Sunday, October 15, 2017

UPL - It's deja vu all over again.

As the Director of the Florida Association of Legal Document Preparers ( I make every effort to educate members about the rules surrounding the unauthorized practice of law (UPL). When I notice a member advertising in a way that may mislead the public or trigger a UPL investigation, I contact the member and tell them. Upon joining our association each member is required to acknowledge and agree to our FALDP Pledge which states:
As a Member of the FALDP, I agree:
  • To refrain from offering legal advice. 
  • To direct my customers to information so that they may make informed decisions.
  • To provide responsive customer service.
  • To comply fully with applicable state and federal laws.
  • To ensure clear and truthful advertising.
  • To clearly disclose costs and relevant terms.
  • To represent myself as a legal document preparer, and not as a paralegal.
  • To refer customers to an attorney for legal advice. 
  • To conduct my business ethically.
  • To respect my customers’ privacy.
  • To keep in strict confidence my customers’ affairs, and not share information about a customer without that customer’s permission unless court ordered.
  • To support legislation promoting public access to the legal system. 

We offer an online course called “Introduction to Preparing Florida Legal Documents”, which is primarily a compliance course. The course is meant to educate document preparers about the rules surrounding UPL, and also includes information about doing business as a Florida Legal Document Preparer. Some of the UPL rules are clearly posted on the Florida Bar's website, other rules are scattered about in various court cases. The Intro Course is not required unless the document preparer is relocating to Florida from another state or is starting a document preparation business for the first time. I suggest to some experienced paralegals who submit membership applications that they should take the Intro Course, because working under the supervision of an attorney and working for self-represented litigants are two very different activities.

There are things which are considered UPL that no one could imagine, but there they are. You don't know until you know. For example, Florida legal document preparers are not allowed to advertise “free consultations” as this is something that attorneys offer. Florida legal document preparers are not allowed to draft property deeds. It remains unclear whether document preparers can prepare a property deed using a standard template. Document preparers are likewise prohibited from sending a document to a consumer with the word “draft” in the title. We suppose that “draft” in the Florida Bar's reasoning means creating or authoring; but according to multiple dictionaries I checked, “draft” means a preliminary version of a writing.

It is not clear whether document preparers may assist pro se litigants in efiling their documents. . Other document preparers have been told by the Florida Bar that they may not use the word “legal” anywhere on their website or as part of their email address. Document preparers have also been reprimanded for using the words “professional” and “experienced” on their sites or in their advertising when referring to themselves. In addition, document preparers have been told not to mention that they have law firm experience, are a member (or former member) of NALA, and to refrain from mentioning any academic credentials or achievements. For example, document preparers (according to the Florida Bar) are not allowed to state in their advertising that they have a Paralegal Certificate or a BA in Legal Studies – even though these are true facts. All of these things, according to the Florida Bar, mislead the public. And I suppose, mislead the public into somehow thinking that the document preparer is an attorney, even though document preparers make clear in their advertising that they are not attorneys and do not offer legal advice or representation.

In support of their position, the Florida Bar frequently relies on FLORIDA BAR v. BRUMBAUGH 355 So.2d 1186 (1978) and Sperry v. Florida 373 U.S. 379 (1963). Sperry states:

“... if the giving of such advice and performance of such services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those advised and served requires that the persons giving such advice possess legal skill and a knowledge of the law greater than that possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct constitute the practice of law.”

The above paragraph is circular reasoning at best. And obfuscation at worst. Please notice the dates on the citations – 1963 and 1978. I am certain the world has changed in the past 39 or 54 years.

It is clear in the Florida Bar rules that legal document preparers may not refer to themselves as “paralegals” or “legal assistants”. However, some legal document preparers persist in using those monikers anyway, and that use in itself has sometimes been enough to trigger a UPL investigation. A quick look through craigslist will reveal many legal document preparers blithely referring to themselves as paralegals, while others are investigated for UPL for referring to themselves as paralegals. Including phrases like “legal services”, and “legal clinic” in a business name is an invitation to investigation.

I am aware of legal document preparers who have not only been told to refrain from using the word “legal” in their business name, but also to refrain from using the word “legal” anywhere on their website AND to refrain from using the word “legal” in their email address.

I think most of this is over kill. I think most of this is about lawyers and the Florida Bar protecting their turf. If lawyers and the Florida Bar could only understand that document preparers are not trying to steal their business. We don't want their business, we just want to conduct our business. If lawyers went to three years of law school so that they could prepare legal forms, I don't know what to say to them. Document preparers do not want the responsibility of giving legal advice, we leave the choices up to the consumer. And/ or we suggest that the consumer consult with a lawyer every time they have a legal question. Legal document prepaers are often serving people who could not possibly afford an attorney, and without a document preparer would be unlikely to pursue their rights at all.

In the long run, I believe consumers are harmed by the Florida Bar's insistence on persecuting legal document preparers. Many consumers cannot possibly afford an attorney and will go without any sort of legal assistance, if document preparers are not available. The courts benefit when consumers use the services of legal document preparers, because even though the consumer may be unrepresented, the documents are clear and correct.

The Florida Bar's infringement on the rights of legal document preparers to earn a living; to enter contracts; and to provide services in the marketplace; is collateral damage. The actual damage in these laws is to the consumer. It is the consumer who would seek assistance in asserting his rights through the court system who suffers. The court system, fraught with jargon, and complicated procedure; can bring dire consequences to people who can find no help at all. 

Tuesday, September 26, 2017

FALDP will be at the Small Business Expo - October 26, 2017 - Booth #327 - UPDATE

We're excited to announce that FALDP will be an exhibitor and hold a workshop at the upcoming Tampa Small Business Expo on October 26. We'll offering giveaways and drawings to attendees who are interested in offering document preparation services as an add-on to an exiting business, or as a start up.

Stop by Booth #327 to learn more about what we offer, and all the ways we are helping consumers and entrepreneurs. CLICK HERE to RSVP and register for free.

We'll be offering a workshop focused on the legal document preparation industry: 
"Create Income Preparing Legal Forms"  Workshop Room 8 @ 9:30. 

