Planning your estate is not just about distributing assets, it is about protecting your loved ones, preserving your legacy, and making sure your wishes are honored under Florida law. Whether you are just getting started or updating an existing plan, this quick guide highlights the core documents every Floridian should consider.

1. Last Will & Testament

Your Last Will is the cornerstone of your estate plan. It allows you to:

• Decide who inherits your assets and on what terms.
• Name a guardian for minor children.
• Specify your final wishes, such as burial or cremation.
• Appoint a personal representative (executor) to handle your estate.

Florida requires two witnesses for a valid Last Will, however, notarizing the Will through a self-proving affidavit is a best practice that can simplify the probate process by creating an easier way to prove its validity later. A Last Will must be carefully drafted to comply with state law to avoid delays or disputes during probate.

2. Durable Power of Attorney (Financial & Property Management)

A Durable Power of Attorney (DPOA) authorizes a trusted person (your “Agent”) to act on your behalf in financial, business, or property matters, even if you become incapacitated.

Common Powers Include:

• Managing bank accounts and paying bills
• Handling real estate and investments
• Filing taxes or signing contracts

Florida law does not permit “springing” powers of attorney—your DPOA is effective immediately upon signing, so choose your Agent wisely.

3. Health Care Surrogate Designation

This document lets you appoint someone to make medical decisions if you cannot communicate. Your Healthcare Surrogate can:

• Speak with doctors and review records
• Consent to or refuse treatments
• Carry out your wishes during hospitalization or incapacity.

4. Living Will / Advance Directive

A Living Will, also called an Advance Directive, expresses your wishes about end-of-life care if you are terminally ill or permanently unconscious.

It helps your family and physicians know:

• Whether you want life-sustaining treatment
• Preferences for pain management, hydration, or feeding
• Spiritual or organ donation requests

Florida Statutes (Chapter 765) govern Living Wills—these must be in writing, signed, and witnessed by two adults, with one of the witnesses not being a spouse or blood relative.

5. Revocable Living Trust

A Living Trust lets you transfer ownership of assets during your lifetime while keeping control as the trustee. Upon your death, assets in the Trust pass directly to your beneficiaries without probate.

Key Benefits:

• Avoids Florida probate court
• Maintains privacy of your estate
• Allows controlled or delayed distribution to heirs
• Can provide ongoing management if you become incapacitated

Florida couples can create either individual or joint trusts, which are ideal for couples seeking a smooth transfer of property.

6. Other Considerations

• Beneficiary Designations: Keep life insurance, IRAs, and bank account designations current.
• Digital Assets: Include email, cryptocurrency, and online accounts in your plan.
• Funeral & Final Arrangements: Consider a written “Letter of Instruction” for family reference.

Get Professional Guidance

Florida estate planning laws are strict and technical—a single error can render your Last Will or Power of Attorney invalid. Working with an experienced Florida estate planning attorney ensures your documents comply with current statutes and reflect your specific goals.

The foregoing is a brief and general overview of the topic and the need for specific and experienced legal and tax advice is emphasized.

CASERTA & SPIRITI, PLLC. in Miami Lakes proudly helps Florida families create and update Last Wills, Trusts, and Powers of Attorney that offer peace of mind and long-term protection at affordable rates.

Naming a Special Needs Trust (SNT) as a beneficiary of an IRA or retirement plan as well as a Last Will or Trust that names the Special Needs Trust as a beneficiary can be a smart estate planning move, but it comes with complex tax implications that require careful consideration. The following is a breakdown of some key points covered in the article:

1. Coordinating Your Beneficiary Designations:

• IRA and Retirement Accounts: These accounts generally pass to a named beneficiary directly, bypassing the Last Will. This means that if you name your child with special needs as a direct beneficiary of your IRA, the funds will go directly to them, which could disqualify them from receiving means-tested government benefits (like Medicaid or SSI).
• Solution: Name the Special Needs Trust as the beneficiary of the IRA instead of your child. This ensures that the funds are available to support your child without impacting their eligibility for government benefits.

