Month: December 2023

FLORIDA’S “PETS ACT”

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This article provides an overview of the impact Hurricane Ian had on Florida’s Gulf Coast and the existing laws and policies related to the protection of pets and animals during natural disasters, particularly focusing on the PETS Act, DAP 9523.19, and Florida Statute (F.S.) §823.151. It also discusses the role of the Florida State Agricultural Response Team (SART) and highlights some shortcomings in the existing laws. The Pets Evacuation and Transportation Standards Act of 2006, also known as the PETS Act, was passed, and codified into federal law following the aftermath of Hurricane Katrina in 2005. Since the passage of the PETS Act and Disaster Assistance Policy (DAP) 9523.151, Florida has become one of over thirty (30) states to revise their disaster relief plans to include a focus on household pets and service animals.

Here is a summary of key points:

1. Hurricane Impact and Pet Evacuation:

  • Hurricane Ian caused significant destruction in Florida, affecting millions of people and their pets.
  • There were challenges faced by pet owners during evacuations similar to those occurring when Hurricane Katrina hit, which caused a considerable number of people not to evacuate due to concerns about leaving their pets behind.

2. PETS Act and Emergency Preparedness:

  • The Pets Evacuation and Transportation Standards Act of 2006 (PETS Act) is a federal law that requires states to include the needs of households with pets and service animals in their emergency preparedness plans to receive federal funding.
  • FEMA plays a crucial role in executing the PETS Act, and guidelines are provided through Disaster Assistance Policy (DAP) 9523.19.

3. F.S. §823.151:

  • F.S. §823.151, enacted in 2018, extends protections for lost animals during natural disasters. It requires shelters to scan strays for microchips and make efforts to reunite them with owners.
  • The law includes various provisions, such as posting notices, extending stray hold periods, and creating strategies for reuniting pets with owners.

4. Limitations of Existing Laws:

  • There are, however, limitations in existing laws, particularly regarding the definition of “household pets,” which excludes certain animals like reptiles, farm animals, and animals kept for racing purposes.
  • The economic impact of losing agricultural animals is discussed therein, highlighting the need for broader legal protections.

5. Challenges and Slow Implementation:

  • The requirement for a state of emergency to be declared before establishing pet-friendly shelters is identified as a challenge, as delays can occur in the aftermath of a disaster.
  • Various administrative issues, such as receipt retention and the need for federal identification numbers, are mentioned as factors that can slow down the implementation of assistance.

6. Florida State Agricultural Response Team (SART):

  • SART is introduced as a group specifically designed to respond to animal and agriculture emergencies in Florida.
  • The activation of SART during Hurricane Ian is detailed, including collaboration with the Florida Department of Agriculture and Consumer Services.

7. Community Assistance and Preparedness:

  • Private organizations and businesses, such as the World Equestrian Center and American Humane Society, played a significant role in providing shelter and rescuing animals during Hurricane Ian.
  • Recommendations for preparing pets for natural disasters are mentioned, including microchipping, and creating emergency kits.

8. Conclusion and Legislative Push:

  • Evolving legislation emphasizes the importance of protecting animals during disasters and suggests that larger legislative efforts are needed.
  • Examples are provided in proposed bills concerning the tethering of pets during storms, indicating ongoing efforts in animal law.

Overall, the foregoing underscores the complexity of addressing the diverse needs of pets and animals during natural disasters, pointing out both the progress made and the areas where further legislative action is required.

The foregoing is a brief and general overview of the evolving PETS Act and related laws in the state of Florida.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

Potential Issues & Risks Associated with Unrecorded or Pocket Deeds

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There are potential issues and risks associated with unrecorded or “pocket” deeds in the context of real estate transactions and Estate Planning. 

