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Best Lawyers in America: 2018

Mr. Griscti has been selected by his peers for inclusion in the 24th Edition of The Best Lawyers in America for his work in Criminal Defense: General Practice and Criminal Defense White-Collar. Additionally, he has been recognized as the 2018 Jacksonville Criminal Defense: General Practice: "Lawyer of the Year". Only a single lawyers in each practice area and community is honored with a "Lawyer of the Year" award.


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Robert Griscti Receives James L. Tomlinson Professionalism Award

Mr. Griscti is honored to receive the annual James L. Tomlinson Professionalism Award. The award is given after selection by leaders in local voluntary bar association and practice sections to a lawyer in the Eighth Judicial Circuit of Florida "who has demonstrated consistent dedication to the pursuit and practice of the highest ideals and tenets of the legal profession." Jennifer Lester, Mr. Griscti’s partner, presented the award at the Eighth Judicial Circuit Bar Association’s Annual Dinner on June 8, 2017.

Photo credit: Katherine Artman


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26th Annual Federal Sentencing Guidelines Presentation by Robert Griscti

Robert Griscti spoke at the 26th Annual Federal Sentencing Guidelines Seminar in St. Petersburg, Florida on June 30 as a member of the Departures and Variances panel. Mr. Griscti’s presentation focused on the consideration of federal financial penalties in negotiation and sentencing, with an emphasis on recent developments in federal forfeiture and restitution sentencing jurisprudence.

Criminal and related civil enforcement financial penalties have been a focus of Rob’s practice since the early 80’s, when federal and Florida laws were strengthened to seize and forfeit, fine or impose restitution on criminal and civil defendants.  In a series of cases in the 1990’s, he participated in the constitutionality of Florida’s civil asset forfeiture laws before the Florida Supreme Court and the Florida legislature.  He remains an advocate for judicial and legislative reform of these harsh penalties.

The seminar was sponsored by the Tampa Bay Chapter of the Federal Bar AssociationNational Association of Criminal Defense Lawyers, and the Criminal Justice Section of the American Bar Association.

 


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Defense of Disciplinary and Academic Enforcement Actions Taken by Florida State Universities and Colleges

By Robert S. Griscti and Jake D. Huxtable*

If you face serious disciplinary and/or academic “enforcement” action at a state college or university, you are not alone.  Administrators, faculty, employees and students are investigated and face disciplinary and/or academic enforcement actions on-campus, facing penalties that extend to dismissal/termination/non-renewal of contract; suspension; probation; loss of privileges, or other adverse consequences that affect not only present but future status.  Such investigations and proceedings often lack basic adversary fact-finding and procedural safeguards that are the bedrock of due process in judicial and administrative tribunals of this State and can be difficult to defend.  Exhaustion of a public university or college enforcement proceedings to final “agency” action by the academic institution may lead to judicial review, or more formal administrative procedures may be applied under state law, but practically, the initial on-campus proceedings often end in an adverse result, which have their own consequences to subsequent academic, employment and licensing.  Hence, these disciplinary and/or academic proceedings require serious and prompt assessment and defense.

There is much that you can do to protect yourself and your future.  Individuals facing adverse action at public universities do have certain rights, because a Florida college or university is considered a state agency.[1] While many proceedings are governed by procedural rules promulgated under state statutory authority – for example, Chapter 6C1 of the Florida Administrative Code for the University of Florida – there remain a myriad of procedures from college to college and campus to campus that must be carefully and promptly assessed by the employee or student under scrutiny and not waived by that individual because of untimely action or failure to assert defenses.

It is important to begin preparing your defense as early as possible – and certainly as soon as you receive notice of a university’s proposed action to be taken against you.  Speed is especially important if the policy that the university implements in your case offers only a brief time before the hearing (i.e., university policies vary depending on an individual’s employment position, a student’s specific department and/or school, etc.).  Individuals in healthcare and other professional programs face particularly complicated proceedings and possible implications from adverse action, including self-reporting requirements under state licensing laws.

