

Last Will & Testament as a Suggestion

Thu, 12 May 2022 19:43:18 GMT

Your Final Word???

Many folks presume that a Last Will and Testament is an absolute declaration which must be followed. This is not the case.

Though given enormous weight by a Probate Court, a Will is often actually treated as an assortment of suggestions by the person whose signed the Will. For instance, if you, in your Will appoint your friend, Betty, to be your Personal Representative (sometimes called Executrix or Administratrix) but Betty lives in another state or is a convicted felon. She will not be eligible to be appointed by the Court as the Personal Representative (the “PR”) and a back-up choice will be needed.

Similarly, your PR has very limited authority until your Will is presented to a Judge in a Probate proceeding and the Judge finds that the Will is acceptable (“admitted into probate”) and so is the nominated PR (not a felon and either a close relative or resident of Florida). Only then will the Court issue the document which gives authority to the PR, her “Letters of Administration.”

Once the PR is appointed and empowered, she starts gathering together your assets and making arrangements for finding out to whom you may owe money, for payment of your last expenses and reporting all of that to the probate Court, with proof. Only after all potential creditors of your estate are identified and their claims evaluated and paid (or contested), may your PR start making distribution of the remaining assets according to directions you put in your Will.

What if there are not enough assets in your estate to pay all your debts? (Consider that you died in an automobile accident which was your fault and the other driver was hurt very badly. The other driver gets a judgment against your estate and ends up with most of your assets.)

If there are insufficient funds to make all of the gifts you have in your Will, the specific gifts get paid first. So, the $5,000.00 gift to your church (which you thought would be only a small percentage your estate when you signed the Will) gets paid before the other, less specific gifts. It could be, that you thought you were leaving $500,000.00 to your son and only $5,000.00 to the church. But if your estate is only $6,000.00 when all the debts are paid, then the church gets its $5,000.00 and your son, who was to inherit “everything else” only gets $1,000.00.

Better to leave a specific gift as a percentage with a cap, such as “1% of the value of my estate up to $5,000.00.”

If your estate does not have enough money to pay all of your debts, even your specific gifts, such as shares of stock, bonds or your art collection, will not be given to the people you wanted to receive them. Those types of assets will be used to pay the debts of the estate.

Issue Spotting

Sun, 31 Oct 2021 18:56:25 GMT

There ought to be a law.

Most professional Guardians are conscientious, ethical professionals who take their duties seriously and work diligently to protect those under their care.

Then, there are the others.

You need not have seen the movie “I Care a Lot” on Netflix to be aware that with the duties and obligations of plenary guardianships carry with them the seeds for abuse. Recently, you may have seen in the news that a Florida Professional Guardian, Lynrod Douglas, now stripped of his guardianships, is awaiting sentencing on 15 charges relating to fraud he committed in various guardianships.

The very people he was entrusted to protect, he was financially abusing. His preferred method of carrying out his theft was to use the Certified copies of his Letters of Guardianship, which authorize him to take possession of all of the assets of the people under his care. He would liquidate those assets, such as Certificates of Deposit and simply fail to report that the assets ever existed in his initial (and subsequent) reports which he filed with the Court.

Something as simple as excluding assets allowed the guardian to pocket them.

It seems obvious that reformation and closer monitoring of Guardianships is needed.

I believe a Statewide Registry of all assets which are liquidated or of which possession is taken by someone other than the owner be created. This would include any fiduciary, including Attorneys-in-Fact and, of course, guardians. The registry would be available to be searched by the Court’s auditors to ensure all assets are tracked.

There already are Statewide registries for other matters, such as putative fathers, why not the assets of our most dependent seniors?

Livery of Seisin - This is a History Lesson

Fri, 01 Oct 2021 14:32:32 GMT

One of the most fun days of Law School Real Property class for the Professor is the day when the explanation of Livery of Seisin occurs.

As you probably know, our real estate law is rooted in English Common Law, dating back to 1066 and the Battle of Hastings: the last time England was successfully invaded.

In the middle ages in England, very few people were literate. Mostly, the literate people were priests, royalty and some of the more powerful nobles. However, more people than those few could own - and sell - an interest in land. So, in the time before Deeds were readily available, how would one person transfer title to land to another?

The answer is: Livery of Seisin. The Buyer and the Seller, accompanied by their “seconds” (we would think of them as personal assistants), would go to the village nearest to the property being transferred. In the village, they found two boys, aged 10 or 11 and took them with the Buyer and Seller to the property.

While standing on the land being sold, the Seller would reach down, pick up a clod of dirt or a twig or root from the land and place it in the Buyer’s hands in full view of the children. Then, the two boys would be heartedly whipped by the men.

This was to ensure that the boys would, for the rest of their lives, remember the transaction and, should the need ever arise, be able to testify about the sale taken place. The Buyer and Seller wanted to instill in the boys a very clear, if painful, memory.

Crude, cruel and caustic, it was, nonetheless, effective. The process was still being practiced in the English colonies in America as late as 1650.

Boys all across America are grateful we have deeds, whether they know it or not.

