Things You Should Know About Family Law

College Legal Extras to Think About

Posted by Cory Chastang on Thu, Oct 24, 2013

legal challenges when kids go to collegeIf your child is approaching age 18 and heading to college or other school, consider having him/her sign a Health Care Proxy and also a Durable Power of Attorney which will allow you to make financial and medical decisions for them if they are unable to do so. (These documents will name you and/or someone else as primary and alternate Agents for financial and medical treatment decision-making.)  

Once your child signs the documents, forward copies of at least the Health Care Proxy to the infirmary at your child's school, so it can be included with their Health History form and insurance information. (In my opinion, it's not necessary to provide copies of the Durable Power of Attorney, which is for emergency financial decision-making. You can always fax the Durable Power of Attorney to the school's business office and/or the local bank if necessary). But the Health Care Proxy should be on-file with the infirmary or Health Office at your child's school from the beginning. 

These documents are state-specific and can be modified to include language which requires parent(s) or other trusted third parties to be notified in the event of medical/mental illness. If your child attends school out of state, language can easily be included which confirms that both documents are intended to be effective in any state needed.

Here’s Why It’s Important.
During my partner’s son’s freshman year, a good friend of his from the dorm required hospitalization. The boy's parents were out of state, and he did not have a Health Care Proxy. (Not many college students do.) The 18-year-old kid who accompanied his friend to the hospital ended up being named as his friend's Health Care Agent (these forms are usually presented at the hospital upon admission). He’s a great kid, but naming him as Health Care Agent was probably not a good idea. If the hospitalized boy needed anesthesia or was rendered unable to speak for himself, the 18-year-old friend would have been required to make the decisions. I would not really want to put my son in that position.

Just as Important.
College can be a very difficult and stressful time for some students, and I’ll always wonder if healthcare problems, especially mental health crises, can be avoided if a student’s parents are immediately notified of their child’s healthcare problems.  A Health Care Proxy which names parents as Health Care Agents and is modified to require parents or another trusted adult to be notified of medical/mental treatment or therapy might make all the difference in the world to responsible parents. Once your child is 18, he or she is legally able to sign such a document. With the right document, all of the HIPAA privacy rules can be waived.

These documents are not intended as an invasion of the child's privacy but rather, they can be designed to ensure that the correct parties are called in the event of an emergency. Most of all, I want to be one of the first people notified if my child has a medical emergency while away at school.

 The planning really only works where the student (who must be over the age of 18) is a willing participant. In most families, this would not be a problem and having the student sign a Health Care Proxy (regardless of whether or not the student will attend school out of town), is a practical idea.

Here’s a serious example. Your student suffers traumatic head injuries in a bad car accident. Because the accident victim is a minor, his parents can make all medical treatment decisions for him, including choosing the course of therapy and treatment as well as the facilities and providers of services. In this case, the accident victim was eventually discharged from the hospital to a reputable traumatic brain injury facility.

But what happens when the victim is 18 (the age of majority in Florida)? With no Health Care Proxy in place, parents no longer have legal authority to oversee care. At that point, the hospital or rehab facility can demand that the parents bring Court proceeding to secure their appointment as legal Guardians. Such proceedings can be long and expensive, and if split-families disagree, the proceedings may be even longer and more costly. It just seems simple to have a Health Care Proxy signed when you leave for school.

Let your students take care of magazine subscriptions, dorm décor and school supplies. Then help them get a passport, figure out budgeting, and sign the Health Care Proxy/Power of Attorney. It could save you all some heartache.

Topics: Florida law, the law and your college child, car crash, family law

Seven Myths About Divorce

Posted by Sam Crosby on Sun, Apr 1, 2012
divorce problems? Call Miller, Crosby & Miller When I think I’ve seen it all, I hear another myth about divorce. The myths below are widespread, and the problems they address will affect you in some way if divorce is the route you decide to take. Forewarned is forearmed, so read on, then come in and let’s talk. Because the biggest truth of all is that your divorce really is different than anyone else’s, and nobody else’s counts when we make the divorce plans and decisions that will determine the rest of your life.

Myth #1:    One Size Fits All.   Wrong. Aunt Minnie getting a pile of alimony does not mean that you are going to get a pile of alimony. Like most law, divorces are intensely fact specific. Tiny differences in facts can drastically change the outcome. For instance: the facts of your marriage are different than the facts of the marriages of your friends and family. Who worked when, who brought what with them to the marriage, how long were you married, how old are any children, and so much more will determine the outcome.

Believe it or not, you do not know all the critical facts about your marriage. For example, we’ll need to find the absolute values of real estate [an appraisal from two years ago doesn’t count], the present value of a future pension, the current value of a business and the marital portion of a 401k. There’s a lot more, but you get the picture. And if the critical facts are unknown, then the final outcome cannot be accurately predicted at the beginning of the process. No one can predict what the judge will do until every missing fact is known.

