Issuu

A Publication of the Orange County

Bar Association

Inside this Issue: Presidentâ€™s Message The OCBA Foundation: Its Mission and Activities Wiley S. Boston, Esq.

August 2016 Vol. 84 No. 7

Solo & Small Firm Committee Auto Insurance: Know Your Policy! Thomas B. Feiter, Esq.

Elder Law Committee Should You Draft a Qualified Income Trust Estate, Guardianship & Trust Committee for Your Client? Primer: Rights of a Surviving Spouse in Florida Julie Jo Adams, Esq. Joseph M. Percopo, Esq.

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theBriefs August 2016 Vol. 84 No. 7

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PAGE 1

the Briefs

Contents 3

President’s Message The OCBA Foundation: Its Mission and Activities Wiley S. Boston, Esq.

Professionalism Committee Communication: The Key to Managing Client Expectations Peter S. Garcia, Esq. .

Co-Editors Téa Sisic, Esq. & David A. Meek, Esq.

Solo & Small Firm Committee Auto Insurance: Know Your Policy! Thomas B. Feiter, Esq.

Associate Editor C. Andrew Roy, Esq.

Hearsay Columnist Vanessa A. Braga, Esq.

Ninth Judicial Circuit News Veterans Treatment Court Recognizes Commissioner Nelson and Senator Simmons

Side Bar Columnist Kimberly A. Lopez, Esq.

YLS on the Move Jennifer A. Smith, Esq.

Elder Law Committee Should You Draft a Qualified Income Trust for Your Client? Julie Jo Adams, Esq.

OCBA Luncheon Linda A. Klein, Esq. President, American Bar Association 2016-2017

YLS on the Move Jennifer A. Smith, Esq.

Clerk’s Corner Advances in Technology and Access Tiffany Moore Russell, Esq.

The Florida Bar News Larry D. Smith, Esq. Recipient of The Florida Bar G. Kirk Haas Humanitarian Award Gary Blankenship

Estate, Guardianship & Trust Committee Primer: Rights of a Surviving Spouse in Florida Joseph M. Percopo, Esq.

Special Feature The Foundation for Foster Children – A Great Resource for GALs Alana C. Brenner, Esq.

SideBar Kimberly A. Lopez, Esq.

28 Hearsay Vanessa A. Braga, Esq.

New Members

Announcements

Classifieds

36 Calendar

w OFFICERS Wiley S. Boston, Esq., President Elizabeth F. McCausland, Esq., President-elect Richard S. Dellinger, Esq., Treasurer Mary Ann Etzler, Esq., Secretary w EXECUTIVE COUNCIL Jared A. Brooks, Esq. Philip K. Calandrino, Esq. William A. Davis, Jr., Esq. Eduardo J. Fernandez, Esq. LaShawnda K. Jackson, Esq. Kristopher J. Kest, Esq. Eric C. Reed, Esq. Gary S. Salzman, Esq. Anthony F. Sos, Esq. William D. Umansky, Esq. Ryan Williams, Esq. Jamie Billotte Moses, Esq., Ex Officio Brett R. Renton, Esq., YLS President w EXECUTIVE DIRECTOR Kimberly Homer, Esq. w Communications Manager Peggy Storch

Legal Aid Society GAL Teaching Tips Domestic Violence: How a Guardian ad Litem Can Help Stop the Cycle of Violence Jonathan H. Neyer, Esq.

Communications Assistant Darshini Ramkarran Marketing & Sponsorship Manager Amanda Nethero

DEADLINE INFORMATION

Advertising – 10th of the month prior to the month of publication Copy – 15th of the month six weeks prior to the month of publication If the deadline falls on a weekend or holiday, the deadline is the next business day. Publication of advertising herein does not imply any endorsement of any product, service or opinion advertised. The opinions and conclusions, including legal opinions and conclusions contained in articles appearing in The Briefs, are those of the authors and do not reflect any official endorsement of these views by the Orange County Bar Association or its officers and directors, unless specifically stated as such. All contents ©2016 Orange County Bar Association. All rights reserved. Designer: Catherine E. Hébert Cover photo: Adobe Stock ISSN 1947-3968

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Residential Mortgage Foreclosure Program 407-649-1833 880 North Orange Avenue • Orlando, FL 32801 (407) 422-4551 • Fax (407) 843-3470 Legal Aid Society 407-841-8310 Citizen Dispute 407-423-5732 Family Law Mediation 407-422-4551 Lawyer Referral Service 407-422-4537 Orange County Foreclosure Mediation 407-422-4551 Young Lawyers Section 407-422-4551

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President’sMessage

August 2016 T Wiley S. Boston, Esq.

Explorers Post #450 visited the 5th District Court of Appeal and met with judges William Palmer, Jay Cohen, James Edwards, Richard Orfinger, Kerry Evander, Wendy Berger, and Brian Lambert. The tour was led by Senior Judge Emerson Thompson, Jr. OCBA Foundation president, Camara Williams, Esq., (third from right) was present.

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The OCBA Foundation: Its Mission and Activities

he “President’s Message” this month is dedicated to highlighting recent work of the Orange County Bar Association Foundation, Inc. (the “Foundation”). The Foundation is currently led by its president, Camara Williams, Esq. The primary mission of the Foundation is to raise public awareness of the judicial system, with emphasis on the importance of access to courts and an independent judiciary. Since these goals are shared with the OCBA, the OCBA supports the efforts of the Foundation by raising funds for the Foundation, promoting events, and assisting in some respects with administration of the Foundation. However, the Foundation is self-governed, with its own board of directors, as a separate and distinct sister entity from the OCBA.

Currently, one of the most active, ongoing programs of the Foundation is the Law & Government Explorers Program. The Foundation is the sponsor organization for Post #450, a chapter of the Law & Government Explorers Program, which is a co-educational program generally open for students from ninth grade through age 20. Explorers programs are affiliated with Boy Scouts of America. Explorers Post #450 was started and has been led by Eric Jontz, Esq., together with Mark Buckles, Esq., Amanda Perry Carl, Esq., and others. The Law Explorers have been meeting regularly, with recent speakers including Congressman John Mica, retired Chief Judge Belvin Perry, Orange County Tax Collector Scott Randolph, and Mark O’Mara, Esq., among

others. On July 13, the Law Explorers took a field trip to the Fifth District Court of Appeal, where the students had an opportunity to watch an oral argument, interact with several appellate judges, and take a tour of the court. Law Explorers is a new program for the Foundation, but it has had a remarkably strong start. The program runs on the enthusiasm of its organizers and participating students. Thank you to the organizers of this program and to all of the distinguished guest speakers who have supported it. If you know of students who would be interested in joining the program, it still has room to grow. The best source of information about the continued activities of the program may be its Facebook group, Law & Gov’t Explorers Post #450. The Foundation has also conducted a Teacher Training Program to promote civics education and a clinic on landlord/tenant law targeted to low-income tenants; spoken to middle school and high school students about the role of the judiciary; sponsored high school debate programs; and promoted other activities consistent with its mission. Like any other organization, the Foundation has faced some challenges. In my view, the foremost challenge has been that increased emphasis on testing in schools has limited some of the opportunities for hands-on engagement with students and teachers over the years. But, opportunities remain, and the Foundation’s programs have been evolving to reach audiences in different ways. The Law Explorers program is a fine example of this. The Foundation is in the process of planning its programs for the upcoming year, and we look forward to more great things happening under Camara’s enthusiast leadership. I know he welcomes any suggestions and ideas for ways to continue the Foundation’s mission. Thank you to Camara and to those who support the Foundation by participating in the OCBA events that benefit the Foundation. Wiley S. Boston, Esq., is a partner with Holland & Knight LLP. He is Board Certified in Real Estate Law in Florida and practices in the area of commercial real estate law, with emphasis on leasing of office, industrial, and retail properties, representation of developers of commercial projects, and real estate finance. He has been a member of the OCBA since 1996.

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ProfessionalismCommittee

L Peter S. Garcia, Esq.

Communication: The Key to Managing Client Expectations

ike any relationship, the attorney-client relationship is one that has to be continually nurtured. Similarly, as with all relationships, there has to be an understanding as to the expectations of both parties. This is all the more reason why the initial client consultation is so important: it sets the tone and pace for handling the client’s legal matter, as well as the expectations of both sides. For the attorney, it is fairly straightforward: we expect our clients to stay cooperative, keep in contact during the representation, and timely pay for the services that are provided. Client expectations, however, can vary widely and, sometimes, wildly. Simply asking a client about what he or she expects to gain from the legal representation is not enough and is likely a short-sighted, missed opportunity to build on the relationship. Every case or matter has a backstory, which often gives insight into the motivations of some, or all, of the involved parties. Knowing whether a prospective client is seeking to litigate based purely on emotion or because he or she is seeking relief from some past or recurring harm would likely call for very different approaches in counseling or advising the client under either scenario. Likewise, it is important to highlight both the upsides and downsides to the legal issues at hand when first meeting with prospective and current clients. Failing to hold an initial discussion on the possible outcomes, or at least a general roadmap of the overall strategy, could foster problematic and unrealistic expectations down the road. In extreme cases, this can lead to a partial or complete breakdown of the attorney-client relationship. Ultimately, all relationships are built upon some level of trust. The key to avoiding, or at least minimizing, disruptions in the relationship with a client is communication. Under Rule 4-1.2 of Florida Rules of Professional Conduct, the client sets the objectives of the representation, subject to the limitations spelled out in subsections (c) and (d). Another way of looking at this is that while it is the client who determines the goal, it is the attorney’s job to figure out how to achieve that objective. Attorneys, after all, are problem solvers by trade. We solve problems every day in court, mediation, or simply by picking up the phone and reaching out to opposing counsel. So, in managing our relationships with our clients, it should be kept in mind that Rule 4-1.2 also references Rule 4-1.4,

