The Importance of a Health Care Surrogate

A client recently came to see me because her husband’s son from a previous marriage had himself appointed his father’s emergency temporary guardian. This was done with no notice to her, as allowed by Florida law. I recently received a distraught call from her because her husband was in the hospital, and she had just heard that her husband’s doctors would not discuss his condition with her. The Order appointing her stepson as emergency temporary guardian (ETG) gave him the right to make all health care decisions for his father and he had instructed them not to discuss her husband’s care with her. Just to make matters worse, the son who is now calling the shots had been estranged from his father.

The guardianship laws require that the judge shall determine whether the ward, prior to incapacity, has executed any valid” advance directive naming a health care surrogate. If an advance directive exists, then the judge is required to “specify in its order and letters of guardianship what authority, if any, the guardian shall exercise over the surrogate.” Generally, the judge will provide that the guardian shall have no authority over the health care surrogate pending further order of the court. See, Fla. Stat. sec. 744.3115 

It is unclear whether the client has a health care surrogate directive from her husband. If she has one, then we could probably get the judge to modify his previous order appointing the ETG. The judge could not modify or revoke her authority as the health care surrogate without finding grounds under Florida Statute section 765.105. Therefore, in all likelihood, she would have the right to make the health care decisions and to discuss her husband’s care with his doctors.

If there is no directive naming her as her husband’s health care surrogate, then the client may not gain back control of her husband’s health care. However, at a minimum, the judge will probably require that she be kept informed of her husband’s care and treatment.

This situation highlights the importance of proper estate planning, including a directive naming a health care surrogate.

Harry Hackney Certified in Circuit Civil Mediation by the Florida Supreme Court

Harry Hackney is pleased to announce that he has been certified by the Florida Supreme Court to mediate circuit court civil cases.   He is available to mediate cases throughout the Fifth Judicial Circuit (Marion, Lake, Citrus, Sumter, and Hernando counties) plus Orange, Volusia, and Seminole counties.

Justice Prevails: Integrity Beats Gotcha

Courts encourage parties to narrow the issues and to stipulate to facts and other matters that are not a disputed issue. These stipulations make for a quicker trial saving the court time and the parties both time and money. In a recent Fourth District Court of Appeal case, the Court slapped down a party for engaging in a game of “gotcha” by reneging on a stipulation. The trial court abused its discretion when it allowed the defendant insurance company to get away with it.

The opinion begins with an attention-getting line — “This appeal pits ‘integrity’ in the practice of law against an unwarranted game of ‘gotcha.'” Fortunately, integrity won out over gotcha on appeal although not at the trial court level.  In the pretrial stipulation, in several pretrial hearing, and in the opening statement, counsel for the defendant insurer agreed that the only issue was  the amount of damages owed to the insured, which had acquired its rights by assignment.  The pretrial specifically stated: “[The assignor] assigned its rights to the insurance proceeds [the purchaser] on December 23, 2005.” Thus, the parties specifically agreed to the fact of the assignment.

Nevertheless, after the plaintiff rested its case, counsel for the insurer moved for a directed verdict and argued that the plaintiff had failed to prove the existence of the assignment.  Plaintiff’s counsel reminded the court of the stipulation and the motion was denied. The motion was renewed at the close of all the evidence, and was again denied.

Persistence paid off though at the meeting to discuss the jury instructions (i.e., the charge conference).  Insurance counsel asserted that the issue of the assignment was a “question of fact for the jury.”  This time the trial judge disregarded the argument that the fact of the assignment had been stipulated and allowed the jury to be instructed that it should determine whether a valid assignment had been made to the Plaintiff.  Not surprisingly, because there had been no evidence of an assignment due to the stipulation, the jury found there was no assignment and ruled for the insurance company.  The trial court refused to grant a new trial when the Plaintiff requested one. Fortunately, the Fourth DCA reversed this travesty of justice on appeal, and reaffirmed the binding nature of stipulations and that once a fact is stipulated no proof of it is required.

