Having a will to dispose of assets is only the beginning of a well-thought out estate plan. Combining the advantages of a will, a revocable trust, a durable power of attorney and a living will is the best way to achieve your post-mortem asset distribution plan goals.

Below you will find some specific definitions and important points about living wills that will prepare you for your meeting with a Florida estate planning attorney:

What is a living will?

A living will is a legal document that a person uses to announce his or her wishes regarding life prolonging medical treatments when he or she is unable to communicate those wishes. The Florida living will is also known as an advance directive and is an extremely important document with substantial legal significance.

What is most important to include in a living will?

It is crucial that your living will not only includes directions for others to follow with respect to life prolonging measures but also includes the name of someone who can make healthcare decisions in the event of incapacity. Both aspects of a living will are necessary because generally, the life prolonging directions will only be followed when the patient is in an end-state medical condition. This leaves open the situation where someone may not be in the end-state but nonetheless, cannot competently make medical decisions.

Why should a living will be shared with others?

Once your attorney drafts your living will, it must be signed and filed at the attorney’s office. It is also very important to share the document. Providing a copy to your family, your physician and your close friends will ensure that someone you know will have access to the document in the case of your incapacity.

There are now more children born to single parents than to parents who are married. Florida has a statute dealing with unmarried parents that lists the father on the birth certificate. A lot of unmarried couples end up breaking up and having to deal with parental time-sharing issues along with child-support.

What happens when the mother declares during these proceedings that the "father" really isn't daddy? If the father wishes to contest that declaration and continue to be the daddy to a child that is not his, he now has more ammunition to fight that battle. The recent 2nd District Court of Appeal case of Van Weelde v. Van Weelde illustrates how this can be done.

If the mother signed an FS 382.013 affidavit naming someone as the father, she is prevented from claiming that man isn’t the father at a later date. Even if genetically the man is not the father, he can still establish his parenting rights, including time-sharing and joint custody. Obviously, he also will have the obligation of supporting this child throughout life as a minor. This case is good news for men who are faced with such challenges during litigation with the mother.

Back benefits can be one of the more confusing aspects of Social Security disability for claimants. Although back benefits are confusing, they are also extremely important to the claimant because these benefits can reach to the tens of thousands of dollars.

Back benefits accrue from the date of the application in supplemental security income (SSI) claims. Back benefits can begin to accrue 12 months prior to the date of application for Social Security disability (SSD) claims. To qualify for back benefits for a year prior to your claim, you must establish an "alleged onset date" at least 17 months prior to applying. This is due to the fact that the Social Security Administration will not pay benefits for the first 5 months that an applicant is disabled.

To establish an Alleged Onset Date (AOD), the claimant must not be working and must be able to medically prove that he/she was unable to work on the AOD.

Due to the amount of money at stake, it is crucial to speak with a qualified Social Security Attorney prior to filing your claim.

On May 14, the National Transportation Safety Board (NTSB) recommended that the legal limit for drinking and driving be lowered from .08% blood alcohol content to .05%. Every state in the union has laws on the books that a person is legally impaired by alcohol if their blood alcohol level (BAC) is over .08%.

A person having a .08% or higher and is in actual physical control of a motor vehicle is considered driving under the influence (DUI). The NTSB cites the reduction of DUI deaths and injuries when the BAC level for DUI was lowered from .10% to .08%. However, this process took more than 11 years to pass in every state, and not without blow back from restaurant, bar and entertainment lobbies.

Now the NTSB wants to lower the limit even further. This means an average woman who weighs 120 pounds would be DUI after two drinks and an average man of 175 pounds would be DUI after three drinks. Some favor the reduction. Others say it’s too conservative. In any event, this proposal will certainly spark a lively debate across the board.

In fact, the state of Michigan will be RAISING its limit back to .10% in October of this year. It is the aim of the NTSB and the insurance industry to lower the incidents of injury and death caused by drunk drivers. It is hard to argue with the number of reduced injuries and deaths as a result of the last lowering of the legal BAC. We live in a society that is busy and growing. Is it unreasonable to try to make our streets and highways safer by addressing DUI more aggressively? Regardless, DUI drivers are reckless and negligent. Lowering the limit may, over time, reduce the crashes, injuries and deaths they cause. There is a benefit in that for sure.

