Kirk Pinkerton, PA, wishes everyone a Happy New Year!
Archive for December, 2010
Happy New Year!
Friday, December 31st, 2010Billy The Kid To Be Pardoned?
Wednesday, December 29th, 2010
Not content to let Gov. Charlie Crist’s recent pardon of Doors’ front man Jim Morrison be the most dubious use of gubernatorial powers in 2010, New Mexico’s Gov. Bill Richardson is contemplating a pardon for some of murderer Billy The Kid’s criminal deeds. See http://www.cnn.com/2010/CRIME/12/22/new.mexico.bonney/index.html
UPDATE (Jan. 5, 2011): Billy The Kid not to be pardoned by Gov. Richardson – http://www.cnn.com/2010/CRIME/12/31/new.mexico.billy/index.html
‘Robo-verifiers’
Tuesday, December 28th, 2010By now, most Floridians are familiar with the foreclosure problem created by so-called “robo-signers,” those bank and law firm employees who signed whatever mortgage-related materials was put in front of them and pretended that they had knowledge of such materials. Now, Floridians are learning about “robo-verifiers.” 
The Florida Supreme Court enacted new rules designed to avoid further problems with robo-signers which required lender’s pleadings to be verified. “The rule, as interpreted by several attorneys and based on recent trial court rulings, requires lenders to review and verify the accuracy of foreclosure complaints and their attachments after they are assembled by their attorneys. A lender employee who independently double-checks the information would then sign the documents to verify the accuracy. But foreclosure defense lawyers say that in many cases the same attorney who put together the lawsuit is signing as the verifier.” Polyana da Costa, “Defense lawyers raise new issue: ‘Robo-verifiers’,” http://www.dailybusinessreview.com/PubArticleDBR.jsp?id=1202476541917&hbxlogin=1 (Dec. 22, 2010).
Although attorneys engaged in this process may be exposed to court sanctions, the larger problem – a foreclosure caseload which fails to be resolved – will remain unresolved.
As we have been repeatedly saying, it is important to have competent local counsel involved in any foreclosure action. If you have questions about foreclosure – whether you are a lender or a property owner and whether the involved property is commercial or residential – call Brad Hogreve at 941.364.2455.
Man quits job, makes living suing e-mail spammers
Monday, December 27th, 2010
MyWay news reports today about a California man who quit his job and went to law school because he was so upset with spam mail: http://apnews.myway.com/article/20101226/D9KBQRMG0.html
Merry Christmas!
Friday, December 24th, 2010Kirk Pinkerton, PA, wishes everyone a merry Christmas!
City Secures Renewable Energy Agreement as Part of FPL Franchise Renewal
Thursday, December 23rd, 2010By: Casey Colburn, Esq.
Sparked by a desire to promote clean energy, in 2010, the City of Sarasota debated creating a municipal utility vs. renewing a multi-year municipal franchise agreement. After several months of tense negotiations and lengthy public hearings, the City of Sarasota and Florida Power and Light Company entered into a Renewable Energy, Energy Efficiency, and Energy Sustainability Agreement (the “Renewable Energy Agreement”). According to a memorandum from assistant City Attorney, Michael Connolly, Esq., “The purpose of the Renewable Energy Agreement is to set forth in a binding contract the covenants made by FPL which would be necessary consideration to support the City Commission passing on [the franchise agreement].”
Mr. Connolly highlighted the products and services to be provided by FPL to the City and its citizens during the 30-year term of the franchise agreement in the memorandum:
• FPL will provide educational resources and programs to inform and instruct the City and its citizens on issues related to energy efficiency and conservation programs and on the benefits and technology associated with renewable energy.
• Prior to December 31, 2015, FPL shall perform an energy audit on all of the City’s electric accounts.
• Prior to December 31, 2015, FPL will perform an energy audit of the 100 largest electricity consuming accounts located within the municipal limits of the City.
• Within every five-year period thereafter, FPL will perform an energy audit for all City accounts and the 50 other largest electricity consuming accounts within the municipal limits of the City.
• FPL will pay for one City employee to obtain LEED certification.
• FPL will establish an educational testing facility within the City including new solar photo voltaic panels.
• In 2021 FPL will install 10 additional pole mounted photo voltaic panels.
