FISHER'S LAW OFFICE NEWSLETTERS
Welcome to the NEWSLETTER of Fisher’s Law Office, providing you with legal information you can use in your everyday life. If you have questions about what you read in this newsletter, please call us today.
1. IS A LIVING WILL IN YOUR FUTURE?
The media is full of stories about people who are in a vegetative state. The families of these victims often argue about whether to disconnect feeding tubes and hydration tubes. How can you avoid such arguments in your life? Answer: Write and sign a Living Will. A Living Will is a witnessed written document in which instructions are given regarding your health care.
2. WHO SHOULD WRITE A LIVING WILL?
All competent adults should have a Living Will. A Living Will can direct what life prolonging procedures you want (or don’t want). Clients often also write a “Health Care Surrogate” which designates another person to make health care decisions.
3. WHAT IS THE PROCEDURE FOR EXERCISING THE POWERS IN A HEALTH CARE SURROGATE?
Florida Statutes call for the following procedure: If two doctors agree that you are unable to make informed health care decisions, then the doctors make a note of this in your medical records. The doctors then ask the person you have designated as your Health Care Surrogate about your medical care. The surrogate can then make decisions for you while you are unable to do so.
4. WHAT’S THE DIFFERENCE BETWEEN A HEALTH CARE SURROGATE, A LIVING WILL AND A LAST WILL AND TESTAMENT?
A Health Care Surrogate simply designates another individual to help make health care decisions for you if you are incapacitated. A Living Will sets forth whether or not you wish life prolonging procedures withheld if your condition is terminal or you are in a persistent vegetative state. These documents apply to you when you are still alive.
A Last Will and Testament only takes effect upon your death. Your Last Will and Testament says who inherits your property and other estate assets when you die.
All Florida citizens should write the above three documents (a Living Will, a Health Care Surrogate and a Last Will and Testament).
5. DO LIVING WILLS, HEALTH CARE SURROGATES AND LAST WILL AND TESTAMENTS HAVE TO BE RECORDED?
The answer is no. While you are alive, these documents are not filed with the court or recorded in a public record. In Florida, your Will is filed with the probate court after your death. A copy of your Living Will and Health Care Surrogate becomes part of your medical records when you are hospitalized.
6. WHAT IS THE PROCESS FOR PROBATING A WILL?
7. WHAT IF YOUR HOMESTEAD IS TITLED IN YOUR NAME WITH YOUR SPOUSE?
Your estate is simple. Upon your death, your spouse owns the homestead. She should record your death certificate in the official records of the county where your homestead is located. There is no need to probate your estate if you only own a homestead at the time of your death.
8. DIVORCE DISCLOSURE RULES CONTINUE TO BECOME MORE BURDENSOME.
Florida’s Family Law Rules are set to change. The new rules will require that all parties swear under oath that their financial disclosure is complete, accurate and in compliance with the rules.
Florida Family Law Rules of Procedure require the production of numerous documents including
Planning tip: There is an exception to the voluminous disclosure rules in the Family Law Rules of Procedure; if your case is “uncontested”, the rules allow you to only file a Financial Affidavit.
Moral to the story? If possible, try to resolve your divorce on an uncontested basis. This will save the cost of onerous financial disclosure.
9. IF YOU ARE CHARGED WITH A CRIME, WHAT ARE SOME THINGS THAT YOU SHOULD DO AND SHOULD NOT DO?
10. YOUR FEDERAL GOVERNMENT IN ACTION: CHILD SUPPORT ENFORCEMENT IS STILL LOW PRIORITY WITH THE FEDERAL GOVERNMENT.Under federal law (the Deadbeat Parents Punishment Act, 18 U.S.C., Section 228), a parent who owes more than $5,000.00 in child support over state lines is subject to prosecution. Over 50% of single parents do not receive child support from the other parent. This number represents tens of millions of custodial parents (often women) who are not receiving child support that is owed them.
The Deadbeat Parents Punishment Act was enacted in 1998. Since there are millions of parents who owe back child support, you would expect that tens of thousands of people would have been prosecuted under the Act. The fact is that over the last seven (7) years, only 50 people in the entire United States have been prosecuted.
Moral: Don’t depend on the government to help you collect child support.
11. SENTENCING IN CRIMINAL CASES HAS BECOME MUCH MORE STRICT IN FLORIDA.
In the case of State v. Montgomery, the Florida Supreme Court ruled that a prior finding by a court that “withholds adjudication” is the equivalent of a finding of guilt for purposes of sentencing in a subsequent criminal matter.
In the Montgomery case, the defendant was convicted of two counts of ticket scalping and resisting arrest. The defendant claimed that these cases should not be counted against him because he had pled no contest and the judge had withheld adjudication.
The Florida Supreme Court ruled that all criminal histories should be considered at the time of sentencing for a new crime even if a defendant pled no contest and a judge withheld adjudication. The result of this case is that many defendants will be asking for trials because they know that pleading “no contest” will not help them should they get in trouble with the law in the future.
12. DON’T BE A VICTIM OF THIS LATEST E-MAIL RIP-OFF: “THE NIGERIAN 419 SCAM”
Fisher’s Law Office has a client who was victimized by a new form of fraud. The new fraud is named after the section of the Nigerian penal code (Section 419) that makes it illegal to steal money in this way. The trick is very simple: An individual claiming to work at a bank will e-mail you from an internet café in Nigeria and tell you that he needs your help. The confidence man claims that there is an account with millions of dollars in it that is yours if you will simply provide “up front expense money” to free up the money and pay for the cost to wire the money to you.
Our client sent money to the Nigerian scam artist only to find out that he was the victim of a crime. This type of e-mail fraud is so pervasive that it has become the second biggest industry behind oil in the country of Nigeria. Other countries in Africa, such as Ghana, are also participating in this illegal activity. There is even a reported case of this rip-off originating at the Central Bank of Nigeria! If you receive an e-mail promising to give you unclaimed millions of dollars in exchange for up front expense money, do not respond to it, it is a lie.
13. HERE ARE SOME TAX TIPS FOR 2005