2. Stretching IRA Distributions and Tax Concerns:

• If you name your estate or a charity as the beneficiary of your IRA, the distributions must occur quickly, often within five years of your death (before the Required Beginning Date, RBD), or over your remaining life expectancy (after RBD). This could result in a hefty tax bill because the distributions would be large and taxed as ordinary income.
• Designated Beneficiary: A human beneficiary allows “stretch” payments over the person’s life expectancy, reducing the tax burden. A Special Needs Trust may qualify for this “stretch” if properly drafted and the IRS can “look through” to the individual with special needs as the designated beneficiary.

3. Pitfalls of Trusts as Beneficiaries:

• Accumulation Trusts: These allow the trustee to retain IRA distributions in the trust for future use. However, if the trust names a charity or an elderly beneficiary as a remainder beneficiary, the IRS may shorten the payout period, disallowing the “stretch” option.
• Conduit Trusts: These require immediate distribution of IRA funds to the beneficiary. Only the life expectancy of the primary beneficiary (i.e., the individual with special needs) is considered, making it easier to stretch the distributions over their lifetime.

4. Ensuring the Stretch for Special Needs Trusts:

• The Special Needs Trust must be irrevocable at the time of your death, and all required documentation must be provided to the IRA custodian or retirement plan administrator.
• Avoid naming non-human entities (such as charities) as beneficiaries if you want to maximize the “stretch” benefit. If a charity is named as a remainder beneficiary, the IRS will calculate the payout based on a zero-life expectancy, which leads to faster distribution and higher taxes.

5. Successor Beneficiaries:

• If a surviving spouse is named as the primary beneficiary of your IRA, they can roll the funds into their own IRA, allowing them to name the Special Needs Trust as the contingent beneficiary. This preserves the “stretch” option for the Special Needs Trust after the spouse’s death.
• Failing to roll over the account could result in accelerated distributions based on the spouse’s remaining life expectancy, which is likely shorter than that of the child with special needs.

6. Changes in Law and Future Risks:

• The IRS could eliminate the “stretch” option entirely, as proposed in several presidential budgets, which would limit the stretch to five years for most beneficiaries. Given this possibility, it is important to stay informed and revisit your plan periodically.

Conclusion:

The rules for naming a Special Needs Trust as a beneficiary of an IRA or retirement account are complex. Improper designations can lead to significant tax consequences and jeopardize the availability of government benefits for your family member. It is essential to collaborate with an attorney who is well-versed in Special Needs Trusts and retirement planning to ensure the trust is structured to take full advantage of tax deferral opportunities while protecting your loved one’s benefits.

The foregoing is a brief and very general overview of the topic and the need for specific and experienced legal and tax advice is again emphasized.

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.

A growing number of individuals possess a considerable amount of cryptocurrency as well as other digital assets from email accounts and online cloud storage of files and photos NFTs. Some of these assets can hold great sentimental or even financial value to a person’s loved ones after their death. Despite this situation, many individuals fail to account for their digital assets when drafting an estate plan. Forbes Magazine estimates that the total global value of cryptocurrency is approximately $1.75 trillion this year. Despite not being widely understood by everyone, digital assets, including cryptocurrency, are an asset class which are likely to remain. This raises an important question: How is a digital asset such as cryptocurrency managed in probate? The brief answer is that there is no technical legal distinction between cryptocurrency and other “property” investments in probate; however, there are some distinct practical differences. The following is a general overview of the key aspects to understanding cryptocurrency as well as other digital assets in estate planning and probate in Florida.

When a person dies with estate assets, it is up to their family, specifically their Personal Representative or executor, to take an inventory of the assets within the estate and file it with the Florida Probate Court. But creating an inventory of a person’s digital assets is far more difficult than simply finding the items stored in their attic.

Without a digital asset estate plan, it will be far more difficult for your Personal Representative to identify and document a deceased party’s digital assets. They may be able to locate certain assets by accessing a household computer and reviewing saved passwords. However, other digital assets may be overlooked or simply lost if not properly documented in a digital asset estate plan. To avoid this, a Florida resident and their estate planning attorney should prepare a list of the digital assets, along with links to the apps or URLs used to access them and log-in credentials necessary to access the account.

What will happen to digital assets without an estate plan is that they may simply disappear. For example, Google recently announced that beginning December 1, 2023, it will be deleting unused accounts. Idle accounts that have been dormant for at least two years, including those that belonged to a deceased party, will be deleted to make space for future uploads. This affects Gmail emails and files stored in Google Drive, Docs, Meet, Calendar, and Photos, as well as some YouTube videos. To preserve those files, someone must log into the account at least every two years.