Our world is forms driven. Preparing forms can be a stand alone business or a second or even third income stream for an existing business. Many consumers lack the time or inclination to first locate the correct form and then struggle to make sure it is properly filled out and provided to the correct party. This workshop is presented by the Florida Association of Legal Document Preparers which is a statewide trade association of nonlawyer document preparers. Our members not only prepare legal documents such as for family law, bankruptcy, and immigration; but also provide translation, mediation, and notary services. We are not attorneys and do not provide legal advice or representation, rather we empower consumers to help themselves.

The day-long conference and trade show, which travels throughout the country’s top cities for small business, brings together industry thought leaders and experts in a hands-on environment that features more than 20+ free business critical workshops and programs along with 100+ interactive booths, demos and brand exhibits. Start-ups and business owners can take advantage of free admission and educational workshops covering online/social media marketing, employee benefit plans, credit and financing, strategies for increasing revenue and team productivity, mentoring, cloud technologies, retirement plans, and more.

FALDP will be holding three drawings to giveaway our products. Besides the items shown in the photo above, we are also giving away online courses and FALDP membership. Visit the Special Events page on our site to learn more.

The Tampa Small Business Expo expects to have more than 3,000+ registered attendees from across the Tampa metropolitan area shopping for business resources, developing business leads, gaining new insights, and networking with peers.

“Experts tell us that more and more Tampa residents are wanting to take the entrepreneurial leap,” says event founder Zachary Lezberg, “but that the biggest barrier to starting a new business is that people don’t think they can” he adds, “With the program we’ve put together, we believe our attendees will feel more empowered by the end of the day.”

This year’s Titanium Sponsor: Powerteam International will be joined by Platinum Sponsor: Emerge Anywhere - Office Space Services. TAMPA SMALL BUSINESS EXPO will take place at the Tampa Convention Center | West Hall – 333 S Franklin Street, Tampa, FL 33602 from 9:00 am until 5:00pm.

FALDP, LLC will be located at Exhibitor Booth #327.
LEARN MORE about our Tampa Business Expo giveaways and show specials by visiting our site, or call 800-515-0496.

Sunday, August 27, 2017

I am for justice.

I am a Florida legal document preparer and the statewide Director of the Florida Association of Legal Document Preparers (FALDP). I am not a paralegal. By definition, paralegals work directly under the supervision of an attorney, I do not. I work directly for consumers who are representing themselves in a court case. Self-represented consumers are called pro se litigants. I call these consumers customers. I don't call them clients, mostly because that's what attorneys call their customers, and I don't want to be anything like or run my business anything like an attorney.

In fact, I go to great pains to not operate like an attorney. Most importantly, I don't give legal advice. My customers always know that I'm not an attorney. In fact, they cannot avoid knowing that I'm not an attorney. My business is virtual, everything I do is over the phone and over the internet. I never meet with my customers face to face. In the first telephone conversation I have with any new or potential customer, I say: As you probably know, I'm not an attorney, I'm a Florida legal document preparer. And what that means is I can prepare documents, explain procedure, and give you legal information, but I cannot provide advice or representation. Frequently I have to interrupt my new or potential customer to get those words said.

The potential customer called with a question. They almost always begin the conversation with – I have a question. After I say my thirty second speech, I then say – and I'll answer your question as I can. They they ask the question, which frequently begins with – how much would you charge – for whatever it is that they need.

I listen to what they need, may ask a few questions for clarity, and then tell them what I charge. This is not called a consultation and is especially not called a “free consultation” although that is exactly what it is. It is called a conversation. Document preparers are specifically prohibited from offering free consultations according to Florida case law which found that a “free consultation” is something that an attorney offers and does, and document preparers are not allowed to offer or do free consultations because a free consultation amounts to the unauthorized practice of law (UPL). Go figure. So its called a conversation.

After the conversation, I request the consumer's email address and tell them, my next step is to send them an email which will include a summary of this conversation, all of my contact information, a price quote, and a link to my website. I tell them they can submit payment on my site through paypal.

The email I send always says the same thing, except for the exact type of service they requested varies according to their request. For example, if the consumer wants a divorce and has children, my email says.

Hi ….,
I'm following up our phone conversation for document preparation for a Petition for Dissolution of Marriage with Children. As we discussed, my fee is $255 for the petition documents; and an additional $75 for the Parenting Plan. Please visit my site to learn more about my services – – and you can submit payment on my site with a credit or debit card through paypal whenever you're ready.

Thank you for the opportunity to assist you.

Best Regards,

In the signature of my email I include these words: I am not an attorney and do not provide legal advice. When a customer goes to my site he sees those words again. Before the customer submits payment he is required to click a box to acknowledge that he has read my disclaimer, disclosure, and site policies. Without clicking the box, he cannot arrive at the payment page. The disclaimer, disclosure and site policies are here -

After the customer pays, I intake the information I need to prepare their documents. If the customer wants divorce documents prepared or any other type of family law documents prepared, I set up a phone appointment so that I can intake their information during a phone call. Forms for family law are on the Florida Supreme Court's site – – and the rule is that when a document preparer is using Florida Supreme Court approved forms, she can intake the information verbally. So that's what I do. Family law forms are nearly the only Florida Supreme Court approved forms in existence. Even forms for federal filings such as bankruptcy and immigration are not considered Florida Supreme Court approved forms.

I don't prepare forms for bankruptcy or immigration. I do, however, prepare other types of forms which are not Florida Supreme Court approved. I prepare documents for Early Termination of Probation, a few Expunge & Seal, Answers for civil court, and Summary Administration of Estate. For all of these I intake the customer's information in writing. Exactly how that works is the subject of another article which will be coming soon.

The reason I'm writing this series of articles is that I want to make it clear to consumers, potential customers, attorneys, and the Florida Bar exactly what I do. I also want everyone to understand why I do what I do. I am for the little guy. I am for the downtrodden. I am for the consumer who needs documents and hiring an attorney is out of the question. I am for justice. 

Monday, August 21, 2017

Pro Se Legal Access Survey II

Following are comments from FALDP's Legal Access Survey II. The survey is ongoing and can be found here - Pro Se Legal Access Survey II. Comments are in answer to the question:

What advice would you give a friend who was considering proceeding pro se?

The comments below are repeated verbatim, except for correction of spelling and grammar, and removing personal information.