By way of example, a faculty member who asserts unfair, arbitrary, or illegal enforcement action may file a grievance, which must be filed “no later than thirty (30) days from the date the grievant acquires knowledge” of the enforcement action.[2]  But under different circumstances, such as when a University of Florida faculty member is suspended or terminated for “just cause,” the option to appeal that decision and to schedule a meeting to present your side of the story must often be made in writing within a shorter time period following notice of the proposed termination or suspension.[3]  Failure to timely act can result in waiver of a defense or even the right to contest the enforcement proceeding.

Submitting a public records request of the institution may be appropriate to promptly gather information for defense of the action.  Not all university or college records are subject to disclosure – there are a number of exemptions to disclosure under Florida’s Public Records Act[4], but generally the Act is a useful method to obtain records from the university or college, if the institution’s own rules and policies don’t provide for production of the information on request. An array of information, including but not limited to internal e-mail correspondence, official minutes (i.e., notes) taken during committee hearings and meetings, etc., might be obtained quickly to assess the university’s case.  The University of Florida offers an easy public records portal online for submission[5]; however, the request for production usually should be as focused and detailed as possible to identify the specific information sought.  Delays in production otherwise can and do result.  In short, a dispute regarding public records requests can cause its own litigation.  Further, whether or not to request production of records under the Public Records Act should take into consideration whether the individual wants that information in the public forum, which it might not otherwise be.

If an initial determination is adverse to the individual, there typically is a procedural mechanism to appeal the discipline imposed, or that is proposed to be taken.  These remedies vary, and caution must be exercised to invoke an appeal or other review procedure in a timely and complete manner.

If, after exhausting all university administrative remedies (i.e., grievance, appeal, etc.), if the employee or student is dissatisfied with the university’s “final agency” decision, Florida law may allow for appeal to a judicial forum, usually a state District Court of Appeal.  Circuit courts in Florida also have potential jurisdiction over some disputes (for example, enforcement of the Public Records Act).  And formal proceedings under Florida’s Administrative Procedures Act may afford important remedies. [6]  Such procedures again warrant careful analysis and timely invocation.  Such judicial or formal administrative proceedings may provide substantially more “due process” and adversary rights than those offered by an academic institution.  Again, prompt and careful analysis of the issues and available procedures should be initiated by the individual facing disciplinary and/or academic proceedings.

In summary, an individual facing a disciplinary and/or academic investigation or proceeding on a public campus – and also at private universities and colleges – should promptly consider obtaining counsel to help assess the matter; consider potential current and future consequences of the action; and develop and deploy a viable strategy to defend the proceeding.

rsg

Find Mr. Griscti’s profile here.

  • About the authors: Robert S. Griscti is a partner at the law firm of Salter Feiber, P.A., in Gainesville, Florida.  Jake D. Huxtable worked with Mr. Griscti at Salter Feiber as a law clerk and litigation associate.

 

[1] See Fla. Stat. § 120.52 (defining government “agency”).

[2] See UF Regulation 6C1-7.042, Grievance Procedure for Faculty and Postdoctoral Associates, available at http://regulations.ufl.edu/wp-content/uploads/2012/09/7042.2016final4-8-16.pdf; see also, UF Regulation 6C1-7.041, Methods for Review and Resolution of Faculty Grievances, available at http://regulations.ufl.edu/wp-content/uploads/2012/09/7041.2016final4-8-16.pdf.

[3] See UF Regulation 6C1-7.048, Academic Affairs, Suspension, Termination, and Other Disciplinary Action for Faculty, available at http://regulations.ufl.edu/wp-content/uploads/2012/09/7041.2016final4-8-16.pdf.

[4] See Chapter 119, Florida Statutes.

[5] See University of Florida, Public Records Portal, available at  http://publicrecords.ufl.edu/.

