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Florida Parenting Plans

Florida parenting plans govern post-divorce relationships with children by identifying the time each parent will have with their children, as well as each parent’s responsibilities to make decisions for the children.  Parenting plans are either created by the parties in an uncontested divorce or they are created by the court after a divorce trial.

The provisions of Florida parenting plans can vary widely.  The schedule of physical custody for both parents is often determined by work schedules, school calendars and holidays.  The parenting plan should also identify pick-up and drop-off locations and times, the obligation of each parent to transport the children for time-sharing, as well as any right a parent has to have the children in their care and control when the other parent cannot do so (known as back-up care rights).

Parental responsibilities for children can also vary, but are most often determined by examining the role each parent took in making decisions for the children prior to divorce.  For instance, if one parent typically took responsibility for the children’s medical care, that parent might be assigned “ultimate decision-making authority” for medical issues.  Any number of responsibilities can be assigned primarily to one parent or the other, such as academics, medical care, religious events or extracurricular activities.  Although one parent may be assigned ultimate decision-making authority over any area of the children’s lives, the court will typically designate the parenting plan as a “shared” parenting plan.  This means that both parties will retain all parental rights to their children, the right to information about their children and the right to provide input on each decision that affects their children.  Exceptions are made for cases where a parent is unfit to make decisions for the children (e.g. drug addiction or incarceration).

Most jurisdictions have a form shared parenting plan to guide parties in a divorce.  The form will contain check boxes and other standard provisions for a parenting plan and allow the parties or their attorneys to identify the rights of each parent.  An example of such a form can be found in the Okaloosa County Shared Parenting Plan, which doubles as the Walton County Shared Parenting Plan.  The content of form parenting plans will usually vary from county to county in Florida.  Note that, if the form is used, edits to the plan can be difficult or impossible.  Therefore, if you want a plan that is tailored to your particular circumstances, you will need to consult with an experienced Florida family law attorney.

For more information or to schedule a consultation, click HERE.

Florida’s Seniors vs. Crime Project

Florida seniors have an ally to protect them from scams and fraudulent practices.  The Seniors vs. Crime Project was formed in 2001 by the Florida Attorney General’s Office to reduce the victimization of senior citizens who, due to their age, are targeted for specific crimes or scams. The Project provides various educational and crime prevention programs to senior citizen groups, investigates complaints and seeks compensation for seniors where appropriate and establishes investigative agencies with senior volunteers to assist with investigations.

The Project handles thousands of cases for seniors every year. Since 2001, local Project offices have handled more than 39,000 cases, and recovered over $16,000,000 in funds, plus over $12,000,000 in realized gain for Florida seniors. That is a total of $28,000,000 recovered for Florida seniors that would have otherwise been lost without intervention by the Project.

The Seniors vs. Crime Project assists people aged 55 and up who are involved in civil disputes with contractors and other businesses or individuals who may have defrauded or otherwise taken advantage of them financially. There is no charge or fee for Project services. The individual needing assistance must be a Florida citizen, but there is no requirement that the offending party be based in Florida or a Florida citizen.

The services of the Seniors vs. Crime Project must be requested by the victim.  The Project cannot respond to suggestions that a third party has a problem and should be contacted. Victims may be assisted in filing their complaint by family, friends or Power of Attorneys but the victim must sign the Request for Assistance form before assistance can be rendered.  Staff must conduct all business from within the confines of an Office.

Two Options for Assistance

  • The person may only be looking for coaching “assistance” through a situation. Project staff can advise the senior on how to handle a particular matter and not get involved with anyone except the senior. The victim is not required to sign anything to receive this type of assistance. It’s just one senior talking with/advising another senior.
  • A second option is for the Project to assign staff to intervene and represent the complainant in the dispute. In these instances, the Senior Sleuth will thoroughly research the complaint and attempt to mitigate the case with all parties involved. Many people initially only seek advice, but then after some discussion they quickly realize the situation is more complex, so they ask for the Project to assist in resolving the situation. This second option requires written authorization from the victim.

If you are involved in a civil dispute and you request the Seniors vs. Crime Project’s assistance, the Project will do everything possible to reach a settlement without cost to you and without any public or family embarrassment, and the project is successful in a high percentage of cases.

Florida seniors can file a complaint online by clicking HERE and filling out the Project’s online form.  Also, a list of the 44 local offices and phone numbers can be found by clicking HERE.

What is Collaborative Divorce, and is it the Right Path for You?

The collaborative divorce process enables couples who have decided to divorce, separate or end their marriage to work with their lawyers and other family professionals in order to avoid the cost, stress and uncertain outcome of a contested divorce.  It also allows the parties to achieve a settlement that best meets the specific needs of both parties and their children without the immediate threat of litigation. This voluntary process begins when each party signs a contract or agreement binding each other to the process and disqualifying their respective lawyer’s right to represent either one in any future family-related litigation.