Read many pro-se websites and read extensively the case law covering the issue that you are litigating.
In a divorce, if you start Pro se, end pro se. Hiring an attorney, at least for me was an utter night mare. my attorney took my money, filed a motion for attorney fees from ex husband won the award, sat on my case for a year and then Withdrew weeks from the Final Judgment of Equitable Distribution. I hired the attorney to issue subpoenas, review financials and present, no, finish my divorce. He did none of what I asked and now I cannot even afford to hire someone to help with documents. IF I had just stayed my own course and not lost faith in my abilities, I would already be finished with this never ending divorce.
The advice I would give a friend is to be prepared to challenge yourself in believing that what you are about to indulge in is what you are ready to endure. Because it is not a piece of cake and it requires a lot of perseverance.
Hard work but very rewarding
Find a lawyer
Read everything. Fill the forms out, walk away, read again, and make corrections if necessary. Also get sample cases similar to your own, contact the Court clerk and request clarification. Be calm and stand strong
Do not. Lawyers lie, in ways that you won't know until it is too late. Everything they say or write has double meaning, and the court will see it in ways you never expected.
Become a lawyer.
Prepare for months of reading & research
Fully read what plaintiff sends you
Get info before case goes to court.
Be diligent
Read carefully the instructions of every form found on line. Always ask for the next step when filing a doc. Act immediately, do not wait for the grace period. Check on line the case and ask the Clerk of Courts if there's something you do not understand.
I am accomplishing more pre se than with attorney. I paid way too much for nothing. I am in SC now but this case is in Florida. It is frustrating and time consuming to try to follow the rule but the e-file portal and people are great. Wish there was a consultant attorney to explain confusion only. Like when I filed a motion to dismiss am I supposed to do anything else or wait. Some answers I am not able to find online.
Do more research before you proceed.
I could not get legal assistance since my soon to be ex husband had a consultation with them but not using them so there is a conflict of interest. I cannot find a lawyer to work for free. Self help is not available to me because husband has an attorney.
Depends on the circumstances.
Find all the forms you will/may need throughout the process, download, print, and READ the instructions for each form thoroughly. Understand the process for your particular situation. Be timely with your filings and if you are going to be late, notify the opposing parties attorney at a minimum; document all communication (recommend written communication at all times). Research, research, research! Stick to the facts! Chances are the lawyer on the opposing side has been fed a bunch of lies. In my opinion, they appear to believe anything they're told when they are paid a $5K retainer and charge $250/hr. Do not let the lawyer from the Petitioner's/Respondents side bully you. THEY will attempt to make you look ignorant. They will TRY to be dominant and may even threaten you (and WHEN they do threaten you, file a complaint with the Florida Bar) As a Pro Se litigant, you have rights too; review and understand them. Expect the unexpected stay COOL and CONFIDENT under fire. Do not expect Judges to be "black and white" when it comes to interpreting the Florida Statutes.
Do not trust opposing attorney
It can be very stressful.
Find out all angles before proceeding as things aren't always what they appear to be. You don't have it "knocked" just because the law appears to be on your side. Am hoping I'm wrong when the thought "justice is only for the rich" crosses my mind. Am seeking relief in a probate litigation matter.
Stick to the facts and not personal or emotional feelings you have on the subject. sometimes people don't realize there is a difference
Do your research.
Do lots of research and make sure you have the proper forms and they are filled out correctly.
Just keep swimming.
Study, study, study, then review, review, review! Know your Constitution inside out. Understand that no other law (international, Admiralty & Maritime, UCC/contract, Equity, Trust, Civil, Criminal, State/Constitutions/statutes/codes/ordinances/regulations/policies/rules, +) supersede it. Use GPO/FDsys Library of Congress, official reporters, Law schools, verify everything, don't take a lawyers advice, the judicial system is corrupt, everything is about money, truth and honor are dead, legal is not the same as lawful, common law pisses off judges, prosecutors, clerks, attorneys. Stay in honor, be courteous, get everything on record, claim nothing, answer questions with questions ....
Do it!
If you can afford an attorney get one. If not become diligent on looking up FL statues, laws,motions,properly filing motions,what just arguments you have and etc
Research and use as many resources as possible
Find out if you qualify for free legal aid. If you are not eligible, exhaust every effort in gathering the money for an attorney. Especially if the case involves children or custody.

Sunday, August 13, 2017

Calling people of good conscience.

The white supremacist march, rally, and agenda is unconscionable. They admit to being Nazis. They carry torches and the Nazi symbols and plainly identify as Nazis, white supremacists. Each of us with good conscience must call them out for what they are. We cannot deny their right to free speech, but each of us with good conscience must raise our voices against them. The white supremacists, radical right, Nazis, alt-right, or called by any other name seek only to destroy more of what is good about America.

Our fathers, my father, fought in World War II to defeat Nazi Germany. The Trump regime has invited the worst of the worst to come out of the woodwork, to skitter out from the dark places where they used to hide, and now openly spout their hatred. Do not doubt that their hate is for America. Their hate is a threat to all of us with good conscience. Their hate is damaging America. Trump asked for this when he brought an edge of hate and violence into political discourse during his campaign. Trump asked for this when he repeatedly failed to disavow the white supremacists claims that they are doing Trump's work.

Be clear that the white supremacists, our modern day Nazis, are the lunatic fringe of society. A fraction of 1% of white Americans support the idea of a white only country. Most Americans, white, black, Asian, and Hispanic support the idea that America is a melting pot of people from different cultures who have come together to build a country that is uniquely our own. Most Americans embrace the diversity and are proud of our country and proud that America stands for freedom and liberty for all.

The purported reason for the clash between white supremacists and mainstream America was the city of Charlottesville's decision to remove a statue of Confederate General Robert E. Lee from the town's park. The white supremacists were supposedly protesting the removal of that statue. Their protest included torch carrying, Nazi swastikas, and running over and killing an anti-racist protester. Nineteen others were wounded. The right wing lunatic fringe likes to pretend that they are not the violent oncs. Obviously not so. The driver of the car rammed other cars that were then pushed into the crowd. That driver, now in custody, and facing a murder charge, backed up his car at a high speed and left the scene.

Black people have reason to be upset that a symbol of slavery, Robert E. Lee, stood in the town square. I wonder how white people would react if say, a statue of Bobby Seale or Huey Newton were put in its place.

