Season's Greetings!

Best Wishes to you and yours this holiday season!

Why FALDP?

Why indeed. We've used a marketing piece for some time that explains the “what” of FALDP, among other statements, it says: “FALDP is an industry leader – empowering the people – and working everyday to make Florida a better place to live”. I believe those words are true, I fervently hope that we are, in fact, making Florida a better place to live.

But, why? Why did we form FALDP? Why is there a need for us? What is our reason to be? Our raison d'être ? The phrase, « find your why » has been bandied about of late, and has sunk from a catch phrase to a cliché by now. But, phrases become over used for a reason. Its because they resonate, hit a nerve, and yes, sometimes the last nerve.

The simple reason we exist is that people need us. People need document preparers. Not want, need. Our services are steadily in demand.

''You can't fight for your rights if you don't know what they are .'' Chief Justice John Roberts

''One of the primary reasons our nation’s founders envisioned a vast public education system was to prepare youth to be active participants in our system of self-government. The responsibilities of each citizen were assumed to go far beyond casting a vote; protecting the common good would require developing students’ critical thinking and debate skills, along with strong civic virtues/.''

BY AMANDA LITVINOV (3/2017)

Low knowledge of essential facts

The 2018 Annenberg civics knowledge survey, released for Constitution Day (Sept. 17), found that many people do not know how the branches of government work:

• A quarter (27 percent) incorrectly said the Constitution allows the president to ignore a Supreme Court ruling if the president believes the ruling is wrong;
• But a slim majority (55 percent) knows that a 5-4 Supreme Court decision is the law and must be followed, about the same as last year.

Annenberg Public PolicyCenter, (9/2018)

Why am I telling you this? And what does this have to do with FALDP? We're document preparers, we don't need to know about rights? Oh, really?

We can't give legal advice … but, the fact is that everybody gives everybody legal advice all the time.

• Don't drink and drive;
• Wear your seat belt;
• As an employer or landlord, you should not discriminate based on gender, race, or national origin. Its against the law;

According to the State ofTexas:

What is Legal Advice?

Court users are asking for legal advice when they ask whether or not they should proceed in a certain fashion. Telling a member of the public what to do rather than how to do it may be giving legal advice. Legal advice is a written or oral statement that:

 Interprets some aspect of the law, court rules, or court procedures;

 Recommends a specific course of conduct a person should take in an actual or potential legal proceeding; or

 Applies the law to the individual person’s specific factual circumstances.

What is Legal Information? Clerks and court personnel may:

 Provide public information contained in dockets, calendars, case files, indexes, and other reports.

 Recite common, routinely-employed court rules, court procedures, administrative practices, and local rules, and explain generally how the court and judges function.

 Refer self-represented litigants to a law library or the court’s website for statutes, court rules, or forms.

 Explain the meaning of terms and documents used in the court process.

 Answer questions concerning deadlines or due dates (without calculating due dates).

 Identify and refer self-represented litigants to court forms.

According to Find Law:

What Legal Advice Is

Advice from friends or family does not constitute legal advice. True legal advice forms an agreement between an attorney and his or her client based on a particular legal matter the client is experiencing.

In a nutshell, legal advice has the following characteristics:

• Requires legal knowledge, skill, education and judgment
• Applies specific law to a particular set of circumstances
• Affects someone's legal rights or responsibilities
• Creates rights and responsibilities in the advice-giver

Unlike legal information - such as information posted on a street sign - legal advice proposes a specific course of action a client should take. For instance, it's the difference between telling someone what to do (legal advice) as opposed to how to do it (legal information).

Examples:

• Selecting, drafting, or completing legal documents or agreements that affect the legal rights of a person
• Representing a person before a court or other governing body
• Negotiating legal rights or responsibilities on behalf of a person
• Speculating an outcome
• Selecting or filling out specific forms on behalf of a client

Specific legal advice questions may include:

• Should I file for bankruptcy?
• Does my disability qualify for federal assistance?
• What kind of recovery can I receive for my accident? injuries

What Legal Advice is Not

While legal advice is specific, direct, and proposes a course of action, legal information, on the other hand, is factual, generic, and does not address any one particular cause of action. To help avoid the confusion that often comes with legal information, websites and individuals will often go to great lengths to clarify that any information contained in their site should not be construed as legal advice nor form an attorney-client relationship.

