A Brief Legal Dictionary

Some rights reserved by greeblie Legal terms are often confusing. Our blog seemed like a good place to help define some of the legal terms you hear often, but that you might not be very clear on. Some of these might not be strictly legal terms, but are included because you could hear them in a legal setting. Keep in mind that our definition listed here isn’t the only definition of the term in some cases. In addition, our definition will be related to Florida law.

Litigation: A court action involving a plaintiff and a defendant (the litigants). It can be civil or criminal.

Slander: Verbally saying a false statement that will make others have a bad opinion of someone. (See defamation for more)

Libel: Writing a false statement that will make others have a bad opinion of someone. (See defamation for more)

Defamation: This is either libel or slander, a verbal or written false statement that is uttered to make others have a bad opinion of someone. Defamation lawsuits can be challenging to win, since there are rules regarding free speech and you have to be able to prove the statement was false. You also have to prove that others are behaving differently toward you because of this false statement.

Mitigation: The act of trying to lessen damages. The law often says that you cannot simply let the damage happen, that you must try to assuage or remedy it as much as possible. A short sale is often considered a way to mitigate foreclosure and debt. You can also be involved in debt mitigation, which is you working with creditors to lessen debt. This is often preferable to a lender…to receive some of the payment, rather than none at all.

Short Sale: This is when you sell the home for less than the amount owed on loans, but still using a number negotiated with the lender. It is for occasions when homeowners can no longer pay their monthly payments, nor the full amount due. Many homeowners may try to sell their home first at a higher amount in an effort to pay off the loans, but recent times have seen an influx of short sales because of today’s economy and depressed housing market. There are also rules about how much you can sell a home for that is based on its appraised value.

Deficiency Judgment: Sometimes arrangements are created that allow a short sale to end your relationship with a creditor, but often a deficiency judgment is created. This is the difference between the amount received during a short sale and the amount of the loan.

Stripping Off a Loan: This is when you can “strip off” a junior loan on a home during bankruptcy. This means you would only owe for your main loan. Click here to learn more.

Trustee: The trustee works with debtors and their attorney during a bankruptcy. The government assigns them. Trustees discuss the case and communicate with the courts and creditors.

Probate: Probate deals with the debts, assets, and other remaining situations of someone’s estate after they die. There are four types of probate in Florida: summary administration, formal administration, ancillary administration, and disposition without administration. It can be a long and arduous process that is fraught with legal and emotional turmoil.

Undue Influence: Stated by Merriam-Webster, this is “such influence over another often presumed from the existence of very close relationships as destroys his free agency in the eye of the law: such influence as prevents a person from exercising his own will and substitutes in its place the will of another (as by constraint, machination, or urgency of persuasion).”  Our practice handles undue influence in probate cases. This is when another family member, caregiver, or similar person manages to convince someone to change their will to suit this other person’s needs (usually to this person’s benefit). Thus, the new will is not what the person would have wanted their final wishes to be without this undue influence.  

Wrongful Death: This is the premature death of a loved one due to the negligence of others. It can occur during car accidents, due to medical malpractice, and other types of situations.

Incapacitated Adult: We will mention this term a lot in the next few entries. An incapacitated adult is often mentally and/or physically unable to handle their affairs. It is not something that someone can randomly be decided for the adult. It requires a medical and legal ruling. This incapacitation can be due to various reasons, like mental illness or extreme physical incapacitation.

Health Care Surrogate: This is the person you legally give the power to handle your medical decisions, should you become incapacitated. This is an important power that should only be given to someone you trust.

Power of Attorney: There are several types of Power of Attorneys. A power of attorney gives someone the right to speak for you in various matters—like business or financial matters. Sometimes designating a power of attorney is voluntary on your part and sometimes it is not. If you choose to designate someone as your power of attorney, make sure it is a trusted individual. If you are assigned a power of attorney, it can sometimes be revoked or just be temporary.

Guardianship: A guardianship is usually for incapacitated adults. It is not without oversight, which is put in place to help protect the ward. In some cases, a guardianship can be created for a minor. Guardianships of minors are often created when a minor stands to inherit a substantial amount of money.  Our practice can handle the court procedures and paperwork involved in a guardianship.

Elder Exploitation: Elder exploitation is a sad problem that is becoming more and more rampant. Florida is where seniors often come to live out the rest of their days. Thus, Florida sees many elder exploitation cases. Elder exploitation can occur with family members or with third-party caregivers. It can occur in facilities, through home care, or at the hands of family members who have been assigned to care for them. A Power of Attorney could be a perpetrator of elder exploitation, for example. Undue influence is also another term associated with elder exploitation.

Castle Doctrine: The basis for the Stand Your Ground law. The castle doctrine generally says:

  • that your home and car are places where you expect to be free from harm, i.e., your “castle.” Because of this, deadly force may be used on a criminal who forcibly enters your home or occupied vehicle with the intent to do great bodily harm to you or another person in those areas.
  • that you have the right to stand your ground and fight back with deadly force when you feel it is the only way to protect yourself and you are in a place you rightly deserve to be.
  • that criminals are not able to prosecute anyone, who acted within the above circumstances, for the harm that comes to them. This restriction also applies to the criminal’s families.

However, the castle doctrine is not without restrictions. For more, check out these blog posts.

All of these topics are discussed further on our blog. Just use our search function to learn more.

Attorney Christopher D. Smith is a Lakewood Ranch, Florida attorney with SmithLaw Attorneys. He concentrates in bankruptcy, civil litigation, probate, estate planning, and elder exploitation cases in the Sarasota and Bradenton area. Call 941-907-4774 to learn more and to ask about our free consultations.

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