FILIAL RESPONSIBILITY LAWS

Mon, 06 Sep 2021 14:01:56 GMT

A Reversal of Roles?

We all know that a parent has a financial obligation to support his or her minor child: child support. But, did you know that many states in the US can also impose on an adult child a responsiblibilty to support his or her parent? These are called “Filial Responsibility laws” and, before moving to such a state, it is good to understand how these laws work.

The logic of these law goes something like this: before all of the taxpayers should have the burden of providiing for impoverished adults, the law should look first to the children of the person seeking help from the state.

Typically, filial responsiblity laws are enforceable, though little attention is given to them. And then, in 2012, an impoverished woman who had been in full skilled nursing care in Pennsylvania was removed to Greece (the nation of her birth) which had soclialized medicine. The faciity was left with a huge, unpaid bill. The facility sued the adult son and got a judgment against him.

Many states have such laws on their books, though with a wide variety of who may institute the suit. For instance, our neighbor to the north, Georgia, apparently only authorizes counties providing support to the indigent to initiate suit. Delaware, Massachuttes, North Dakota, New Jersey, even Alaska have some form of duty imposed on the adult children of indigent parents. Some states, such as North Carolina, even criminalize failure to support one’s indigent parent if able.

Jurisdiction over the child does become an issue if the child does not reside in the same state as the indigent parent. But what about residents of North Carolina who only maintain a temporary presence in Florida?

Florida, of course, has no such laws. We utilize Medicaid to help the elderly poor in need of medical assistance. Still, it is useful, before moving to another state, to take its filial responsibility laws into consideration.

The Oversight of Guardianships in Florida

Wed, 01 Sep 2021 12:00:05 GMT

With the recent news about Britney Spears and the sensational 2020 film, I Car a Lot, Guardianships (referred to in some jurisdictions as “Conservatorship”) have come into the public awareness and are often viewed with outrage.

Certainly, there are always issues which merit close examination and Guardians and Guardianships are, and should be, subject to especial scrutiny. After all, a Guardian is not appointed unless some disability has been found which strips from the Person Under the Guardianship (the “PUG”) some of their natural authority regarding self-determination.

Children who are PUGs usually are so because they have come into more money than Ez* parents may hold in their automatic status as “natural Guardians.” A parent is a Natural Guardian of Ez child’s person and property up to the amount of $15,000.00. Above $15, 000.00 a Guardian must be appointed. A child may inherit such assets or receive the funds from a settlement of a lawsuit or through some other manner.

An adult may lose Ez rights due to physical or mental or emotional inability as determined by a Court. The standard for removing a person’s rights through the Court is “clear and convincing” evidence. Under that standard the Court must find, without hesitation, that the person is incapacitated in some way.

Once the powers of Guardianship are invoked, the Court becomes the “Super Guardian” in that the Judge is watching over the shoulder of the appointed Guardian. There are reports which must be filed regarding the PUG’s progress toward full rehabilitation - always the aim of Guardianships. There are accountings with supporting documentation which are audited by the Clerk of Court’s own auditor. The PUG maintains Ez ability to request the Judge reinstate Ez rights, wholly or partially.

The safeguards are in place specifically to protect the PUG from the very type of abuses which create Hollywood Headlines and Fodder for Films. Florida does care about its PUGs.

* this article uses the gender neutral third person pronoun of “E”, possessive pronoun of “Ez”

Health Care Surrogate Designation

Tue, 01 Jun 2021 15:38:49 GMT

A common tool for planning for disaster.

No one likes to consider the possibility that she ever may not be able to make informed health care decisions for herself. Yet, there are times when that may be exactly what happens. The inability to make health care decisions may only be temporary, but they also may be permanent.

This is not the same as just making poor decisions for yourself. It is when you actually cannot make a decision.

For instances, you are driving along, obeying the laws of the road and are, nonetheless, involved in an accident which leaves you unconscious and injured. When the paramedics arrive, they do not need anybody’s permission to provide life-saving services. This is an emergency and that is exactly for which these professionals are trained and valued so much in our society.

However, after been taken into life-saving surgery, the physician notices another problem in its infancy. Very easily, the physician could stop this problem from further developing and becoming a much bigger issue in a few weeks. You, obviously, cannot give consent to the physician to deal with it now and, without someone appointed by you to make this decision, the physician may not do anything but the emergency surgery.

Another example is the patient, not involved in an accident this time, has had a series of strokes which renders him incapable of making the decision. A healthcare provider notices a slow growing skin cancer. The preferred treatment is immediate removal of the offensive cancer for it will continue to grow and will, eventually result is significant danger. However, right now, it is not an emergency under any definition.

If you have executed a Health Care Surrogate Designation (a “health power of attorney”) your designated choice can make these decisions for you, following what they believe would be your wishes. So, if the patient is going to recover from the strokes and is getting proper medications, the Surrogate would probably decide the skin cancer should and may be removed.

Merely executing the document is not enough. The Surrogate must be informed of your choice and be given a copy. A copy should be provided to your primary health care provider as well as the hospital where you are most likely to be taken.

The paper, though, should not be considered as a replace for a face-to-face conversation with your Surrogate about your wishes or you primary health care provider about who you have chosen.

