Handling Life and Death Matters
Family law attorney Richard C. Milstein handles matters of life and death — and everything in between. “I like to say that I have a people practice, taking care of clients from before birth to after they die,” says Milstein, who is board certified in elder law and a shareholder in the Miami office of Akerman Senterfitt. “I serve as a voice for the vulnerable of all ages who need someone to protect their rights.”
For more than three decades, Milstein has been advising clients on all aspects of family law, including advance directives and estate planning for the elderly, alternative families, and same sex couples. He has represented clients of significant means, as well as vulnerable adults and the children in disputed relationships.
“Richard is a great lawyer,” says Circuit Court Judge Maria Korvick in the Probate Division. “Not a lot of attorneys are certified in elder law, because you have to be acquainted with different issues of trust, estate, probate and guardianship. He does an excellent job in court for his clients on some very difficult matters, and also finds time to give back to the community.”
A resident of Miami since 1957, Milstein graduated from Miami Beach High School, and then earned an associate’s degree at Miami-Dade College. “I became involved in student government at Miami-Dade and law seemed like a natural fit for me,” he says. After earning his bachelor’s degree at the University of Miami, Milstein taught government and economics at North Miami Senior High School for three years and then taught at night, while earning his law degree at UM. Nearly 40 years later, Milstein still enjoys teaching, and lectures frequently to law school students and on behalf of the Florida Bar, the American Bar Association, and other statewide and national organizations.
After joining the Bar in 1974, Milstein worked at a small firm that became August, Pohlig & Milstein, P.A. “I started doing complex commercial litigation in federal court, including the representation of real estate developers and REITs. That led to mortgage defense work as the real estate market was turning down,” he says. He opened up his own practice with a law partner in 1983 and then in 1990 became a shareholder at the national firm Akerman Senterfitt.
In his fifth year of practice, Milstein was asked by a client to handle a mental health incapacity proceeding and a contested guardianship case. “The late Judge Francis Christie complemented me on handling the case and asked if I would accept appointments as guardian ad litem or court appointed counsel on behalf of alleged incapacitated clients to protect their rights,” he says. “I liked it because I was dealing with people rather than corporate entities. That quickly evolved into a one-on-one practice covering all types of family law matters.”
Through the years, Milstein has represented a wide range of clients, from a 90-year-old woman with financial problems who wanted to stay in her house, to a brain-dead child facing the issue of whether or not to terminate life support.
As a fiduciary litigator, Milstein has been involved in contested wills and trusts, where the key issue is whether or not someone exerted undue influence on the elderly person. One notable 2001 case involved Elsa Borden-Moore, heir to the Borden dairy fortune. After her husband died, another man worked his way into her life, married her and stole her money, according to Milstein. “At the trial in Seminole County, the court found he was not suited as a guardian for his wife,” says Milstein, who represented her daughter. The man’s actions were sufficiently egregious that the court only permitted the “new husband” supervised visitation. In trying to annul the marriage to preserve any remaining assets, Milstein learned that Florida law did not permit an annulment post death. Later, he was successful in advocating a change in Florida’s statutes so a marriage can be annulled based on undue influence or fraud.
After the 2007 death of actress Anna Nicole Smith in The Bahamas, Milstein was appointed to represent the interests of her infant daughter in performing the final rites. “We did the burial there, which was the right decision for her Bahamiam-born daughter, Dannielynn Hope Marshall Stern and the apparent actions and wishes of Ms. Smith,” he says.
Milstein has done extensive work on guardianships through the years, and now serves on an American Bar Association Commission on Law and Aging. He was a recent delegate to the Third National Guardianship Summit held by a consortium of legal associations seeking to implement changes in the current laws.
“I believe that more young lawyers see elder law as a field with a strong future,” Milstein says. “As the Boomer generation ages, our society will need to do more work on the intersection between medical and financial issues and the law. Elder law is also an evolving discipline where an attorney can gain experience and recognition very quickly.”
Milstein has been an active leader in the community for decades, including serving as 1988-89 president of the Dade County Bar Association. He helped found the Put Something Back pro bono panel, an HIV/AIDS panel, and Volunteer Lawyers for the Arts. He is assisting in the formation of a men’s auxiliary for the Aqua Foundation for Women, a lesbian organization. Milstein is the founding president of Bet Shira Congregation and is currently on the board of Temple Israel.
Milstein chaired The Elder Law Section of Florida Bar Ethics Committee, and for six years acted as the pro bono counsel to the Performing Arts Center Trust, where he now sits on the board and chairs the Weiser Legacy Society to assist in raising endowment funds for the Adrienne Arsht Center for the Performing Arts. Other organizations he is a member of include the American College of Trust and Estate Counsel, National College of Probate Judges, National Academy of Elder Law Attorneys, American Bar Association, National LGBT Bar Association, Dade County Trial Lawyers Association, Florida Association for Women Lawyers, Gay and Lesbian Lawyers Association, and Cuban American Bar Association.
Milstein also has built an extensive practice assisting clients in same-sex relationships. “Unmarried and unrelated couples need to have more documentation to protect their rights,” he says. “There are issues related to the ownership of properties and estate tax issues as well. Florida law only recognizes marriage between a man and a woman.”
That is an issue for Milstein on the personal side, as well. In the early 1970s, he married and had two children, son Brian, 35, and daughter Rachel, 32. Both are professors with doctorates in political science, following in their father’s footsteps in the educational realm. Then, Milstein came out as a gay man, and later married in an Iowa ceremony Eric Hankin, an architect who now teaches architecture at Design and Architecture Senior High School. Milstein explains that he and Hankin had to leave their home state of Florida to be married since Florida has banned their legal relationship, but they wanted to register with the census as a same sex married couple. They enjoy traveling to scenic locations, including the Galapagos Islands, Machu Pichu, and a photography safari in Botswana.
“Even though we have a legal marriage, we still need all the advance directives — wills, estates and trusts — because my spouse is not entitled to any consideration under Federal and Florida law,” Milstein says, adding that he applauds the recent court rulings permitting the adoption of children by gays and lesbians.
In today’s era of blended families, Milstein understands that issues of adoption, children’s rights and parental responsibilities can become complex for both unmarried and married partners. For instance, a child may form a strong emotional bond with a step-parent, but in a divorce it is the natural parent who has the key legal rights.
“Our courts and our legislators need to recognize that we have alternative families,” he says. “We must find ways to address these types of emotional and legal issues in the best interests of the children, the legal parents and those who have helped raise the children over time. We must continue to protect the most vulnerable people in our society at any age.”
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