[6] See Fla. Stat. §§ 120.569 (relating to agency “actions” that affect substantial interests) and 120.56 (relating to agency “rules” that affect substantial interests).


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Enforcement and Defense of False Claims Act and Similar Whistleblower Actions

By Robert S. Griscti and Jake D. Huxtable

Corporate and individual clients frequently require representation in the False Claims Act (FCA)[1] arena.  Health care and other industries are held to increasingly strict scrutiny by federal and state authorities under this federal statute and its equivalent state laws.

Referred to as “Lincoln’s Law,” the federal False Claims Act originally was signed by President Abraham Lincoln in 1863.  The original legislation was intended to encourage private citizens to expose and heavily penalize corrupt contractors who, for example, provisioned the Union army.  The law was based on British common laws dating back to the fourteenth century, whereby whistleblowers were rewarded for protecting the property of the crown.

The United States Supreme Court has stated that the broad purpose of the FCA is “to protect funds and property of the government from fraudulent claims that might result in financial loss to the United States.”[2]  A false claim may take many forms, the most common being a claim for goods or services not performed or falsely certified (i.e., health care reimbursement claims certifying that services were medically necessary when they were not); or goods or services  provided in violation of statute or regulation[3], such as “Anti-Kickback”[4] and “Stark”[5] laws.

Between 1986 and 2013, nearly $40 billion was recovered for the United States under the FCA, where whistleblowers received over $3 billion in qui tam awards plus attorneys’ fees and costs.  Since 2009 through 2015 in particular, the Justice Department recovered more than $26.7 billion through FCA cases, with more than $16.8 billion of that amount recovered in cases involving fraud against health care programs, such as Medicare, Medicaid, and Tricare.[6]

The government’s revamped emphasis on combatting health care fraud has been apparent in the north central Florida area in investigations that have led to significant monetary civil settlements and/or criminal convictions. For example, this year, the United States Attorney’s Office for the Northern District of Florida convicted a physician of 162 counts of health care fraud after a five-week jury trial in Gainesville.[7]  The University of Florida and Shands Healthcare, also referred to as UF Health, have negotiated resolutions of lengthy civil enforcement actions in recent years.[8]

Whistleblower civil lawsuits are typically brought under the FCA, which allows a private citizen to sue an individual or a business that allegedly is defrauding the government and, if successful, recover funds on the government's behalf.  A suit filed by an individual on behalf of the government is known as a “qui tam” action, and the person bringing the action is referred to as a “relator” or “whistleblower.”  The qui tam complaint is initially filed under seal for 60 days, during which time the government investigates the allegations in the complaint.[9]  The government will then evaluate the case and determine whether it will intervene and take over the case; or rather, decline to take over the action, in which case the whistleblower can choose to proceed with the action individually.  If the government conducts the action, a relator is to receive not less than 15 percent and no more than 25 percent of the proceeds.[10]  If the government does not conduct the action and the relator is successful in obtaining a recovery, the relator is entitled to receive between 25 percent and 30 percent of the recovery.[11]  The FCA leaves the federal court with discretion to decide what amount is ultimately awarded within these statutory ranges, taking into account the role of the relator in advancing the case to litigation.[12]

The complaint is initially served only upon the Attorney General of the United States, and the United States Attorney in the federal District where the action is filed.  The relator/whistleblower is required to provide a written disclosure statement to the government of material evidence and information the whistleblower possesses.[13]  A whistleblower is not required to have direct and independent knowledge of every element of an FCA violation.  Such knowledge of any essential element is sufficient[14], such as specifying the “who, what, where, when and how” of the alleged fraud[15], including, for example, evidence of the specific invoices that are alleged to constitute the false claims.[16]  Thus, the disclosure statement can set forth an overview of legal theories and facts, a narrative of the facts that the whistleblower possesses, the identities of witnesses, and the locations of documents.  In summary, the disclosure statement is an important document that assists the government in evaluating the allegations of the qui tam complaint and serves as a road map for the government’s ensuing investigation.