To black people and all people of color - the lunatic white supremacist fringe does not represent all white people. Not by a long shot. I am a southern woman. I have lived in the south most of my life. I was raised to know that the racist mind-set is the mind-set of poor white trash.

To white people, including white conservatives and republicans - we are better than this. If you believe as I do that our current administration has promoted this violence and this hate, speak up. Speak in defense of others. Use your white privilege to help others who were not born with that accidental privilege of the lily white. Know that you have had advantages and have not had to deal with the daily struggles that people of color encounter regularly.

And, if you're still convinced that Black Lives Matter is an affront to whites everywhere. Get over it. Black lives do matter, they have always mattered. The historic and recent spate of law enforcement killing unarmed black women and men is indefensible. It is undeniable that black people and people of color are killed by law enforcement much more frequently than whites. If you're law enforcement, and in a position to make things better, do it now before its too late.

The last thing America needs is an all out race war. Don't doubt that the current regime wants a war one way or the other, so that he can swoop in and be the only one to bring order. Police state, lock down, genetic cleansing, mass deportations, what else? These are the events that happened in Nazi Germany, and they happened because the good Germans didn't stand up. Stand up - all with good conscience, stand up before its too late.

Monday, August 7, 2017

Laws that went into effect July 1, 2017

Just in case you thought our Florida legislature can never get anything done ... here is a list of laws passed that went into effect on July 1.

Educational Options – HB 0015
Prohibiting a student who is enrolled in the Florida School for the Deaf and the Blind from being eligible for the Gardiner Scholarship Program; revising student eligibility criteria for the Florida Tax Credit Scholarship Program; authorizing a child of a parent who is a member of the United States Armed Forces to apply for a scholarship at any time, etc.

Civil Remedies for Terrorism – HB 0065
Creates cause of action relating to terrorism; specifies measure of damages; prohibits claims by specified individuals; provides for attorney fees & court costs; provides construction.

Renewable Energy Source Devices – SB 0090
Revising and defining terms related to renewable energy source devices; prohibiting consideration of the just value of property attributable to a renewable energy source device in determining the assessed value of residential real property; exempting a specified percentage of the assessed value of certain renewable energy source devices from ad valorem taxation; exempting a specified percentage of the assessed value of renewable energy source devices affixed to property owned or leased by the United States Department of Defense for the military from ad valorem taxation, etc.

Certificates of Nonviable Birth – HB 0101
Creates “Grieving Families Act”; authorizes State Registrar of Vital Statistics Office of DOH to electronically receive certificate of nonviable birth; requires DOH to issue certificate of nonviable birth upon request of specified parent; authorizes rulemaking by DOH.

Public Records/Nonviable Birth Records – HB 0103
Provides that certain information included in nonviable birth records is confidential & exempt from public records requirements; provides for future legislative review & repeal of exemption; provides statement of public necessity.

Vendors Licensed Under the Beverage Law – SB 0106
Revising applicability to specify circumstances under which persons under the age of 18 years who are employed in specified businesses are excluded from certain employment prohibitions; providing that failure to comply with a restriction on monthly revenue from the sale of alcoholic beverages is unlawful if a minor is employed during a month that the restriction is exceeded; limiting the package store restrictions to vendors located within a certain distance of a school, etc.

Pub. Rec./Identity of Witness to a Murder – HB 0111
Provides that personal identifying information of witness to murder remains confidential & exempt for specified period; authorizes specified entities & parties to receive information; provides for future legislative review & repeal of exemption.

Criminal History Records – SB 0118
Prohibiting a person or entity engaged in publishing or disseminating arrest booking photographs from soliciting or accepting a fee or other payment to remove a photograph; authorizing a person whose arrest booking photograph is published to request in writing that it be removed; requiring the Criminal Justice Information Program to administratively seal the criminal history records of an adult or a minor upon notification by the clerk of the court under specified circumstances, etc. Effective Date: Except as otherwise expressly provided in this act and except for this section, which shall take effect upon this act becoming a law, this act shall take effect July 1, 2018.

Proceedings Involving Minors or Certain Other Persons – HB 0151
Provides that judges may allow use of certain therapy animals or facility dogs in proceedings involving abuse, abandonment, or neglect; allows such animals to be used when taking testimony of certain other persons.

Certificates of Title for Motor Vehicles – SB 0164
Prohibiting the Department of Highway Safety and Motor Vehicles and tax collector from charging any fee or service charge, except for the expedited title fee, if applicable, for a certificate of title issued for a motor vehicle solely to remove a deceased coowner from a title registered in the name of two persons if the other co-owner is the surviving spouse, etc.

Fictitious Name Registration – HB 0169
Revises information required to register fictitious name; revises requirements for change in registration; revises provisions concerning expiration of registration; prohibits renewal of registration if registered fictitious name is prohibited by specified provisions; specifies additional forms of business organization that may not be required to register; revises provisions concerning penalties for violations; specifies additional terms that may not be included in fictitious name.

Natural Hazards – HB 0181
Creates interagency workgroup to share information, coordinate efforts, & collaborate on initiatives relating to natural hazards; requires certain
agencies to designate liaisons to the workgroup; requires the Division of Emergency Management to prepare annual report; requires report to be posted on agency websites & submitted to the Governor & Legislature; providing an appropriation.

State Park Fees – HB 0185
Provides certain discounts on state park fees to specified foster & adoptive families; requires Division of Recreation & Parks within DEP & DCF to establish certain standards & procedures & to hold certain events.

Medical Faculty & Medical Assistant Certification HB 0209
Requires DOH to process certain applications for temporary certificate using personal identification number; revises circumstances under which visiting physician may be issued temporary certificate; revises list of schools at which certain faculty members are eligible to receive medical faculty certificate; authorizes certificateholder to practice at certain hospitals; authorizes certain medical directors to request provision of care & treatment; provides requirement for certified medical assistant credential; revises qualifications for employment as medical assistant in certain testing center.

Cosmetic Product Registration – HB 0211
Deletes requirement that person who manufactures, packages, repackages, labels, or relabels cosmetic in this state register such cosmetic biennially with DBPR; revises annual fee for cosmetic manufacturing permit.