A Personal Representative acts as the fiduciary for one’s estate after death. The Letters of Administration issued by the Florida probate court can be used to access one’s bank accounts, talk to applicable financial advisors and insurance companies, and perform financial transactions such as selling real and personal property. Since 2016, that has included granting fiduciaries access to digital assets as if they were the account holder.

However, a few digital asset companies like Facebook or Google do not honor Letters of Administration easily. They may have their own processes for a person to designate a legacy contact for their accounts and may assert federal privacy laws preventing them from giving the Personal Representative or executor full access to the accounts without the decedent’s consent. If a person dies without naming a legacy contact, the Personal Representative may need to file a petition with the Florida Probate Court to enforce the Fiduciary Access to Digital Assets Act and gain access to the applicable online accounts. This process will increase the cost of estate litigation as the social media and digital asset companies seek to protect the deceased party’s privacy even when the decedent never wanted them to do it.

This access issue becomes especially complicated with blockchain technology and cryptocurrency assets. One of the unique aspects of cryptocurrency is that it is decentralized, i.e., there is no single entity overseeing and endorsing all the transactions. Instead, possession of Bitcoin or other crypto assets is represented by possession of a key. Without it, a digital wallet will be lost. Various estate planning attorneys and their clients have devised interesting ways to pass these keys to the intended beneficiaries without violating federal cybersecurity laws.

Without a plan in place, there may be no amount of estate litigation that will be able to save one’s digital assets if that digital key is lost. The cryptocurrency companies do not maintain records tying their users’ identities to their keys. That means there is no way for the probate court to compel discovery of the login credentials.

However, in other cases, a caregiver or other person with access to the deceased’s home may wrongfully take possession of the flash drive or paper one’s digital key is stored on. If they do, it could require estate litigation against them to get them to turn that property over to the personal representative so it can be distributed according to one’s wishes.

In 2014, the IRS issued a notice stating it would treat “virtual currency” like Bitcoin as personal property, rather than cash. In probate court, these assets are more like heirlooms than bank accounts. The distribution of digital currency within an estate administration case could trigger capital gains taxes based on the change in value between when the crypto assets were obtained and when they were transferred out of the estate.

This can also create problems in the estate’s accounting. Personal Representatives are required to account for all the financial transactions of the estate, including the distribution of assets to beneficiaries. However, in calculating the value of crypto assets, the personal representative will need to determine the “cost basis” of those assets based on when the deceased obtained them. Unless that person kept careful records of their crypto transactions, the estate may need to retain a financial professional to establish the change in those assets’ value over time. If the personal representative fails to do so, it could expose the family to estate litigation or even tax consequences related to the improper accounting for cryptocurrency.

Digital assets, including cryptocurrency and NFTs, represent a sizable portion of many people’s estates today. Without proper estate planning, these valuable and often irreplaceable assets can easily be lost. By preparing a comprehensive digital asset estate plan, a Florid resident can ensure that their personal representative can access, manage, and distribute these assets according to the decedent’s wishes. This planning will save one’s heirs time, effort, and potential legal battles while preserving the digital legacy. If a Florida resident needs assistance with cryptocurrency in probate or any other estate planning matter, contact an experienced Florida probate and estate planning attorney for expert guidance and support.

The foregoing is a brief and general overview of the topic (Part 1).
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.

END OF PART 1

Avoiding probate in Florida can be a complex endeavor, but it does not always require the use of a revocable living trust. There are alternative methods that can achieve similar results, and one such method is the “Enhanced Life Estate Deed,” also known as the Ladybird Deed.

It is a common misconception that assets placed in a revocable living trust are completely protected from creditors’ claims. In reality, most jurisdictions, including Florida, allow creditors of a decedent’s estate to reach assets held in a revocable living trust. This can come as a shock to many Florida residents who believe that a revocable living trust provides ironclad protection. A person’s transfer of his/her homestead or primary residence into a revocable living trust may turn it into a counted assets for purposes of applying for Medicaid as well as possibly jeopardizing or limiting the homestead tax exemption and other homestead protections.