Examples that do not constitute actual legal advice:

• Legal information obtained from free online legal websites, including a law firm or attorney's own website
• Advice from friends, family members, or former clients of a lawyer
• Information you hear on the radio
• Information you read on social media websites
• Information you see in news periodicals or on billboards
• Responses to legal questions posted in online Q&A boards, even if provided by a licensed attorney
• Printed materials listed in a "how to" guide
• Legal "self help" forms

Specific legal information questions might include:

• Where can I find the Federal Medical Leave Act?
• What does the acronym EEOC mean?
• What are the gun laws in my state?

Confused yet?

Yes. I think everyone is confused, including the courts. As an experienced document preparer I can point to many instances where a court clerk most certainly has told a pro se litigant what form to file. It happens all the time. So, as nonlawyers, the clerks of court, routinely select forms for pro se litigants, even though selecting forms for pro se litigants is a prohibited act.

And, do we ignore a customer's request for advice? Yes, but, the technique is to turn their request for advice into a request for information and then point them to the information. Is this word play -- semantics? Yes.

Think about these scenarios:

A customer comes to you and says that the landlord won't fix the leaking roof. And that customer asks you what he should do. Beware the “should” word. Telling someone what they should do might be giving legal advice. A better practice, particularly if you frequently prepare documents for landlord/ tenant issues, is to point him to a source of information, like Top 10 Landlord Legal Responsibilities in Florida , let the customer explore his options.

Another customer comes to you because she has been served a complaint for a past due credit card debt. She says that she knows she owes the debt, but it was years ago, and she thought the credit card company had written it off. It is helpful to know the following:

Florida’s statute of limitations varies for different types of debts. For written contracts such as personal loans, the statute of limitations is five years. So once this type of debt is more than five years past due, the lender can no longer sue in order to collect owed money. For other debts, the statute is shorter. Oral contracts and revolving accounts such as credit cards have a statute of limitations of four years.

https://www.debt.org/faqs/americans-in-debt/consumer-florida/

And point your customer to that information. However, that information isn't quite enough, because the pro se litigant must bring up the statute of limitations as an affirmative defense in their Answer. That information is in the Florida Statutes and can also be found here - https://blog.credit.com/2019/07/seven-ways-to-defend-a-debt-collection-lawsuit-62166/

In my experience, I've found that pro se litigants can figure out the basic substantive law. It is procedural law that stymies them. And, its my understanding that we can explain procedure providing we don't cross over the boundary between explaining procedure, into using procedure as strategy. We can explain what comes next, procedurally, as in: after the defendant/ respondent is properly served he has 20 days to file an answer. But, to tell a pro se defendant / respondent that instead of filing an answer, as long as he files something within 20 days, may be using procedure as strategy.

The reason FALDP exists is to help consumers and pro se litigants navigate the court system; and provide a hub for Florida document preparers. We're proud of what we do, mainly because we think we're helping make Florida a better place to live.

A Few Bad Apples ...

I'm the founder and director of the Florida Association of Legal Document Preparers [FALDP.ORG]. As such, I am 100% invested in the growth of the nonlawyer legal document preparation industry. I, personally, have been preparing legal documents since 1998. We exist because there is a demand for our services. People can't afford attorneys, people think that if they just had the correct forms,in the required format; and could decipher procedure that they would probably get through their legal matter on their own. Many times, most of the time, they're right.

Not to say there is no need for attorneys, and specifically not to say that our services replace attorney services. But, people often do not need and do not want legal advice or representation.