Here are the top five reasons any Florida couple considering a divorce should at least consider a collaborative divorce:

Privacy of the Parties

Parties to a collaborative divorce avoid the necessity of disclosing information that is private, potentially embarrassing or harmful from a personal or professional standpoint.  Collaborative divorce discussions involve confidential discussions in private conference rooms.  Also, in a contested divorce, both parties are required to engage in thorough financial disclosures and much of that information will then be a matter of record in the court case.  A collaborative divorce minimizes this intrusion.

Respect for the Family

Court litigation is driven by conflict.  It necessarily involves family v. family, and often requires one parent to prove they are the better parent, or that one spouse should get more property or funds than the other.  Collaborative divorce, by contrast, is a team-based method of conflict resolution where the team focuses on the problem rather than on attacking one another.  The attorneys seek to establish mutual respect for the parties by focusing on solutions instead of costly attack strategies.

Financial Efficiency

The vast majority of cases settle without a trial, and many settle before a petition for dissolution of marriage is even filed.  And even though most divorces settle, the vast majority of the cost is associated with preparing for trial, conducting depositions, legal research, other discovery techniques, as well as preparing for and attending court hearings before a final trial.

In collaborative divorce, the attorneys are prohibited from participating in any contested court proceeding, and they focus all of their energy, time, and resources on settlement, helping the parties reach an agreement.  If a settlement is not reached during the collaborative process, the collaborative attorneys withdraw and the spouses will be forced to retain trial counsel.  Therefore, the attorneys are encouraged to find common ground and resolve the problems, rather than rush to court.

Interdisciplinary Approach

The collaborative process acknowledges that divorce is not only a legal process; it is also an emotional process for all of the parties, and a financial burden.  Collaborative cases therefore involve a neutral facilitator, such as a family counselor, and/or a neutral financial professional.

The neutral facilitators help clients cut through the emotion and focus on what is most important to them (such as their children and long-term financial goals) rather than focus on positions that are a product of anger or confusion.  A financial professional can help the parties find better financial options by, for example, figuring tax advantages associated with one course over another, and help ensure there is financial disclosure to both parties and informed discussions.

Creative Solutions

When a judge makes a ruling, he or she is bound by certain parameters established by the law and rules of evidence.  The judge will often make that decision after hearing a couple of hours of information at trial.  In a collaborative divorce, the parties can agree to virtually anything so long as it does not violate the public policy of Florida.  Therefore, the parties are able to be creative and more flexible in reaching solutions concerning parenting plans, property settlements and support obligations.

Not every case is appropriate for collaborative divorce.  The process is voluntarily and requires the parties to be reasonable in assessing their options to move forward, and an open dialogue.  Not every party to a divorce is willing to cooperate with a collaborative process.  Furthermore, reasonable people can disagree about a proposed settlement proposal.  Therefore, even if the parties are willing and reasonable, it may be that the parties simply disagree about what is best for their children, or disagree about their ultimate rights if the case proceeds to court.  Where this is the case, a collaborative divorce is probably not appropriate.  However, where common ground can be found and there is a mutual respect for the parties rights and responsibilities, there is little or no doubt that a collaborative or uncontested divorce will best serve the parties’ interests in the separation process.

If you would like to discuss your rights in a dissolution case or have any questions about the collaborative divorce process, please contact us at (850) 837-3662.

 

Florida Power of Attorney: What it can do, and what it can’t do.

A Power of Attorney is, generally speaking, the most important document in a comprehensive estate plan.  A Power of Attorney is a legal document that delegates authority from one person to another. The person who makes a Power of Attorney (called the “principal”) grants their agent specified rights to act on the principal’s behalf. The scope of a Power of Attorney can vary widely, as authority is limited to specified acts or authority is broadly bestowed upon the agent to engage in a wide range of action.  Each person’s need for a power of attorney should be assessed under their particular circumstances.

If the Power of Attorney is “durable,” then the principal’s authority to act survives incapacity.  In other words, if the principal is injured or unconscious in a way that prevents them from being able to take action individually, the principal’s authority will remain active even under these conditions.  To make a power of attorney durable, a principal simply needs to make that intention known in the wording of the Power of Attorney.

A durable Power of Attorney is crucial for aging individuals who may need medical treatment or simply unable to physically transact business for themselves.  Without a durable Power of Attorney, and where the principal is incapable of managing their person or property, the only other option is to file a petition for Florida guardianship over the person and/or that person’s property.  The time, cost and stress of a court will drastically exceed the cost of a power of attorney.