Despite this limitation, there are still significant benefits to using a revocable living trust as part of an estate plan. One of the primary advantages is the ability to set specific instructions for the distribution of assets upon death. This can include setting ages for beneficiaries to inherit, providing for the care of family members with disabilities, and ensuring that assets are distributed in an orderly manner.

Additionally, a revocable living trust can help avoid the probate process, which can be time-consuming and expensive. By placing assets in a trust, they can pass directly to beneficiaries without the need for court involvement. This can provide greater privacy and efficiency in the distribution of assets after death.

However, for those looking to avoid probate without the use of a revocable living trust, an Enhanced Life Estate Deed, also known as a Ladybird Deed, can be an effective and potentially simpler and cheaper alternative. This type of deed allows the property owner to retain control and flexibility over the property during their lifetime while ensuring that it passes directly to named beneficiaries upon their death.

With an Enhanced Life Estate Deed, the property owner retains an “enhanced” life estate, allowing them to maintain control and make decisions about the property during their lifetime. Meanwhile, the beneficiaries are named to receive the remainder interest in the property upon the owner’s death and not before! This arrangement effectively avoids probate because the property passes directly to the beneficiaries, known as Remaindermen, outside of the probate process.

One of the key benefits of using an Enhanced Life Estate Deed is that the property owner retains control and flexibility over the property. They can sell, convey, lease, or mortgage the property as they see fit without needing the consent of the beneficiaries. This level of control sets it apart from traditional life estate deeds, where the owner relinquishes control over the remainder interest.

Another advantage is that the property passes free and clear of the decedent’s creditors’ claims, provided it is given to surviving lineal descendants. This protection can be crucial for safeguarding the property from potential creditor issues that may arise after the owner’s death.

However, it is essential to proceed with caution when creating an Enhanced Life Estate Deed or Lady Bird Deed. Using the wrong language or making mistakes in the deed could lead to unintended consequences. Therefore, seeking the guidance of an experienced attorney who understands these legal nuances is highly recommended.

In addition to using Enhanced Life Estate Deeds for real estate, there are other methods for avoiding probate, such as properly titling bank accounts and investment accounts. Transfer on Death (TOD) or Paid on Death (POD) designations or In Trust for (ITF), or generally, designation of beneficiaries, allow account holders to name beneficiaries who will inherit the assets directly upon their death, bypassing the probate process.

While it may be tempting to handle these matters without legal assistance, it is crucial to recognize the complexities involved and the potential risks of do-it-yourself (DIY) estate planning. Consulting with a knowledgeable attorney can ensure that one’s estate plan is properly structured to achieve their goals and protect their assets for future generations.

Ultimately, whether to use a revocable living trust or an Enhanced Life Estate Deed (Lady Bird Deed) depends on the individual’s specific goals and circumstances. Consulting with an experienced estate planning attorney can help ensure that the chosen strategy aligns with their needs and objectives while providing the necessary protection for themselves and their loved ones.

The foregoing is a brief and general overview of the topic. 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.

If a Florida resident dies without a Last Will & Testament, their assets will be transferred to their closest relatives under state “intestate succession” laws. The following is a brief summary of how intestate succession works in Florida.

Only assets that go through probate are impacted by intestate succession laws. Many valuable assets are not subject to probate, and therefore they are not affected by intestate succession laws. Here are some examples: property one has transferred to a Living Trust; life insurance proceeds with a named beneficiary; funds in an IRA, 401(k), or other retirement account with a named beneficiary; securities held in a transfer-on-death account; real estate for which one has a transfer on death deed or Lady Bird Deed; vehicles for which you have a transfer on death registration; payable-on-death bank accounts, or property a person owns with someone else in joint tenancy with right of survivorship, or tenancy by the entirety (i.e., as spouses).

These assets will be transferred to the surviving co-owner or to the beneficiary one has named, whether or not a Last Will exists. However, if a person possesses or creates a Last Will and none of the named beneficiaries are alive to take the property, then the property could end up being transferred according to Intestate succession.

Florida Statute Sections 732.101-.109 cover this process of Intestate succession. When someone passes away without a Last Will, or Trust, all assets go to the closest relatives or “next of kin.”