As a document preparer and as the director of FALDP I do my best to provide services within my limitations. I know the rules for the unauthorized practice of law [UPL] as well as anyone. I mean anyone. Document preparers who are being investigated for UPL frequently seek me out for my insights about their investigation. Members of FALDP are required to take a course annually, called Avoid UPL!. My hope is that member document preparers will learn the rules backwards and forwards and can thereby avoid an investigation.

We also suffer criticism of our livelihoods as legal document preparers. I received some hate mail the other day from a subscriber to my newsletter, a subscriber! He said - “All the document prepares in Florida need to be banned... Go to Law School if you want to give advice... bunch of lying bottom drellers” [sic]

But, this article isn't about UPL. I'm talking about those few bad apples today. The few bad apples that give us a bad name. The bad apples that spoil the barrel. In my opinion, we have enough push back from random critics, and the Florida Bar, who investigate us and seem to persecute us, without our colleagues making things worse.

Bad Apple #1: Another document preparer that I'm aware of is abusing the system in several creative ways. She is known to telephone the document preparer on the other side of a divorce case and try to negotiate a settlement for the Marital Settlement Agreement which might include money, property, and child custody. Document preparers may not negotiate on behalf of anyone else. She also falsifies or leaves out entire pages of information on financial affidavits which may be unfavorable to her customer. And, even worse, she's a Spanish speaker and frequently attends court hearings ostensibly as a court interpreter (although she is not certified), but she is actually at the court hearing to represent her customer. In Spanish. So the judge won't know.

Bad Apple #2: This bad apple is now in prison. But, before he got there, he had been a member of FALDP for a number of years. He had seemed fine for most of those years. Around 2014, I heard from a couple of his customers that he seemed to have a drinking problem and may have met with them while under the influence. And soon after, he began harassing a document preparer online and claiming that he had the full force of FALDP behind him. When I became aware of his harassment, I let him know that he most certainly did not have the full force of FALDP behind him in harassing anyone. He got mad at me and quit FALDP, saving me the trouble of terminating his membership. The harassment stopped after several months, and we thought it was a thing of the past. But, in 2016 his harassment toward the other document preparer started up again, and I noticed he was displaying the FALDP logo in his advertising and asked him to remove it. I then became a target for his harassment as well. He finally put himself in prison by going out in the street and threatening his neighbors with a firearm.

As a fledgling industry, each of us reflects on the other. We're criticized by lawyers as a matter of routine, that we are under trained wannabe lawyers. We're not. Most of us don't ever want to be a lawyer, and are more than happy to work well within our niche. We may seem untrained, but we're not that either. We're not allowed to give advice, so we don't. Sometimes, people may think that we're not advising our customers well. They're right. We're not advising them at all. We prepare documents, provide information, and explain procedure, but we do not provide legal advice or representation.

Support your Legal Document Preparers! Our services help so many people just like you.

Thinking of a “No Court Divorce in Florida”? – Think Again.

I've seen some nonlawyer document preparers marketing their services for a No Court Divorce. A No Court Divorce is possible when the divorcing parties agree on every facet of their divorce, including division of assets and debt; child support; and child custody. While a divorce in Florida is possible and even legal without either party ever appearing in court, it may not be the best idea. And here's why:

Most importantly, the lack of legal assistance and judicial oversight could lead to disastrous results. By definition, nonlawyer legal document preparers may not advise consumers [pro se litigants] about their specific legal rights or remedies; advise about legal strategies; or represent anyone in court. Pro se litigants may not be aware of rights they are giving away, and without a court hearing, their lack of knowledge could be reflected in the Final Order of Dissolution. Many of the nonlawyers preparing the forms for No Court Divorces, do not rely on mediators to ensure that the parties are in agreement. Rather the document preparer may act as the de facto mediator and is unlikely to be certified as a Florida Family Court Mediator.

One of the parties may be going along to get along, and believe that they have no choice.

The usual Florida divorce process is that one party, the Petitioner, prepares the required documents with the help of a document preparer, an attorney, or without help, and then serves the other party, who is called the Respondent. The Respondent has an opportunity to file an Answer and can agree or disagree with the documents prepared by the Petitioner. The No Court Divorce process requires that the parties are in full agreement on all issues.