Here is a brief summary of the key points:

  1. Delivery Requirement: A deed is not effective until properly signed and delivered. If a deed is not recorded, questions may arise about whether it was delivered, creating a cloud on the title. Title companies may require legal action, such as a declaratory action to quiet title, before issuing a policy.
  1. Creditor Liens: Unrecorded deeds may not put third-party creditors on notice of the property transfer, allowing creditors to place a lien on the property. This can lead to legal actions to address the lien.
  1. Tax Issues: Holding onto property until death can provide tax benefits, such as a stepped-up basis. Unrecorded deeds may result in the need to file a federal gift tax return and forfeit potential tax savings.
  1. Probate Concerns: Unrecorded deeds may not always avoid probate, especially if recording laws change or if issues arise with the deed. Probate may be required to address a botched conveyance.
  1. Florida Quit Claim Deeds: In Florida, a quitclaim deed can generally be recorded after the death of the grantor. However, delays in filing may create problems, and there are new requirements for updating the property appraiser with changes in beneficial ownership.
  1. Case Law: Florida case law emphasizes that the failure to record a properly delivered deed before the grantor’s death does not render the deed void. Recording statutes are primarily intended to protect bona fide purchasers and creditors.
  1. Probate Process in Florida: Assets titled solely in a deceased person’s name must go through probate in Florida. Different methods, such as trusts, lady bird deeds, and joint ownership with right of survivorship, may avoid probate in specific situations.
  1. Pocket Deeds Issues: This article highlights issues with “pocket deeds” or deeds executed during the grantor’s lifetime but not delivered and/or not recorded. Without proper delivery, nothing passes to the grantee, and the deed may be ineffective.
  1. Alternatives to Pocket Deeds: The article suggests alternatives like life estate deeds, enhanced life estate deeds (Lady Bird deeds), and land or other types of trusts as safer and more effective options for estate planning, avoiding probate, and maintaining control over property.
  1. Caution with Enhanced Life Estate Deeds: Some authorities advise caution when preparing enhanced life estate deeds and mention potential insurability issues. It is recommended that one seek the services of an experienced attorney to ensure that the proper language is used for creating an enhanced life estate.
  1. Land Trusts: Land trusts are presented as an alternative that provides privacy and avoids probate. The successor beneficiary in a land trust automatically takes ownership after the initial beneficiary’s death.  Although, some authorities frown on this method in Florida.
  1. Conclusion: Estate planning and real property attorneys should advise clients on potential issues related to real property conveyances. Conditions precedent should be carefully documented, and deeds should be provided to escrow agents and/or recorded with the county to ensure proper delivery.

Overall, the case law underscores the importance of proper planning, documentation, and legal advice to avoid complications in real estate transactions and Estate Planning in this regard.

The foregoing is a brief and general overview of the benefits of proper planning in Florida regarding the foregoing areas. 

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

Navigating the Impact of Florida’s 2023 Tort Reform Legislation: A Brief Overview

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In a significant legislative move, the Florida Legislature in early 2023 enacted sweeping tort reform legislation, reshaping the legal landscape for claims and litigation in the state. The new laws, effective March 24, 2023, had triggered a surge in legal actions, with Plaintiff’s attorneys filing tens of thousands of lawsuits in anticipation of the changes. Here is a brief but detailed examination of the key provisions and their implications:

1. Attorney’s Fees: A Shift in Dynamics

One of the notable changes is the elimination of one-way attorney’s fees for Plaintiffs in first-party cases. Exceptions remain in cases where the insurer denies coverage, and the insured prevails in a declaratory action. Furthermore, amendments to Florida Statute § 57.104 curtail attorney’s fee multipliers, limiting fees to the reasonable lodestar fee (i.e., multiply the number of hours reasonably expended by a reasonable hourly rate). Courts may only award a multiplier under rare and exceptional circumstances.

2. Statute of Limitations for Negligence: Time Constraints Tightened

The statute of limitations for negligence claims has now been reduced from four (4) years to two (2) years.  Although the legislation is explicit about its prospective application, some Courts have ruled on retroactive applicability. It is crucial for legal practitioners to assess the specific circumstances and consult with Florida Counsel for case-specific considerations.

