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.




Sunday, July 16, 2017

Just Published - "You've Been Sued!" Second Edition

An excerpt from the recent edition of "You've Been Sued!":

You may have known this law suit was coming, or it may have hit you out of the blue. Either way, you've been sued, and now its up to you to do something. Before you even begin to think about how to prepare an answer, take some time to reflect on whether you were properly served. If a sheriff or a private process server came to your door, asked for you, and then told you that they were serving you with a complaint for a lawsuit – you have very likely been properly served. It doesn't matter whether you were served at work or at home, or in public for that matter, as long as the documents went from the hands of the process server to yours, then you've been properly served and sued.

On the other hand, there are other instances when you may have the documents in your possession but you were never served. For example, if a civil complaint was mailed to you via certified or regular mail; the plaintiff personally gave them to you; or the documents were brought to your house by the sheriff and left with your housekeeper – you have likely not been properly served to begin with. If you were not properly served, you may need to do additional research to be sure how to proceed. If you're still not sure of the correct path, then by all means seek the advice of an attorney. The reason this is important is that if you answer the Complaint then you are in effect accepting the Complaint as valid even though you may disagree. If you do not believe that you were properly served, you may decide to file a Motion to Quash Due to Improper Service. However, if you file an Answer to the Complaint, even though you were not properly served, you likely miss your chance to file that Motion to Quash.


So think it through before preparing an Answer. Filing a Motion to Quash when you have been improperly served may accomplish nothing more than delaying the proceedings. Sometimes, however, slowing down the proceedings is a Defendant's primary goal. The theory is that if a Defendant can throw up enough hoops and hurdles for the Plaintiff, then the Plaintiff might just give up and go home. It happens. There are other circumstances where a Defendant can file a Motion to Dismiss and end a law suit immediately. However, for the purposes of this book we are assuming that the Defendant was properly served, and needs to prepare an Answer


Available now on our association site - The Florida Association of Legal Document Preparers - bookstore. Available soon on Amazon and other online sources. By Ruth Tick, all rights reserved. Copyright 2017.

Basics of Legal Research

As the number of Florida pro se litigants increase, so does their need for research tools. Since pro se litigants are nonlawyers, with little or no knowledge of the law, access to understandable easy to use resources is vital. Many pro se litigants are low income and therefore unable to pay for a research service.

Legal research is rarely easy or straightforward. Because American law stems from many sources and develops in complex ways, thorough legal research requires technical proficiency. And because the law is dynamic and often unclear, thorough legal research also demands creativity and careful thought.

Many consumers can easily locate Florida Statutes when beginning their research, but identifying the issue first may be more daunting. Florida Statutes can be pulled up online as simply as entering the search string - Florida Statutes online - into your favorite search engine. However, the statutes themselves are not intuitively searchable, and its difficult to know what you're looking for until you find it.

Narrowing the search from the outset will help bring results that are more useful and less daunting than a more general search. For example, suppose you were a residential tenant and you had received a three day notice to pay or quit. But, you, the tenant, did not want to pay because the landlord had promised repeatedly to fix the roof, air conditioning, and the hot water heater and had never done anything. How can a tenant find guidance, (assuming the tenant cannot afford an attorney and does not qualify for legal aid)?

Many consumers will immediately take to the net to find answers. Some question and answer sites have good answers and some don't. Finding the statutes could be a good starting point. For that issue, use the search string - Florida Statutes online landlord tenant - and you'll arrive at Florida Statute Chapter 83 in its entirety. This is a lot to wade through, and it is a better idea to do some general research first to familiarize yourself with landlords and tenants rights and responsibilities.

Read some articles from authoritative sources. Authoritative sources are official government sources like the Florida Bar site, or the Department of Agriculture and Consumer Affairs.

https://www.floridabar.org/tfb/TFBConsum.nsf/0a92a6dc28e76ae58525700a005d0d53/e21a25a8c288bed98525740800537588!OpenDocument

http://www.freshfromflorida.com/Divisions-Offices/Consumer-Services/Consumer-Resources/Consumer-Protection/Publications/Landlord-Tenant-Law-in-Florida

In reading these articles you may learn under what circumstances a tenant is allowed to withhold rent and why. Spending time collecting facts, learning the vocabulary, and then analyzing the facts will save hours of time spent on dead end research. Many beginning researchers can find the governing laws, statute, or ordinances, but struggle to find out how to apply them. The actual procedure is often the most difficult part in practical terms. These two broad areas of law are referred to as substantive and procedural.

