Special Needs Community News
Did you know that the
Levis JCC in Boca Raton offers many programs and services for children, teens and adults with disabilities?
The agency is a community-based social service agency dedicated to serving individuals and their families in
South Florida.
For more information, please contact
Marianne Jacobs,
Director of Special Needs
at 561-852-3256
or check out the
Levis JCC website. |
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New Open Government Plan Emphasizes VA's Commitment to Transparency
Supporting President Obama's pledge to make transparency and openness the pillars of good government, the Department of Veterans Affairs (VA) has updated its "Open Government Plan," reaffirming VA's commitment to become a leader among federal agencies at applying these principles to achieve its mission of serving veterans. "Open government, at its core, is about ensuring citizens' access to public information and enabling better engagement and advocacy on behalf of our Veterans," said VA Secretary Eric K. Shinseki. "This plan helps us drive transparency, participation and collaboration with our stakeholders - essential to our mission to transform VA into a Veteran-centric, results-oriented, and forward-looking organization." VA is in the midst of a broad transformation, and the initiatives laid out in the Open Government plan offer a roadmap to accelerate that positive change. The plan is available on the Internet at www.va.gov/open. The plan leverages technologies ranging from electronic claims processing to popular social media like Facebook and Twitter in order to enhance services VA provides to Veterans. It also reports on the progress VA has made with its highly successful Innovation Initiative, now in its third phase. "VA is committed to being open and collaborative about the needs the Department faces today," Shinseki said. "Veteran advocacy and greater visibility are essential pillars to successful long-term improvements," Peter Levin, VA chief technology officer, said. "Cultural change, better business processes, and technology initiatives like openly architected, standards-based tools will dramatically improve quality and access to our Nation's heroes and their families, and provide a venue for better collaboration with citizens." |
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We provide The Elder Law Update to our clients and our colleagues who make up a wide range of service providers for seniors and people with disabilities to facilitate the dissemination of helpful and accurate information. We thank you for letting us share our knowledge with you. We welcome your comments and questions. You may send them to Info@ElderLawAssociates.com. |
Case of the Month: Accepting Fiduciary Responsibility and Protecting the Principal
 James is 88 years old and his mental and physical health has been declining steadily over the past several months. As a result, he can no longer manage his financial or personal affairs or independently care for himself. A few of James' so-called "friends" began taking advantage of his declining mental capacity and stealing his money. Fortunately, James had engaged in careful estate planning before his incapacity and executed advance directives in the event of his incapacity. James' nieces, Jane and Anna, are named as his Attorneys-In-Fact, Health Care Surrogates and Successor Trustees under his revocable trust. They hired us to advise them on accepting appointment as their uncle's fiduciaries and the steps they should take to safeguard their uncle's finances while ensuring his personal well-being. We advised and assisted Jane and Anna in taking control of and managing James' finances and commencing in-home health services for James on a 24/7 basis. Our clients were concerned about James' "friends" who continued to interfere with his care and persistently attempted to financially exploit him. Jane and Anna again turned to us for help. We mailed warning letters to the individuals and changed James' telephone number to impede further harassment. Thankfully the attempted exploitation ceased. With our assistance, Jane and Anna have successfully protected James' finances for his own use and put in place appropriate in-home health and care-giving services. . |
Hallmark Alzheimer's Disease Changes Found in Retinas of Humans and Imaged in Live Animals
 Scientists discovered characteristic amyloid plaques in retinas from Alzheimer's disease patients and used a noninvasive optical imaging technique to detect retinal plaques in live laboratory mice, suggesting the possibility of early noninvasive diagnosis. This research, which could lead to earlier diagnosis, intervention, and monitoring of Alzheimer's disease, was conducted by a team of scientists at Cedars-Sinai Medical Center in collaboration with colleagues from the Weizmann Institute of Science in Israel and the University of Southern California.
