Author: Elf
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The Elderly and Patient Dumping
Patient dumping is when hospitals refuse to admit or treat people who are poor or don’t have insurance. This used to be allowed by the law, but it was restricted by the Consolidated Omnibus Budget Reconciliation Act (COBRA) and the Emergency Medical Treatment and Active Labor Act (EMTALA). The problem still exists, and it mostly…
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My Basement Is Filled with Pornography!
This article discusses ABA Model Rule 1.14, which deals with representing clients with mental disabilities. The author shares a real-life call from a friend, Amedra, who is concerned about her husband’s behavior. The article also mentions ethical considerations in representing clients with questionable competency. After Amedra’s husband died, she withdrew from our social group. She…
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Total Return Trusts: Why Did’t We Think of That?
A total return trust is a new way for trustees to invest money for the beneficiaries. In the past, trusts were focused on generating income, which caused conflicts between the beneficiaries who wanted either income or growth. Now, with the Prudent Investor Rule and modern portfolio theory, trustees have more flexibility to invest for the…
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The Medicaid Institutionalized Care Program, the Simple Estate Plan, and the Elective Share: Why the Qualified Special Needs Trust Was Born
In short, the legal firm hired a new attorney who is really good at their job. In 1999, the Florida Legislature made major changes to the law that gives a surviving spouse the right to claim a share of their deceased spouse’s estate. This was to prevent one spouse from being disinherited. However, if one…
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Poor on Paper: An Overview of the Ethics and Morality of Medicaid Planning
Judy and Anne are both retired school teachers who have been diagnosed with Alzheimer’s disease. In the US, only Anne, who spent all her money throughout her life, will be able to receive long-term care at a nursing facility subsidized by Medicaid because she is poor. Judy, who saved her money her whole life, will…
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Claims of Exploitation of the Elderly in the Sale of Financial Products
There’s a new trend of lawsuits against companies selling financial products to older people. These products, called annuities, come in two main types: fixed annuities and variable annuities. Fixed annuities earn a guaranteed interest rate for a certain time, like a CD from a bank. There’s also a type called equity indexed annuities, which is…
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Q & A: Introduction to the State of Florida Public Guardianship Pooled Special Needs Trust
A special needs trust is a legal agreement that helps people with disabilities keep their government benefits while also being able to save money for their needs. It allows them to use the money for things that government benefits don’t cover, without losing their benefits. When the person with the disability passes away, any leftover…
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Make It an Even 10: Courts Rely on More Than the Seven Carpenter Factors to Analyze a Claim for Undue Influence of a Will or Trust
In short, the legal firm and the attorney that worked on the case did a great job getting a big settlement for their client. The client was hurt in a car accident and the legal team fought hard for them. Now, the client can get the help they need. When someone contests a will or…
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Exempt Property Under the Florida Probate Code: 2009 Amendments to F.S. §732.402 and Statutory Exemptions
Legal firm and attorney names have been replaced for privacy. In Florida, there are laws that protect certain property from being taken by creditors after someone dies. The laws say that things like the home, furniture, and some cars can’t be taken by creditors to pay off debts. In 2009, the laws were changed to…
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The Longstanding Concept of Abandonment of the Homestead Did Not Survive the 1985 Amendments to the Florida Constitution
In 1984, Florida voters changed the state constitution to protect more people’s homes. Before the change, only families were protected. After the change, single people and those without dependents were also protected. This meant that it was harder for the government or creditors to take away someone’s home, even if they were single. The Florida…
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Grandparents, Guns, and Guardianship: Incapacity and the Right to Bear Arms
The Bill of Rights lists the most important rights for U.S. citizens. The Second Amendment gives people the right to own guns, but it can still be regulated by the government. Florida also protects this right. When someone is found to be unable to make decisions for themselves, a guardian can be appointed to help…
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Protecting the Elderly from Financial Exploitation: The Dilemma and Solution, Part I
Approximately 5 million Americans have dementia, and about half of people over 85 have Alzheimer’s or another type of dementia. As the population ages, the number of people with diminished capacity is increasing. By 2050, 20% of the US population will be over 65. In 2011, 65% of men and 38% of women in this…