Regardless of whether the government intervenes, whistleblowers are protected from employer retaliation, such as being fired for blowing the whistle, under both federal[17] and state[18] law.  Generally, the identities of whistleblowers and the information they provide to the government are neither disclosed to the public nor the defendant during the investigatory stage.[19]  The FCA does not authorize the filing of the disclosure statement with the qui tam complaint nor its being provided to the defendant.  The relator can provide information to the government without fear of that information being used in a retaliatory manner.

Whether the government intervenes or not will likely depend on the information the relator voluntarily provides to the government in its disclosure statement and, when the government chooses to do so, through its own investigatory work product.

Civil Investigative Demands (CIDs) are frequently used to initiate the government’s investigation.  CIDs are judicially enforceable demands for production of documents, written answers to interrogatory questions, and deposition testimony of witnesses, including corporate entities and individuals.  Although CIDs can be served only before a civil or criminal action is instituted by the government, prosecutors can and do use CIDs to determine whether civil enforcement or criminal prosecution is more appropriate.  CIDs may not be used to investigate violations that impose solely criminal penalties.  If this is the case (i.e., where only criminal prosecution is sought), then the government should employ grand jury subpoenas as its investigative tool, rather than the issuance of CIDs.

The government has greater flexibility in requesting the production of information pursuant to CIDs than via criminal grand jury subpoenas, which must pass stricter procedural and constitutional muster.[20]  Unlike subpoenas, the FCA empowers the Justice Department to issue a CID where there exists “reason to believe that any person may be in possession, custody, or control of any documentary material or information relevant to a false claims law investigation.”[21]  Further, a CID can require the recipient to produce documents, as well as answer written interrogatories or give oral testimony under oath.

Until recently, only the Attorney General could authorize the issuance of a CID.  But with the passage of the Federal Enforcement and Recovery Act in 2009, the Assistant Attorney General for Department of Justice’s Civil Division and also individual U.S. Attorneys all now have the power to issue CIDs.[22]  This expansion of authority within the DOJ has coincided with changes in CID authority among the states.  For example, state attorneys in Florida have been granted the authority to issue CIDs after the Attorney General has consented in writing.[23]

Corporations are “legal persons,” capable of suing and being sued, and capable of committing crimes.  For purposes of the FCA, the conduct of a corporation’s employees and agents acting within the scope of their employment is imputed on the corporation.  A person or company does not violate the FCA by simply submitting a false claim to the government.  An FCA violation requires a person or entity to have submitted, or caused the submission of, the false claim with “knowledge” of its falsity.  According to the FCA, knowledge of false information is defined as (1) actual knowledge, (2) deliberate ignorance of the truth or falsity of the information, or (3) reckless disregard of the truth or falsity of the information.[24]

Knowing conduct under the FCA therefore includes the “ostrich type situation where an individual has ‘buried his head in the sand’ and failed to make simple inquiries which would alert him that false claims [were] being submitted.”[25]  In the health care arena, reckless disregard can be shown when a physician fails to ensure that bills sent for government reimbursement are accurate.[26]  For example, a doctor was found guilty of “knowingly” filing false claims when he gave complete control of the billings to a person with no prior experience with medical billing, and failed to inquire into what codes were being used by that person to bill for his services.[27]   Thus, those doing business with the government have an obligation to take reasonable steps to ensure that claims submitted are in fact correct, rather than simply assuming so.

Congress and state legislatures have universally come to recognize that whistleblowers serve a crucial role, and are utilizing them in civil and criminal enforcement actions to combat fraud committed against the government.  Corporate entities and individuals must be cognizant of these laws and should consult with counsel for assistance in understanding and effectively using – or defending against – such investigations and litigation.

rsg

Find Mr. Griscti’s profile here.