I have recently noticed a trend among younger individuals – it’s just not the elderly that are beginning to think about protecting their assets. Whether the reason is education, economy or the overall increased high net worth in my geographic area, my estate planning client base seems to be trending younger in age. I love to see this increased awareness in financial responsibility. Another result of this trend is increased inquisitions about the laws regarding guardianships. My “50 something” clients have parents that are at the age where guardianships become most relevant.

When I meet with clients who are concerned about a parent who is ill, elderly or just losing mental capacity, most often they ask informational questions about how to become a guardian, the responsibilities of the guardian and how someone is actually appointed guardian. Here’s the skinny….

Establishing a guardianship is a means to protect financial and legal interests of an adult, an elderly person or a minor who cannot manage their affairs themselves. In order to be appointed guardian, you will have to go to court. A judge will decide if guardianship is necessary based on the opinion of a panel of medical personnel. If indeed guardianship is deemed necessary, the judge will decide who is the appropriate guardian based on a best interest standard. The court will take its time on this decision as taking away someone’s rights is obviously not taken lightly by the judicial system. Finally, responsibilities will be delegated to the appointed guardian. Responsibilities are separated into two groups: financial affairs (paying the bills, investment decisions, etc.) and personal affairs (health care, living arrangements, etc.).

Although it is not mandatory, I highly recommend contacting an experienced guardianship/elderly care attorney to guide you through this process. Legal counsel can be especially helpful when proving to a medical panel and judge that you are the proper guardian and when trying to fend off others who may object to your request.

The US Department of Justice (DOJ) recently announced a landmark settlement with a Colorado Sheriff's Department regarding their procedures and policies in dealing with persons with hearing impairments.

The resolution, which is being hailed as a landmark agreement, will likely be used by other jurisdictions as a template for what proper procedures and policies police departments should have in place for dealing with persons with hearing impairments. The settlement also resolves pending Americans with Disabilities Act (ADA) litigation against this department. There has been a growing trend across the nation for focusing on ADA policies and procedures beyond the typical/historic "wheelchair issues litigation" that most ADA litigation is focused on. Most police departments have ineffective, incomplete and vague procedures for dealing with persons with other types of disabilities. This landmark settlement can be reviewed at the website www.ADA.gov (make sure to click on the "New to ADA" link).

It’s important to have an experienced ADA attorney on your side in these complicated situations. LaBovick Law Group has a long history of supporting and enforcing the rights of persons with disabilities. Free consultations are available to discuss such issues and to determine whether appropriate litigation is necessary.

I am hot on the topic of LOPs. LOP stands for “Letter of Protection.” This is the common use name for a contractual lien that doctors have patients sign to assure payment for medical services related to an injury case. Before we can understand the problem with LOPs we should understand a bit about medical billing in accident cases.

Example: Ms. Linda Jones gets hurt in an automobile accident. She goes to Dr. Mark Smith. When Dr. Smith sees her he will want to know how he is getting paid.

There are numerous sources a medical provider must look to for payment in every accident case. Let’s start with the premise that few people have the money to pay for any significant medical care in cash. Some do, but they are usually wealthy enough to have great insurance, so they don’t need to.

If the accident case is from an automobile accident the doctor must first bill the mandatory PIP (Personal Injury Protection) insurance. PIP is automobile insurance for medical bills and lost wages, but it is limited to $10,000. Many times a patient’s PIP benefits will run out after the first hospital visit.

If the PIP limit is exhausted, or if the accident happened outside of a car, like in a department store, the doctor should look for a medical payments policy (called Med Pay). Med Pay does pay for any medical bills, but since it isn’t a mandatory insurance, only a few people purchase it. Even when it is purchased it is often in a very small amount, like $1,000 or $5,000. So Med Pay also runs out quickly.

After that, the doctor must look to health insurance. Health insurance has three issues:
1) First, many people simply don’t have health insurance. That leaves the doctor with
limited options.
2) Second, health insurance does not pay well.
3) And finally, third, health insurance, like government insurance (Medicare), wants to be
paid back after if the patient/victim/client gets any settlement money from the accident
case.