PAGE 4 www.orangecountybar.org

explaining that the lawyer “shall reasonably consult with the client as to the means” by which the goals of the representation are to be pursued. Ultimately, this boils down to regularly communicating with the client. In so doing, we not only comply with our professional obligation, we are creating opportunities for client input and participation in the legal matter. This is significant for the following reasons: (1) the client feels like his or her case matters and is being given the attention it deserves (no one likes to feel ignored); (2) it builds the level of confidence that the client has in the attorney, which further builds trust in the advice we give; and (3) when obstacles to achieving the client’s objectives appear, the early/ regular notice/update keeps the client from feeling blindsided or worse, misled. Unfortunately, sometimes attorneys have to deliver bad news. Whether it is an adverse ruling, a change in the case law or statute, or bad facts that arise during discovery, the best practice is to notify the client as soon as possible. While any of the above scenarios are certainly unpleasant – both for the bearer of bad news, as well as the recipient – such conversations with clients are even less pleasant when they learn about the issue later and/or from someone other than their own attorney. Rather than shy away from the conversation, attorneys should embrace it as an opportunity to brainstorm with their client and collectively determine the next step. First, in the eyes of the client, this helps shift the attorney away from being the “messenger” and back to the correct role of “problem solver.” Secondly, this collaborative brainstorming is an opportunity for client input. Again, it is the client who determines the objectives of the legal representation. By involving clients and seeking their input when there is a hiccup in the case, the client is further invested in any decisions made as to the next steps in trying to solve their legal issue. People tend to have an easier time living with the choice that they’ve made when they feel that they’ve had the opportunity to make an informed decision. The only way to accomplish that is for both attorneys and clients to communicate with each other promptly and regularly. Peter S. Garcia, Esq., an associate at de Beaubien, Knight, Simmons, Mantzaris & Neal, LLP, has been a member of the OCBA since 2013.

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OCBA LuncheonThursday, August 25, 2016

L Linda A. Klein, Esq.

Linda A. Klein, Esq. President, American Bar Association 2016 – 2017

inda A. Klein, Esq., senior managing shareholder at Baker Donelson Bearman Caldwell & Berkowitz, assumed the role of president of the American Bar Association at the ABA’s annual meeting in San Francisco, California, early this month. Klein’s practice, based in Atlanta, Georgia, includes most types of business dispute resolution, including contract law, employment law, and professional liability, working extensively with clients in the construction, higher education, and pharmaceutical industries. In June 1997, Klein became the first woman to serve as president of the State Bar of Georgia. During Klein’s term, she devised a proposal and advocated for the state to allocate funding for Georgia Legal Services and Atlanta Legal Aid to hire lawyers to help indigent victims of domestic violence. She organized a statewide group of community organizations and local and minority bar associations that together convinced the Georgia General Assembly to appropriate $2 million. Since then, the annual appropriations have helped thousands in Georgia with legal issues related to domestic violence. Klein was one of the first women to lead a prominent Georgia law firm. She served as managing partner of Gambrell & Stolz beginning in 2001 and led the firm’s 2007 merger with Baker Donelson, becoming a Baker Donelson board member and Georgia managing shareholder. She served as chair of the ABA’s House of Delegates, the second highest office in the organization, from 2010−2012. She has also served as chair of the Tort Trial and Insurance Practice Section, chair of the Committee on Rules and Calendar of the House of Delegates, chair of the

Coalition for Justice, and chair of ABA Day, the Association’s Congressional outreach effort. She is a member of the Council of the ABA Section of International Law and also serves as a columnist and on the board of editors of Law Practice magazine. In 2004, the American Bar Association honored Klein with the prestigious Margaret Brent Women Lawyers of Achievement Award. She was an early member of the Board of Directors Network, a nonprofit organization whose mission is to increase diversity on corporate boards and general counsel positions. Her other community activities include leadership in Southface Energy Institute and the Buckhead Coalition. In June, Klein received the Distinguished Service Award, the highest honor bestowed by the State Bar of Georgia. In 2009, Klein was honored with the Randolph Thrower Award for Lifetime Achievement from the State Bar of Georgia and was named to the YWCA Academy of Women Achievers. Klein is listed in “The Best Lawyers in America,” “Who’s Who in America,” and “Chambers USA.” She is regularly named to the “Super Lawyers” top 100 lawyers in Georgia, an honor bestowed upon only nine women in 2014. She is also regularly named one of the top 50 female lawyers in Georgia by “Super Lawyers.” In 1998, Georgia Trend Magazine named her one of the 100 most powerful and influential Georgians. Klein earned her J.D. at Washington & Lee Law School in Virginia and her B.A. at Union College in New York.

The Ballroom at Church Street 11:30 a.m. - 1:00 p.m.

225 S. Garland Avenue • Orlando, FL 32801 Co-hosted by the Central Florida Association for Women Lawyers

Co-hosted by:

Sponsored by:

Please RSVP by Monday, August 22, 2016 RSVPs will not be accepted after August 22, 2016 RSVP through the OCBA Store at www.orangecountybar.org/store CANCELLATIONS must be received no later than

August 22, 2016

To cancel, contact Marie West at mariew@ocbanet.org.

See cancellation policy on page 6.

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www.orangecountybar.org

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Clerk’sCorner

I Tiffany Moore Russell, Esq. Orange County Clerk of Courts

Advances in Technology and Access

f you’re a regular reader of “Clerk’s Corner,” you know by now that I am committed to providing cutting-edge technology in order to enhance the customer experience. To that end, the Clerk’s Office has reached another milestone and will be launching another technology project this very month to make doing business with us more convenient. We are now two months into the launch of our redesigned informational website, myorangeclerk. com. The new layout is much more user-friendly, with a tile arrangement similar to our my eClerk website. A major feature of the new website is its responsiveness with smart phones and tablets. We know our customers access much of their information on mobile devices, and this site is making it easier for them to do the same with the Clerk’s Office. Website analytics tell us that in one year the Clerk’s Office website received an average of 7.3 million page views, so having a website that keeps up with today’s technology will go a long way to serving customers’ needs better.

FYI: Thank you for helping the OCBA continue to provide this valuable member benefit!

As part of this effort towards high-tech, this month we are also launching an initiative to make applying for a marriage license even easier. The project, called e-marriage, will allow couples to fill out all the necessary paperwork electronically online in advance of visiting one of our offices. The goal is to streamline the process for couples planning a wedding and make getting a marriage license one less thing to worry about. The electronic forms should make a stop to our office that much more convenient for couples. These are just a few recent advancements at the Clerk’s Office that I am very pleased to share. To see both of these projects in action, go to our website at www.myorangeclerk.com. As my office continues to look for new and innovative ways to serve our customers better, stay tuned to The Briefs for any future updates. Tiffany Moore Russell, Esq., Orange County Clerk of Courts, has been a member of the OCBA since 2004.

OCBA Luncheon Cancellation Policy The OCBA is happy to provide luncheons throughout the year as a valuable member benefit, but no-shows incur significant charges for the OCBA. If you have RSVP’d and find you cannot attend, please cancel your reservation by the published cancellation deadline. If you do not cancel, we will follow the policy below. First no-show: We will record your reservation as a no-show. Subsequent no-shows: You will be invoiced $35 per missed luncheon. To Cancel: Send cancellation to Marie West at mariew@ocbanet.org. Include the name of the person whose RSVP is being cancelled. Include the date of the luncheon being cancelled. Cancellations by phone will not be accepted.

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ttheBriefs August 2016 Vol.84 No.7

The Florida BarNews “Our grief, instead of having to be hidden, can be shared with the world”

Larry D. Smith, Esq., recipient of the G. Kirk Haas Humanitarian Award

theBriefs August 2016 Vol. 84 No. 7

–Gay rights advocate reflects on Orlando shooting

utgoing Bar President Ramón Abadin said he had known since his first day leading the Bar that Orlando attorney Larry Smith would be his choice to receive the Bar’s prestigious G. Kirk Haas Humanitarian Award for Smith’s long advocacy for equal rights on behalf of the lesbian, gay, bisexual, and transgender community. What no one could know was the bestowing of the award would come five days after a gunman killed 49 people and wounded more than 50 at a gay nightclub in downtown Orlando, a few miles up the road from the convention hotel. “Since I accept this award not for me but for my community, I hope you will forgive me if I depart from the norm, don’t just smile, be photographed, and sit down, and that you, my colleagues, will afford me the personal privilege of spending a few minutes talking about what has happened,” Smith said, addressing the June 17 General Assembly at The Florida Bar’s Annual Convention. He noted that the General Assembly happened to mark the one-year anniversary of when a 21-yearold gunman, hoping to ignite a race war, walked into an African-American church in downtown Charleston, SC, and executed nine people at a Bible study meeting. “The people there felt safe and secure and loved,” Smith said. “For many in the LGBT community, nightclubs like Pulse in downtown Orlando provided that kind of safe place when their churches and sometimes their own families had rejected them. Pulse was a place where people could put aside pretense, hiding, and the judgment of others, if only for a short time, and laugh and share the company of others who wanted nothing more than to be friends and to be with friends. Those who gathered asked nothing more of the outside and often judgmental world except to be left in peace in that one small, special, safe place. “When the gunman walked into Pulse on June 12, it was not a random choice or an effort made