The heirs follow a specific order in Florida:

1. The first to inherit is the surviving spouse. There must be a valid marriage to be a surviving spouse. If there are no children, the spouse gets everything and there is no waiver of rights pursuant to a signed Prenup or Postnup or comparable document.
2. Next in line are the children. If a child dies before the parent, then a grandchild may inherit a portion of the estate. Children must be legally adopted or biological children to fit in this category. Step-children are not included.
3. If the decedent dies without a spouse or children, then, the decedent’s parents are next in line to inherit the estate.
4. If none of the above are alive, then the deceased’s siblings would divide the estate.

Certainly, family units may be difficult and complicated in today’s world. For example, usually the surviving spouse receives or inherits everything. However, if the decedent has children from a previous marriage, the surviving spouse may get half the estate and the other half goes to the child or children from the prior marriage(s). Basically, each scenario may have difficulties and complications.

Proper estate planning can prevent intestate succession. A comprehensive and even a proper basic estate plan includes a Last Will and/or Trust, as well as a Powers of Attorney for financial and healthcare needs. These essential documents protect all Florida residents and their families and tend to conserve funds and assets.

How many people want State law to determine how their hard-earned life’s assets are distributed? How many individuals want to pay the State money after their death?

Properly written and executed estate plans reduce estate taxes, eliminate lengthy probate proceedings, avoid family disputes, set up care for minor children, and fulfill the deceased party’s wishes.  No one can anticipate the future, however, thoughtfully planning ahead provides a sense of peace of mind.

It is important to note that intestacy does not mean that the State of Florida owns or will acquire the property of the deceased.  This term simply means that the Probate court is required to invoke a specific process to determine who receives the deceased individual’s assets.

This process may differ depending on the state where the deceased party resided at the time of death.  Florida has a complex and detailed process in determining who receives these assets.  Usually, the surviving spouse is the first to inherit the subject property. There must be a valid marriage to be a surviving spouse. If there are no children, the spouse receives everything.

Since the process regarding intestate succession is very involved, it is vital to work with an attorney who is experienced with probate cases. To avoid confusion and disputes among potential beneficiaries or heirs and ensure that assets are properly distributed according to state law, one should employ an experienced attorney.

The foregoing is a brief and general overview of the outcome if no estate plan is established 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.

Elder Law is a large umbrella encompassing many aspects of life and can be defined as any legal issue involving health and personal care planning for senior citizens and their caregivers.

This area of practice encompasses all aspects of planning for aging, illness, and incapacity, including advance directives; lifetime planning; family issues; fiduciary representation; capacity issues (i.e., Alzheimer’s and Dementia, Parkinson’s); guardianship and guardianship advocates (for minors, adults, and people with developmental disabilities); powers of attorney (medical and financial); financial planning; public benefits (Medicaid and Veteran’s Benefits) and health insurance (such as Medicare); resident rights in long-term care facilities; housing opportunities and financing; employment and retirement matters; income, estate, and gift tax matters; estate planning (Last Wills and Trusts); probate; nursing home claims; elder abuse; age or disability discrimination and grandparents’ rights, depending on the state.  Another part of elder law may include disability planning. This area includes the planning of monetary gifting to a disabled family member or loved one (particularly those diagnosed with developmental disabilities such as autism, down syndrome, cerebral palsy, etc.) while still protecting public benefits such as Medicaid and SSI, through the creation of a Special Needs Trust.

This area of law can also include the civil and criminal defense of individuals who are civilly sued or criminally charged with violations of their positions regarding their duties towards the elderly in their family or custody and/or care.

In Florida, elder law clients are primarily senior citizens and their caregivers (familial or professional), or the family of individuals diagnosed with developmental disabilities; the specialization requires a practitioner experienced in the legal issues affecting these clients.

Mistreatmentof the elderlyis a recognized concern and will undoubtedly increase over the next several decades. With the population aging and people living longer, elder abuse is increasingly prevalent.

​Elder abuse, or financial exploitation, is also known as financial abuse.  This abuse occurs when someone misuses or takes money from a vulnerable elderly person.

Financial abuse can include the misuse of powers of attorney and guardianship, illegal transfers of property, and outright fraud and theft. Financial exploitation can also occur after a person’s death, through the mishandling of a deceased party’s estate and distribution of property.