The Surrogate will also be authorized, according to the Statutes, to sign for your admission or transfer from one health care center to another.

The Surrogate takes on NO financial responsibility for you though.

Eldercaring Coordination

Sat, 01 May 2021 15:19:57 GMT

Where to turn when no one agrees on what to do.

There have been pilot programs running in eight of Florida’s judicial circuits (our local circuit, the 19 ^th, is not one of them) which were aimed to try to lessen conflict and strife between conflicting family members of a vulnerable adult.

The idea is that in “high conflict” families, such as families whose members cannot agree on what is the best treatment going forward for a loved one, the skills of a neutral person should be employed. “Employed” is the exact term, of course, as there is a fee along with duties including confidentiality, impartiality and integrity.

The goals are to include the vulnerable adult in the process as much as possible, eliminate (or, at least reduce) the hostility which can erupt between otherwise loving family members when the choice of care for their vulnerable adult is not unanimous and, ultimately, allow the vulnerable adult peace at the end of life.

Presently, this Eldercaring Coordination may only be implemented through a court order. Thus, it appears the utility of the program may be limited to Guardianship matters before a Guardian has been appointed, as once a Guardian is appointed, there is little motivation to relinquish the authority granted by the Court to the Guardian.

Critics of Eldercaring Coordination point to possibility of reduction in the authority of the Court-Appointed Guardian, of the requirement of agreement and concomitant issues with enforcement, and the potential abuse limiting the Court’s involvement where the Court’s historic role has been that of Super-Guardian, that is, the supervisor of the Guardian.

The pilot programs were aimed at gathering the information before the drafting of a Statute of implementation, a recognition of the problems of Florida’s initial attempt at a similar style of authority granted under the State’s Parent Coordination laws.

Now, House Bill 441 and Senate Bill 368 are drafted and ready for full Legislative consideration.

The bill, presumedly, will allow a Court who is facing a family in conflict over the proper care for their elderly loved one who cannot make decisions for him or herself, to appoint a “coordinator” who will be empowered to evaluate the situation and provide recommendations to the Court on how best to enrich the elderly person’s life.

So, the coordinator may recommend that the fighting siblings only visit on alternate days; may recommend a one of them to take over the finances with the elderly person’s consent and direction, may even recommend family counseling. Everything would be less restrictive than the alternative: Guardianship.

When dealing with the elderly, it is always best to have options.

Please see Florida Chapter of the Association of Family and Conciliation Courts for more information.

Long Term Care and Medicaid

Thu, 01 Apr 2021 14:49:20 GMT

Look Backs and Bright Lines - What you need to know.

You may already know that when applying for Long Term Care through Florida’s Medicaid Program, there is a “look back” period of 60 months, That is, Medicaid may temporarily disallow benefits otherwise payable for Long Term Care (such as for skilled nursing facilities) if there were disqualifying transfers of assets in the 5 years immediately preceding the claim. Certain transfers are allowed, which is part and parcel of some Medicaid Plans, but out-right gifts are usually disqualifying events.

Until recently, there was no comparable look back period for Veterans’ benefits such as War time Pension, with or without Homebound enhancement or Aid and Attendance enhancement.

That changed October 18, 2018. The VA now has a look back period and it seems the VA is going to keep it. The VA benefits, when received, remain “needs based,” payable monthly and are tax-free. However, the VA will consider all transfers made during the 36 months immediately before the application is submitted.

Also, there is a “bright line” asset limit. Until November, 30, 2021 that asset cap is $130,773.00 and it will be subject to COLAs which are tied to Social Security COLAs. Those assets do not include homestead, furnishings or a car but do include the applicant’s annual income. This bright line replaces the old case-by-case analysis where the VA would be asked to determine if it seemed “fair” for the applicant to receive a pension, though the general rule of thumb was an asset cap of around $50,000.00 to $75,000.00.

Only if the applicant has assets above the $130,773.00 figure (including those gifted or transferred at less than full market value during the 36 month look back period) is there a possible disqualification period.

If the applicant, for example, had $100,000.00 in assets in January and gave $14,000.00 to each of his 5 children in February and submitted his application in March, he would not have a disqualification period for his pension. (The $100,000.00 total assets less the 5 gifts of $14,000 results in a balance of $30,000,00 remaining assets. However, since he was not above the asset cap to begin with, there is no Disqualification.)

By contrast, if another applicant had $200,000.00 in assets and gave comparable gifts, she would be looking at a disqualifying period during which she would not receive a pension. The amount of time she would be disqualified is, currently, the amount over $130,773.00 she gave away divided by the maximum pension awardable at the time of the application. So, $200,000.00 - $130,773.00 = $69,227.00 this is the maximum amount she will be determined to have disqualifyingly transferred. That $69,227.00 is divided by the maximum pension which results in the disqualifying period. That disqualifying period will begin on the first day of month immediately after the month in which the transfers were made.

There are, of course, tools which can be used to allow an applicant to qualify, including regaining possession of the disqualifying transfers and then making the transfers in a manner which is not disqualifying.