I have prepared Florida divorce documents for pro se litigants for over twenty years. Very few of these divorces were completely without disputes. After all, if a couple were in complete agreement about everything, then they probably wouldn't need a divorce to begin with. When there are disputes, the court will refer the parties to a mediator to help them find a resolution.

Examine why its important to you to not appear in court.

Are you in the military and stationed overseas?

Even if you are the Petitioner in the divorce, you can request to appear telephonically. You make this request through a motion to the court.

Do you simply want to avoid the inconvenience?

If your reason for not wanting to appear in court is mostly due to convenience, you may need to consider your priorities. A divorce is a life changing event, not taking the time to attend the court hearing, and taking the chance that something goes wrong which could have been avoided is a chance that you should carefully consider.

Are there other legal issues that may come out? Outstanding warrants? A deportation order?

My first suggestion is that perhaps those issues need to be addressed prior to filing for divorce at all. But, if the divorce wasn't your idea, then you may not have that choice. However, only the Petitioner is generally required to appear in court anyway. The Respondent can waive his/ her appearance.

If your other issues are ongoing and cannot be easily resolved, you still have some choices. As the Respondent, you can waive your appearance or request to be heard telephonically. As the Petitioner, you can request to be heard telephonically, but that may or may not be allowed depending on your specific reason and the judge's discretion. Florida attorneys are specifically allowed under Florida Bar rules to offer limited services for family law. This is often called “unbundled services”, and can mean anything from a review of documents to an appearance at a court hearing.

I believe that some document preparers who aggressively market the No Court Divorce process prey on the fear of undocumented immigrants who are already afraid to appear in court. Florida family courts do not have jurisdiction over immigration matters. However, a deportation order or deportation of a parent would have an effect on the best interest of a child. So a divorce with children where one or both of the parents are undocumented, should be handled with extreme care and caution. A document preparer may not have the knowledge and expertise to know how to proceed. And, even if that document preparer has both knowledge and expertise is prohibited from offering legal advice. Parents in this situation need legal advice, not simply a way to avoid a court appearance.

An unintended consequence of a No Court Divorce can be that the divorce documents are filed in a distant Florida county. Not all Florida counties allow No Court Divorces, and it isn't necessary to reside in a certain county to file for divorce in that county. However, if there are subsequent proceedings, perhaps enforcement of child support or a modification of time-sharing, the parties would need to file these documents in the county where their divorce was filed, which may be where neither parent resides.

So, if you were thinking of filing a No Court Divorce – Think Again. You might be creating ongoing problems, by trying to avoid a court appearance.

What IS Medicaid Planning? Part II

As of October 2018, the income cap to receive Medicaid was $2250. For a single person, the asset ceiling is $2000. In my mother's scenario she automatically qualified because her circumstances neatly fit the criteria, but what about people whose income is too high, or have assets valued at more? And what about married couples?.

In Part I of this series I explained my mother's situation and how she (more or less accidentally) received Medicaid coverage that paid for her long term care. I think some of what she did, like not owning real property, was by design, but by the time she really needed Medicaid she would never have been able to think through strategies to put herself in the exact right position to receive it.

In Part II, I'm adding to Mom's situations some hypothetical examples to show how people can successfully plan ahead. First, we'll address assets. The asset ceiling for Medicaid eligibility is $2000. for a single individual. But, you must be aware of how assets are actually counted. There are countable assets and non-countable assets for Medicaid purposes.

Mom met the criteria for assets (less than $2,000), income (less than $2250. per month), and medical need (glaucoma even though it was controlled and she could see). But suppose she owned a house or maybe even two houses; or had money in the bank.

If she owned the house she lived in and it was homesteaded, then that house would not be considered a countable asset. The value of the house would be completely exempt. As of 2018, a homestead property valued up to $572,000. would be exempt. Value ceilings change, so use this as a guide, but do your research.

And, if she owned a second home its value can be exempt as well. There are two ways this can happen. If its only in Mom's name, she'd either need to rent it out at fair market value or add the names of others onto the property deed.