• In 2031 FPL will replace the initial five pole mounted photo voltaic panels.
• FPL will develop a solar school within the municipal limits of the City by installing solar photo voltaic panels.
• In 2021 FPL will provide another solar school installation.
• In 2031 FPL will provide another solar school installation.
• FPL will install five electric vehicle charging stations within the municipal limits of the City.
• In 2016 FPL will provide an additional ten electric vehicle charging stations.
• In 2021 FPL will replace the initial five electric vehicle charging stations.
• In 2026 FPL will replace the second ten electric vehicle charging stations.
• During the next 30 years, FPL will perform home energy makeovers for 1,500 homes within the municipal limits of the City.
• During the next 30 years, FPL will perform 15 non-profit energy makeovers for non-profit entities within the municipal limits of the City.
• Subject to the passage of enabling legislation, FPL will develop a large scale rooftop solar facility within the municipal limits of the City.
• Subject to the passage of enabling legislation, FPL will develop and install a demonstration LED streetlight pilot program.
• Subject to the passage of enabling legislation, FPL will develop a utility scale solar generation project (perhaps on the Verna Wellfield site).
The Renewable Energy Agreement runs concurrently with the term of the franchise set forth within Sarasota City Ordinance No. 10-4917. The Memorandum, as well as the franchise agreement and the public hearing testimony can be found on the City of Sarasota’s website at www.sarasotagov.com.
ABC Reports That Recalled DuPuy Hip Implant Making Its Patients Sick
Wednesday, December 22nd, 2010The DuPuy hip replacement continues to cause its recipients pain. The recalled device might also be making its recipients sick.
Have a question about your DuPuy implant? Call Bill Robertson – 941.364.2433
Supplemental or Special Needs Trusts
Monday, December 20th, 2010by: Rebecca Proctor, Elder Law Attorney
Question:
I have an adult daughter who has autism. While speaking with a friend, she said I should check with an attorney about setting up a special needs trust for my daughter so I could have peace of mind that she will be cared for when I die. Can you give me some information about a special needs trust, how it works and whether I should have a special needs trust for my daughter?
Answer:
Quite often, parents with adult children have already discovered that in order to receive governmental benefits for their child, the child must have very limited assets and income available to them. However, as you have probably found, governmental benefit programs just simply do not provide all that is needed.
Usually disabled persons can qualify for government benefits derived from Social Security Disability Income (SSDI), public housing or Medicaid. However, there are very strict rules for qualifying for these benefits. SSDI assists in the everyday living needs of a qualified person. Medicaid provides for the health care of persons who don’t have private insurance or cannot qualify for Medicare. Medicare is a government-run health care system program which is provided to persons with work related benefits. To be eligible for Medicaid, you must be either 65 or disabled. However, as stated, one must have very limited income and resources to qualify.
All trust structures, which includes a special needs trust, basically are a form of ownership of various assets where one person, the trustee, manages trust assets according to the terms of the trust document. A trustee must follow the provisions of the trust and only use the funds or assets according to the terms of the trust and, only for the benefit of the person or persons who are the recipients/beneficiaries of those assets, as has been determined by the trust terms. A “Special Needs or Supplemental Needs Trust” is a trust created for a physically or mentally disabled person, whether it is an adult or child, and for those who will need resource, other than governmental benefits, to care for them over their lifetime.
Many disabled individuals receive critical governmental benefits that they cannot afford to pay for in the private sector. Further, most special needs persons are not usually capable of managing their own financial affairs. This is where a special needs trust can assist in giving a parent peace of mind. Special needs trusts are primarily used to assist disabled persons, someone like your daughter and who are possibly receiving governmental benefits such as SSI or Medicaid. It is designed to benefit those persons with limited income, few resources, and receiving governmental benefits which do not or cannot supply all the “special or supplemental” needs of that disabled individual.
Generally special needs trusts fall into two categories, self settled trusts and third party trusts. Self settled trusts are trusts created by someone for themselves, using their individual assets, possibly from an insurance settlement following an accident which rendered them disabled. A Third party trust is usually a spouse of a disabled person, a parent for a disabled person, or some other third party (possibly a grandparent) which sets aside funds or resources for the benefit of another. With a special needs trust in place, a third party can provide funds for various needs or lifestyle betterment for the disabled individual, while preserving the individual’s access to governmental benefits and health care.