The nerve cell-damaging plaque that builds up in the brain with Alzheimer's disease also builds up in the retinas of the eyes - and it shows up there earlier, leading to the prospect that noninvasive optical imaging of the eyes could lead to earlier diagnosis, intervention and monitoring of the disease, according to new research. Scientists discovered characteristic amyloid plaques in retinas from deceased Alzheimer's disease patients and used a noninvasive optical imaging technique to detect retinal plaques in live laboratory mice genetically modified to model the human disease. The combined results suggest the possibility that noninvasive retinal imaging may be helpful in early diagnosis of the disease.
Results of this research were published online June 13 in the journal NeuroImage, and related findings will be presented July 13 at the Alzheimer's Association International Conference on Alzheimer's Disease.
Click here to read entire press release. |
| Clients Can Take Steps To Protect Their Real Estate in New York City: Update on New York Real Property Transfers
 Beginning on July 6, 2010 the New York City Department of Finance is implementing a Notice of Recorded Documents Program. Owners of property in Manhattan, Bronx, Brooklyn, Queens or Staten Island can register to receive notification when a deed or mortgage (or related) document has been recorded against their property. This program was designed to alert registered property owners or their designees when documents are recorded without their knowledge so that they can take steps to attempt to limit the harm caused by such recording. An owner's agent (including a child, spouse, or domestic partner of owner if listed as a designee), the managing agent, the property owner's attorney, the lien holder, and the executor or administrator of the estate of the owner or lien holder of the property may also receive notification if registered. To find out more about this program, you can go to the New York City Department of Finance website or the ACRIS website. Click on the Recorded Document Notification link to register. |
3d DCA on When You're Entitled to Statutory Attorney's Fees in Power-of-Attorney Litigation
 Bessard v. Bessard, --- So.3d ----, 2010 WL 1875627 (Fla. 3d DCA May 12, 2010)
Durable powers of attorney (POAs) are an integral part of modern estate planning. The prevalence of POAs means they come up with some frequency in estate-related litigation [click here]. That's what happened in Bessard v. Bessard. What's interesting about this case is it's focus on F.S. 709.08(11), a little-known subclause of Florida's durable POA statute entitling the prevailing party in POA litigation to attorney's fees and costs. Here's what the statute says:
(11) DAMAGES AND COSTS.-- In any judicial action under this section, including, but not limited to, the unreasonable refusal of a third party to allow an attorney in fact to act pursuant to the power, and challenges to the proper exercise of authority by the attorney in fact, the prevailing party is entitled to damages and costs, including reasonable attorney's fees.
In this case a father signed a durable POA granting his son ("Joseph") authority over his property while he underwent treatment for leukemia, tuberculosis and "other medical infirmities." The POA was challenged in court by Joseph's mother and two sisters. Before the court could rule on the merits of the case, Joseph's father died. At that point Joseph sought to have the case dismissed as moot. Joseph also filed a "renunciation" of his powers under the POA.