to make some broad political statement about the government. He could have gone across the street to Wendy’s or next door to Dunkin’ Donuts… where anybody in the community can be found on any given Saturday night. He drove over an hour to one of the largest and busiest gay clubs in the theme park capital of the world where he knew inside hundreds of gay people would be found. He walked into their safe space and as they laughed and sang and danced, he methodically shot and killed as many of those people as he could because he thought they were gay and gay lives were somehow less than worthy.” It was not the first time gays have been targeted. Forty-three years ago, Smith said, someone ignited a fire in the doorway of a second floor gay bar in the French Quarter of New Orleans. The bar that day was home for the Metropolitan Community Church, which served the gay community, and congregants were listening to a pianist and discussing a fundraiser for a local crippled children’s hospital. “When the patrons opened the door, the smell of lighter fluid and the heat of flames engulfed the room. There were steel bars on the windows and there was no escape so 32 [of about 60 people present] died,” recalled Smith. “As hard as that is, what happened next is worse. Because what happened was nothing. Families refused to claim the bodies of their family members. A sympathetic priest at a local church ordained at a funeral service, for which he was chastised by his superiors. “There was a half-hearted investigation, but today, 43 years later, no one has ever been charged with that horrible crime. To the world, the mes-

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continued page 30

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Estate, Guardianship & TrustCommittee

I Joseph M. Percopo, Esq.

Primer: Rights of a Surviving Spouse in Florida

n Florida, a surviving spouse has many rights upon the passing of a spouse. These rights are available even if the survivor is unaware of such rights. However, it is important to be mindful of certain time limitations in exercising these rights. Intestate or Testate The first step in evaluating a surviving spouse’s rights is determining whether the decedent died with or without a will or trust. If the decedent did not have a will (therefore, died intestate), a spouse will inherit based on Florida’s intestacy statutes. A surviving spouse receives 100% of assets provided there are no other descendants or all of the descendants are descendants only of both spouses. If there are other descendants of the surviving spouse or the deceased spouse who are not descendants of the other, then the surviving spouse is entitled to 50% of the assets while 50% is divided among the decedent’s descendants, per stirpes.1

However, if the decedent did have a will, one needs to evaluate: (1) When the will was executed; (2) Whether there are any provisions providing for the surviving spouse. If a will was executed prior to marriage and fails to include any provision for the surviving spouse, then the surviving spouse is entitled to a pretermitted spouse share. Essentially, in the aforementioned situation, the surviving spouse receives what he or she would have received had the decedent died intestate.2 If the will was executed after marriage or provides for the spouse, then the surviving spouse receives those assets that pass under the will (subject to any elective share). Elective Share The only person who cannot be completely excluded from an individual’s will is his or her spouse. In situations where there is a surviving spouse and nothing is devised to him or her, the surviving spouse has a right to 30% of the “elective estate.”3 The following assets are included when calculating the decedent’s elective estate: (1) The probate estate; (2) Decedent’s interest in accounts with payable-on-death or transferable-on-death designations, or assets held in trust; (3) Decedent’s ownership of property titled as tenants by the entirety or joint tenants with right of survivorship; PAGE 8

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(4) Any revocable transfer by decedent; (5) Assets of the decedent that he or she had at death with the right of possession or income therefrom; (6) Decedent’s interest in cash surrender value of insurance (does not include the death benefit amount); (7) Amounts payable by reason of survivorship for pension, retirement, or deferred compensation; (8) Any property transferred in the last year of decedent’s life; and (9) Property transferred for elective share. The elective share right may be exercised even where a decedent did include his or her spouse in the will. Usually, the elective share would be invoked if the surviving spouse is receiving by will less than he or she would receive from the elective share. Fla. Stat. § 732.2075 provides very specific rules for how the elective share is satisfied (specifying which assets are used to pay it). Only certain expenses of administration may be charged against the surviving spouse’s interest.4 Attorney fees spent by the personal representative are not a permissible charge against the elective share.5 The surviving spouse, his or her attorney-in-fact, or guardian may make the election. However, the election must be filed during surviving spouse’s lifetime and within 6 months of notice of administration or 2 years from death, whichever occurs first.6 Exempt Assets The surviving spouse has certain rights to particular assets which are exempt: 1. Household furniture & furnishings (not to exceed $20,000); 2. Two motor vehicles; and 3. All IRC § 529 plans of decedent.7 Exempt assets are free from all creditors except those with a security interest. The exempt property is in addition to homestead and other statutory entitlements.8 Therefore, the exempt property claimed is not included in the value of decedent’s estate for purposes of the residuary, intestate, pretermitted, or elective share calculation.9 However, assets specifically devised pass according to the terms of the will and only remain exempt if passing to spouse or legal heirs.10 It is important to

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note that any exempt property claim will be deemed waived unless the claim was filed within 4 months of the date of service of administration.11 Family Allowance The surviving spouse or lineal descendants, who were supported by decedent, may file a petition for family allowance providing for a reasonable allowance of money from the estate for maintenance during administration. The family allowance cannot exceed $18,000.12 The family allowance is not chargeable against any other amounts passing to the surviving spouse, unless otherwise specified in the will. However, the right to family allowance terminates upon the death of the individual claiming it; therefore, it is best to make the claim early if it will be made at all. Real Property Rights to real property depend on the type of property and how it was titled. If the real property was titled in both spouses’ names as tenants by the entirety (which is presumed if purchased while married), then the surviving spouse becomes the sole owner by operation of law (note – a death certificate should be recorded in the county where the property is located). If the property was owned by the decedent and surviving spouse as joint tenants with right of survivorship (“JTROS”), then the surviving spouse becomes the sole owner of the property upon the death of the decedent. If the real property was held as JTROS between the decedent and parties other than the surviving spouse, then the property shall pass to the other surviving owners and not to the surviving spouse (see elective share above). Homestead If the real property was the decedent’s homestead, then the surviving spouse has rights in that property even if his or her name is not on the deed or mortgage. The Florida Constitution and related Florida statutes provide restrictions on devise of homestead.13 Homestead property may not be devised if the decedent is survived by a spouse or minor child. However, if there is no minor child, then the decedent may devise a fee simple interest to the surviving spouse (anything less than a fee simple interest will fail).14 If the decedent makes an impermissible devise, then: 1. The surviving spouse receives a life estate and the decedent’s descendants are the remainderman, per stirpes; or 2. The surviving spouse may elect to take an undivided ½ interest as tenants in common with the remaining ½ interest vesting in the decedent’s detheBriefs August 2016 Vol. 84 No. 7

scendants, per stirpes.15 It is important to note, the election must be made during the surviving spouse’s life and within 6 months of the death of the decedent (statute runs from date of death and not from date administration is opened). Where the surviving spouse waived homestead (see below) or the decedent is not survived by a spouse or minor child, the decedent may devise the homestead to anyone of his or her choosing. This restriction on devise does not apply to property owned as tenants by the entirety or joint tenants with right of survivorship.16 Other Practice Points Nuptial Agreements • Keep in mind, pre- and postnuptial agreements may be used to waive any of the spousal rights outlined above.17 However, if the nuptial is entered into after marriage, then full, fair disclosure of all of each spouses’ assets are required. Otherwise, the nuptial may not be enforceable.18 Retirement Accounts • A surviving spouse has rights to certain retirement accounts under federal law. It is important to review them to make sure the surviving spouse receives what he or she is entitled under the law. Social Security Benefits • A surviving spouse may make certain elections for Social Security benefits of a deceased spouse. Community Property • Florida is not a community property state, but be mindful that married couples may have acquired community property in another state. The out-of-state acquired assets retain their community property status in Florida, unless

an election is made to convert it. Decedent’s share of community property is not included in elective estate.19 Disclaimer • Beneficiary, including surviving spouse, may disclaim some or all of the interest devised to him or her from the estate. However, a disclaimer may not be made if the beneficiary has already accepted or benefited from the devised asset or is insolvent.20 Joseph M. Percopo, Esq., Mateer Harbert, P.A., practices estate & trust planning, estate & trust administration, asset protection, business, and tax law. He has been a member of the OCBA since 2012 and currently serves as the chair of the Estate, Guardianship & Trust Law committee of the OCBA. Fla. Stat. §§ 732.102, 732.104. Fla. Stat. § 732.301. 3 Fla. Stat. § 732.2065. 4 Fla. Stat. § 732.2055. 5 Blackburn v. Boulis, 2016 WL 231405 (Fla. 4th DCA Jan. 20, 2016). 6 Fla. Stat. § 732.2135. 7 See Fla. Stat. § 732.402. 8 Fla. Stat. § 732.402(3)-(4). 9 Fla. Stat. § 732.401(7). 10 Fla. Stat. § 732.402(5). 11 Fla. Stat. § 732.402(6). 12 Fla. Stat. § 732.403. 13 Fla. Const. art. X § 4(a); Fla. Stat. § 732.401. 14 In Re Finch’s Estate, 401 So. 2d 1308 (Fla. 1981). 15 Fla. Stat. § 732.401(2). 16 Id. 17 Fla. Stat. § 732.702(1). 18 Fla. Stat. § 732.702(2). 19 See Fla. Stat. §§ 732.216-228. 20 Fla. Stat. § 739.402. 1 2

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PAGE 9

Special Feature

T Alana C. Brenner, Esq.