Transportation Network Companies – HB 0221
Providing that a transportation network company (TNC) driver is not required to register certain vehicles as commercial motor vehicles or for-hire vehicles; requiring a TNC to designate and maintain an agent for service of process in this state; providing fare requirements; providing that TNC drivers are independent contractors if specified conditions are met; requiring a TNC to implement a zero-tolerance policy for drug or alcohol use, subject to certain requirements; requiring a TNC to conduct a certain background check for a TNC driver after a specified period; requiring TNC drivers to comply with the nondiscrimination policy and certain applicable laws regarding nondiscrimination and accommodation of service animals, etc.

Public Records/Protective Injunction Petitions – HB 0239
Provides exemption from public records requirements for petitions, & contents thereof, for certain protective injunctions that are dismissed in certain circumstances; provides statement of public necessity.

Wills and Trusts – HB 0277
Creating the “Florida Electronic Wills Act”; specifying requirements that must be satisfied in the execution of electronic wills; authorizing an electronic will of a nonresident of this state which is properly executed in this or another state to be offered for and admitted to probate in this state; specifying requirements for service as a qualified custodian, etc.

Middle Grades – HB 0293
Requires that DOE contract to conduct comprehensive study of states with nationally recognized high-performing middle schools in reading & mathematics; requires report to Governor, SBE & Legislature by specified time; provides for expiration; deletes requirements related to career & education planning course for middle grades promotion; provides appropriation.

Central Florida Expressway Authority – HB 0299
Increases membership of Central Florida Expressway Authority to include member appointed by chair of Brevard County Commission; Authorizes Governor to appoint citizen member from Brevard County; adds area within geographical boundary of Brevard County to area to be served by authority; conforms provisions.

Law Enforcement Body Cameras – HB 0305
Requires law enforcement agencies to establish policies & procedures authorizing officer’s review of camera footage of incident before writing report or providing statement; provides exception.

Florida Life and Health Insurance Guaranty Association – HB 0307
Revising applicability of the Florida Life and Health Insurance Guaranty Association Act as to specified annuity contracts; revising the association’s maximum aggregate liability for the contractual obligations of an insolvent insurer with respect to one life; specifying the association’s maximum liability as to certain health insurance policies beginning on a specified date, etc
Child Protection – HB 0329
Prohibits time-sharing plan from requiring or being interpreted to require visitation at recovery residence between specified hours; provides exceptions; requires court to consider certain factors to determine best interest of child; prohibits court from ordering visitation under specified circumstances; authorizes certified recovery residence to allow minor child to visit, excluding visits during specified hours; provides exceptions; prohibits certified recovery residence from allowing visitation under specified circumstances.

Resource Recovery and Management – HB 0335
Defining the terms “gasification,” “post-use polymer,” “pyrolysis,” and “pyrolysis facility” and revising definitions; providing that certain pyrolysis facilities are exempt from certain resource recovery regulations;requiring certain handlers of post-use polymers to certify to the Department of Environmental Protection; authorizing recovered materials dealers to use pyrolysis facilities for recovered materials or post-use polymers processing, etc.

Motor Vehicle Service Agreement Companies – HB 0339
Revises qualifications for motor vehicle service agreement company to obtain & maintain license; allows certain entities to cancel service agreements in certain circumstances; provides such cancellations are only valid if authorized.

Self-Service Storage Facilities – HB 0357
Provides that lien sale may be conducted on certain websites; provides that facility or unit owner is not required to hold license to post property for online sale; limits maximum value of certain property; provides options for disposition of motor vehicles or watercraft claimed to be subject to lien; authorizes facility or unit owner to charge tenant certain fees under certain conditions

Bail Bonds – HB 0361
Revises legislative intent concerning obligations of bail bond agent; revises commitments & obligations of bail bond agent; revises circumstances that constitute breach by bail bond agent & under which surety bond deposited as bail must be forfeited; revises circumstances that require forfeiture to be discharged; specifies that certain provisions concerning cancellation of bond do not apply if bond is forfeited within specified period; provides that original appearance bond does not guarantee placement in court-ordered program.

Bail Bonds – SB 0368
Revises legislative intent concerning obligations of bail bond agent; revises commitments & obligations of bail bond agent; revises circumstances that constitute breach by bail bond agent & under which surety bond deposited as bail must be forfeited; revises circumstances that require forfeiture to be discharged; specifies that certain provisions concerning cancellation of bond do not apply if bond is forfeited within specified period; provides that original appearance bond does not guarantee placement in court-ordered program.

Florida Wing of the Civil Air Patrol – SB 0370
Requiring certain employers to provide Civil Air Patrol leave; prohibiting specified public and private employers from discharging, reprimanding, or penalizing a Civil Air Patrol member because of his or her absence by reason of taking Civil Air Patrol leave, etc.

Assistive Technology Devices – HB 0371
Revises provisions relating to accessibility & use of assistive technology devices by persons with disabilities.

Limitations on Actions other than for the Recovery of Real Property – HB 0377
Specifies date of completion for specified contracts for limitation of action purposes.

Underground Facilities – HB 0379
Revises information to be submitted to Legislature by board of directors of Sunshine State One-Call of Florida, Inc.; requires excavators to call 911 under specified circumstances; requires member operators to file report with free-access notification system; provides reporting requirements; specifies distribution of civil penalties issued by state law enforcement officers.

Student Loan Debt – SB 0396
Defining the term “student loans”; requiring post-secondary institutions to annually provide certain students with specified information regarding their student loans; providing that an institution does not incur any liability for providing such information, etc.

Estoppel Certificates – SB 0398
Revising requirements relating to the issuance of an estoppel certificate to specified persons; requiring a condominium, cooperative, or
homeowners’ association to designate a street or e-mail address on its website for estoppel certificate requests; prohibiting an association from charging a preparation and delivery fee or making certain
claims if it fails to deliver an estoppel certificate within certain timeframes, etc.