Many doctors prefer not to use health insurance if there is another way to get paid. That is what leads us to the LOP. We will discuss that after we look at one final method of getting paid.

The last insurance the doctor can look to, assuming there is no health insurance, is government payments. Government payments are Medicare, which generally covers older Americans, and Medicaid, which is really akin to government charity for the poor. Getting paid by the government is the lowest reimbursement for the doctor. Therefore, the better doctors avoid using government insurance when possible. Similar to health insurance, the government must be repaid from the client’s/patient’s future verdict or settlement.

Finally! This is where the LOP comes into play. Doctors who were friends with personal injury lawyers came up with a better system of getting paid on accident cases. They created a contract between the patient, the doctor and sometimes even the patient’s lawyer. That contract says the patient instructs the lawyer to pay the doctor’s bill out of the settlement or verdict. On its face, that sounds pretty fair. The patient needs medical care and doesn’t have the funds to pay for the care. The lawyer wants the client to get good medical care because the insurance company for the defendant needs that information to make a settlement offer. So, the patient, lawyer and doctor can all cooperate to get the victim the best care.

The problem arises when a lawyer chooses the more important relationship at the end of the case… On such relationship is of the doctor and attorney. They may be buddies, and they refer patients/clients to each other. That creates a business relationship, where the doctor can charge higher than normal fees for their care, and the lawyer can help his friend by protecting his overinflated bill in trade for a steady stream of injured victims. The patient gets good care, but at an unreasonable premium.

The other option is that the doctor works in good faith, and at the end of the case the lawyer does his job and “zealously” represents his client’s interests. That means negotiating the doctor down to the lowest possible payment. That means the doctor took the risk that the case would settle, waited to get paid, treated the victim and in the end has to fight tooth and nail to get paid a reasonable fee. That is completely unfair to the doctor who is not accustomed to or isn’t set up for fighting over payments. So in the end, the doctor typically relents and gets paid a fraction of their true value to the client.

Our firm represents many medical providers. We represent the full gamut of medical providers, from hospitals to single-person physical therapy centers. We have clients in Massachusetts, Ohio and all over Florida. We are hoping to enter Kentucky and Minnesota and Michigan this year. The LOP is used by lawyers and doctors all over the USA. Most other jurisdictions don’t call them LOPs. They call them “BI Liens.” BI stands for Bodily Injury Insurance. That refers to the type of insurance that protects the defendant and gives money to the victims if a defendant hurts them in an accident. BI can be attached to an automobile or a building where it is typically called simply the Liability Policy.

Our firm has come to a simple conclusion: while the LOP/BI Lien is a generally accepted tool to get medical care for uninsured or underinsured victims, they lead to multiple problems for all parties. We are doing our best to avoid the LOP in all injury-related cases. While some doctors still insist on using this tool, we are trying to convince our medical providers they are best served in avoiding it when possible.

In my next blog I discuss: the conspiracy theory juries feel about the LOP.

Did you know, as a veteran of the United States Armed Forces you may be eligible for disability benefits provided by the US Department of Veterans Affairs (VA) if you are injured or sick as a result of your service in the military?

What are Veterans Disability Benefits?
Veterans disability benefits are monthly monetary payments that a disabled veteran receives from the United States government. This governmental group is known as the Veterans Benefits Administration, which is a division of the US Department of Veterans Affairs. The amount that a veteran receives is dependent on the severity of disability that the veteran suffers from. The VA allocates disability from 10% disabled up to 100% disabled. These payments are 100% tax exempt. In addition to monetary benefits, veterans are eligible for free medical and rehabilitative treatment.

To apply for these benefits a veteran must be diagnosed with a disease or disability, such as Parkinson’s disease, musculoskeletal disabilities, post-traumatic stress disorder, etc. The veteran must have suffered an incident that caused him or her to be affected by the disease or disability. The veteran must also prove that the disability is service related. This means that the veteran must prove that what happened to them while they were serving our country was the cause of their disability. This can be the most challenging of the three-pronged test and may require vast amounts of both medical and service-related records.

Low income disabled veterans, whose disabilities are not related to their service or veterans older than65 years may be eligible for a veteran’s pension. This is a needs based system similar to Supplemental Security Income (SSI). To be eligible, veterans must have served at least 90 days on active service and at least one day during war time.