  • About the authors: Robert S. Griscti is a partner at the law firm of Salter Feiber, P.A., in Gainesville, Florida.  Jake D. Huxtable worked with Mr. Griscti at Salter Feiber as a law clerk and litigation associate.

[1]  See 31 U.S.C. § 3729.
[2]  See Rainwater v. United States, 356 U.S. 590, 592 (1958).
[3]  See James B. Helmer, Jr., False Claims Act: Whistleblower Litigation 117 (6th ed. 2012).
[4]  See 42 U.S.C. § 1320a-7b (which prohibits the exchange, or offer to exchange, of anything of value in an effort to induce or reward the referral of federal health care program benefits).
[5]  See 42 U.S.C. § 1395nn (which prohibits physician referrals of designated health services for Medicare and Medicaid patients if the physician, or an immediate family member, has a financial relationship with that entity).
[6] See Department of Justice Press Release, 21st Century Oncology To Pay $19.75 Million To Settle Alleged False Claims For Unnecessary Laboratory Tests, December 18, 2015, available at http://www.justice.gov/usao-mdfl/pr/21st-century-oncology-pay-1975-million-settle-alleged-false-claims-unnecessary.
[7]  See Department of Justice Press Release, Gainesville Physician Convicted of 162 Counts of Health Care Fraud, May 3, 2016, available at https://www.justice.gov/usao-ndfl/pr/gainesville-physician-convicted-162-counts-health-care-fraud.
[8] See United States of America and the State of Florida ex rel. Terry L. Meyers v. Shands Healthcare et al., Civil Action No. 3:08-cv-441-J-16HTS (M.D. Fla. 2008) (Shands paid $26 million to settle allegations for submitting false reimbursement claims to the Medicare, Medicaid, and TRICARE programs), settlement agreement available at http://www.thehealthlawfirm.com/uploads/Shands%20Hospital%20Settlement.PDF; see also Department of Justice, University of Florida Agrees to Pay $19.875 Million to Settle False Claims Act Allegations, November 20, 2015, available at https://www.justice.gov/opa/pr/university-florida-agrees-pay-19875-million-settle-false-claims-act-allegations and Department of Justice, United States Settles False Claims Act Allegations Against Multiple Jacksonville Hospitals And An Ambulance Company For $7.5 Million, May 8, 2015, available at https://www.justice.gov/usao-mdfl/pr/united-states-settles-false-claims-act-allegations-against-multiple-jacksonville.
[9]  See Department of Justice, The False Claims Act: A Primer, April 22, 2011, available at https://www.justice.gov/sites/default/files/civil/legacy/2011/04/22/C-FRAUDS_FCA_Primer.pdf.
[10] See 31 U.S.C. § 3730(d)(1).
[11] See 31 U.S.C. § 3730(d)(2).
[12] See 31 U.S.C. § 3730(d)(3).
[13] See 31 U.S.C. § 3730(b)(1).
[14] See United States ex rel. Springfield Term. Ry. Co. v. Quinn, 14 F.3d 645, 656-57 (D.C. Cir. 1994).
[15] See United States ex rel. Karvelas v. Melrose-Wakefield Hospital, 360 F.3d 220, 232 (1st. Cir. 2004).
[16] See United States ex rel. Clausen v. Laboratory Corp. of America, 290 F.3d. 1301 (11th Cir. 2002).
[17] See 31 U.S.C. § 3730(h) (“Any employee who is discharged, demoted, suspended, threatened, [or] harassed . . . by his or her employer because of lawful acts done by the employee on behalf of the employer . . . including investigation for, initiation of, testimony for, or assistance in an action filed or to be filed under this section [FCA], shall be entitled to all relief necessary to make the employee whole.”)
[18] See Fla. Stat. Ann. § 112.3187 (which protects public employees); Fla. Stat. Ann. § 448.102 (which protects private sector employees).
[19] See United States ex rel. Purcell v. MWI Corp., 209 F.R.D. 21, 24-27 (D.D.C. 2002) (the whistleblower’s disclosure statement is a confidential document covered by the joint prosecutorial privilege); see also United States ex rel. Taxpayers Against Fraud v. Litton Sys., No. CV 88-2276 (C.D. Cal. 1990) (unpublished decision denying disclosure, finding that the disclosure was protected by the work product doctrine and the attorney-client privilege).
[20] The Fourth Amendment of the U.S. Constitution provides, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
[21] 31 U.S.C. § 3733(a)(1) (emphasis added).
[22] See Geoff Murphy, Civil Investigative Demands Part I: What Are They and Why Do I Care, Prime: Government Contracting Law Blog, January 5, 2015, available at http://www.primewatchgovernmentcontracting.com/civil-investigative-demands-partone/.
[23] See Fla. Stat. § 542.28(1).
[24] See, supra, § 3729(b)(1).
[25] S. Rep. No. 99-345, at 21 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5286 (reproduced in Appendix 2.E) (internal quotations added).
[26] See United States v. Krizek, 111 F.3d 934, 942 (D.C. Cir. 1997); United States v. Stevens, 605 F. Supp. 2d 863, 869 (W.D. Ky. 2008).
[27] Id.