Guardianship – HB 0399
Requires each examining committee member in proceeding to determine incapacity to file report with clerk of court within specified time; requires clerk to serve each report on specified persons within specified time; revises time before hearing on petition within which specified parties must be served; authorizes petitioner & alleged incapacitated person to move for continuance if service is not timely & to object to introduction of all or any part of report; specifies that admissibility of report is governed by rules of evidence; requires that adjudicatory hearing be conducted within specified time; changes time that guardian has to file required annual guardianship plan; eliminates requirement that
court must first find that ward’s spouse has consented to dissolution of marriage before authorizing guardian to exercise specified rights; removes cap on funeral expenses.

Notaries Public – HB 0401
Expands list of forms of identification which notary public may rely on in notarizing signature on document to include veteran health ID card.

Public Housing Authority Insurance – HB 0421
Authorizes certain entities to join self-insurance funds participated in by public housing authorities for specified purpose; authorizes reinsurance companies to issue coverage directly to certain entities; requires contracts issued to such entities to receive same tax treatment as contracts issued to insurance companies.

Religious Expression in Public Schools – SB 0436
Citing this act as the “Florida Student and School Personnel Religious Liberties Act”; prohibiting a school district from discriminating against students, parents, or school personnel on the basis of religious viewpoints or expression; prohibiting penalty or reward for a student’s religious expression in coursework, artwork, or other specified assignments; requiring a school district to comply with the federal requirements in Title VII of the Civil Rights Act of 1964, etc.

Court Records – HB 0441
Provides exemption from liability for release of certain information by clerk of court.

Firefighters – HB 0465
Provides for designation as Lifetime Firefighter; provides requirements for such designation; provides responsibilities of Division of State Fire Marshal within DFS; authorizes division to investigate convictions or disqualifying events concerning Lifetime Firefighters; authorizes division to adopt rules.

Department of Agriculture and Consumer Services – HB 0467
Revises & repeals provisions relating to agriculture education & promotion facilities, surveyors & mappers, pesticides & devices, private investigative agencies, health studios, telephone solicitation, taximeters & transportation measurement systems, livestock, marketing & inspection of agricultural commodities, Florida Building Code & Florida Forest Service facilities, & aquaculture & agriculture dealers & producers; revises requirements for obtaining & reducing fees for concealed weapon or firearm license.

Hospice Care – SB 0474
Requiring the Department of Elderly Affairs, in conjunction with the Agency for Health Care Administration, to adopt national hospice outcome measures and survey data by a specified date and to make such measures available to the public; authorizing certain hospice personnel to assist in the disposal of certain prescribed controlled substances; requiring a hospice to maintain an up-to-date interdisciplinary record of care, etc.

Enhanced Safety for School Crossings – HB 0493
Requires DOT to evaluate viability & cost of uniform system of high-visibility markings & signage for designation of safe school crossings, subject to certain requirements; authorizes DOT to consider implementation of new technology/innovations that enhance pedestrian & crosswalk visibility; requires report.

Florida Statutes – SB 0500, 0501, 0504, 0506
Adopting the Florida Statutes 2017 and designating the portions thereof that are to constitute the official law of the state, etc.
Deleting provisions that have expired, have become obsolete, have had their effect, have served their purpose, or have been impliedly repealed or superseded, etc.
Deleting provisions which have become inoperative by non-current repeal or expiration and, pursuant to s. 11.242(5)(b) and (i), F.S., may be omitted from the 2017 Florida Statutes only through a reviser’s bill duly enacted by the Legislature, etc.
Amending and repealing provisions to conform to the directive of the Legislature in section 9 of chapter 2012-116, Laws of Florida, codified as section 11.242(5)(j), Florida Statutes, to prepare a reviser’s bill to omit all statutes and laws, or parts thereof, which grant duplicative, redundant, or unused rulemaking authority, etc.

Florida Comprehensive Drug Abuse Prevention and Control Act – HB 0505
Specifies that ioflupane I 123 is not included in Schedule II; provides that reference to ch. 893, F.S., or to any section or portion thereof, includes all subsequent amendments.

Controlled Substance Prescribing – HB 0557
Revising requirements for reporting the dispensing of controlled substances; limiting an exception to reporting requirements for certain facilities that dispense controlled substances; authorizing certain employees of the United States Department of Veterans Affairs access to certain information in the prescription drug monitoring program database, etc.

Water Protection and Sustainability – HB 0573
Creates “Heartland Headwaters Protection & Sustainability Act”; requires cooperative to prepare annual report concerning water resource projects & specifies requirements for such report.

Public Works Projects – HB 0599
Prohibits state & political subdivisions that contract for public works projects from imposing restrictive conditions on certain contractors, subcontractors, or material suppliers or carriers; prohibits state & political subdivisions from restricting qualified bidders from submitting bids; provides applicability.

Professional Regulation – HB 0653
Creates the Occupational Opportunity Act; revises length of time active duty service member may remain in good standing with administrative board or program; requires that spouse or surviving spouse be kept in good standing & be exempt from licensure renewal provisions; requires DBPR to issue professional license to spouse or surviving spouse of active duty member; provides requirements related to application, fees, & renewal; provides for fee waiver for specified persons; provides appropriation.

Community Associations – HB 0653
Requiring certain condominium or cooperative associations to post certain signs or symbols on buildings; prohibiting an officer, director, or manager from soliciting, offering to accept, or accepting a kickback for which consideration has not been provided; revising voting requirements relating to alterations and additions to certain common elements or association property; revising provisions relating to required condominium and cooperative association bylaws, etc.

Reemployment Assistance Fraud – HB 0671
Adds DEO as entity that may be issued reproductions from certain files or digital records for specified reasons.

Utilities – HB 0687
Authorizes DOT & certain local governmental entities to prescribe & enforce rules re: placing & maintaining communications services lines/wireless facilities; prohibits authority regulation of facility collocation; authorizes authority to require registration process & permit fees; requires authority to process applications; prohibits authority from requiring approval/fees for maintenance/placement of facilities; provides requirements for collocation on authority utility poles; requires authority to waive certain application & placement requirements; prohibits authority from adopting/enforcing certain regulations & imposing certain fees; authorizes wireless infrastructure provider to apply to place
utility poles; authorizes authority to enforce certain local codes/rules/regulations under certain circumstances.

Division of Alcoholic Beverages and Tobacco – HB 0689
Revises power & authority of division to include appointment of division personnel; authorizes AHCA to certify sanitation of alcoholic beverage license applicant’s place of business; revises provisions relating to special licenses to sell alcoholic beverages for licensed caterers; removes fee for transfer or location change of temporary beverage license; authorizes minors employed by specified businesses to sell beer & wine
under certain circumstances; revises requirements for annual state license tax for distillery & craft distillery.