The Foundation for Foster Children – A Great Resource for GALs

his year I have the privilege of serving as president of the Foundation for Foster Children. The Foundation is a local nonprofit organization formed in 2008 by four local women – including OCBA member Laura Cosgrove, Esq., – who wanted to make a difference in the lives of foster children in our community. These women spent more than a year researching best practices around the country. They interviewed stakeholders in the foster care system to determine how best to use private dollars to serve abused, neglected, and abandoned children in our community, to enhance their lives, and to create opportunities for a brighter future. Modeling itself after a program in Seattle, Washington, the Foundation began by providing “Fostering Success Grants” that paid for activities such as dance lessons, tutoring, sports equipment, summer camp, prom dresses, senior pictures, and other “normalcy” items that you and I take for granted for our children. These are items that enrich the lives of these children and are often unaffordable for foster families or caregivers. The Foundation also provided emergency duffel bags containing toiletries, stuffed animals, underwear, and socks for children being removed from their homes, birthday cakes to celebrate their special days, and housewarming baskets for children aging out of foster care. A few years ago, in addition to all of the services outlined above, the Foundation began to focus on the transformative nature of education and sought to move the needle on the horrendous statistics regarding high school graduation and postsecondary education for foster children. Now, in partnership with Community Based Care of Central Florida, Inc., the Foundation coordinates intensive in-home tutoring for children in care, tracking their academic progress, attendance, and behavior in school. Children in foster care are typically two grade levels behind because of numerous placement and school changes. Tutoring

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helps to get and keep them on track. Starting in the fall of 2016, in addition to one-on-one tutoring, the Foundation will pilot a new education model which will provide a personal academic advocate to work with foster children in middle and high school. The advocate will help create a student-centered plan for the child’s future and help implement career goals. The Foundation also recently launched a program called Lifeguides that provides mentors for children aging out of foster care. Volunteer mentors are trained and then matched with children ages 17 to 23 for a 12-week program. Mentors provide guidance and adult companionship as the youth transition from foster care. The Foundation still pays for normalcy activities as it has from its beginning but now also assists with text books and laptops for post-secondary study. As attorneys, we are privileged to have the opportunity and the ability to change lives. Let the Foundation for Foster Children help you make it happen. If you are serving as a GAL for a child in care, please reach out to the Foundation for your child’s needs today. All of the resources described above are available free of charge to foster children in relative, non-relative, or group home placements in Orange, Osceola, and Seminole counties. Applications can be made online at www.foundationforfostercare.org by foster parents, case managers, or GALs. Please contact executive director Betsey Bell at bbell@foundationforfosterchildren.org, or at 407-422-4615 with any questions. Alana C. Brenner, Esq., served as a staff attorney with the Legal Aid Society of the Orange County Bar Association, Inc., from 1990-1998 and more recently served as the Orlando City Clerk for 11 years. She has been a member of the OCBA since 1980.

theBriefs August 2016 Vol. 84 No. 7

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PAGE 11

SAVE THE DATE! To benefit the

Legal Aid Society of the Orange County Bar Association, Inc.

Thursday, November 3, 2016 7:30 a.m. until 9:00 a.m. Presidential Ballroom at Church Street Station 225 South Garland Avenue, Orlando, FL 32801 Parking limited (Reservations Required)

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theBriefs August 2016 Vol. 84 No. 7

Legal Aid SocietyGAL Teaching Tips

H Jonathan H. Neyer, Esq.

Domestic Violence: How a Guardian ad Litem Can Help Stop the Cycle of Violence

aley pulled the blanket over her head but it didn’t help. The yelling and cursing was soon followed by the sound of broken glass. When all of the noise stopped, Haley opened her bedroom door. Her mother was sitting on the floor, face swollen and mouth bleeding. This was a situation that Haley was far too familiar with. Domestic violence continues to be a pervasive societal problem, particularly for children in the dependency system. Victims often feel helpless, scared, and distraught. What may be overlooked, however, is the grave impact that domestic violence has on the child witnesses, in particular. The effects may be so severe that they may last for a child’s entire life. Actual physical injury to the child may result from the domestic violence incident if the child tries to stop the violence him or herself. A young child may also be struck while being held by one of the parents. Emotional injury often manifests itself in symptoms of depression, poor concentration in school, and increased anger. This anger often leads to behavioral problems, such as bullying and aggression towards others. Needless to say, these behaviors result in more negative incidents in the educational setting, which become almost insurmountable for already vulnerable children. As a Guardian ad Litem (GAL), you will serve as a safety net for a dependent child by advocating for the child’s best interests. If the child is placed out-of-home, GALs can request and secure a Comprehensive Behavioral Health Assessment (CBHA), which provides a thorough look at the child’s behavioral health needs, including but not limited to family history, medical information, educational information, and behavioral observations. For GALs, there is so much value in the CBHA. In addition to understanding the child’s social and medical history, the CBHA also provides child-specific recommendations made by a medical professional that can be immediately implemented to help the child begin to heal. The CBHA is a great tool for GALs to use as they begin to help the child overcome the multiple potential traumas of domestic violence. Investigation into the depth of the effect of domestic violence on the child is also an important step for the GAL. The GAL can accomplish this relatively quickly by visiting with the child and speaking with him or her about his or her thoughts and feelings. The child may let the GAL

know how he was impacted by what he endured, as well as explain what he thinks will help him overcome his sadness or anger. Other times, the child may be reclusive and fear opening up to the GAL. In either scenario, the GAL builds a rapport with the child, gains more knowledge about the child’s needs, and identifies key services that should be in place. Therapy, either individual or family, may be very beneficial for addressing domestic violence issues and mending damaged relationships. A child’s actions in an educational setting, such as lack of focus and uncontrolled anger, should be monitored for issues stemming from domestic violence trauma. Daycare workers and teachers are a great source of important information about these issues. In these situations, tutoring may help the child who is falling behind academically. An Individualized Education Plan (IEP) may also be beneficial to address a child’s educational needs. Volunteer attorney GALs need only mention the need for educational assistance to LAS GAL staff in order to initiate the IEP evaluation process. Investigation can also be conducted during visits with the parent and child together. This observation will allow the GAL to see just how the parent and child interact with each other. Is the parent engaged in the visit? Does the parent tend to the child’s needs by changing a diaper or providing proper redirection? Certain safeguards may be needed in order to create a positive setting for visitation between the parent and child in domestic violence cases. An example of a safeguard is an order stating that one parent’s visitation may not be supervised by the other parent. This prevents any danger from the parents possibly engaging in violence in the presence of the child. The parents are then able to focus their attention on their child. In domestic violence cases, the aggressor is usually referred to a Batterer’s Intervention Program (BIP). Many GALs find it beneficial to speak with the parent’s assigned therapist or counselor to evaluate the parent’s progress. Is the parent committed to the program? Does the parent show improved insight regarding domestic violence issues? Is the parent capable of ceasing domestic violence and providing a safe, stable home for his or her child? Every child has a right to grow up safe from harm and pursue happiness. As the GAL, understandcontinued page 31

theBriefs August 2016 Vol. 84 No. 7

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theBriefs August 2016 Vol. 84 No. 7

Solo & Small FirmCommittee

U Thomas B. Feiter, Esq.

Auto Insurance: Know Your Policy!

M…… (?) UM… this is not an utterance used between words when you can’t think of what you want to say next… Most insurance policies define uninsured motorist coverage, or UM, as follows: If you pay the premium for this coverage, an insurance company will pay for damages, other than punitive or exemplary damages, that an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury: 1. sustained by an insured person; 2. caused by an accident; and 3. arising out of the ownership, maintenance, or use of an uninsured motor vehicle. Simply put, if you are injured in an auto accident and the person at fault does not have any insurance or the proper coverage, you can bring an action against your own auto insurance company if you have uninsured motorist coverage. Why is this important, you say? In the sunny state of Florida, you can legally operate your car with just two types of coverages: personal injury protection, or PIP, and property damage liability coverage. Unfortunately, if you have a car accident with a person who purchased the minimum coverage as mandated by Florida law and you have a stiff neck, you will not be able to recover any monetary compensation for your stiff neck, or stubbed toe for that matter. Our state also seems to attract many folks who feel that carrying any form of auto insurance is just not their cup of tea. In either case, these carefree motorists are considered uninsured for the purposes of bringing a bodily injury claim. You can certainly try and get blood out of the proverbial turnip and sue the careless driver, but it is likely you will wind up with a judgment that may eventually net you $50 per month for a period of time. For those of you who have not handled personal injury cases or yourselves been involved in an auto accident, Florida, unlike many other states, does not require drivers to carry bodily injury liability coverage. While this omission on the part of our legislators does keep your premium down, it renders many deserving injured parties out of