Myth #2:    I Do Not Need a Lawyer for a Divorce.  This is rarely correct and when it is, it usually means that neither spouses have assets, alimony claims, businesses, pensions, 401k plans and children.  Add just one of those factors and you need a lawyer.  A retired judge friend always stops people who say “he who represents himself has a fool for a client.”  She corrects the speaker and says “He who represents himself has a fool for a client and an idiot for a lawyer.”  She’s talking about the foolhardiness of undertaking the emotional, legal and financial tornado of divorce without an experienced lawyer who is not caught up in the emotions, the legal turmoil and the financial stress of divorce. Like I said, come see me.

Myth #3:    Children Get to Choose which Parent They Live With at Age 12 or 14.  This has never been true in Florida.  I hear it so much I must conclude it may be true in some other states, but it’s not true in Florida.  I once had a 17-year-old child of a client who after ten years of living with dad and doing well, decided mom was in need of help and to go live with mom. This was a mature, good student.  My client was the dad. We fought the child’s decision because it was not in the child’s best interest. In the end, the Judge told the 17-year-old, “no.”  You are staying with Dad. Sometimes you just have to be a parent.

Myth #4:    I am not paying that B____/B____ [insert gender appropriate bad name] a dime in Alimony.  Actually, depending on the facts, you could be dead wrong and pay alimony for decades. Alimony is a complex, fact-driven issue under Florida law. As a mediator I regularly am hired by good lawyers to help them settle cases with tough alimony issues. When good opposing lawyers regularly hire a third lawyer [me] to help with alimony issues, it tells you how tough this area of Florida law really is.

Myth #5:    Division of Marital Property is Easy.  Division of marital property in a Florida divorce is called equitable distribution. There’s a whole statute that governs who gets what property. I spend a lot of time explaining to divorce clients and mediation clients how equitable distribution works. Like alimony, equitable distribution is a complex, fact-driven issue under Florida law. Pretty much zero clients have all the factual information they need when they first come to my office about a divorce.

Myth #6:    Divorce only takes a couple of months to complete.  I guess it could happen, but far too many divorces can and do drag on for years. There is so much emotion involved that the folks involved tend to want to fight it out, even when settlement is smarter. I’ll do my best to talk you off that wall. Some of the worst, most insanely litigated lawsuits I know of are divorces. The truth is that everyone suffers.

Myth #7:    As reasonable people, you can control whether your divorce is calm or “A War of the Roses.”  Not a chance. Sadly, the most important factor is who your spouse hires his or her attorney. If they hire a solid, experienced divorce lawyer who is willing to teach the spouse the value and advantages of settlement, then the stress, expense and drama will be minimal.  (Not none, just not as much as it could be.)  If, however, your spouse hires an attorney whose sole motivation is to maximize the attorney’s fees it will be very expensive, very stressful and more drama than daytime television.  If you are contemplating divorce, pray for God to give you and your spouse wisdom in selecting your attorneys. It will make all the difference in the world to you, your family, and your mental and financial health.


I can’t make it go away, but I can sure help you get through it,

Sam

Topics: child custody, divorce, family law, separation, settlement, divorce lawyer, Florida divorce, divorce mediation, divorce litigation

Is Your Lawyer Ready for Trial?

Posted by Sam Crosby on Thu, Aug 4, 2011

Not all trial lawyers are created equal

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This floors me, but the Journal of the American Board of Trial Advocates** reports that there are litigators out there who are biased against trials! The research shows that many lawyers admit to being litigators who deal with litigation but never go to trial--the suggestion being that there’s a bias against trial work because it’s time intensive, hard core and tough. Or maybe they don’t have the experience to win. Excuse me? Isn’t that what folks pay us to be ready to do?

At any rate, if you need help with a legal problem, be aware that there’s a potential new difference between a litigator and a trial lawyer that might add up to a bias against going to trial (especially jury trials). I’m pretty passionate about this; in fact, I’m pretty horrified. I’ve tried more than 25 all-out jury trials and hundreds of non-jury trials. I’ve mediated just as many. I kind of consider that my board certification in both areas means I’m supposed to decide which path offers my client the best outcome and go for it.

So, while I’m disappointed to think that some in my profession may be taking an easy way out, be assured that I’m not. When you need legal help, Miller, Crosby & Miller is ready with an honest assessment, the legal knowledge to back it up--and the absolute readiness to get you the best results possible, trial or no trial.
Bottom line? I’d want us on my side.


Sam

 

**The American Board of Trial Advocates is an invitation only organization that includes both defense and plaintiffs' lawyers .

Topics: trial lawyers are not equal, is your lawyer ready for trial, litigators don't go to trial