Month: June 2022

Turning 18 and the Law

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Historically, the age of majority (becoming an adult) was set at twenty-one (21) in most states. However, after the 1971 ratification of the 26th Amendment to the U.S. Constitution giving eighteen (18) year olds the right to vote in federal elections, most states, and later all states, lowered their age of majority to eighteen (18) – (FC § 6502; 52 USC § 10701).

At age eighteen (18), a person has reached an important milestone. They are now adults in the eyes of the law. An individual can rent their own apartment, take charge of their finances and even buy a car on their own, all without a parent’s consent or assistance. Said newly minted adult can now enter into legal contracts and vote in elections.

When a child turns eighteen, he or she legally becomes an adult, and as the parent of that adult, the parent no longer has authority over that child’s medical, financial, or educational information.

The truth is, no matter how old the child, a parent still has the right to make and enforce the rules of their own home. An eighteen year old must follow the rules just as much as their much younger sibling. Of course, as children get older and mature, they can earn more privileges and have more responsibilities.

In addition to the emotional aspects, both parent and adult child will come face to face with certain legal realities. Specifically, the rights as a parent diminish when their child turns eighteen, including the right to know anything about their finances, medical condition, or even school records. Durable Powers of Attorney (both medical and financial) executed by the said “child” can provide authorization for the parent to access accounts, records and make decisions if the child becomes disabled or incapacitated.

For example, when a child turns eighteen, the funds in their account become available but only to the said adult child and parents will be unable to access the money without a Power of Attorney. Parents may overlook the basic documents needed to ensure their continued involvement in their children’s affairs after their child turns eighteen. Further, if a medical issue arises, parents can be involved in the decision-making process with these documents (i.e., Healthcare). A streamlined way to get the subject documents needed with the least amount of aggravation and at a reasonable cost is to consult with an attorney ahead of time versus needing a time-consuming and expensive legal proceeding called a Guardianship after the fact.

Turning eighteen is a significant highlight as one’s child steps into his or her adulthood. The 18th birthday milestone carries many great privileges as well as serious legal responsibilities and potential consequences. When a child turns eighteen, they will become an adult in the eyes of the law. Said child will gain all the rights and responsibilities of an adult, except for the legal consumption of alcohol. Once eighteen, said child will have the right to be independent from the control of their parents, and parents no longer have to support them. A significant difference in one’s child turning eighteen is that said child will no longer be entitled to the protection of the juvenile court system. At age 18, the “adult” child will be criminally charged as an adult for even minor offenses. Parents are no longer required to accompany their children as well. Often, parents do not know their child has been charged and are left out of the decision-making process. Once the child turns eighteen, or goes away for college, discuss with children about their legal rights and what to do if they need legal assistance.

A child’s age may have caught up with their attitude that they are independent adults, and then parents may wonder what obligations they still have regarding their children now that they are eighteen. The answer, according to the law, is zero! They are essentially on their own.

Again, the milestone also carries severe legal implications for the parents as well. Unless one’s child formally agrees, certain information will be withheld from parents. Examples are banking and credit information, grades, and medical records. Parents’ access to medical information about their now adult child will be limited by HIPAA privacy rules, irrespective of the said child still being on their family’s medical insurance policy. Also, if the now adult child has his or her own bank account and the parent’s name is not on the account, the parent will no longer be able to access the account or bank information, even in emergencies. Said child will not need their parent’s consent or formal driver’s training to obtain their driver’s license. They will be personally responsible for their own driving tickets and accidents, as well as the mandatory obligation to have proof of auto insurance.

A child can get married, decide their own medical treatment, make a Last Will & Testament, vote in elections, sue and/or be sued, and enter into their own contracts such as getting a loan, buying a car, or renting an apartment. If entering into an apartment contract, remind the son or daughter that it is advisable to purchase renter’s insurance to cover their possessions and any liability on the premises. Let a child know that if they do not pay their rent on time, the landlord can give them three days’ (3) notice or other applicable notices before seeking a court to evict them. Also, share with them that landlords must provide “fit and habitable” living conditions and to reach out to a local building inspector if the landlord allows conditions to become unbearable, and they cannot live in the apartment. Explain to adult children that, although written contracts protect against dishonesty and poor memory, they should be careful to review the entire contract, since the language may be confusing and favor the other party. Remind adult children not to sign a contract until they are sure they understand it. If they do not keep their part of the bargain, they can get sued. An adult son or daughter can also get sued for not paying their credit card charges. Make sure they understand the interest rates, payment amount, due dates, and service charges before signing loan papers. Turning eighteen means an adult child is also responsible for serving on a jury if called, paying taxes on any earnings, facing any lawsuits or criminal charges as an adult, and if they are a male, registering for the military draft.