theBriefs August 2016 Vol. 84 No. 7

luck unless they heard in an attorney’s commercial or from a neighbor that in Florida, you need uninsured motorist coverage. If so, then thank your neighbor or the attorney who included that in his or her commercial. Law firms turn down many cases each year because the at-fault driver did not carry bodily injury liability coverage and the client did not elect uninsured motorist coverage. Many of those cases may have otherwise settled for significant sums of money. I have had many unpleasant conversations with clients who have lost loved ones in an accident, and I have to tell them there is no insurance to pursue. Then I have to explain that the asset check we conducted confirms the obvious: the driver has no assets. If I haven’t lost you yet, there is also underinsured motorist coverage. This is the only other reason to purchase UM. Florida, again unlike other states, permits drivers to purchase as little as $10,000 in bodily injury liability coverage. And, while the atfault driver gets an A-plus for effort, if your medical treatment includes a couple of surgeries for that stubbed toe and sore neck, $10,000 probably isn’t going to cover your entire claim. But wait, you are in luck. Your neighbor Fred told you years ago that there are a lot of crazy drivers in Florida and you absolutely must have uninsured motorist coverage. Your attorney scoops up the first $10,000 in bodily injury liability coverage, and then you turn to your own auto insurance company and demand your underinsured motorist limits. You and your attorney live happily ever after. If you really love this article so far and can’t wait to read on, there is an additional item you can elect on your policy that is rather important. It is called “stacking.” This is something that baffles a lot of entry-level personal injury attorneys and insurance adjusters. If you can perform simple math, this will be painless. If you have $10,000 per person/$20,000 per accident in uninsured/ underinsured motorist coverage and you have two vehicles on your policy, hopefully your neighbor was very well-informed and told you to get “stacking.” This means one car plus the other car is stacked and, voila, you have $20,000 per person/$40,000 per accident. You would be surprised at how much there is to know about auto insurance products. I wish I had

www.orangecountybar.org

continued page 29

PAGE 15

Ninth Judicial CircuitNews

Judge Tina Caraballo, Judge Jerry L. Brewer, Senator David Simmons, Judge Reginald K. Whitehead, Commissioner Bryan Nelson

Veterans Treatment Court Recognizes Commissioner Nelson and Senator Simmons

n Monday, June 27, 2016, Ninth Circuit Court Chief Judge Frederick J. Lauten officially recognized Orange County Commissioner Bryan Nelson and Senator David Simmons for their vital support of the Veterans Treatment Court Program. Judges Reginald K. Whitehead, Tina Caraballo, and Jerry L. Brewer, who have each presided over Veterans Court, attended. In 2013, Commissioner Nelson, then a member of the Florida House of Representatives, was a co-sponsor of the original bill establishing Veterans Treatment Court. He also worked with Judge Brewer and former Chief Judge Belvin Perry, Jr., to lay the groundwork for setting up Veterans Treatment Court in Orange County. Senator Simmons worked to establish recurring state funding for Veterans Treatment Courts in the legislature.

PAGE 16

Orange County was one of the first programs to receive state funding. The funding was expanded to more counties this legislative session. Orange County’s Veterans Treatment Court Program began on October 30, 2013, with just seven veterans. Today, there are 92 veteran clients who once served our nation and are now receiving appropriate services and support in our community. They will soon be added to the growing list of more than 140 alumni who have graduated from the program and now lead productive lives. Veterans Court holds weekly hearings in Courtroom 7B of the Orange County Courthouse, beginning at 1:30 p.m.

www.orangecountybar.org

theBriefs August 2016 Vol. 84 No. 7

Presentation of #OrlandoUnited banner to OCBA president Wiley Boston, Esq. Pictured are (from left to right): Gordon Glover, Esq., immediate-past Florida Bar Young Lawyer Division (YLD) president; Wayne Helsby, Esq., and Paul SanGiovanni, Esq., Florida Bar Board of Governors members; Kim Homer, Esq., OCBA executive director; Katherine Hurst Miller, Esq., YLD president; Orlando Mayor Buddy Dyer; Eric Elms, Esq., Karen Persis, Esq., and Jen Smith, Esq., YLD board members; Wiley Boston, Esq., OCBA president.

OCBA Annual Trivia Contest Thursday, August 18, 2016 Ferg’s Depot 78 W. Church St. Orlando, FL 32801

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5:30 p.m. – Registration 6:00 p.m. – Trivia starts Registration deadline: August 16, 2016 Trivia host services donated by “Orlando Trivia Nick,” Nick Seidule, Esq., Seidule Law

NON-PLAYERS: $10 – OCBA member $20 – Non-member Included: Appetizers and a limited beverage tab to include beer, wine, & well drinks. Late registration & at the door: Add $5

Proceeds benefit the OCBA Foundation theBriefs August 2016 Vol. 84 No. 7

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PAGE 17

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theBriefs August 2016 Vol. 84 No. 7

Elder LawCommittee Should You Draft a Qualified Income Trust for Your Client?

A Julie Jo Adams, Esq.

theBriefs August 2016 Vol. 84 No. 7

s trusted legal counselors, attorneys are sometimes asked by elderly or disabled clients or their family members to draft a qualified income trust (QIT).1 Such a specific request may occur after a client has been told by a nursing home representative that the newly institutionalized person has too much income to qualify for Medicaid and that an attorney could draft a qualified income trust to solve the problem. The average monthly private-pay nursing home rate in Florida is $8,662, which equates to more than a 42% increase in the average rate over the last ten years.2 Cost-of-living adjustments over the last ten years have yielded less than a 30% increase in Social Security benefits.3 The largest Social Security payment a person is likely to receive is about $3,576.4 Since Social Security is the sole income of many seniors, it is no wonder that many nursing home residents require Medicaid assistance. Consider the case of a widowed client who recently entered a nursing home. Her sole source of income is monthly Social Security of $2,400. She is not concerned about Medicaid payback at her death and just wants to be able to afford her long- term care. She was informed by the nursing home that she is not eligible for Medicaid because her monthly income exceeds $2,199.5 She also has about $30,000 in her bank account, which she could use to private-pay for the nursing home for a short while, but the nursing home representative suggested that she consult with an attorney about spending down her assets to under $2,0006 so she might qualify for Medicaid immediately. Attorneys and lawmakers are ever striving towards helpful solutions, but how can you best assist a client like this who desperately needs your help now? One of the best things that a non-elder law attorney can do for a client who needs help qualifying for Medicaid long-term care assistance is to refer the client to an elder law attorney. Many attorneys have heard of qualified income trusts, which essentially convert excess income to non-countable income for Medicaid eligibility purposes; and many have the software available for drafting one. However, an unwitting attorney may be tempted just to draft the requested QIT in the case above and advise the client to continue paying the nursing home until her excess assets are naturally reduced.

www.orangecountybar.org

Just drafting the requested qualified income trust is not enough. One must also understand and explain the proper funding and administration of the trust, because an improperly administered trust is essentially useless. Failure to counsel the client about the importance of timing in transferring income to the trust each month, what and who cannot be paid from the trust, and the importance of naming a trustee who understands the administration requirements can be detrimental. Additionally, failing to consider and advise your client about other options – such as the use of trusts, Medicaid-compliant annuities, and spenddown techniques – could harm your client’s interests. For example, if the above client properly used a pooled special needs trust,7 it could save her the fees associated with the drafting and/or administration of a QIT, reduce the risk of trust administration errors, render her financially eligible for Medicaid, and preserve $30,000 for her supplemental needs, such as an upgrade to a private room. If you are not thoroughly familiar with the Medicaid Long-term Care Program, you should refer clients who need help with Medicaid qualification to an elder law attorney. An elder law attorney can fully analyze the client’s finances, formulate a plan for eligibility, draft advisable documents, and support the client throughout the application process and periodic reviews. Your client will thank you for it, and more importantly, continue to trust you. Julie Jo Adams, Esq., Law Offices of Julie Adams, is chair of the OCBA Elder Law Committee. She has been a member of the OCBA since 2006. 42 U.S.C. § 1396p(d)(4)(B). “Chart of Average Monthly Private Pay Nursing Home Rate” may be found in the ACCESS Florida Program Policy Manual, Appendix A-35, http://www.dcf.state.fl.us/programs/access/ docs/esspolicymanual/a_35.pdf. 3 “History of Cost-of-Living Adjustments” may be found on the Social Security Official Social Security Website, https:// www.ssa.gov/news/cola/automatic-cola.htm. 4 “Workers with Maximum-Taxable Earnings” may be found on the Social Security Official Social Security Website, https://www.ssa.gov/OACT/COLA/examplemax.html. 5 “Eligibility Standards for SSI-Related Programs” may be found in the ACCESS Florida Program Policy Manual, Appendix A-9, https://www.dcf.state.fl.us/programs/access/ docs/esspolicymanual/a_09.pdf. 6 Id. 7 42 U.S.C. § 1396p(d)(4)(C). 1 2

PAGE 21

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theBriefs August 2016 Vol. 84 No. 7

PhotoOp The OCBA’s New Lawyer Training Program: The Fundamentals of Practice in Orange County received The Florida Bar 2016 Group Professionalism Award during the bar’s annual convention in June. The OCBA’s New Lawyer Training Program, now in its fourth year, was selected from among submissions from other voluntary bars, judicial organizations, Inns of Court, and law schools throughout the state. The award recognized the OCBA for development of an innovative program for young lawyers and law students that can be implemented by other organizations to promote professionalism within the legal community. The award was presented to Jamie Billotte Moses, Esq., immediate past OCBA president, by outgoing Florida Bar president Ramón Abadin, Esq.