3. Comparative Fault: Shifting Towards Contributory Negligence

Florida’s departure from existing comparative fault laws brings it closer to a contributory negligence state. If a Claimant, Plaintiff, or victim is found more at fault than the Defendant, the said Plaintiff may be barred from any recovery. For instance, if the Plaintiff is determined to be over 50% at fault for their injury, they may be precluded from seeking damages.

4. Premises Liability-Negligent Security: Apportioning Fault

Under the new legislation, juries can now consider the fault of all persons contributing to an injury, including the intentional actor/assailant. This significant departure from prior law allows for a more nuanced assessment of fault, impacting premises liability cases, particularly those involving negligent security claims.

5. Bad Faith: Addressing Set-Ups and Procedures

The legislation introduced substantial changes to bad faith claims. Insurers are shielded from statutory or common law bad faith claims if they promptly tender policy limits or the demanded amount within 90 days of receiving notice accompanied by sufficient evidence. The law also establishes criteria for multi-claimant scenarios, allowing insurers to file interpleaders or agree to binding arbitration, providing immunity beyond policy limits under certain conditions.

6. Medical Bills/Letter of Protection: Curbing Excessive Charges

The legislation imposed limitations on medical bills and letters of protection to address inflated medical charges.  It establishes specific amounts that providers may charge, introducing conditions and disclosure requirements for letters of protection. Additionally, it restricts recoverable damages for medical treatment to the amount actually paid by the claimant or their health insurance carrier.

While the legislation explicitly stated its applicability to cases and claims filed after March 24, 2023, a few court rulings have introduced an element of uncertainty regarding retroactive application. Attorneys and litigants should exercise diligence in assessing the evolving legal landscape and seek guidance from an experienced Florida attorney to navigate the nuanced implications of these transformative legislative changes.

The foregoing is merely a general and brief overview of the 2023 Florida law affecting accident and negligence as well as affiliated claims and litigation in the state, which causes an even greater need for the assistance of an experienced Personal Injury attorney.

If you have any additional questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

Estate Planning Documents All Senior Citizens In Florida Should Have

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Florida residents should inquire about the legal documents they should have prepared.

The unfortunate fact is that all Florida residents are aging, and as they reach the point of retirement, they should prepare certain legal documents as soon as possible. Not only will these documents end up saving the individual a significant worry, time, and money when they become even older as a senior, these documents will also be useful if something happens to them suddenly and unexpectedly. Despite it being difficult to admit, everyone is aging, and having all these legal documents on hand will ensure they will be less stressed.

Additionally, having these important legal documents completed will ensure that one will be in full control of their life. From parental wishes to what will happen to one’s assets after they pass away, these documents will ensure that a person will be given autonomy and that all that a deceased party desires to happen is going to be done according to their expressed wishes.

The foregoing can both bring one a sense of relief and relaxation which they would not experience if they ended up falling ill and having to deal with the stress of the resulting situation, but it will also assist loved ones in case the worst happens.

In the end, having these legal documents prepared will be beneficial no matter if they are used or not, since life is unpredictable.

#1 Durable Power of Attorney (i.e., DPOA)

A DPOA, which is an abbreviation for “durable power of attorney,” is a document that will result in granting an appointed person (the Agent) the legal right to conduct certain actions in the name of another person (the Prinicpal). This means that a person can leave someone in charge of some affairs which they may not be able to conduct due to an illness or other issues. A DPOA will be appointed by the individual, and it can be anyone said individual may want, be it an attorney or someone from their family.