While an adult child is attending college, it is important to remind them of possible legal consequences for their behavior. An individual may be considered “disturbing the peace” if engaged in rowdy behavior, fighting, playing loud music, or creating unreasonably loud noise. Also keep in mind, hazing is any method of initiation into a fraternity, sorority or other student organization which is likely to cause physical harm or personal degradation. It is a crime punishable up to a substantial monetary fine and possible jail time. Remind them that even on a college campus where other underaged adults might be doing it, it is a crime to alter any driver’s license or use someone else’s in any way for identification, including buying alcohol or trying to enter a bar. If one’s child is convicted of any drug or alcohol related offense and is under twenty-one (21) years of age, his or her license can be suspended for a period of time, in addition to any monetary or other penalty imposed for the conviction.

In summary, keep the lines of communication open with children. Even though a child may be legally an “adult”, he or she can still need and get guidance from their parents. If the reader has any questions about this article or has any legal issues or concerns, please contact the law office of CASERTA & SPIRITI at 305-463-8808(o) or email at info@csgfirm.com . 

FATHER’S DAY-A Little Law & A Little History

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Father’s Day, in the United States, is a holiday which now is celebrated on third Sunday in June to honor fathers. Credit for originating the holiday is customarily given to Sonora Smart Dodd of Spokane, Washington, whose father, a Civil War veteran, raised her and her five siblings after their mother died in childbirth.

Even though some form of a Father’s Day has been around for decades, it did not become a nationally recognized holiday in the United States until 1972, when President Richard Nixon signed Joint Resolution 187 into law.

The day recognizes the role of fathers in the family, which is an ancient tradition. Historians have mentioned a Southern European tradition dating back to 1508.

Father’s Day which is celebrated the third Sunday of June, usually falls on a day in which the ancient pagans honored their most powerful god, the Sun.

The first known Father’s Day service occurred in Fairmont, West Virginia, on July 5, 1908, after hundreds of men died in the worst mining accident in U.S. history.

Grace Golden Clayton, the daughter of a dedicated minister, proposed a service to honor all fathers, especially those who had died in the tragic event. However, the observance did not become an annual event, and it was not promoted. In fact, very few people outside of the local area knew about it.

In 1909, Sonora Smart Dodd of Spokane, Washington, was inspired by Anna Jarvis and her effort to promote Mother’s Day. Her father, William Jackson Smart, a farmer, and Civil War veteran, was also a single parent who raised Sonora and her five brothers alone, after his wife Ellen died giving birth to their youngest child in 1898. While attending a Mother’s Day church service in 1909, Ms. Dodd, then envisioned the idea for a day to honor fathers.

Within a few months, Ms. Dodd had convinced the Spokane Ministerial Association and the YMCA to set aside a Sunday in June to celebrate fathers. Religious leaders and the local YMCA signed a petition started by Dodd to create a day honoring fathers. Finally, on June 19, 1910, Spokane’s mayor and Washington state’s governor signed proclamations to celebrate the first Father’s Day.

On that day, the first Father’s Day events began. Ms. Dodd delivered presents to handicapped fathers, boys from the YMCA decorated their lapels with fresh-cut roses (red for living fathers, white for the deceased), and the city’s priests, pastors and ministers devoted their homilies to fatherhood.

The widely publicized events in Spokane struck a chord which reached Washington, D.C., and the celebration placed the idea on the path to becoming a national holiday. However, the holiday did not take root immediately perhaps due to its perceived parallels with Mother’s Day.

In 1916, President Woodrow Wilson and his family personally observed the day. Eight years later, President Calvin Coolidge signed a resolution in favor of Father’s Day “to establish more intimate relations between fathers and their children and to impress upon fathers the full measure of their obligations.”  During the Great Depression, with so many people pinching their pennies, the economy needed reasons for people to spend their limited funds. Father’s Day was promoted by struggling stores and businesses as an occasion to get fathers some of the necessities, such as clothing and other material goods they needed that dad would probably not buy for himself. Later, during World War II, men were on the front lines fighting to defend their country. The desire to support American troops and the war effort provided another reason to support and show appreciation for dads. Thereafter, in 1966, President Lyndon Johnson signed an executive order declaring that the holiday be celebrated on the third Sunday in June. Ultimately, under President Richard Nixon, in 1972, Congress passed an act officially making Father’s Day a national holiday. Six years later, Sonora Dodd died at age 96 having realized her dream of honoring all fathers in the United States.  If you have any questions about the forgoing article, or have any legal questions or concerns, please contact the attorneys at the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

FLORIDA BANKS & DURABLE POWERS OF ATTORNEY

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The Florida legislature revamped its Florida’s Power of Attorney law, which became effective on October 1, 2011, and imposed many new requirements. A Power of Attorney is a document in which a person (the “Principal”) designates another individual to act on that Principal’s behalf (the “Agent”). Florida law provides the option to create a “Durable” Power of Attorney, which is still effective even if the said Principal becomes incapacitated, thereby reducing the potential need for a court-appointed legal Guardian.