Robert Mansbach Lawyers’ Literary Society of the Orange County Bar Association, Inc. Reading List 2016 - 2017 Date

Author

Book

Discussion Leader

September 14, 2016

Leo Tolstoy

Anna Karenina

Susan Patterson

October 12, 2016

Tom Rachman

The Imperfectionists

Anna Palmer Darkes

November 9, 2016

Willa Cather

My Antonia

Kim Ashby

December 14, 2016

Jerome K. Jerome

Three Men in a Boat

Robert Hoofman

January 11, 2017

Trevanian

The Main

Dan Traver

February 8, 2017

Colum McCann

Let the Great World Spin

Constantine Papas

March 8, 2017

Louise Erdrich

The Round House

Karen Jennemann

April 12, 2017

William Maxwell

So Long, See You Tomorrow

David Falstad

May 10, 2017

Viet Thanh Nguyen

The Sympathizer

Scott Willick

June 14, 2017

Alice Munro

Family Furnishings: Selected Stories, 1995-2014

Dotty Green

www.orangecountybar.org/store Login for Member Pricing! theBriefs August 2016 Vol. 84 No. 7

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PAGE 23

YLS on the move

Jennifer A. Smith, Esq.

ast month, I mentioned that summer got off to a good start with our annual Afternoon at the State Courthouse, chaired by Paige Carlos, Esq. What I didn’t have at the time were details about the pub crawl that followed. Read below and see the great photos at the top of the adjacent page! Following the seminar, more than 90 YLS members and friends enjoyed a summer pub crawl that started at Chillers on Church Street and wound its way to Underground, Swiggs, and Hooch before everyone finally called it a night. It was all-you-candrink for the hour at Chillers, two drinks at Swiggs and Hooch, and appetizers at Underground. Milestone Court Reporters sponsored the event and brought beads and light-up party favors to add to the already fun atmosphere. Thanks go to our sponsor and to event chairs Rafael Rodriguez, Esq., and Miguel Acosta, Esq., for helping us kick-start the summer in style! The outpouring of support for victims of the Pulse nightclub shooting in June has been amazing. YLS members collected and donated $1,000 to the OneOrlando fund and organized a blood drive during the July luncheon. YLS members and others in the community gave blood to honor the victims and to replenish blood supplies. The Florida Bar Young Lawyers Division donated $5,000 to OneOrlando as well. YLD board members made an additional, personal donation of $1,000. YLD representatives met at City Hall with Orlando Mayor Buddy Dyer, who thanked them for their contribution and efforts on behalf of the victims. An #OrlandoUnited banner signed by attendees at the recent Florida Bar Annual Convention was presented to OCBA president Wiley Boston, Esq., by Ninth Judicial Circuit YLD representatives Karen Persis, Esq., Jennifer Smith, Esq., and Eric Elms, Esq. The banner will be displayed in the OCBA offices. (See photo on page 17.) At July’s monthly luncheon, Dan O’Keefe, chairman of the South Florida Water Management District (SFWMD), spoke to members about the complexities of water management and the obligation the agency has to meet the diverse needs of our state. Those attending appreciated his insight on a topic that has been much in the news lately. Stay tuned for these upcoming events: On August 2, 2016, YLS will hold its annual Backpack Project Happy Hour from 5:30 p.m. to 7:30 p.m. at KASA in downtown Orlando. If you haven’t already RSVP’d, the registration fee is $25 at the door. The happy hour serves as a fundraiser for the project. We partner with A Gift for Teaching to provide backpacks and school supplies for the students and teachers at Rock Lake Elementary School, one of Central Florida’s most economically disadvantaged schools. If you’d like details or

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want to help stuff and deliver backpacks, please contact Backpack Project chair Jennifer Seipel, Esq., at jseipel@awtspa.com, or assistant chairs Kathleen Shea, Esq. (kshea@circuit9.org), Linnea Eberhart, Esq. (leberhart@mtwlegal.com), or Brittany Melendez, Esq. (bmelendez@waltonlantaff.com). The next Brown Bag Lunch with Judge John Kest will be held on August 11, 2016, from 12:00 p.m. to 1:15 p.m. on the 23rd floor of the Orange County Courthouse. Earn 1.5 CLE by hearing Judge Kest’s presentation, “Motions to Dismiss and Motions for Summary Judgment: What a Practitioner Needs to Know.” Although not required, your RSVP to Diane Iacone will allow sufficient copies of the outline and bottled water to be available. Please contact Diane at ctjadi1@ocnjcc. org. Our next luncheon will be held on August 19, 2016, from 12:00 p.m. to 1:00 p.m. at the Citrus Club. Our guest speaker this month is Steve Hogan, president of Florida Citrus Sports. Checkin begins at 11:30 a.m. The cost is only $10 for a three-course meal for RSVPs received by August 17. RSVP through the OCBA store at http://orangecountybar.org/ylsproducts. On September 5, 2016, YLS and the OCBA are teaming up to co-host a tailgate for the inaugural Camping World Kickoff Classic, where the Florida State Seminoles will take on the Ole Miss Rebels in Orlando. The game will be televised nationally. If you’re interested in serving on the committee, please contact chair Keshara Cowans, Esq., at kesharadavis@gmail.com. Be sure to save the date, because this is one tailgate you do not want to miss! The YLS 25th Annual Charity Golf Tournament will be held on Friday, September 30, 2016, at the beautiful Hawk’s Landing Golf Club, Orlando World Center Marriot. This year’s event will include breakfast, door prizes, on-course games, raffle items, and an awards reception afterwards. Be sure to lock in your spot as soon as possible because the field of players has been capped at 144. To sign up, contact Paul Jezierny, Esq., or Will Matthews, Esq., at Shutts & Bowen, LLP (407-835-6751). Information is also available on the OCBA website at http://www.orangecountybar.org/younglawyer. All proceeds benefit YLS events and its charitable endeavors, including its scholarships. If you’re not already on the YLS email list, contact me at jsmith@southerntrialcounsel.com so you can get all the current YLS news! Jennifer A. Smith, Esq., of counsel at Southern Trial Counsel, PLC, has been a member of the OCBA since 2008.

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theBriefs August 2016 Vol. 84 No. 7

Undergrou

YLS Pub Crawl

Chillers

Hooch

Swiggs

25th Annual OCBA-YLS Golf Tournament

Friday, September 30, 2016

Registration is now open online ! To register and see

Shotgun Start at 8:00 a.m. followed by Reception, Lunch, Awards & Raffle

complete sponsorship details, download form at: www.orangecountybar. org/younglawyer • Please send your registration form and check made payable to the “OCBA” to: Will Matthews, 300 S. Orange Ave., Suite 1000, Orlando FL 32801

Entrance Fees:

$750 Foursome $195 Individual Golfer $175 Individual Judge or Government Attorney

Sponsorship Opportunities:

Mail your check no later than September 11, 2016

$1,525 Foursome + Hole Sponsorship $825 Hole Sponsor

For more information, please contact: Paul Jezierny or Will Matthews Shutts & Bowen LLP 300 S. Orange Ave., Suite 1000 Orlando, Florida 32801 Phone: 407-835-675 • Fax: 407-849-7207

(One Foursome + Hole Sponsorship and One Hole Sponsorship)

Hawk’s Landing Golf Club

Additional Items

8701 World Center Drive Orlando, FL 32821

• Mulligans $10 • Raffle Tickets $10 • 1 Mulligan + 5 Raffle Tickets $50

Additional Sponsorship Events $300 • Closest to the Pin (2 Holes Available) • Straightest Drive (2 Holes Available) • Longest Putt (1 Hole Available)

Group rates available at Orlando World Center Marriott for September 29, 30 & October 1. Rooms start at $139 + $25 resort fee. For more information or to make a reservation,contact Derek Sundberg at Hawk’s Landing Golf Club 407-238-8961 or online at derek.sundberg@marriott.com

This is the main fundraiser for YLS with all proceeds from this event supporting YLS’s charitable endeavors. Your generous support helps ensure that the YLS can continue to put on the events that make the OCBA-YLS the best Young Lawyers Section in the country. theBriefs August 2016 Vol. 84 No. 7

www.orangecountybar.org

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HBACF Annual Domino Tournament

Judges Steve Jewett and Andrew Cameron enjoying a spirited game of dominos

HBACF president Henry Lim, Esq., and a Domino Tournament referee from DominoUSA

GOAABA Annual Membership Meeting

GOAABA Pathways Panel Discussion

GOAABA’s Pathways in the Legal Profession panel discussion (left to right): Lisa Gong Guerrero, Esq.; Christine Berk, Esq.; Shane Herbert, Esq.; Annie Kwong, Esq.; Vanessa Braga, Esq.; Pakiza Sajid, Esq.; Michelle Ku, Esq.

GOAABA Annual Membership Meeting (left to right): Christine Berk, Esq.; Jessica Hew, Esq.; Kim Nguyen, Esq.; Lisa Gong Guerrero, Esq.

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theBriefs August 2016 Vol. 84 No. 7

SideBar

t’s summer time and for many voluntary bar organizations, that means a changing of the guard. Ushering in a new team is a great time to thank all volunteers who dedicate so much to ensure Orange County remains home to so many strong organizations. Thank you to all outgoing board members of all organizations for your time and dedication, and may your work inspire the new leadership taking the reins.

Kimberly A. Lopez, Esq.