If its rented at fair market value, then reasonably it would generate income, which then could affect her income enough to be above the $2250. allowed per month. The asset would not be counted as an asset, but the income could be problematic, so take care. As it happens, expenses related to a rental property can be deducted from the rental income and reduce the net income. Which will in turn reduce the impact on the Medicaid recipients overall income Expenses like property management costs, taxes, insurance, necessary repairs, and advertising costs can be deducted from the rental income, before rental income is considered as overall income and puts the Medicaid recipient's income above the ceiling, making her ineligible. Remember, the property must be rented at fair market value for the asset to be considered non-countable for Medicaid eligibility.

The second way a second property can be considered non-countable for Medicaid purposes, is if the Medicaid recipient is not the sole owner. Suppose Mom owns a cabin on the lake which the family used for years as a vacation property. If there are other owners, then the cabin on the lake is not considered a countable asset. Its value is exempt. Medicaid considers a jointly owned property as non-countable because it is not in the sole control of the Medicaid recipient. If Mom plans well ahead she can add her adult children onto the deed. Remember, in our scenario, Mom is single, so at this point we're not addressing any hypothetical example in which Mom owns property with a spouse. Adding adult children onto the deed of a property is a reasonable thing to do, assuming that the children will eventually inherit it anyway. But, keep in mind, Medicaid eligibility is very strict when it comes to giving away assets to qualify. There is a five year look back rule, which is why Mom needs to plan well in advance. If she were to give away ownership interest within the five year look back period, she would be penalized, but may still eventually qualify for Medicaid. Better to think ahead and plan ahead.

In another possible hypothetical example, suppose Mom has a substantial amount of money in the bank, say $100,000. She can spend down her liquid assets. This strategy is based on the idea, that people are allowed to spend their own money. She might want to remodel her house to make it more accessible for her as she ages, like the new walk-in shower, or a more efficient kitchen. Either or both of these home improvements can put a substantial dent in $100,000. She can also buy a new car. Medicaid recipients can have one vehicle of any age or value, and it would be considered a non-countable asset. There goes another substantial dent in the $100,000.

What Mom can't do is give away her assets, unless she does so at least five years before applying for Medicaid.

FALDP Turn Key Business Bundle - Annual Conference Special Offer

The Florida Association of Legal Document Preparers (FALDP) is offering a special offer along with the Turn Key Business Bundle. Purchase of a Turn Key Bundle also includes the $95 conference fee.

We offer our Turn Key Business Bundles to motivated applicants who possess the qualities that will promote success. Drive, ambition, empathy, persistence, honesty, and attention to detail; combined with integrity, and a true moral compass. Ultimately, the key to your future is in your hands. We do our best to promote the success of our Turn Key Owners, but can make no guarantees. Are you up to the challenge?

Our Turn Key Business Bundle has helped many document preparers successfully launch their business. The Bundle includes courses, FALDP membership, a custom website and more. 

Learn more about our association, more about our conference, and more about FALDP membership. Call 800-515-0496 with any questions ... or just to say hi.

What IS Medicaid Planning? Part I

If you're confused, you're not alone. Most of us know that Medicaid is a federal health insurance program for low income people. Ok. But how are you supposed to plan to have Medicaid? Or worse, does Medicaid Planning mean planning to be low income? The short and confusing answer is – yes and no.

First, let me make clear that I am not any sort of attorney, let alone an Elder Law Attorney. Yet, I think I have knowledge and insight into all of this from my personal experiences with my mother. My mother was on Medicaid the last two and a half years of her life, and if she had not qualified for Medicaid her last years would have been much different. Without Medicaid she literally could not have been able to afford to live in an Assisted Living Facility. Mom had no assets. She had sold her house years before, did not own a car, had no investments – she only owned her furniture and personal items. Some of this was likely purposeful on her part. She had rented a condo from me at least 10 years earlier and when I asked her if I could add her name to the deed so that she could homestead the property, she refused. She said no, that in case she had to go in a nursing home, she didn't want them to be able to take the property. That's really not the rule. She was wrong on that. But, I know now how she was thinking and probably why she didn't own a house or condo anymore.