In our scenario, about the tenant having been served with a Three Day Notice to Pay or Quit, the researcher will soon find out through reading articles and Florida Statutes, that a tenant can withhold rent if his rented dwelling is uninhabitable. The researcher, may then wonder, what exactly is considered "uninhabitable"? Is having no air conditioning in July in Florida considered legally "uninhabitable"? We all may well agree that no A/C is torture, but the law doesn't say so. In fact, Florida landlord tenant laws demand that a dwelling have heat, but air conditioning is not a requirement for habitability. Hot water and a non-leaking roof are generally considered requirements for a habitable dwelling. See 83.51 Landlord’s obligation tomaintain premises.— for more information.

If a residential tenant needs to withhold rent because the landlord won't make necessary repairs or if the dwelling is uninhabitable, the rent should be deposited with in the registry of the court. And the tenant should have notified the landlord in writing previously and the landlord failed or refused to make things right. If the tenant has placed the rent in the registry of the court, and the judge finds that the landlord has neglected his obligation to maintain the property, the judge can then decide how the rent money should be disbursed.

Exact procedures for withholding rent can sometimes be found on the clerk of court's website (depending on the county). Pinellas Counts provides some good information and forms for landlords and tenants. Notes on the form for withholding rent state:

A Tenant cannot withhold rent from the Landlord without sending notice and allowing the Landlord time to cure the non-compliance, violation, or default of its obligations. Failure to send the required notice to th e Landlord has significant impact on a Tenant’s rights under the rental agreement and Florida Statutes. If the non-compliance is not remedied within the time period specified by statute (or such longer time as may be granted in your written rental agreement) and the Landlord’s failure to comply renders the dwelling unit untenantable and the Tenant vacates, the Tenant may vacate and withhold all rent, or, if the failure to comply does not render the dwelling unit untenantable, rent may be reduced in proportion to the loss of rental value caused by the non-compliance. If the Landlord’s violation of its obligations is not remedied, but the failure to cure the non-compliance does not render the dwelling unit untenantable, the Tenant may remain in the dwelling unit and the rent shall be reduced, until the violation is cured, by an amount in proportion to the loss of rental value caused by the failure to cure the violation. In any legal proceeding, however, the Tenant will have to pay all past due rent, and rent as it co mes due during the legal proceedings, into the registry of t he Court. The Tenant should, therefore, deposit all rent as it comes due in a separate bank account until the Tenant's disputes with the Landlord have been resolved.

For the text of Florida Statute 83.51(1), and the grounds for withholding rent, see the note to Form 3. SOURCE: Sections 83.56 and 83.60, Florida Statutes (2007).

Legal information can be found in many places. Diligent and persistent search pays off when you find the answers to troubling legal questions. Keep an open mind, frame the issues, and remember there may be more than one right answer to any legal question.



Sunday, May 14, 2017

Things Can't Hug You Back

I will never to my dying day embrace the idea of keeping up with the Joneses, conspicuous consumption, and all that this includes. Rather, I fully understand the maxim that - money won't buy you happiness. I do not know why some people are perfectly comfortable with rocking the newest iPhone and also struggle to pay the rent. In a world where people need to borrow $400 for an emergency, how can those same people bring themselves to pay $1000 or so for a phone?

Take this one telling statistic: "About 46 percent of Americans said they did not have enough money to cover a $400 emergency expense. Instead, they would have to put it on a credit card and pay it off over time, borrow from friends or family, or simply not cover it at all." (Mui, 2016)

The Federal Reserve report that the Washington Post article is based on uses data from 2015, and was published in 2016. Maybe the overall economy improved in 2016 enough to lower that 46%. We should find out soon. Still, $400?

I checked prices for a new iPhone 7, and its true, once you buy the accessories, some of which are essential, your bill is up to around $1000. And, then there is the monthly on top of that. I find it endlessly interesting that the search analytics on www.faldp.org show that around 38 - 40% of the site users accessed the site through an iPhone and also that the word "indigent" is within the top 15-20 search strings used to find the site. Does that mean that a lot of indigent people have iPhones? I don't know for sure from that data, but it seems to be a reasonable assumption.

I learned early in life that even people that are financially comfortable can make a total mess of their lives. Poverty not required. The Happiness Studies claim that the magic income number is $75,000. per year. I maintain that - it depends. Cost of living varies drastically place to place. So $75,000. in a rural town may buy a nice home with acreage and leave plenty left over for private schools, new cars, vacations, etc. On the other hand, life in a big city on 75k a year may be financially difficult, especially with a family. But, their point is well taken. That after a certain income level happiness does not increase much as income increases. http://aplus.com/a/75-year-harvard-grant-study-happiness?no_monetization=true

My early lesson in life was my parent's divorce. I'm way past caring that they were divorced, but that event changed my life forever. I would say, changed me for the better. Early life lessons are not easily forgotten. I was eight. Our family was financially comfortable until then. I didn't really know or think about it, I grew up that way. My brothers and sisters and I all went to private schools, we had horses, we had an extra 10 acres to keep the horses, we lived in a 5,000 square foot house on the river, we had a tennis court in the yard, we had a housekeeper. Comfortable.