CFAWL On June 3, 3016, the Central Florida Association for Women Lawyers (CFAWL) held its Pass the Gavel ceremony and swearing in of the 20162017 board of directors. At the luncheon, CFAWL’s new president, Amanda Perry Carl, Esq., discussed her theme for the year – “Planting the Seeds for Success.” With this theme, the 2016-2017 board and leadership team will strive to plant the seeds for its members’ personal and professional success, as well as success within the community. The 20162017 CFAWL board is as follows: Amanda Perry Carl, Esq., president; Kimberly E. Hosley, Esq., president-elect; Arti A. Hirani, Esq., secretary; Kelli A. Murray, Esq., treasurer; Megan W. L. Malec, Esq., treasurer-elect; Mary J. Walter, Esq., membership director; Celeste Thacker, Esq., co-membership director; Charity Tonelli, Esq., programs director; Lauren Millcarek, Esq., co-programs director; Jamie Billotte Moses, Esq., Florida Association for Women Lawyers representative; Lorraine Pitre, Esq., OCBA representative; CJ Bosco, Esq., public relations director; Camy B. SchwamWilcox, Esq., director-at-large; and Heather Meglino, Esq., Young Lawyers director. GOAABA The Greater Orlando Asian American Bar Association (GOAABA) held its Annual Membership Meeting and Networking Happy Hour at Colibri in Baldwin Park on May 25, 2016. The event was sponsored by Perfect Practice. Congratulation to GOAABA director, Denise Beamer, Esq., who graduated as a Class III Fellow of the Wm. Reece Smith, Jr. Florida Bar Leadership

theBriefs August 2016 Vol. 84 No. 7

Academy on June 18, 2016, at the Florida Bar Convention, and to Onchantho Am, Esq., who was selected as a Class IV Fellow. On July 13, 2016, GOAABA swore in its 2016-2017 officers and board of directors at an installation happy hour. Congratulations to GOAABA members Christine Berk, Esq., president; Vanessa Braga, Esq., president-elect; Shane Herbert, Esq., treasurer; Onchantho Am, Esq., secretary; Lisa Gong Guerrero, Esq., past president; and Michelle Ku, Esq.; Annie Kwong, Esq.; Lalitha Alladi, Esq.; Joe Panyanouvong, Esq.; and Ronnald Mejia, Esq., directors at-large. GOAABA members talked about experiences as attorneys with local area high school students at the “Pathways in the Legal Profession” presentation at the Y.E.S.S./Asia Trend Center. The event was made possible by a grant from The Florida Bar Young Lawyers Division.

HBACF On June 3, 2016, the Hispanic Bar Association of Central Florida (HBACF) hosted its annual Domino Tournament and Summer Fiesta. Community leaders, members, and friends gathered at The MEZZ in downtown Orlando for an evening of fun and fundraising. The evening featured more than 40 participants in fierce competition to win bragging rights and the prized Domino Tournament Champions Belt. Proceeds from the tournament benefit the HBACF’s scholarship fund. The HBACF will gather on September 22 from 5:30 p.m. to 8:30 p.m. at the Citrus Club to announce this year’s scholarship winners. Remember, “SideBar” is for you! Please send news about past or future events, along with photos and IDs, to my attention at kimberly.lopez@akerman.com. Kimberly A. Lopez, Esq., Akerman LLP, is an associate in the firm’s Litigation Practice Group. She focuses her practice on diverse commercial and business litigation matters. She has been an OCBA member since 2008.

www.orangecountybar.org

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Hearsay...

Vanessa A. Braga, Esq.

here’s a great “Hearsay” column in store for you this month. Read on! Leadership & Community Mayanne Downs, Esq., the statewide chair of the GrayRobinson’s litigation department and shareholder in the Orlando office, will be succeeding Biff Marshall, Esq. as the firm’s president and managing director. Mayanne was unanimously approved by the board of directors to lead the firm into the future. She has also been recognized by Orlando magazine as the “Eighth Most Powerful Person in Orlando” and featured in the magazine’s “Orlando’s Best Lawyers 2016.” She has been named to Florida Trend’s “Legal Elite,” Florida Super Lawyers, Martindale-Hubbell, and Best Lawyers in America. Mayanne was nominated by the state Judicial Nominating Commission for appointment to Florida’s 5th District Court of Appeal. Congratulations, Mayanne! John Boudet, Esq., a shareholder in the Orlando office of GrayRobinson, P.A., was named to the Florida Hospital Foundation Cardiovascular Institute board for a five-year term beginning in June 2016. Florida Hospital is one of America’s largest not-for-profit health care systems and has been serving communities throughout Florida for more than 100 years. Roig Lawyers, a minority-owned litigation firm, has been ranked #1 in the nation in Law360’s “The 10 Best Law Firms for Hispanic Attorneys.” The ranking showcases leading law firms’ efforts and achievements in recruiting and retaining Hispanic attorneys. Law360 showcases firms, such as Roig Lawyers, for cultivating relationships with law students in lower-ranked schools and promoting more senior Hispanic attorneys to leadership positions. OCBA members, Jessica Y. Fano, Esq., and Scharome R. Wolfe, Esq., practice in the firm’s Orlando office. Richard D. West, Esq., a partner at West, Green & Associates, P.L., has been elected to the board of managers of the American Academy of Matrimonial Lawyers. Richard was previously a president of the American Academy of Matrimonial Lawyers, an organization that strives to promote the highest degree of professionalism and excellence in the practice of family law. His term will run until 2019. Wayne L. Helsby, Esq., a shareholder with the Orlando office of Allen, Norton & Blue, P.A., was one of three members of The Florida Bar Board of Governors to be selected to the executive committee at the May 2016 meeting. The executive committee has the ability to act for the board between its meetings. Benjamin Robinson, Esq., of Broad and Cassel in Orlando, was appointed to the discovery com-

PAGE 28

mittee for Lawyers for Civil Justice, which is a national coalition of defense trial lawyer organizations, law firms, and corporations that promotes excellence and fairness in the civil justice system to secure the just, speedy, and inexpensive determination of civil cases. Marcos R. Marchena, Esq., a senior partner with Marchena & Graham, P.A., was appointed to the board of trustees for the University of Central Florida. The board serves as the institution’s legal owner and final authority responsible for efficient and effective use of resources. Nicolette C. Vilmos, Esq., a partner in the Orlando office of Broad and Cassel, was invited to participate on the newly formed Business Court Commission. Additionally, Vilmos has been elected to serve as a board member for the International Women’s Insolvency & Restructuring Confederation (IWIRC) Florida Network, the premier advocacy group for women in insolvency and restructuring professions. Matthew G. Brenner, Esq., a shareholder at Lowndes, Drosdick, Doster, Kantor & Reed, P.A., was sworn in as president of The Florida Bar Foundation on July 1, 2016. Matthew first served on the Foundation’s board in 2008 and has worked on the development, finance and audit, executive, nominating, grant allocation, and improvements in the administration of justice committees. Among many accolades, Matthew received the OCBA’s William Trickel, Jr., Professionalism Award in 2012. Shutts & Bowen Five members of Shutts & Bowen have been named top lawyers in their fields by Chambers & Partners in the latest edition of Chambers USA: America’s Leading Business Lawyers. The firm’s managing partner, Michael Grindstaff, Esq., was ranked an “Eminent Practitioner” and one of the nation’s top lawyers. In addition, four members of the Orlando office were included among the nation’s top lawyers: Brent C. Bell, Esq., John Dannecker, Esq., Rod Jones, Esq., and Jennifer Slone Tobin, Esq. Certifications, Designations, and Presentations Congratulations to the following OCBA members who became board certified in civil trial practice: David A. Corso, Esq., a partner in the Orlando office of Fisher Rushmer, P.A.; S. Renee Stephens Lundy, Esq., a shareholder in the Orlando office of Dean, Ringers, Morgan & Lawton, P.A.; and Michael R. Vaughn, Esq., an attorney with Mimi L. Smith and Associates. Melanie M. Johnston recently received her associate of arts degree in paralegal studies. After receiving her degree in spring 2016, Melanie re-

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theBriefs August 2016 Vol. 84 No. 7

ceived her Florida Registered Paralegal designation from The Florida Bar, which requires certain educational and work experience requirements. Congratulations, Melanie! Louise B. Zeuli, Esq., of Louise B. Zeuli, P.A., presented “Medical Malpractice and Expert Witnesses: The Road to Glory (or Not!)” to the Greater Orlando Chapter of the American Association of Legal Nurse Consultants, which is an organization founded to provide central Florida nurses opportunities for professional development through education and networking opportunities. On the Move In the “On the Move” section, Gary M. Berkson, Esq. joins the Orlando office of GrayRobinson as a shareholder. Heidi M. Boon, Esq., a new OCBA member, joined Winderweedle, Haines, Ward & Woodman, P.A. as an associate. (Welcome to OCBA, Heidi!) Jerry L. Hanbery, Esq., has joined Fisher Rushmer, P.A., as an associate. Robert P. Major, Esq., has joined the Orlando office of Ver Ploeg & Lumpkin, P.A. as of counsel. Margalie Fenelus Reyes, Esq., has joined Kelley Kronenberg in Orlando. Charles “Chad” R. Walker, Jr., Esq., has joined Regan Whelan Zebouni & Atwood, P.A., as a partner. His practice focuses on commercial litigation and construction law. I hope you enjoyed this month’s “Hearsay.” As always, if you have news to share about your practice or a colleague’s practice, please do not hesitate to send it my way – vanessa@burruezolaw.com. See you next month! Vanessa A. Braga, Esq., is an associate attorney with Burruezo & Burruezo, PLLC, handling labor and employment and business litigation. She has been a member of the Orange County Bar Association, Inc. since 2014.

OCBA Luncheon September 22, 2016 11:30 a.m. – 1:00 p.m.