I am a Florida legal document preparer and strictly forbidden by the Florida Supreme Court and the Florida Bar to assist anyone with Medicaid Planning. However, I think, and hope, the right to free speech, First Amendment to the U.S. Constitution is still in place and on my side in trying to explain how Medicaid Planning works. This article only speaks about Medicaid Planning in Florida. Because, although Medicaid is a federal program each state has different rules as to how they administer the program.

This is Part I of a series, and first I'll explain my mother's financial situation and why she qualified to begin with. Mom was 96 years old when she applied (rather we applied for her), she was in relatively good health, and her only income was her social security income. She received around $1800. per month in social security.

For a time, she actually could and did manage financially to live in an apartment on her social security income alone. But with age she became forgetful. When we found out that Mom wasn't paying her utility bills on time, my sister asked Mom to sign a Power of Attorney and took charge of her finances. Looking to Mom's future needs, my sister and I started looking around for an Assisted Living Facility. Mom had glaucoma for many years which was controlled by using daily eye drops. She could see, but as she grew older her eyesight diminished. When she couldn't safely cook her own meals anymore, she came to live with my husband and me.

Having Mom in our house was difficult. I was happy to be able to help, and thankful that she didn't need any personal care. But, I cooked, cleaned, washed her clothes, took her to her doctors, and set up social activities for her. The social thing was the hardest for my mom, she liked being around people. I think she found my husband and I boring. Our company wasn't enough to entertain her. I was exhausted.

I was aware that Mom was entitled through her Medicaid to receive 10 hours per week of home health care. I called an agency, but they never returned my call so I just kept doing what I was doing. By now Mom had a caseworker through her Medicaid and besides knowing that Mom was entitled to home health care, I learned that she was also entitled to long term care because of her Medicaid.

So we looked around for an Assisted Living Facility that was affordable and that fit her criteria. She requested that the facility be at the beach and that she have a private room. We found one that fit the bill. If she were to self pay the cost would have been around $2400 per month -- $800. more than her monthly income. But, since she had Medicaid long term care through United Health Care, Medicaid picked up the difference. The various facilities that accept Medicaid have contracts set up with the long term care insurance providers and subsidize the costs. About a year later, when I noticed that the ALF was going downhill we moved her to a different one. The second one was slightly more expensive. Self pay would have been $3000. per month. But the difference in the self pay cost made no difference in my mother's finances. She handed over her $1800. and she received the same services as if she had paid entirely out of pocket.

My mother was able to live in an Assisted Living Facility with absolutely no out of pocket expenses. By law, she was entitled to keep $54 per month of her social security income for incidental expenses, like haircuts, and snacks. The amount sounds excessively paltry until you consider that she didn't have anything to spend her money on anyway. She was happy and comfortable with activities to engage in, and a staff to help her. The medical staff at the ALF gave her eye drops twice a day as prescribed, and gave her other pills or medications as needed. The structured environment suited her as the meals were at a set time everyday and she had menu choices. The few times that she was late for a meal, someone would knock on her door to make sure she was alright. I was close enough to the facility so that I could visit as often as I liked, and tried to go see her at least a couple of times per week. And, most importantly to her, there was always someone around to talk to.

As of October 2018, the income cap to receive Medicaid was $2250. For a single person, the asset ceiling is $2000. In my mother's scenario she automatically qualified because her circumstances neatly fit the criteria, but what about people whose income is too high, or have assets valued at more? And what about married couples?.

In parts II, III, and maybe IV, I'll try to explain these other scenarios. Both my sister and I are college educated, but finding the information, keeping up with the paperwork, and understanding the options was still daunting. Whether you're reading this for yourself, or for mom, dad, grandma, or grandpa – educate yourself as much as possible. You may ultimately need to see an elder law attorney, but having the information in advance, may save you time and money in the long run.