Florida statute 709.2120(5) states that a bank, or business, cannot unreasonably reject a Power of Attorney. An Agent looking to enforce a Power of Attorney against a bank, which has unreasonably rejected the Power of Attorney, can be awarded costs and attorney’s fees for legal action taken to confirm the document’s validity. A bank which rejects a Power of Attorney does so at its own peril.

A bank must accept or reject a Power of Attorney within four (4) days (excluding weekends and legal holidays). Additionally, the bank may not require that their own Power of Attorney form be used if the one presented to them is valid and has proper authority or provisions for the Agent to conduct banking transactions.

A bank may reject a Power of Attorney if it is not correctly executed. A Power of Attorney is properly executed if signed by the Principal in the presence of two (2) Witnesses before a Notary Public under Florida Statute Section 709.21405. Furthermore, Section 709.2106(5), shows that copies are just as effective as the original Power of Attorney document. Therefore, a bank should NOT require an original document.

Generally, a regular Power of Attorney becomes invalid once the Principal becomes incapacitated. Florida Statute section 709.2104 allows a Power of Attorney to be durable (remain effective if the Principal becomes incapacitated) if it says: “This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes”.

If a bank rejects a Power of Attorney because it was not properly executed or it is not durable and the principal lacks capacity, then the said bank or institution has a valid reason to do so.

However, the following actions can be initiated if the subject document is properly executed and has the required durable language, but the bank still refuses to honor it.

Florida Statute 709.2119 and 709.2120 allows actions a bank may take to ensure a Power of Attorney is valid and reliable. It also outlines the consequences for failure to accept and honor a valid Power of Attorney.

Since banks have a responsibility to protect people’s (its customer’s) finances, they may question a Power of Attorney.

Banks, which are presented with a Power f Attorney for the first time, may exercise great caution in reviewing said document for authenticity, and to ensure said instrument was not later revoked by the Principal or one who signed it. While the banks are protected from liability in the state of Florida if the Power of Attorney appears in all respects to be valid, the bank may be compelled to replace stolen funds when it accepted an obviously revoked or fraudulent instrument. With this protection from liability, Florida law requires banks to honor a Power of Attorney presented to it.

Should a Florida bank nevertheless refuse to honor a Power of Attorney, the bank, again, has only four (4) days to provide a written reason for the rejection. Florida banks may legally reject Powers of Attorney on several bases, including, a belief that an elderly person is being subjected to physical or financial abuse by the Agent presenting the Power of Attorney, the bank has requested a lawyer’s opinion or Affidavit from the Agent, but not received one, the bank is aware that the said Agent has had their authority revoked, or the bank believes in good faith that the Power of Attorney is not valid or does not grant, by it’s terms or provisions, the authority that the said Agent is attempting to exercise.

If a bank denies a Power of Attorney, they must state the reason or reasons in writing and provide that to the Agent. The bank also has the right to request an opinion of counsel from the Agent upon providing a written explanation of the reason for the request. The bank may also require the Agent to provide an Affidavit explaining that the Principal has not died, revoked, or suspended the subject Power of Attorney.

If the readers have any questions or concerns regarding the foregoing topic, please contact the Elder Law Dept. of CASERTA & SPIRITI. Our attorneys are experienced in dealing with Florida banks regarding Powers of Attorney. We can send an inquiry to the bank’s legal department to ensure a proper legal basis is provided in writing for rejection or advocate on the Agent’s behalf to ensure the bank accepts the subject Power of Attorney.

Virtual Estate Planning & Legal Plans in Florida

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With the passage of time, increasingly more aspects of daily life move online. The emergence of the recent pandemic has only accelerated that trend. One can work from home, go on virtual tours to various destinations, or even take classes from the comfort of one’s home or dorm room. To extrapolate, it is unsurprising that there is an emerging trend for virtual estate planning in Florida as well as most other states across the nation.

Estate planning that operates from a website or using web based tools primarily, also known as  online estate planning or Do It Yourself estate planning,  offers an alternative or complement to traditional estate planning with a lawyer.  There are now various online legal tech companies, which offer products that allow an individual to prepare a Last Will & Testament as well as other legal documents on their own, without necessarily hiring an attorney.