The trial court granted Joseph's motion to dismiss, but also granted a motion for attorney's fees and costs filed by his mother and sisters as the prevailing parties. On appeal the 3d DCA affirmed the trial court's attorney's fee order as follows:
As to the attorney's fees and costs awarded to the appellees as the prevailing parties, we also affirm. Section 709.08(11), Florida Statutes (2007), provides that the prevailing party in power of attorney litigation is entitled to attorney's fees and costs. The determination of the prevailing party for the purpose of awarding attorney's fees and costs is based on whether the party seeking fees succeeded on any significant issue(s) in the litigation. See Moritz v. Hoyt Enters., Inc., 604 So.2d 807, 810 (Fla.1992) (holding "that the party prevailing on the significant issues in the litigation is the party that should be considered the prevailing party for attorney's fees"); Boxer Max Corp. v. Cane A. Sucre, Inc., 905 So.2d 916, 918 (Fla. 3d DCA 2005) ("The 'prevailing party,' for purposes of attorney's fees, is a party which the trial court determines prevailed on significant issues in the litigation."). Joseph contends that because the trial court never determined whether the signature on the power of attorney was executed by Mr. Bessard, and if executed whether it was done so knowingly and voluntarily, the trial court erred in granting the appellees attorney's fees and costs as the prevailing parties. We disagree. The appellees sought to have the power of attorney declared void, contending that the document was a fraud. When Joseph renunciated the powers granted to him under the power of attorney, agreed that the document be declared null and void, and destroyed the original and all copies, his actions necessarily mooted the complaint and was the functional equivalent of a judgment or verdict in favor of the appellees. See Augustin v. Health Options of S. Fla., Inc., 580 So.2d 314, 315 (Fla. 3d DCA 1991) (finding that when the defendant changed its position in the matter and made full payment as prayed for in the plaintiff's complaint, it necessarily mooted the complaint and was the functional equivalent of a judgment or verdict in favor of the plaintiff entitling the plaintiff to an award of attorney's fees as the prevailing party); see also Smith v. Adler, 596 So.2d 696, 697 (Fla. 4th DCA 1992) (holding that "it is [the] results, not [the] procedure, which govern the determination" of which party prevailed for purposes of awarding attorney's fees).
Lesson learned?
Litigation can be very expensive. Any time your client has a shot at getting the losing side to pay his or her attorney's fees, it's a BIG deal. Just as importantly, the downside risk of F.S. 709.08(11) needs to be understood by all at the outset. This disclosure should be prominent in your retainer agreements. Posted on Florida Probate & Trust Litigation Blog by Juan Antunez. |
Online Legal Documents Company Sued Over Flawed Estate Plan
 LegalZoom, one of the most prominent sellers of do-it-yourself wills and other estate planning documents, is the target of a class action lawsuit in California charging that the company engages in deceptive business practices and is practicing law without a license.
The lawsuit was filed in Los Angeles Superior Court on May 27, 2010, by Katherine Webster, who is the niece of the late Anthony J. Ferrantino and the executor of Mr. Ferrantino's estate. Knowing that he had only a few months to live, Mr. Ferrantino asked Ms. Webster in July 2007 to help him use LegalZoom to execute a will and living trust. Based on LegalZoom's advertising, Ms. Webster says she believed that the documents they created would be legally binding and that if they encountered any problems, the company's customer service department would resolve them. But after the living trust documents were created and signed, Ms. Webster could not transfer any of her uncle's assets into the trust because the financial institutions that held his money refused to accept the LegalZoom documents as valid. Ms. Webster tried to get help from LegalZoom, with no success. The trust was still not funded when Mr. Ferrantino died in November 2007. Ms. Webster was forced to hire an estate planning attorney, who petitioned the court to allow the post-death funding of the trust. The attorney then had to convince the banks to transfer the funds -- a more difficult task following Mr. Ferrantino's death. The attorney also discovered that the will LegalZoom created for Mr. Ferrantino had not been properly witnessed. All this cost Mr. Ferrantino's estate thousands of dollars. The lawsuit claims that Ms. Webster and others like her relied on misleading statements by LegalZoom, including that LegalZoom carefully reviews customer documents, that it guarantees its customers 100 percent satisfaction with its services, that its documents are the same quality as those prepared by an attorney, and that the documents are effective and dependable. "Nowhere in the [company's] manual do defendants explain that using LegalZoom is not the same as using an attorney and that its documents are only 'customized' to the extent that the LegalZoom computer program inputs your name and identifying information, but not tailored to your specific circumstances," the lawsuit states, adding that "the