In order to detect the ongoing situation, one can look for certain signs, and if one observes an elderly person who appears to be affected by any of the following situations, then some proactive measures should be taken. Signs can include when the senior becomes isolated from friends and/or family; seems afraid to speak in front of caregiver/companion/family member; is receiving care well below the level they can afford; is unable to spend money the way they want; seems as if they are being forced to sell or give away property, sign over Power of Attorney, or change title of property to someone else; sudden changes in their financial situation or their bank account shows unusual activity; and/or sudden changes in their beneficiaries in their Last Will or Trust.

Financial abuse against seniors is particularly difficult to detect since they are often unreported by victims. In many cases, it is up to family and friends to discover the wrongdoing and file a complaint. Concerned friends, neighbors, and family members can help prevent financial abuse of the elderly by checking in with the person from time to time as many vulnerable victims are isolated from others. A few preventative measures might include occasionally arriving at the elderly person’s home without calling, asking questions when circumstances do not appear quite right, and listening and observing carefully for any potential problems.

If a Florida resident believes that an elderly person may be a victim of financial fraud, or any other type of abuse, then should act promptly. Time is of the essence and the proper course of action will depend on the urgency of the situation. If the situation involves physical danger, it is best to call 911, or get the local police involved. In Florida, one can also contact the local Adult Protective Services through the Dept. of Children & Families (DCF) who can investigate the situation.   

​If an individual suspects that a family member or loved one is no longer capable of making good financial decisions on their own, they can initiate guardianship or conservatorship proceedings.
  

To Report Elder Abuse, Neglect, and Exploitation, the same can be reported by phone – call Florida Abuse Hotline at 1-800-96-ABUSE (1-800-962-2873), then press two (2) to report suspected abuse, neglect, or exploitation of a vulnerable adult. This toll-free number is available around-the-clock.

Pursuant to Florida statute Chapter 415- Adult Protective Services terms are defined: (1) “Abuse” means any willful act or threatened act by a relative, caregiver, or household member which causes or is likely to cause significant impairment to a vulnerable adult’s physical, mental, or emotional health.

To demonstrate there was a breach by the fiduciary or someone else, one or more of the following must be proven:

1. Extensive withdrawal from monetary accounts.
2. Increased or changed spending habits.
3. Someone added to the senior’s financial accounts.
4. Unpaid health care costs or no health care.
5. Changes in the senior’s estate.
6. Changes in the senior’s personality.
7. Payments or gifts that seem excessive.

Financial abuse of the elderly includes an array of behaviors from the theft of property to “borrowing” property from an elderly individual with the intention of keeping it because of the individual’s poor memory or lack of will or ability to retrieve it. It also occurs if someone uses undue coercion or influence to convince an elderly person to change their Last Will or convey property. 

There are many people who can commit financial elder abuse, including friends, family members, and even service providers, such as nursing home employees, caretakers, attorneys, and accountants. Even strangers may befriend an elderly person to try and gain access to their property. 

In the state of Florida, anyone who is in a position of confidence or trust in an elderly person is expected to put the elderly person’s needs first and not to use or obtain the assets belonging to the elderly for their own or someone else’s purposes. The potential legal consequences of violating the elder exploitation laws in Florida are severe and may include attorney’s fees, triple damages, and punitive damages. 

The crime of Exploitation of an Elderly Person or Disabled Adult of $10,000 to $50,000 is a Second-Degree Felony in Florida and punishable by up to fifteen years in prison, fifteen years of probation, and a $10,000 fine.

The types of elder abuse include:  Neglect, Physical abuse, Sexual abuse, Abandonment, Emotional or psychological abuse, Financial abuse, and/or Self-neglect.

When a caregiver or other person uses enough force to cause unnecessary pain or injury, even if the reason is to assist the older person, the behavior can be considered abusive. Physical abuse also encompasses behaviors such as hitting, beating, pushing, shoving, kicking, pinching, burning, or biting.

Florida Statute section 415.1111 gives “vulnerable adults” a civil cause of action for damages, punitive damages and attorney fees and costs when they have been financially exploited. There are also criminal penalties that can be pursued by the State of Florida through their local States Attorney’s office.