As an estate planning tool, the way online planning works is that, for a specified fee, a person receives digital access to templates for common estate planning documents, such as Last Wills, Living Trusts, and Healthcare Directives, among others. The templates are claimed to be state specific, designed to comply with or follow the laws of each state. Consequently, a virtual planning platform might offer one document template for Florida, another for New York, California, Pennsylvania, etc. However, not every service makes all their forms available for use in every state.

As part of the process, the planning software asks for one’s basic identifying information and estate planning goals, along with information more specific to the form one is creating. When preparing a Last Will, a person will describe their estate planning assets in Florida and elsewhere as well as their designated beneficiaries and identify persons to serve as the Florida Personal Representative (or Executor) and alternate, if any.  Once the customer information has been inputted, the software populates editable fields within the template. If everything works as intended, an individual will supposedly end up with a legally valid document that becomes effective after it has been printed out, signed, and properly witnessed, and notarized in accordance with Florida law (or the laws of whichever state is applicable).

Importantly, virtual estate planning is usually limited to document preparation. The software cannot provide legal advice or represent a person in a probate proceeding in Florida or elsewhere.  Therefore, for the concept to work correctly, a person needs to already have a fairly good grasp of what they are trying to accomplish and the basic approach they want to take.

Web based preparation of legal documents is by no means restricted to estate planning. Online legal tech companies also offer numerous business related forms such as articles of incorporation, partnership agreements, and operating agreements for LLCs in Florida and elsewhere.  HOWEVER, the personal nature of estate planning, and the widespread popular need for estate planning documents have led to rapid growth in the number of people planning their estates online. In turn, the proliferation has fueled concern among some legal professionals.

 

The primary selling points of online estate planning are that the process is convenient and cheaper than hiring a locally licensed lawyer. Online legal tech companies boast that they can help the public prepare a Last Will for less than a private attorney. An individual may have a challenging time finding a lawyer who can draw up a Will for them that cheaply. HOWEVER, a Legal Services/Legal Insurance Plan can provide a member the personal or individualized touch of a local lawyer with the competitive rates as the online services. In fact, some Legal Insurance or Legal Services Plans even pay for a basic estate plan involving no tax planning as well as business documents and other specified legal services. Therefore, one has the best of both worlds.

Specifically, there are basically four (4) major types of legal plans offered: document provider, as discussed above, where people create their own paperwork; discount legal plans where people receive discounted hourly rates for legal services through screened attorneys;  Employee Assistance Programs (EAP) where members have an initial free consultation and additional legal services can be provided at a discounted rate, and Legal Insurance Plans where members pay a set premium and receive services from a Plan attorney, and many, if not most, services are paid by the Plan (whether it is with an in house attorney or participating outside third party attorney).   Many of these Plans can be a benefit one gets from their employer, or they can purchase a plan individually whether as an independent member or as a retiree.

Considering that many consumers or potential clients simply cannot afford to hire a lawyer, the importance of price should not be ignored. When the choice is between using templates provided by a credible online platform or having no help at all, virtual planning is a choice for many people. A better option, however, may be to join a Legal Services/Legal Insurance Plan that directs a member to participating attorneys and the member gets legal services for a discounted rate or the Plan may pay for the services in their entirety. These Plan Attorneys can also provide services remotely with the use of telephone, email, and other internet services.

Efficiency and convenience are also noteworthy advantages of online estate planning or the use of Legal Services/Legal Insurance Plan attorneys. By using a service that one can access from home or work on their own time, one can avoid the need to take time off from work or otherwise disrupt their schedule to meet with a lawyer. Therefore, after the necessary information is supplied, the appropriate documents are created, so the overall process takes less time and may be more convenient.

As stated, the convenience of pre-built online templates comes with a loss of personalization. Most online templates cannot be customized beyond the user-populated fields. If the form is perfectly suited to one’s circumstances, that may not be a problem. However, every person’s situation is different. If a person has an unconventional family structure, large or complex estate, or any other situation not contemplated by the template, the said individual might not be able, on their own, to tailor the documents to do what they really require or need.

When a person collaborates directly with a capable attorney, they can discuss their individual circumstances, needs, concerns, and goals. Experienced attorneys can draft provisions customized to one’s particular situation and are also more familiar with the idiosyncrasies of state law that can cause potential estate planning headaches. Web based software is much less likely to identify and address these state specific statutes that might affect only a minority of their users. Therefore, the use of a Legal Services/Legal Insurance Plan Attorney comes in to promote convenience without sacrificing the personal attention, skill, and experience of a local attorney.

 If you should have any additional questions or would like to discuss your situation, concerns, and needs, please contact an attorney at Caserta & Spiriti. The firm participates with about fifteen (15) different Legal Services/Legal Insurance Plans.