customer service representatives are not lawyers and cannot by law provide legal advice." Ms. Webster is suing not only on her behalf but on behalf of anyone in California who paid LegalZoom for a living trust, will, living will, advance health care directive or power of attorney. The lawsuit estimates this class embraces more than 3,000 individuals. "LegalZoom's business is based on nurturing the false sense of security that people do not need to hire a traditional attorney," says San Francisco attorney Robert Arns, one of the attorneys who filed the lawsuit. "The complaint points out that LegalZoom advertises that you don't need a real attorney because its work is legally binding and reliable. That's misleading. Improperly prepared estate planning documents are a ticking time bomb that can result in improper tax consequences and other items that could cost the estate and heirs huge sums." "LegalZoom preys on people when they're at their most vulnerable, when they are of advanced age or poor health and need a will or a living trust," adds San Francisco elder abuse attorney Kathryn Stebner, Ms. Webster's lead counsel. One of the defendants named in the suit is LegalZoom co-founder Robert Shapiro, who appears on the LegalZoom Web page and TV ads and who is best-known for being one of O.J. Simpsons attorneys. This is not the first suit against LegalZoom. In December 2009, a Missouri man who paid LegalZoom to prepare his will sued the company for engaging in the unauthorized practice of law (Janson v. LegalZoom). The lawsuit is also seeking class action status. LegalZoom is trying to have the case removed from Missouri state court to the United States District Court for the Western District of Missouri. For a copy of Ms. Webster's complaint, click here. For news articles on the case, click here and here. For ElderLawAnswers' White Paper on do-it-yourself estate planning, which includes an analysis of LegalZoom's services, click here. |
| Report Looks at What People Are Paying for Long-Term Care Insurance
 More than a third (35.4 percent) of individuals who recently purchased long-term care insurance are paying less than $1,499 a year for the coverage, according to a new report by the American Association for Long-Term Care Insurance, an industry trade organization.
The organization analyzed data on some 93,500 new long-term care insurance buyers. Age at the time of application plays an important role in determining the cost for long-term care insurance, the study reports. While 41.5 percent of buyers under age 61 pay between $500 and $1,499-per-year, only 20.8 percent of buyers who are ages 61-to-75 pay within this range. About one in 10 of all buyers (9.5 percent) are paying $4,000 or more yearly for their insurance, the report indicates.
"Individuals mistakenly have been led to believe that long-term care insurance costs thousands of dollars," says Jesse Slome, the Association's executive director. "A significant number of individuals today pay between $10 and $20 a week. That's a highly affordable way to protect $150,000 to $250,000 of future care." Slome notes that buyers in their 50s will be more likely to qualify for health discounts.
For more details, including tips for saving money when buying long-term care insurance, click here. |
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Elder Law Associates PA is a boutique elder law firm that practices exclusively in Medicaid and long term care planning including long term care insurance, Medicaid applications, home and community-based Medicaid waiver services, diversion program benefits, nursing home benefits, spousal refusal applications, and Medicaid fair hearings and appeals; nursing home and assisted living facility residents' rights litigation; asset preservation planning with a special focus on planning in light of the Deficit Reduction Act of 2005, including personal service agreements, the purchase of life estates, income producing real estate and spenddown planning; disability planning, including special needs trusts and guardianship; estate planning, including wills and trusts and advance directives; and probate, which encompasses estate and trust administration as well as litigation.
We assist clients in planning for the possibility of disability, incapacity, home health care, assisted living and/or nursing home placement. Our firm enables clients to avoid impoverishment caused by the escalating cost of long term care, to maintain their right to make health care decisions and to avoid unnecessary medical treatment.
We hope you have enjoyed The Elder Law Update. If you have questions about something you read, elder law matters or issues concerning persons with disabilities, we would be delighted to hear from you. We serve as an elder law resource to many professionals and organizations and want to become your elder law resource as well. You can reach us at Info@ElderLawAssociates.com.
Warm regards, |
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Ellen S. Morris, Esq. & Howard S. Krooks, Esq., CELA, CAP
Elder Law Associates PA
phone: (561) 750-3850 / (800) 353-3752
fax: (561) 750-4069
This publication is intended for general information purposes only. It is not intended to constitute individual legal advice to any specific client. |
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