The DPOA will be able to take definitive decisions over a few areas of one’s life, including:

  • Banking
  • Government benefits
  • Beneficiary transitions of an estate trust
  • Estate trusts
  • Real Estate
  • Financial investments
  • Family and personal maintenance issues

Keep in mind that the DPOA will end up being legally responsive and have all the power over this area once the document is signed. This means that the person or Agent the individual (Principal) appointed will have these rights granted until the said Principal passes away. While there is no need to have an active DPOA when one is in good health, it is beneficial to have one on hand if one knows they have an illness that could at one point prevent them from taking care of some of these matters.

In addition, one should ensure that if they prepare a DPOA and want to complete it eventually, it meets all the state law requirements for such a document.

#2 Advance Directives or Living Wills

These are some of the most crucial legal documents that any senior should prepare. Especially since they deal with many diverse types of documents which will ensure that one’s wishes are going to be respected, particularly when it comes to medical care or even end-of-life comfort.

They documents vary state by state, and some of them even include healthcare proxy directives, as they are a way in which one will be able to speak for him or herself even when they are no longer able to do so. These documents will also detail a person’s wishes in different situations, including organ and tissue donations, resuscitation, life support machines, and even tube feeding. It is difficult to think about these situations when a person is still healthy, but they should be taken into consideration.

Some other Advance Directives also discuss how one wishes to go in situations of comfort at the end of life and other situations.  It is in one’s best interest to consider having some of these documents drafted and signed to be sure one’s wishes will be respected in the worst-case scenarios.

Living Wills are part of the Advance Directives category, but they are sometimes seen as controversial.  Regardless, this written document is one that will detail the individual’s wishes and desires when it comes to their end of life. The controversial part comes in since not all hospitals recognize them as legal or as legally binding, especially when it would go against their advice.

A Living Will is a document that will inform any healthcare providers or physicians about the wishes of the senior, and frequently, these will be carried out by the Healthcare Surrogate or Agent we have discussed previously. In a way, if one has already appointed a Healthcare Surrogate, this document can also serve as an aid when they are dealing with testy situations regarding their Principal’s health.

#3 Healthcare Surrogate or Proxy

This document is also known as a “healthcare power of attorney,” in that it is one of the most important legal documents which ensure that a person’s health-related wishes will be honored even if they are not able to speak for themselves.

This legal document is important because, through it, a person will appoint someone to be their healthcare proxy in case of an emergency. This means that the person they appoint (the Agent) should thoroughly understand their Principal’s wishes and should be able to withstand pressure, as this position may be difficult to manage, especially if the situation calls for going against the family.

The Healthcare Power of Attorney, Agent or Proxy will be able to defend the senior’s (Principal’s) wishes, and they should also know whether one’s views on certain things have changed, so regular conversations or discussions will be needed. The Agent or proxy part of this document comes in when the physician, family, or hospital determines that the senior cannot make decisions for themselves or cannot communicate.

Before one places their trust in this document, make sure that the Agent or proxy chosen meets both the state and state department of elder affairs requirements.

#4 A Last Will and, if necessary, a Trust

One of the most important legal documents on a person’s to-do list should be this one. Last Wills are essential, and an individual can make one at any point in their life, no matter the age. In the end, it is better to have one made and then revise or update it as they wish if circumstances change than to end up not having one and leaving everything up in the air.

The Last Will can also serve as a backup for other real estate documents, like a living Trust. Since a person can cover the property assets they may own in the Last Will, if they have forgotten to transfer one to a Trust or it has been transferred incorrectly, or even if a Florida resident acquires more property after the Last Will has been made, the Last Will may have them covered.

Not to mention, this Last Will also covers any other assets one may have, and the earlier a person sets one up with an attorney, the easier it will be when said individual must update it down the road.  However, other arrangements can be made such as Designations of Beneficiary on bank and retirement Accounts, Life Insurance as well as a comparable document or designation for real property in the state of Florida known as a Lady Bird Deed or Enhanced Life Estate Deed, among others in order to avoid Probate.

The foregoing is a brief and general overview of the benefits of proper Estate Planning in Florida. 

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.