I would like to say this has never happened to me.  Unfortunately, this or something similar happens all too often. Early in my career I had defense counsel try a nearly identical “gotcha” on me.  They stipulated to the liability of a vicariously liable defendant.  That is, if the actively liable defendant was guilty, then the vicariously liable defendant was liable.  After I rested my case, opposing counsel argued that I had failed to prove the vicariously liable defendant owned the car and lent it to the actively liable defendant.  When I said that I would reopen my case and present that evidence and the judge said he would allow me to, insurance counsel capitulated on that issue.

Deathbed Marriages Become More Risky and Less Profitable

Being the spouse of a decedent comes with some significant rights.  A surviving spouse can claim thirty percent (30%) of a significant portion of the spouse’s estate as an “elective share.”  The surviving spouse may also be entitled to an $18,000.00 family allowance, exempt property, a life estate in the deceased spouse’s homestead, and other benefits and rights.

Unfortunately, this means that it is not uncommon for unscrupulous individuals to marry people late in life to gain these rights.  Fortunately, the Florida legislature recently passed a law that makes it possible to deny the rights and benefits of a surviving spouse to a spouse who procured the marriage by fraud, duress, or undue influence.  See, Fla. Stat. sec. 732.805 Previously, heirs and beneficiaries could do little to challenge a deathbed marriage.

Using Your Blackberry In Illinois (or Florida) Could Send You To Prison

This TechCrunch article talks about two people facing jail time in Illinois for recording conversations:  Using Your Blackberry In Illinois Could Send You To Prison.  Florida is one of the 12 states where recording a conversation without permission is a felony although not for a first offense for non-commercial purposes. Fla. Stat. sec. 934.03

Clients will sometimes try to bolster a case by recording an opposing party.  This not only exposes them to potential criminal liability, but is generally useless.  An unlawfully recorded conversation is not admissible in court.

Here is a much more detailed blog post by a criminal defense attorney:  Recording Telephone Conversations and Communications in Florida

Sometimes All You Have To Do Is Ask

As a matter of policy, I do not give any legal advice in response to questions posted as comments or otherwise in this blog.  However, the following question piqued my interest and provides a platform for discussing the sort of everyday problem an average person might encounter.  The question was:

I have a fear of dentists and have neglected my teeth for years. The pain is so great in a few teeth that I finally broke down and went to a sedation dentist. They examined me and came up with a proposal to fix my entire mouth for the sum of 13,000.00, and finance it. The financing would result in the final total being 18,546.00 from GE Money Bank. Never heard of them. After having a day to crunch the numbers, the 309.00 payment over 5 years was going to be difficult. My girlfriend is willing to pay the dentist the 13,000.00 in cash, but I’ve signed a contract stating that I agreed to the 309.00 payment for 5 years. The contract was signed Friday afternoon, the first session is scheduled for Monday (08/02/10). Can I rescind the contract and simply give the dentist cash, rather than incur all that interest? What are my choices? No work has been done on my mouth as yet. My dentist would be happy to get paid the cash, but the contract that was signed would probably have to still be honored. How could I cancel this contract?

Am I stuck with the ridiculous interest payments and the grand total of 18,546.00? 

First, congratulations to the reader for realizing that he has a signed contract that may be valid.  You would be surprised how often clients come into the office having  just signed a contract for the purchase of real estate for many hundreds of thousands of dollars and say:  “I just signed this contract.  Can you look it over and tell me if it is okay?”  It is too late to have your lawyer look over a contract after it is signed.  At that point, if you have all the requisites for a valid contract, the damage is done.  So that is lesson number one — have your lawyer look over contracts before you sign them and not after.

Second, the contract is between GE Money Bank and the reader.  It is not between the reader and the dentist.  Nevertheless, the dentist is still the key to backing out of the contract at this time.  By the way, the GE in GE Money Bank stands for General Electric and it is a major consumer finance company.