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Star Sansone mentioned in Winter 2015 The Florida Bar Tax Section Bulletin Article

Excerpts from “New Tax Lawyers Prove the Annual “Same Ullman Year in Review” Will Be Strong For Years to Come” by Karen Lapekas

It is a fact worth of judicial notice: in the minds of countless tax attorneys, Sam Ullman walks on water.  The fact was evidenced by the full-house attendance at yet another successful “Ullman Year in Review” at the Tax Section Organization Meeting held in Amelia Island on July 4, 2015.  It was further evidence by Rob Panoff’s own exclamation up Mr. Ullman’s sneaking up on him before the state of the Review.  Mr. Panoff, deep in conversation with a fellow attendee took no notice of the fact that Mr. Ullman had arrived and was standing right behind him.  When Mr. Ullman tapped Mr. Panoff on the shoulder, M. Panoff, pleasantly startled, made an exclamation invoking the name of the first man to have allegedly walked on water.  Not willing to accept such admiration, Mr. Ullman responded, “That’s okay, Bob.  My friends just call me Sam.”

Courtesy of this year’s generous sponsor, Business Valuation Analysts, LLC, no attendee wanted for the finest refreshments or warm soft pretzels with spicy beer mustard.  The president of the Tax Section, Jim Barrett, the chair-elect , Bill Lane, kicked off the Review with introductions, announcements, and of course, with recognition of the honor of having the namesake of the Review himself in attendance.  This year’s Review, either by coincidence or design, was lead primarily by “new” and “young” attorneys.  Their participation was a harbinger of the secured future success of the Tax Section.

One of the “new” and “younger” attorney’s is Salter Feiber, P.A.’s own Star Sansone as mentioned below in the continued article:

Star Sansone, of Salter Feiber, P.A. in Gainesville, Florida, was well into her updates on civil tax procedure before the attendees gave up looking for her identical twin.  After hearing her staggering academic, professional, and athletic background, who could believe there was only one of her?  Of much interest, but not garnering much surprise, were her highlights from the National Taxpayer Advocate Annual Report to Congress.  In summary, according to the report, IRS customer service has gone from bad to worse.  Unfortunately, this means longer call hold times (or, just being told to call back).  Fortunately, the longer the hold times do not mean Pyotr Tchaikovsky will be making more revolutions in his grave.  The IRS has already discontinued the “Dance of the Sugar Plum Fairies” hold music.


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Salter Feiber Named a Fund President’s Circle Firm

FundLogo-2014Attorneys’ Title Fund Services, LLC (The Fund) announced Salter Feiber has been named a Member of The Fund President’s Circle for 2014.