South Florida Regional Transportation Authority – HB 0695
Authorizes South Florida Regional Transportation Authority, in conjunction with operation of certain commuter rail service, to assume specified indemnification & insurance obligations, subject to certain requirements; authorizes DOT to agree to assume certain indemnification & insurance obligations under certain circumstances; prohibits authority from entering into certain contracts/agreements without DOT approval of expenditures; provides that certain funds provided to authority are state financial assistance; requires written agreement; authorizes advance of funds under certain circumstances.

Vessel Registrations – HB 0711
Revises reduction of vessel registration fees for recreational vessels equipped with certain position indicating & locating beacons; deletes registration date limitation; deletes expiration date.

Estates – SB 0724
Revising the circumstances under which the decedent’s property interest in the protected homestead is excluded from the elective estate; providing for the valuation of the decedent’s protected homestead under certain circumstances; requiring the payment of interest on any unpaid portion of a person’s required contribution toward the elective share with respect to certain property, etc.

Accessibility of Places of Public Accommodation – HB 0727
Authorizes qualified experts to advise & provide certain inspections for places of public accommodation relating to ADA; authorizes certain owners of place of public accommodation to file certificate of conformity or remediation plan with DBPR; provides requirements for such submission; requires court to consider certain information in specified actions; requires department to develop & maintain website for specified purposes; provides an appropriation.

Department of Business and Professional Regulation Fees – HB 0741
Revises delinquency fee that professional board or DBPR imposes on delinquent status licensee; revises surcharge that DBPR assesses on building permits.

Mortgage Regulation – HB 0747
Providing an exemption from regulation under parts I and II of ch. 494, F.S., for certain securities dealers, investment advisers, and associated persons; providing a definition for the term “hold himself or herself out to the public as being in the mortgage lending business,” etc.

Adoption Benefits – HB 0749
Revises definition of term “qualifying adoptive employee” to include employees of charter schools & Florida Virtual School for purpose of
extending state employee adoption benefits to such employees; provides for retroactive application; requires such employees to apply to their school directors to obtain monetary benefits; requires CFO to transfer funds for such purpose.

Motor Vehicle Warranty Repairs and Recall Repairs – HB 0775
Prohibits manufacturer, factory branch, distributor, or importer from denying motor vehicle dealer claim, reducing dealer compensation, or processing chargeback to dealer due to specified circumstances; requires manufacturer, factory branch, distributor, or importer to compensate dealer for used motor vehicle under specified circumstances & pay compensation within specified timeframe; requires dealer’s application for payment to be made through manufacturer’s, factory branch’s, distributor’s, or importer’s warranty application system or certain other system/process; provides for calculation of compensation amount.

Designation of School Grades – HB 0781
Revises requirements for certain schools to receive school grade designation of K-3 feeder pattern school; provides majority of students must be scheduled to be assigned to certain school for feeder pattern to exist.

Stroke Centers – HB 0785
Directs AHCA to include hospitals meeting criteria for acute stroke ready centers on list of stroke centers; authorizes DOH to contract with private entity to establish & maintain registry, subject to appropriation; provides immunity from liability.

Insurance Policy Transfers – HB 0805
Authorizes insurer to transfer residential property insurance policy to another authorized insurer upon expiration of policy term if specified conditions are met.

Practices of Substance Abuse Service Providers – HB 0807
Authorizes Office of Statewide Prosecution to investigate & prosecute patient brokering offenses; increases penalties for operating without license; requires DCF to conduct background screening for owners, directors, CFOs, & clinical supervisors of substance abuse service providers; revises limitations on referrals to recovery residences; authorizes court to approve application for disclosure of substance abuse treatment records; prohibits certain marketing practices; provides fines & penalties.

Flood Insurance – HB 0813
Revising the intervals at which specified standards and guidelines for projecting certain rate filings must be revised by the Florida Commission on Hurricane Loss Projection Methodology; extending the last date of filing with the Office of Insurance Regulation of certain flood coverage rates that may be established and used by an insurer; revising a notice requirement for agents before they place flood insurance coverage with an admitted or surplus lines insurer for properties receiving flood insurance under the National Flood Insurance Program, etc.

Insurer Insolvency – HB 0837
Revises Insurers Rehabilitation & Liquidation Act; revises notice requirements, court jurisdiction, filing requirements, procedures, & defenses of delinquency proceedings; authorizes receiver & DFS, as domiciliary receiver, to perform certain functions; provides delinquency procedures for specified large deductible claims under certain workers’ compensation policies; provides certain persons of insolvent insurers are discharged & have no further authority over affairs or assets of insurer; revises priority of claims.

Hospice Services – HB 0863
Exempts certain hospice services in not-for-profit retirement community from specified review & application requirements.

Department of Transportation – HB 0865
Requiring the department, in consultation with the Department of Highway Safety and Motor Vehicles, to develop the Florida Smart City Challenge Grant Program; providing for assessment and calculation of a fine for unlawful weight and load of a vehicle fueled by natural gas; requiring the department to undertake an economic feasibility study relating to the acquisition of the Garcon Point Bridge; prohibiting the South Florida Regional Transportation Authority from entering into certain contracts or agreements without department approval of the authority’s expenditures, etc.

Memory Disorder Clinics – HB 0883
Establishes memory disorder clinic at Florida Hospital in Orange County.

Public Records/Substance Abuse Impaired Persons – SB 0886
Providing an exemption from public records requirements for petitions for involuntary assessment and stabilization, court orders, related records, and personal identifying information regarding substance abuse impaired persons; providing for future legislative review and repeal of the exemption; providing a statement of public necessity, etc.

Direct-Support Organizations – SB 0890
Requiring a contract between an agency and a citizen support organization or direct-support organization to include a provision for the orderly cessation of operations and reversion of state funds within a specified timeframe; requiring that certain proceeds be deposited into the Grants and Donations Trust Fund of the Division of Vocational Rehabilitation, instead of the Florida Endowment Foundation for Vocational Rehabilitation; requiring a specified percentage of certain revenues to be deposited into the Florida Association of Centers for Independent Living special reserve account to administer specified programs; extending the date for future review and repeal of provisions relating to the Florida Endowment for Vocational Rehabilitation Act; requiring the foundation to transfer funds to specified entities for certain purposes, etc.