Veterans who wish to apply for disability benefits may choose to have an attorney represent them through the complex bureaucratic maze. If you choose to be represented, your attorney cannot charge you a fee unless you are first denied benefits and later awarded them.

By far the most critical part of a Social Security Disability application is the medical documentation. This is important for two reasons. First, if the claimant has continued to treat for several months or years it establishes that the claimant is truly sick or in real pain. Using your doctor’s records you can prove to Social Security that you have suffered from Lupus since 2010 or that you had a spinal fusion in 2011 and your pain continued for example. The medical evidence is the foundation on which your application is based. The second reason is important because it allows the patient the best chance of recovering and returning back to normal life.

We all know that medical treatment can be expensive without insurance and that continuing treatment after losing your job may not be possible. For those circumstances Social Security will send applicants to their own doctors for what is called a Consultative Examination. This is not ongoing treatment but a onetime evaluation by Social Security’s doctor in hopes of medical documenting your condition. No matter how much medical documentation you have your case needs to prepared by a professional who can make sure that all of the relevant evaluations are completed. If you have been denied for Social Security Disability benefits you can call the attorneys at the LaBovick Law Group to help you receive the benefits you are entitled to.

When most of my clients think of Estate Planning, they think of dividing up traditional type assets such as cash, stocks, bonds, jewelry, cars, family heirlooms, etc. Although this has been the norm for the most part, in today’s never ending pursuit of advancing technology, estate planning attorneys and their clients have a another very important classification of assets to consider: digital assets.

Since reading an article last year about the rightful ownership of songs on an iTunes account, I have done some research on this growing estate planning issue of digital assets. There are seemingly endless amounts of digital assets that need to be accounted for, and it is a great idea to keep a current list to include in a well thought out estate plan.

What are digital assets that need to be considered in planning for your estate? What about family photo albums that may have been converted to digital media, what about an extensive digital music collection, what about novel ideas with respect to inventions/writings/music that you have created. These are just a few items that you should consider while making an estate plan.

Although it is important that the aforementioned assets are accounted for in your plan, it is perhaps more important that the access to these items is apparent. If trustees and personal representatives do not have access these types of media, i.e. passwords to computers, the assets cannot be distributed. The passwords are also important for executors of estates to gain timely access to bank accounts, brokerage accounts, email accounts and social media accounts. Without passwords, access to these types of accounts may result in long court battles.

The creation and implementation of federal and state laws with respect to digital assets are relatively new and can be quite confusing. If you have not accounted for your ownership of digital assets in your estate plan or need help organizing those assets for the future, reach out to an expert estate planning attorney. A digital asset protection trust may be an option for you.

Florida's paternity statutes allow a paternity lawsuit to be filed prior to a child being born. In theory, the Judge in the case can award attorneys fees and litigation expenses before the child is even born and a determination made that the person suit is actually the father! This aberration can now be cured through noninvasive DNA paternity testing using only blood samples from the pregnant mother and the purported father. The old amniocentesis method, which involves some risk to the baby and mother, is now old technology. New techniques allow laboratories to search for and find the babies cells in the mother's blood. DNA testing can then be done on those cells and the mother and father. Such DNA testing now all but guarantees that paternity can be established prior to the baby being born. Persons facing paternity issues and having questions should contact an experienced Family Law attorney.

The Social Security Office in West Palm Beach has been closed since February of this year. This has inconvenienced thousands of people who rely on the office service. The Office in West Palm Beach is one of the busiest offices in South Florida which has one of the highest concentrations of people on Social Security in the country. The office closed due to problems with the air quality and is expected to open sometime this summer. Social Security has not done a great job of notifying the public of the closure. If you go to the website the only thing that would indicate the closure is a small disclaimer at the bottom of the page. With the closure of the West Palm Beach Office I direct most of my clients to the Delray Beach Office which has been inundated with people from all over the county. Cramming staff and the general public into one office has caused longer lines than usual. The Palm Beach Post reported that a 70 year old woman fell while waiting outside in the heat at the Delray Beach Office. This closure and failure to remedy the problem quickly is just one in mounting reasons why those applying for Social Security Disability or retirement are unable to get the services they need from their government in a timely manner.