After my parents' divorce, dad re-enlisted in the military, married his patient, took a huge pay cut, and my mother could not afford to keep the house. She was court ordered to sell it. And she did. The private schools went on for a while after the divorce. I'm not sure if it was scholarships, kindness, or if someone paid. Everything else went. We moved to a three bedroom apartment. My two sisters and I shared a room. My two brothers shared a room. And my mom had her own room.

I saw with my own two eyes that my parents despite having everything had no idea how to be happy. Despite having all the material things that go with success they were not able to make themselves happy. Their divorce was acrimonious and awful.

Although the sudden shock of not having the things and privileges that I had before the divorce hit hard. The effect did not last. I learned early on that it was up to me to make myself happy. To do the things that would make me feel good. And to never depend on anyone else for my happiness. My happiness is my own responsibility, completely independent of anyone else.

I think some people go a life time without ever learning that. I can thank my parents for teaching me that as a child. A lesson they didn't mean to teach ... but they did.

Throughout my life I have never put a lot of importance on material things. All I've ever wanted in a vehicle, is one that looks presentable and dependably gets me from point A to point B. Likewise for the house I choose, looks presentable, affordable, low maintenance, and comfortable. Clothes are the same, I don't think I've ever gone out of my way to buy a designer thing. I honestly don't care.

A family member is the opposite. He only wears Ralph Lauren, is obsessed with his luxury vehicle, and does not understand how I can be the way I am. He is also the absolute unhappiest person I know. And, yes, he has the iPhone 7. He's tried to convince me to buy one, but I don't see the point. He has tried for years to get me to understand that people judge me by what I have. I frustrate him to no end, because I don't care. I have even explained that if a friend were to judge me or like me better because of what I have, then that's not a friend I want to keep. I have no place in my life for such superficiality. And if a stranger judges me for not wearing designer clothes, or not having an expensive car, then I don't care at all. I don't even know the stranger, so why would I possibly care?

I don't know if we chalk our differences up to generational influences. My materialistic family member is 30 years younger than me, so he is within that broad group called Millennials. Born in 1986. He grew up watching TV with plenty of commercials. The internet is awash with advertising and offers. Today, we have people who are famous for being famous, and for having money. Paris Hilton. Kim Kardashian. Nicole Richie.

It could be that the differences in our attitudes towards acquiring things is simply a personal difference. Surely there have been acquisitive people throughout the ages, people that flaunt their material wealth. We can go Biblical, Mark 10:25 "It is easier for a camel to pass through the eye of a needle, than for a rich man to enter the kingdom of God." Or look to pop culture, "Diamonds are a Girl's Best Friend", sung by Marilyn Monroe in the 1953 film, "Gentlemen Prefer Blondes". The Madonna hit, "Material Girl" was on her "Like a Virgin" album released in 1984.

I do know that things don't make you happy. Once I told my acquisitive family member this simple fact. Things can't hug you back. I hope one day he'll listen. So far, he reacts with anger if I say anything like that. It must be lonely for him.


Wednesday, March 15, 2017

We are Americans ... We are Immigrants


Most Americans don't have to look very far back in their family history to find an ancestor who immigrated to America. With the exception of people who are full blooded Indians and people whose ancestors were captured and brought here as slaves - our ancestors immigrated to America. All came to find a better life, to flee from war, to find more prosperous land, to find more freedom.

I look back at my heritage, only three generations on my mother's side, and I don't really know on my father's side when my people came here. My great grandmother on my mother's side was full blooded Indian, Cherokee I have been told. My great grandfather was Dutch, a farmer in southern Illinois. I gather from my mother's stories that my great grandmother, Dora, passed as white. It was not the done thing for a white man to marry an Indian woman. According to my mom, Dora's brothers, Mom's uncles lived in houses in the woods somewhere and mostly hunted and trapped to survive. One of them was a horse trainer. And one of them looked just like the Indian on the Indian head nickel.

The only thing I know about my father's side is that my grandfather was a country doctor in west Texas, San Angelo. He would make house calls in the rural areas, and sometimes be paid with livestock rather than cash ... chickens and pigs. I have no idea when my father's people came to America. His last name, my birth name, was Chambers. A proper English name. Cameron is a family name on my father's side, derived from the Scottish Cameron Clan. And somewhere in my father's family history is Irish also. My father was a veteran of World War II, and his father fought in World War I.

My ancestors on both sides came to America for their own reasons, reasonably to find a better life. They did not come as refugees, they came for the opportunities available in a young country.

The United States only dates back to 1776. Colonists, pilgrims, and explorers came earlier. Few Americans can trace their family history back more than a few generations as having lived in America. We are immigrants. Me, born in Texas, raised in Florida, date my family history back only three generations.