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Protecting the Elderly from Financial Exploitation: The Dilemma and Solution, Part II
If someone with a disability has been taken advantage of financially, they can take legal action against the person who exploited them. But it can be hard to prove that the transfer of money or property was not a gift or payment for services. It’s also difficult for other people to make a claim for…
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Adoption of Daubert in the Amendment to F.S. §90.702 Tightens the Rules for Admissibility of Expert Witness Testimony
About 20 years ago, the U.S. Supreme Court changed the rules for allowing expert testimony in court cases. They said that expert witnesses have to meet certain criteria, like having enough facts and using reliable methods. Most states, including Florida, adopted these rules. This means that expert witnesses need to meet specific requirements in order…
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Twelve Ways of Proving the Negative and Overcoming the Carpenter Presumption of Undue Influence
The Carpenter presumption in Florida law says that if someone who benefits from a will was involved in making the will in certain ways, it’s assumed they unduly influenced the person who made the will. There are seven things that can make this assumption stronger, like being there when the will was made or knowing…
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Is My Judgment in Your Best Interest? How Decisions Are Made in Guardianships and a Suggested Reform
Glenda Martinez and J. Alan Smith met on social media in 2008, got engaged in 2009, and then Smith got into a car accident in 2010 that left him with head trauma. Smith’s daughter filed a petition to appoint a guardian for him, which led to a long legal battle. This case highlighted the conflict…
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New Opportunities to Decant in Florida, Part I: Recent Changes to the Trust Decanting Statute
A revocable trust can be changed or revised, while an irrevocable trust cannot be changed. However, in Florida, there is a process called decanting that allows for the transfer of assets from one trust to another, providing some flexibility for addressing changes in circumstances or laws. Decanting is like pouring wine from one container to…
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New Opportunities to Decant in Florida, Part II: Successful Execution of Trust Decanting
In the first part of the article, we talked about changes to Florida’s trust decanting law in 2018. Now, let’s look at how to actually decant a trust and how it might affect someone with special needs. There are different options for decanting depending on the trustee’s power to distribute money from the trust. If…
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Scientia Sit Potential: Is the Education Department’s Newest Financial Responsibility Reporting Rule a Source of Powerful Knowledge or a Bureaucratic Mess?
The U.S. Department of Education has a rule called the Financial Responsibility Reporting Rule. This rule sets out requirements for colleges and universities to report on their financial health. It could have an impact on Floridaâs public colleges and universities. Title IV of the Higher Education Act allows students to get federal loans for college.…
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Understanding the New Federal Health Care Fraud Legislation
In 1996, the Health Insurance Portability and Accountability Act (HIPAA) was passed and became effective on January 1, 1997. It created new criminal statutes related to health care fraud, making it illegal to defraud health care benefit programs and obtain money or property fraudulently. This new law allows federal prosecutors to charge individuals involved in…
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Following the Crime of Stalking
Stalking is a serious crime that can affect anyone, not just celebrities or wealthy people. There are different types of stalkers, such as those who want to harm their victims and those who believe their victim is in love with them. It’s important to be aware of the different types of stalkers and the harm…
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Deposition Reform: Is the Cure Worse than the Problem?
In 1996, Florida changed the rules for criminal defendants to gather information before trial. These changes might make the entire pretrial process in Florida unconstitutional. Before the changes, defendants could only ask for depositions if they showed the testimony was important and the witness wouldn’t give a statement. In 1972, this rule was changed to…
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Self-Representation and Ineffective Assistance of Counsel: How Trial Judges Can Find Their Way Thro
This article is about how judges deal with requests from defendants who want to represent themselves in court or claim that their court-appointed lawyer was not effective. It can be a confusing issue for judges because the rules are complex and sometimes unclear. One judge tried to help by giving a basic outline to follow,…
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A Loitering and Prowling Primer
The loitering and prowling statute in Florida is difficult to understand because it relies on subjective judgment and vague language. To analyze whether a charge can be prosecuted, we can use a framework with three elements. The first element is when a law enforcement officer sees or hears from a reliable source about potential criminal…