The Fund President’s Circle is comprised of an elite group of leaders within the legal profession. These top-tier law firms have received this statewide recognition because of the commitment they have shown to their clients and to The Fund. Only 3% of The Fund’s Member firms in 2014 received this distinction.

“With The Fund President’s Circle award, Salter Feiber ranks among an elite group of legal professionals within the real estate industry” said Jimmy R. Jones, President and CEO of Attorneys’ Title Fund Services, LLC.

President’s Circle members are determined by the level of business they have conducted with The Fund the prior year.

Attorneys' Title Fund Services, LLC (The Fund) supports and promotes the success of Attorneys' real estate practices by providing underwriting counsel, legal education, title information and products to preserve and facilitate the real estate practices of its Members in their protection of the public. For more information, visit http://www.thefund.com.


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James G. Feiber, Jr. and Star Sansone Participate in EJCBA Charity Golf Tournament

jgfsmsgolf

James G. Feiber, Jr. (of counsel) and Star Sansone participated in the Eighth Judicial Circuit Bar Association Charity Golf Tournament held Friday, March 20, 2015 to benefit the Guardian ad Litem Foundation. This year's tournament was most successful to date, with $11,000 raised for the foundation. Over ninety golfers from around the circuit participated in the tournament.

The Guardian Foundation, Inc. is a 501(c)3 not for profit corporation that was established in 1993 to support the work of the Guardian ad Litem Program in the 8th Judicial Circuit. The Foundation provides resources not available through state funding to help normalize the lives of abused, neglected and/or abandoned children by offering the same opportunities afforded children outside the dependency system.

You can find more information on the Guardian Ad Litem Program through their website: http://gal.alachua.fl.us/


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Salter Feiber Welcomes Jack Bovay and Jennifer Lester

Salter Feiber, P.A. is pleased to announce John C. Bovay and Jennifer Cates Lester are joining the firm as partners, and Star Sansone is joining the firm as an associate attorney. The changes are effective February 1, 2015. Mr. Bovay is Board Certified both in Tax Law and in Wills, Trusts and Estates Law. His practice involves estate planning and asset protection for high net worth individuals and families, business succession planning, and fiduciary litigation. Mr. Bovay holds an LL.M. in Taxation and also is a Florida licensed CPA. Ms. Lester is Board Certified in Civil Trial Law. Her practice includes commercial and civil litigation and fiduciary proceedings.

Mr. Bovay, Ms. Lester, and Ms. Sansone join the firm’s existing attorneys James D. Salter, James G. Feiber, Jr., Denise Lowry Hutson, David E. Menet and Katherine L. Floyd. Salter Feiber will serve clients in the areas of estate and succession planning; business law and entity formations; probate administration; civil litigation; and commercial and residential real estate law.


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The Top 10 Benefits of a Comprehensive Power of Attorney

There are many benefits of a highly detailed, comprehensive power of attorney. When properly used and with a trusted and reliable agent, a power of attorney is a powerful document that we recommend all clients consider putting in place as a part of their estate plan, but it is especially important for our senior population.

The laws regarding the power of attorney in Florida changed fairly recently, so if you are using an older power of attorney, or one that is more general in nature, you should consider having an updated document prepared as outdated or generalized documents can actually cause more problems than they solve.
There are great benefits to one individual privately empowering another person to act on the principal's behalf to perform certain financial functions. Powers of attorney are voluntary delegations of authority by the principal (the person creating the power of attorney) to the agent (the person receiving the power). The principal has not given up his or her own power to do these same functions but has granted legal authority to the agent to perform various tasks on the principal's behalf.

When choosing someone to act as your power of attorney, you must make this decision with great care. Most people have heard about financial exploitation of individuals, particularly seniors and other vulnerable people, by people who take advantage of them through undue influence, hidden transactions, identity theft, and the like.

However, when an agent is chosen wisely, a power of attorney is an invaluable tool that will allow a trusted family member or friend conduct your affairs in the event of your unavailability, illness, or incapacitation. Here are ten benefits of having a comprehensive durable power of attorney.