The Department of Justice describes the term “exploitation” as referring to the act or process of taking advantage of an elderly person by another person or caregiver whether for monetary, personal, or other benefit, gain or profit. Undue influence is the misuse of one’s role and power to exploit the trust, dependence, and fear of another to deceptively gain control over that person’s decision in a particular matter. Along with capacity and consent, undue influence is a key concept in elder law.  Federal agencies such as the Departments of Justice (DOJ) and Health and Human Services (HHS) are also involved in protecting people from such abuse.

Under Florida Statute 775.15(10), the statute of limitations requires that the prosecution is commenced within five (5) years after an offense is committed in violation of the following:

• Section 825.102 prohibits the abuse or neglect of the elderly or disabled; or
• Section 825.103 prohibits the exploitation of the elderly.

On March 22, 2020, Attorney General Ashley Moody announced the creation of Florida’s Senior Protection Team. The intra-agency group of experts works in tandem to fight fraud committed against the elderly. Florida’s Senior Protection Team is comprised of members from: the Attorney General’s Office of Statewide Prosecution, Consumer Protection Division, Medicaid Fraud Control Unit and Office of Citizen Services.

The Florida Department of Law Enforcement also helps Florida’s Senior Protection Team with investigations into civil, criminal, and healthcare fraud committed against Floridians who are sixty (60) years of age and older.

Although Florida’s Senior Protection Team deals with elder exploitation issues, those issues are typically handled within the jurisdiction and expertise of local law enforcement or other state agencies, like the Florida Department of Children and Families, the Florida Department of Elder Affairs, and/or the Department of Financial Services.

Even physicians, nurses, and other health care providers can be accused of exploitation of a disabled adult or elderly person. The Florida Attorney General’s Medicaid Fraud Control Unit oversees many of these investigations. Related charges can include being engaged in a scheme to defraud.

The foregoing is a brief and general overview of what is considered Elder law and Elder abuse 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.

As far as Estate Planning and the Probate context, if you have been named to manage money or property for someone else, as an Agent under some type of Power of Attorney or as a Personal Representative or Executor under a Will or as a Trustee of a Trust, you are a fiduciary. The law requires you to manage the money and property of your principal, deceased testator, or trustor for their or the beneficiaries’ benefit, not yours.  Specifically, a fiduciary duty is a duty to act in the interest of another individual with respect to certain transactions, even above one’s own interest. A fiduciary is obligated to act in good faith and to act with care and loyalty toward those to whom they owe fiduciary duties. Fiduciaries are those who volunteer to perform certain duties or tasks for another.  It is voluntary since no one can be forced to serve others or be a fiduciary.  Even if named, listed, or nominated under a Will, power of attorney, etc., one does NOT have to serve.  If you don’t want to serve as such, then you can decline.  Fiduciaries are entitled to reasonable compensation and reimbursement of costs expended unless the document states otherwise.

A breach of fiduciary duty occurs when an agent, etc., fails to act responsibly in the best interests of a principal or beneficiary.

Usually, a breach of a fiduciary duty is classified as an intentional tort. As such, only civil claims can be brought under this cause of action. Depending on the grievances or violations committed, such a fiduciary may also be subject to criminal charges because of their breach.

It does not matter if you are managing a significant sum of money or a small amount.  It does not matter if you are a family member or not.  The role of a fiduciary carries legal responsibilities.  When you act as a fiduciary, there are at least four basic duties that you must keep in mind:

            1. Act only in your principal’s or beneficiary’s best interests;

            2. Manage money, assets, and property carefully;

            3. Keep the subject money, assets and property separate from yours; and

            4. Keep good records.

However, even if there is a loss, if the fiduciary acted prudently, he or she may not have breached their duty.

As a fiduciary, you must be trustworthy, honest, and act in good faith. If you do not meet these standards, you could be removed as a fiduciary, sued, or must repay money. It is even possible that law enforcement could investigate you, and you might face criminal sanctions.

COSEQUENTLY, if you are to become a fiduciary as stated above or are in fact one, it is paramount to realize and acknowledge that it’s not your money, property, or assets, and you must act in the best interests of others!  If you have any questions regarding a fiduciary’s duties, please call the law office of CASERTA & SPIRITI to discuss your situation and concerns about ensuring that the fiduciary understands and has the tools to fulfill or comply with the obligations as such.