Dementia and other conditions of the mind can create problems those who are acting as an agent, and who are attempting to protect the principal’s assets and financial interests.  It is important to remember that a power of attorney, durable or otherwise, does not remove the principal’s right to make decisions for themselves.  Therefore, where a person with Alzheimer’s Disease or like condition takes action to manage their funds or property, the power of attorney does not work as a bar to that action.  Obviously, this can be problematic for individuals who are susceptible to undue influence or who simply decide to engage in transactions that are a direct result of the illness.  Under those conditions, a spouse or loved one may be forced to seek a guardianship over the principal since the power of attorney will not be sufficient to protect the principal’s interests.

If you need more information about a Florida Power of Attorney, contact us today at (850) 837-3662.

Elder Exploitation in Florida

Florida’s Elder Exploitation Law

On October 1, 2014, Florida Statute 825.103, entitled “Exploitation of an elderly person or disabled adult” took effect.  This law makes it easier to prosecute people who prey on elders and the law increases penalties for crimes against elders.

How does the newly revised statute define exploitation of an elderly person or disabled adult?

The revised statute focuses on financial exploitation of elderly and disabled adults. It targets people who use funds, assets, or property of elderly or disabled adults with the intent to deprive them of the use of those funds, assets or property, or to benefit someone other than the elderly person or disabled adult.

It also targets people who breach their fiduciary duties, misappropriate money, and fail to use an elderly person’s or disabled adult’s income and assets for the necessities required for that person’s support and maintenance.  Fiduciary duties can exist where a person, whether related or not to the elderly person, establishes a position of trust with an elderly person and then, using that position, misappropriates funds or property for themselves.

Who, specifically, can be held liable for elder exploitation under Florida Statute 825.103?

Florida Statute 825.103 applies to the following people:

  • Someone who stands in a position of trust with the elderly person or disabled adult
  • Someone who has a business relationship with the elderly person or disabled adult
  • Guardians
  • Trustees
  • Agents under a power of attorney
  • Caregivers

Are there any key presumptions written into the new law?

Yes.  There is now a permissive presumption of exploitation if there is a transfer of money or property over $10,000, by a person age 65 or older to a nonrelative whom the transferor knew for less than 2 years and for which the transferor did not receive the reasonably equivalent financial value in goods or services.

What are some of the increased penalties for elder exploitation?

If the funds, assets, or property involved in the exploitation are valued at $50,000 or more, the offender commits a felony of the first degree.

If the value is $10,000 or more, but less than $50,000, the offender commits a felony of the second degree.

If the value is less than $10,000, the offender commits a felony of the third degree.

What should I do if I know someone who has been exploited?

If you know a victim of elder exploitation, please contact an elder law attorney who can help you with the case and effectively involve law enforcement and the Florida Department of Children and Families.

If you need help with an elder exploitation case, please contact Andrew D. Wheeler at (850) 837-3662.  We are here to help and to protect those who need it the most in their time of need.

Making Decisions in a Florida Divorce

Here’s an extremely practical article about making personal judgments during a divorce. So many clients want their attorney to make both legal and personal decisions for them during a divorce, but an attorney’s advice should never be a substitute for personal values and goals. Be active in your case and ask questions to ensure that the outcome reflects what you value most.

Family law and elder law attorneys follow the direction of their clients when they make legal decisions to protect their clients.  The given direction, however, should always be determined by the client.  The decisions that are made during a divorce are often difficult decisions.  Attorneys are often well-versed in matters of divorce law and procedure.  However, every client’s goals and interests are different, and the legal course of a case should reflect those goals and interests.  Therefore, no matter how knowledgeable or experienced your attorney is, make sure to communicate information and ask questions as you proceed toward a divorce.

Who gets the family pet?

I recently received a call from a gentleman who was preparing for a divorce, and he was concerned about a custody issue. Interestingly, the couple had no children during the marriage. He wanted to understand his rights to custody of a pet, in this case a dog.

In a divorce, the question often arises: Who gets to keep the family pet?   Florida family laws are designed to protect the best interests of children in divorce.  Based upon a myriad of factors, the court will determine what it believes to serve the interests of children due to social, economic, educational, emotional and other factors that will serve the children’s interests, and assign custody accordingly.  Pets are not given to either of the divorcing parties based upon this standard.  Rather, pets continue to be viewed by the law and courts as personal property.  Therefore, the court will award the family pet or pets to one of the parties based upon the equitable distribution standard.

Pets that were acquired by one of the parties prior to the divorce will remain the property of that party.  Pets obtained by the parties during the marriage will be assigned to a party based upon the equitable distribution doctrine, which uses a variety of economic considerations to divide property in a fair and just manner.  More information about the equitable distribution doctrine can be found HERE.

If you need to discuss your rights in a Florida dissolution of marriage action, contact us at any time.