  1. Provides the ability to choose who will make decisions for you (rather than a court). If someone has signed a power of attorney and later becomes incapacitated and unable to make decisions, the agent named can step into the shoes of the incapacitated person and make important financial decisions. Without a power of attorney, a guardianship or conservatorship may need to be established through the court process, and can be very expensive.
  2. Avoids the necessity of a guardianship or conservatorship. Someone who does not have a comprehensive power of attorney at the time they become incapacitated would have no alternative than to have someone else petition the court to appoint a guardian or conservator. The court will choose who is appointed to manage the financial and/or health affairs of the incapacitated person, and the court will continue to monitor the situation as long as the incapacitated person is alive. While not only a costly process, another detriment is the fact that the incapacitated person has no input on who will be appointed to serve.
  3. Provides family members a good opportunity to discuss wishes and desires. There is much thought and consideration that goes into the creation of a comprehensive power of attorney. One of the most important decisions is who will serve as the agent. When a parent or loved one makes the decision to sign a power of attorney, it is a good opportunity for the parent to discuss wishes and expectations with the family and, in particular, the person named as agent in the power of attorney.
  4. The more comprehensive the power of attorney, the better. As people age, their needs change and their power of attorney should reflect that. Seniors have concerns about long term care, applying for government benefits to pay for care, as well as choosing the proper care providers. Without allowing the agent to perform these tasks and more, precious time and money may be wasted.
  5. Prevents questions about principal's intent. Many of us have read about court battles over a person's intent once that person has become incapacitated. A well-drafted power of attorney, along with other health care directives, can eliminate the need for family members to argue or disagree over a loved one's wishes. Once written down, this document is excellent evidence of their intent and is difficult to dispute.
  6. Prevents delays in asset protection planning. A comprehensive power of attorney should include all of the powers required to do effective asset protection planning. If the power of attorney does not include a specific power, it can greatly dampen the agent's ability to complete the planning and could result in thousands of dollars lost. While some powers of attorney seem long, it is necessary to include all of the powers necessary to carry out proper planning.
  7. Protects the agent from claims of financial abuse. Comprehensive powers of attorney often allow the agent to make substantial gifts to self or others in order to carry out asset protection planning objectives. Without the power of attorney authorizing this, the agent (often a family member) could be at risk for financial abuse allegations.
  8. Allows agents to talk to other agencies. An agent under a power of attorney is often in the position of trying to reconcile bank charges, make arrangements for health care, engage professionals for services to be provided to the principal, and much more. Without a comprehensive power of attorney giving authority to the agent, many companies will refuse to disclose any information or provide services to the incapacitated person. This can result in a great deal of frustration on the part of the family, as well as lost time and money.
  9. Can allow an agent to perform planning and transactions to make the principal eligible for public benefits. One could argue that transferring assets from the principal to others in order to make the principal eligible for public benefits--Medicaid and/or non-service-connected Veterans Administration benefits--is not in the best interests of the principal, but rather in the best interests of the transferees. In fact, one reason that a comprehensive durable power of attorney is essential in elder law is that a Judge may not be willing to authorize a conservator to protect assets for others while enhancing the ward/protected person's eligibility for public benefits. However, that may have been the wish of the incapacitated person and one that would remain unfulfilled if a power of attorney were not in place.
  10. Provides peace of mind for everyone involved. Taking the time to sign a power of attorney lessens the burden on family members who would otherwise have to go to court to get authority for performing basic tasks, like writing a check or arranging for home health services. Knowing this has been taken care of in advance is of great comfort to families.

No one can predict exactly which powers will be needed in the future. The planning goal is to have a power of attorney in place that empowers a succession of trustworthy agents to do whatever needs to be done in the future. Please call us if we can be of assistance in any way or if you have any questions about durable powers of attorney.


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