Tuesday, July 25, 2017

Power of Attorney Abuse

A Power of Attorney (POA) is a legal document which grants someone to act in another's behalf. The person who signs the POA, the person granting that authority to another person, is called the "Principal". The person who is granted the authority is called the "Attorney-in-Fact" or, in Florida, the "Agent". Despite the term, Attorney-in-Fact, the Agent does not need to be an attorney. Most commonly a Principal grants the authority to act in his behalf to a trusted friend or family member. The Principal must sign the POA while of sound mind and competent. The reason people sign over the authority to act is that the person anticipates he will not be able to act for himself in the future.

A POA can be limited to the Agent doing one type of act, or even one single act in behalf of the Principal. This is called a Limited Power of Attorney and may be set up to automatically dissolve once the Agent has done his duty. For example, a person may execute a Limited Power of Attorney so that his Agent can sign documents for him while he is out of the country, or otherwise unavailable.

Another type of POA, called a "Durable Power of Attorney" is more powerful and long lasting. The reason people sign over the authority to act in their behalf is the same as for the Limited Power of Attorney, that the Principal anticipates not being able to act for himself. But a Durable Power of Attorney is usually meant to stay in place even after the Principal becomes incompetent or incapacitated. Elderly people frequently sign a Durable Power of Attorney which names an adult son or daughter as Agent, anticipating that at some point they will not be able to take care of their own personal business, due to dementia, or failing health, or both. Similarly, a mentally ill person, while lucid, may sign a Durable Power of Attorney naming a family member or trusted friend to act in his behalf, anticipating that he may at some point fall back into mental illness.

Florida has a standard form that is widely accepted and commonly used. In 2011, Florida updated the rules surrounding Powers of Attorney to conform with national standards. When a POA is used as intended, to protect the interests of the Principal, it is a Godsend for all involved. The aging parent who has fallen into dementia and cannot take care of her finances is protected by the Agent, (often an adult son or daughter), from making a mistake that could render the aging parent destitute. The adult son or daughter can sleep easier knowing that Mom or Dad is being taken care of. Elderly people can easily be duped by scam artists and conned out of their money, or become confused about their finances and not pay any bills whatsoever.

And, similarly, having a Durable POA in place for a mentally ill family member can save that person from wreaking havoc on his finances. For example, some people with Manic Depressive Disorder go on wild spending sprees during a manic phase. Left to their own devices, they will spend so irresponsibly as to leave themselves without any money to pay for necessities ... like rent, the mortgage payment, food, etc. A POA can literally save this person from himself, by delegating control of his finances to someone else.

Agent's Duties:

First and foremost, an agent is a fiduciary and must only act within the scope of the authority of the power of attorney. In exercising their authority, an agent has a duty to:
  • Act in good faith
  • Act loyally for the sole benefit of the principal
  • Act so not to create a conflict of interest that impairs the agent’s ability to act impartially to the principal’s best interest
  • Act with care, competence, and diligence originally exercised by agents in similar circumstances
  • Keep all financial records including receipts, disbursements, and transactions made on behalf of the principal
  • Create and maintain an accurate inventory each time the agent accesses the principal’s safe-deposit box

Preserve the principal's estate plan, if known by the agent which includes:

  • preserving the value and nature of the principal's property
  • minimization of taxes
  • eligibility for a benefit, program, or assistance program
  • considering the principal's personal history in making or joining in making gifts
  • Not act contrary to the principal's reasonable expectations known by the agent
  • Not act in a manner that is contrary to the principal’s best interest

But ... if the Agent for the POA is not an ethical person, the damage that can be done to the Principal is appalling. Because there is a signed document authorizing the Agent to act, its often difficult to stop or undo things that are decidedly not in the best interest of the Principal.

The Agent can use or take the Principal's income, property, and resources for their own benefit. A POA assigns to the Agent the right to sell or transfer real property. All too often, an unscrupulous Agent will sell the Principal's home, keep the proceeds, and put the elderly Principal into an Assisted Living Facility. All the while, claiming that its for the Principal's own good. Or, the Agent can simply transfer the Principal's home into his or her own name, and treat the Principal like a tenant.

Likewise, an unscrupulous Agent can sell the Principal's personal property, such as jewelry or art, and keep the proceeds for his or her own benefit. The ways to abuse the power and authority granted by a POA are only limited to the greed and creativity of an unscrupulous Agent. In many instances, other family members and friends, do not spot the POA abuse until the damage is done.

Family members and friends of the Principal can take some steps to ensure that the Principal is being treated fairly. Look out for the following:

  • A sudden change in the Principal's living arrangements;
  • Increased secretiveness on the part of Agent and/ or Principal;
  • The Agent refusing to allow other family members or friends to visit or call the Principal;
  • The Principal seeming to be increasingly furtive about finances;
  • The Principal going without necessary items; and
  • The Principal becoming increasingly depressed or despondent.

Who can sue when there is an abuse of the power of attorney?
A person’s right to file a lawsuit is called “standing” in Florida.

The following persons may petition the court:
The principal or the agent, including any nominated successor agent.
  • A guardian, conservator, trustee, or other fiduciary acting for the principal or the principal's estate.
  • A person authorized to make health care decisions for the principal if the health care of the principal is affected by the actions of the agent.
  • Any other interested person if the person demonstrates to the court's satisfaction that the person is interested in the welfare of the principal and has a good faith belief that the court's intervention is necessary.
  • A governmental agency having regulatory authority to protect the welfare of the principal.
  • A person asked to honor the power of attorney.

Entering into a Power of Attorney is a huge step and not to be taken without careful consideration. The Agent has all the duties listed above to follow, and even a financial mistake could cause a friend or family member to question his or her motives. For the Principal the stakes are even higher. A POA can be revoked in writing, but this must be done while the Principal is lucid and competent. For a Principal who is falling into dementia or mental illness, the fall will be much more serious, and the impact much harder, if they not only are losing their mental acuity, but losing their money and assets at the same time.