Finally, I think the key to the reader’s problem is simple — just ask.  On Monday, he should walk into the dentist’s office a little early and offer to pay up-front if the dentist will tear up the contract.  I bet that the dentist will be happy to tear up the financing contract and take the money.  This is especially true if he just signed the contract on Friday.  Most likely it has not been submitted to GE Money Bank yet and no monies have been advanced to the dentist.

All is not lost if the dentist will not tear up the contract and take the money.  If that is the case, the next step is to read the contract.  Interest is charged for use of money over time.  The $5,546.00 interest charge is based on the use of the $13,000.00 for three years.  If there is no pre-payment penalty in the finance contract, then the $13,000.00 can be paid at any time and the interest due after the date of payment avoided.  Even if there is a pre-payment penalty, it is likely to be much less than $5,546.00.

I am often surprised by how often someone will come to me for a “legal” way out of a situation when they have not even tried to talk to the other party.  Sometimes the solution is as simple as asking.  I will bet that is the case here.  But, if not, the next step is to read the contract and see if anything in it can be used to your advantage or keeps you from doing what you want to do.  In this case, as with most finance contracts, it probably can be prepaid and some money may be saved.

Durable Powers of Attorney

Florida Statute section 709.08 governs durable powers of attorney.  A durable power of attorney is a written document whereby one person can designate another to act for them.  The person who signs the document and appoints another is the “principal” and the person appointed to act is the “attorney in fact.”  The attorney in fact is an agent of the principal.  The term “attorney in fact”  identifies him as a particular type of agent who has been authorized to act for a principal under a power of attorney.  An attorney in fact can be a person who is at least 18, a trust company able to do business in Florida, or a charitable organization.  The attorney in fact cannot delegate his or her authority, except that the power to transfer stocks can be delegated to a transfer agent.  The durable power of attorney must be executed with the same formality as a transfer of real property.  That is, it must be signed in the presence of  two witnesses.

Ordinarily the authority of any agent ends with the incapacity of  his or her principal.  This is not the case with a durable power of attorney.  In fact, that is where the term durable comes from; i.e., it is “durable” because it survives the agent lack of capacity.  A durable power of attorney must contain the phrase:  “This durable power of attorney is not affected by subsequent incapacity of the principal except as provided in s. 709.08, Florida Statutes”.  However, “similar words showing the intent that the authority of the attorney in fact survive the principal’s incompetency may also be used.  Therefore, a durable power of attorney can be useful in avoiding guardianship because the attorney-in-fact can manage property for the incapacitated person.

It is not, however, necessary for the principal to be incapacitated for the durable power of attorney to be effective.  The attorney in fact can begin using the power of attorney the day it is signed.  The principal does not have to be incapacitated. This makes a durable power of attorney both very useful and very dangerous.  Powers of attorney can be, and have been, used to steal from the principal.  For that reason, I caution clients they may not want to deliver them until needed.  An other alternative is to appoint co-attorneys-in-fact in the hope that each will keep the other honest.

However, durable powers of attorney can be “springing,” which means they cannot be used by the attorney in fact until the principal becomes incapacitated.  Incapacity is defined as the inability to manage property  as defined in Florida Statute section 744.102(12)(a) . The exercise of a springing power requires the delivery of affidavits to the third-party.  This can be problematic because a physician may be reluctant to certify someone as incapacitated as required for the usefulness of a springing power.

Any lawyer who prepares powers of attorney has probably seen instances where people waited until it is too late to seek a power of attorney.  Often a parent becomes incapacitated and then a child realizes that they need to sell property or transact some business for the parent.  If the parent is already too incapacitated to do it themselves, the child may seek  a power of attorney so they can help the parent.  Unfortunately, it is too late for an incapacitated parent to sign a power of attorney.  A person must be competent to delegate their authority to another.  Powers of attorney are useful for planning ahead, but you must plan ahead.