Therefore, if a third party or parent who wants to make sure that their loved one is provided for above and beyond the governmental benefits they receive, then a supplemental needs trust can be a good choice. Funds to set up a Supplemental Needs Trust can come from a variety of sources, such as an inheritance (funds passed on after death), a personal injury claim or from investments provided by a spouse, parent or other third party.
The benefits received by the special needs individual from a supplemental needs trust need not jeopardize their governmental benefits. A beneficiary of a properly drafted special needs trust never has a legal claim to the property (funds) in the trust. The funds are used for their various needs or to enhance their lifestyles that are not provided by the governmental programs. Such funds can be used for transportation, social activities, classes or just general overall purchases of daily items or activities.
If after reading this brief review on Special Needs Trust, you have a question, please feel free to call me at 364-2417.
Guardianship – Quick Review
Friday, December 17th, 2010By, Rebecca J. Proctor, Esq.
Guardianship is a court ordered proceeding in which a person, either voluntarily or involuntarily relinquishes their rights to another person called a legal guardian who will then have the authority to make a person’s decisions concerning their physical person and/ or property.
A Guardianship proceeding can be initiated by any interested adult on behalf of another if they genuinely feel that a person is not capable to appropriately care for themselves either physically or financially. If a person is either mentally or physically incapacitated, or both, and appears not to be capable to protect themselves from neglect, abuse or exploitation, then a petition can be filed with the Court which will begin a legal process to assist that incapacitated person.
In Florida, once the Petition is filed, a Court with legal jurisdiction will appoint an examining committee of (3) professionals who will examine the person and prepare a report for the Court. Upon the determination of the evidence, the examining committee reports and other evidence presented, a Judge may make a determination that the person is incapacitated and appoint a Guardian. So if one finds themselves or another in need of assistance or cannot make health care or financial decisions, then a guardianship proceeding may be recommended for that person.
If after reading this brief review, you feel that you would like to meet to discuss your legal matter further with Rebecca Proctor, then, please feel free to contact her at the Kirk Pinkerton, PA Law Firm at 941-364-2417.
“My Property Value Went Down, but My Property Taxes Went Up!”
Thursday, December 16th, 2010by: Scott E. Rudacille
Every year property owners pay ad valorem taxes which are based upon the property appraiser’s assessed value of their property as of January 1st of that year. If the property owner believes that the valuation exceeds the actual value of the property, the Florida Statutes have created an administrative hearing process through which the property owner can challenge that valuation and seek to have their taxes reduced.
During the 2009 legislative session, state lawmakers attempted to provide some assistance to property owners in this position. The new law provides that the property appraiser’s assessed value will no longer carry an automatic “presumption of correctness”, as it has for many years. The property appraiser will now have to prove that the property valuation was arrived at through the consideration of all of the relevant statutory factors, and by the use of a professionally accepted appraisal practice.
The intent of the legislation is to put the property owner in a better position to challenge whether the property appraiser has properly considered such factors as the present value of the property in an arm’s length transaction, the highest and best use of the property under applicable zoning or land use restrictions, the size, location, and condition of the property, and the purchase price of the property.
Property owners challenging their property assessment must be able to provide competent and substantial evidence to counter the claims of the property appraiser. In most cases, the lay testimony of a property owner as to the value of the property is not going to satisfy this requirement. The property appraiser will be represented by professional appraisers, and the special magistrates who preside over the appeal hearings are required by law to be certified real estate appraisers. Further, because the appeal hearings are quasi-judicial proceedings which involve the introduction of evidence, cross-examining witnesses, procedural rules, filing deadlines, etc., many property owners are apprehensive about navigating this process without professional assistance.
Most property owners in this situation can benefit from the advice of legal counsel and professional appraisers in evaluating their claim and pursuing the appeal. Due to the costs involved with hiring these types of professionals, the level of assistance that is appropriate for each case will vary depending on the factual circumstances.
If you think that your property has been assessed at a value that is greater than the actual market value of your property, or if you have been denied a tax exemption that you think applies to your property, please give me a call – 941.364.2446.