I don't understand how Americans so begrudge immigrants who come here wanting a better life. We all want a better life for ourselves and our children. I can't understand how the descendants of people who fled the World Wars can seek to block those who flee the current wars. And I will never understand, how any American can be so threatened by people entering this vast wonderful country in search of a better life.

Monday, February 20, 2017

Unauthorized Practice of Law - Another Point of View


I have an idea for illustrating the absurdity of the current tenor of enforcement against the “unauthorized practice of law” in Florida. It will probably never convince the Florida Bar to let up on the persecution of legal document preparers, but it might make some people realize just how hypocritical the Florida Bar is.

As I learned firsthand from a recent lawsuit against me, law is a complicated field. It has many specialties. When I needed to hire an attorney in another state to help me with that lawsuit, the first law office I called directed me to the local “expert” attorney in that particular specialty field of law. In that small jurisdiction, he qualified as the local expert in that specialty area because he had successfully prosecuted a case all the way to that state’s Supreme Court. It makes some sense: If you have an auto accident, you would probably do better if you had an attorney who specialized in auto accident cases. (To further illustrate my point, I’ll refer to the tort I was sued for generically, as “Tort X.”)

When my plaintiff lost in his home state and sued me in Florida, he tried to bolster his case with references to another Tort X lawsuit that had certain parties I’ll call Jones vs. Mackey. Something that happened in that case is instructive. The Plaintiff, Jones, didn’t hire an attorney who was a specialist in Tort X. He hired an attorney who had spent his career on cases involving real estate foreclosures.


Why? I don’t know. I’m guessing no attorney who specialized in Tort X would take what was obviously a lousy case. But I’d like to argue that, if UPL is going to be so strongly prosecuted, then UPL should be expanded to include attorneys like Jones’ who practice a type of law outside their range of expertise and experience.

And why shouldn’t such an attorney be prosecuted just as violently as the Florida Bar prosecutes legal document preparers? By practicing outside their expertise, attorneys like Jones’ are exposing their clients to exactly the same risks that the Bar claims legal document preparers are exposing their customers to. Would you see an ear, nose and throat doctor for an ingrown toenail? Of course not. A wise ENT, except in emergency, would give you a referral to a podiatrist. An attorney who did not do the same should be prosecuted for it.

Maybe what the Florida Bar needs is a taste of its own medicine.

Guest Blog, published with permission from the author, Jim Holding

The Pro Se Challenge - Accessing the Court System



As a pro se litigant, I recently experienced a frustrating (and expensive) example of the sort of barriers a pro se litigant can encounter. I discovered that court systems are not designed to aid the pro se litigant in filing their paperwork, and a clerk of court’s staff are often far from helpful.

In 2015, I was sued by someone in a state on the other side of the country. Other attorneys in his area referred to him as a vexatious litigant, and he filed all his lawsuits pro se and in forma pauperis. He had never won a lawsuit.

My background is in research, and I once managed a law library. So, I was able to defend myself, and I prepared a defense based on lack of personal jurisdiction.

Unfortunately, the court system this man lived under was still in the 1990s technologically. There were many obscure rules, and many forms for filing documents that were unique to that court. Half the time I called the clerk of court to ask a question, and either the person I needed to speak to was “out of the office,” or the person I spoke to had no idea how to help me. To make matters worse, this court system just happened to be implementing new scheduling software, which caused even more problems as members of the clerk of court’s staff became unavailable because they were “in training.” I left messages, and did not receive calls back until literally the last minute I had to do my paperwork.

There was also no system set up for full electronic filing. I could send a copy to the clerk’s office electronically, provided I went through an obscure registration process. However, I was still required to “snail mail” copies to the judge. Barney Fife obviously served as clerk of court in this county!

I filed a motion to dismiss, only to discover that I had filled out a form incorrectly, and my dismissal hearing was not properly scheduled. I became so concerned about not being able to communicate with the clerk’s staff that I hired an attorney in the other state. In the end, because of various actions by the plaintiff, it cost me $21,000. It could have cost more. Thankfully, the attorney I hired recognized that I was competent at legal research and allowed me to do research for him on personal jurisdiction. That saved me $1500. (The judge, by the way, awarded me those attorney fees after everything else was over with.)

The attorney used the same arguments I used in my motion to dismiss, only adding a few points from that state’s case law. Had the court system in the Plaintiff’s state been more accessible, I could easily have handled these matters myself. The end of this affair proves it: After the Plaintiff lost to me in his home state, he tried to sue me in Florida – and I defeated him for no more than the cost of postage and copies..along with a small payment to a helpful legal document preparer!

Guest Blog - published with permission from the author, Jim Holding.