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.

• Under Florida Statutes, Chapter 765, citizens of Florida are allowed to write a Living Will.
• A Living Will form is contained in Florida Statutes, Section 765.303.
• The Living Will often declares that you do not want to be kept alive if you have a terminal condition or are in a persistent vegetative state.
• Florida ’s Living Will statute requires that your treating physician and another consulting physician determine that there is no reasonable medical probability of your recovery.
• If the two doctors agree that you have such a condition, then the Living Will can direct that life prolonging procedures be withheld or withdrawn and you will be allowed to die naturally with only the administration of medicine to alleviate pain.

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?

• Probate is quite simply the process of transferring the property from you to your loved ones after your death.
• A Will is probated by the filing of a Petition for Administration along with the original of your Will and your death certificate. If your Will names an executor, then this person is appointed by the court as your personal representative.
• The executor (called the personal representative in Florida) gathers your assets, pays your bills and distributes the balance to your heirs.
• Once the above process is complete, the estate is closed.

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

• tax returns
• bank statements
• 401-K Plan summary
• loan applications
• credit card statements
• prenuptial agreements
• pay stubs
• W-2’s, 1099’s
• K-1’s
• intangible tax returns and numerous other documents.

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?

• Do not discuss your case with anyone except your attorney or an investigator working for your attorney.
• Do not talk with anyone with law enforcement or the state attorney’s office about your case without your attorney being present to protect your rights.
• Do not call or write a judge, a state attorney or an assistant state attorney assigned to your case or law enforcement officers in your case. Such letters can and will be used against you.
• Do hire a lawyer you trust who will defend you against the charge.

10. YOUR FEDERAL GOVERNMENT IN ACTION: CHILD SUPPORT ENFORCEMENT IS STILL LOW PRIORITY WITH THE FEDERAL GOVERNMENT.

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

• If you cannot pay your taxes, you should file a tax return anyway. The failure to file penalty is 25% of the tax due (5% a month for five months) but the failure to pay penalty is only ½ % per month. Moral? Always file your tax return even if you cannot afford to pay.
• If you decide to file an extension of the time to file your tax return, you must pay 90% of your tax liability with the application for an extension.
• If you cannot pay your taxes, file Form 9465 and request an Installment Agreement. The IRS must accept the Installment Agreement if you pay a $43.00 application fee, you owe less than $10,000.00 in income taxes and you paid your taxes on time for the last five years.
• Tax enforcement has reached an all time low in the U.S. Currently, less than 1% of high income taxpayers are audited and, as a result, it is estimated that two trillion dollars ($2,000,000,000,000) of income is unreported on U.S. tax returns every year. The tax on two trillion dollars is approximately 350 billion dollars.