Ballroom at Church Street 225 S. Garland Ave., Orlando, FL 32801 Co-host: Hispanic Bar Association of Central Florida Speaker to be Announced

RSVP by September 19, 2016, through the OCBA Store Sponsors: First Green Bank • Data Analyzers • Lexis Nexis

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Solo & Small FirmCommittee continued from page 15

a quarter – make it a dollar – for every time I have heard a client say “…my agent never told me about uninsured motorist coverage.” Typically, UM does not increase your premium a great deal, but having it on your policy certainly could cost the insurance carrier. If you would like to discuss this or any other topic, please contact me or my capable staff, and we would be happy to speak with you. Happy motoring! Thomas B. Feiter, Esq., an attorney at The Fighter Law Firm, P.A., practices in personal injury and criminal defense. He is board certified in criminal trial law and received The Florida Bar’s Justice Anstead Award for Board Certified Lawyer of the Year in 2015. He has been a member of the OCBA since 2006.

theBriefs August 2016 Vol. 84 No. 7

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The Florida Bar News

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continued from page 7

sage was that people inside the steel bars were invisible and unimportant because they were gay.” But what was different this time was the reaction. “Through horror, we found humanity. In Orlando, we saw hundreds of people standing in line in the hot Florida sun to give blood to strangers they would never meet. And we witnessed an outpouring of love and support from around the world through social media and through pictures of buildings and monuments lit in bright true colors,” Smith said. “The American flag is flying at half-staff, and yesterday the president of the United States came to Orlando to offer the respect of a grieving nation… “Our grief, instead of having to be hidden, can be shared with the world… The gunman in Charleston and the gunman in Orlando failed at what they hoped to do, which was divide this community and to divide us as a nation. We will not live in fear. We will bury our dead. We will heal. We will build a better America where hatred and misunderstanding is replaced with love and pride… We will now return to our long, steady journey toward equality. We will show the world that we are a nation of law and equal justice under those laws. That is the legacy of and my solemn promise to these 49 men and women in my LGBT and allied community. You did not die alone. You did not die in vain. We will not forget you. Our pulse is stronger than ever.” Gary Blankenship, Senior Editor, The Florida Bar News. July 15, 2016. Reprinted with permission of The Florida Bar.

Thomas J. Gillmore, CPA, CFE, CVA 407-716-4795• tomg@FloridaDivorceCPA.com

August 9, 2016

Guardianship and Permanent Options for Dependent Youth at 18

August 23, 2016

Debt Collection Issues: Prevention and Defense

September 13, 2016

Therapeutic Engagement with your GAL Child

September 27, 2016

Sealing and Expungement of Records

October 4, 2016

Dependency Drug Court

October 18, 2016

Immigration Relief Available for Victims of Crime

November 1, 2016

Least Restrictive Means: Leveled Placements and Medications

November 15, 2016

Ethics Questions from Pro Bono Cases and Attorneys

December 6, 2016

Dependency Motion Practice 2: Common Dependency Motions and How to Prevail in Court

December 13, 2016

Domestic Violence and its Impact on Dependency Court

12:00 p.m. – 1:30 p.m. Marks St. Senior Center 99 E. Marks St. Orlando, FL 32803 PAGE 30

Legal Aid Society of the Orange County Bar Association, Inc. 2016 Free Lunchtime Learnings / CLE Applied for All Training classes are free for OCBA members and non-OCBA members participating in the LAS pro bono program. Pre-registration is required for the free lunch and requested for training (or subject to space availability if not pre-registered). For more information, contact Cathy Tucker, ctucker@legalaidocba.org, Marilyn Carbo, mcarbo@legalaidocba.org, or Michelle Erazmus merazmus@legalaidocba.org.

fs August 2016 Vol. 84 No. 7

www.orangecountybar.org theBrie

LASGAL Teaching Tips continued from page 13

ing the surrounding issues of domestic violence and focused advocacy on the child’s behalf helps to curtail negative effects and promote family stability and safety, the positive impacts of which may last an entire lifetime. For more information about GAL advocacy in domestic violence cases, contact Jonathan H. Neyer, Esq., Legal Aid Society of the Orange County Bar Association, Inc., Guardian Ad Litem Program department, at jneyer@legalaidocba.org, or 407841-8310. For more information about how to become a financial donor or help with our fundraising efforts, please contact Donna Haynes, Development Director at dhaynes@legalaidocba.org, or 407-5151850. Jonathan H. Neyer, Esq., is a GAL program staff attorney and records specialist at the Legal Aid Society of the Orange County Bar Association, Inc. He has been a member of the OCBA since 2015.

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Comprehensive Employment Services Vocational Assessments Wage Earning Capacity Labor Market Surveys Vocational Testing Job Analysis

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New M e mb er s

Attorneys

Jean Almonacy Jennifer L. Aybar Benjamin L. Bedard Christopher Bertels Peter W. Brennan Joanna M. Caccioppoli Matthew B. Capstraw Sean B. Mendez-Catlin Tyler A. Cooney Christopher E. Dennis Ricardo Diaz Keith Durkin Jannine C. Galvez Claribel H. Gonzalez Gregory N. Greenberg Lea Anne Groover

Tammy Hammack Aimee J. Hefley Mark E. Heimendinger Hassan J. Jaafar Ali A. Kadir Jonathon J. Keene Brian L. Koivu Scott D. Leitner Brittany A. Leonard Alberto E. Lugo Royo Hannah R. Miller Brian F. Moes Erin E. Morse Farhaad A. Naghoo Andrew F. Nickolaou Karen G. Nolan Michael D. Panella

Teresa N. Phillips Juan A. Ruiz Fernando J. Salamanca Daniel J.G. Schreiber Andrew V. Showen Brooke R. Skaggs James P. Smeriglio Samuel D. Transue Olivia F. Walker Lynette Whitehurst Mark D. Wixtrom Michael A. Woodard Christine V. Zharova

Affiliates

Kendra C. Gau Andrea M. Goekler Gail G. Savelle Jennifer H. Thomas Lyzaiana Torres Yeline Goin

Law Students Michael C. DeGori Caitlin H. Frenkel Camilla Blanco Anthony T. Paris Samantha E. Rego

Paralegal Student Jessica R. Lee

Tina M. English Mary F. Farmer Betsy Ferreira

Patron Lee V. Mangold

Is your firm part of the 100% Club? Firms with two or more attorneys and 100% membership in the OCBA can belong! If you believe your firm is eligible, please call the Membership Department at 407-422-4551, ext. 225. McMichen, Cinami & Demps PLLC Giles & Robinson, P.A. Alladi & Patel McMillen Law Firm, P.A. Harris, Harris, Bauerle & Sharma Allen, Norton & Blue, P.A. McShane & McShane Law Firm, P.A. Heatwole Law Firm, P.A. Amy E. Goodblatt, P.A. Meenakshi A. Hirani, P.A. Higley & Szabo, P.A. Anderson & Ferrin, Attorneys at Law, P.A. Men’s Divorce Law Firm Hilyard, Bogan & Palmer, P.A. Banker Lopez Gassler P.A. Morgan, White-Davis & Martinez, P.A. Hornsby Law Benitez Law Group, P.L. Murphy & Berglund, PLLC Infocus Family Law Firm, P.L. Beshara, P.A. Murrah Doyle Wigle & Torre P.A. James H. Monroe, P.A. Billings, Morgan & Boatwright, LLC N. Diane Holmes, P.A. Jill S. Schwartz & Associates, P.A. Bodiford Law Group Nishad Khan, P.L. Keating & Schlitt, P.A. Burr & Forman O’Mara Law Group Carr Law Firm, P.A. King, Blackwell, Zehnder & Wermuth, P.A. Korshak & Associates, P.A. Ossinsky & Cathcart, P.A. Cole, Scott & Kissane, P.A. Provencher & Simmons, P.A. Kosto & Rotella, P.A. Colling Gilbert Wright & Carter, LLC Law Offices of Amber Jade F. Johnson, P.A. Ringer Henry Buckley & Seacord, P.A. Cullen & Hemphill, P.A. Roman V. Hammes, P.L. Law Offices of Brent C. Miller, P.A. DeCiccio & Johnson Rumberger, Kirk & Caldwell P.A. Dellecker Wilson King McKenna Law Offices of Walter F. Benenati Ruffier & Sos, LLP Sasser & Weber, P.A. Legal Aid Society of OCBA Divine & Estes, P.A. Sawyer & Sawyer, P.A. Lewis & Crichton Faddis & Faddis, P.A. SeifertMiller, LLC Lim & Associates, P.A. Fassett, Anthony & Taylor, P.A Small Business Counsel Lynn B. Aust P.L. Fisher Rushmer Southern Trial Counsel Marcus & Myers, P.A. Frank A. Hamner, P.A. Stovash, Case & Tingley Marshall, Dennehey, Warner, Gasdick Stanton Early, P.A. Coleman & Goggin Swann Hadley Stump Dietrich & Spears, P.A. McDonald Toole Wiggins, P.A.

Tangel-Rodriguez & Associates The Aikin Family Law Group The Arnold Law Group The Brennan Law Firm The Dill Law Group The Draves Law Firm, P.A. The Elder Law Center of Kirson & Fuller The Llabona Law Group The Maher Law Firm, P.A. The Orlando Law Group The Rosenthal Law Firm, P.A. The Skambis Law Firm The Smith Family Law Firm, P.A. Vose Law Firm, LLP Warner & Warner, P.L. West, Green & Associates, P.L. Wicker, Smith, O’Hara, et al. Wieland, Hilado & DeLattre, P.A. Wilson McCoy, P.A. Winderweedle, Haines, et al. Wooten Kimbrough, P.A. Yergey & Yergey, P.A.