Powers of Attorney (POA) are prepared under state law and are not necessarily binding on federal agencies.

The Social Security Administration does not honor durable powers of attorney. A representative payee manages benefit payments for beneficiaries who are incapable of managing their Social Security payments. One must contact their local Social Security office to apply to be a payee.

If one does become representative payee for their parents, their Social Security payments should not go into the children’s account. One should open a separate account to receive the said benefits that should have their parent’s Social Security number.

One can request the Social Security Administration (SSA), the government agency that disburses Social Security, to name, for example, an adult child as the representative payee for that elderly person.

As a representative payee, one is granted the power and the responsibility to manage that money for the parent, friend or loved one. The SSA requires all beneficiaries who are incapable of managing their own payments to have a representative payee.

While this authorization is necessary for many caregivers, it is worth noting that it involves a great deal of accountability. This position requires meticulous recordkeeping of all a beneficiary’s benefits and how they are used. In instances where there is not a family member or friend available to serve as a representative payee, the SSA will appoint a qualified organization to manage the recipient’s benefits  One can visit ssa.gov/payee to learn more about the Social Security Administration Representative Payee Program.

The Social Security Administration (SSA) requires representatives to be authorized to participate in a beneficiary’s affairs but does not recognize the POA designation. If you are trying to help a loved one with Social Security applications, claims or appeals, you will need to apply to be their authorized representative by completing the SSA-1696 Appointment of Representative Form. A representative can be a relative, friend, attorney, caseworker, or other qualified person, and the SSA will thoroughly vet this person before accepting their appointment. One can gather more information regarding an SSA Authorized Representative by visiting ssa.gov/representation.

When it comes to managing a loved one’s veterans’ benefits, there is yet another process that caregivers must go through. According to the U.S. Department of Veterans Affairs (VA), a Power of Attorney for finances is not a sufficient authorization for managing a veteran’s monetary benefits. If a physician or a court of law has determined a veteran (or surviving spouse of a veteran) to be incapable of managing their finances, the VA will call for the appointment of a fiduciary.

If possible, the beneficiary typically appoints the person they wish to serve in this capacity or role, and the VA conducts a thorough investigation of the individual’s qualifications. In cases where there are no suitable family members or friends available to serve as a fiduciary, the VA will appoint a qualified professional fiduciary or organization to fill this role. As with the SSA representative payee program, appointed VA fiduciaries must carefully record transactions, keep receipts, and provide accountings to the Veterans Benefits Administration. For more information on becoming a VA fiduciary for someone, visit benefits.va.gov/fiduciary,

Medicare cannot provide personal health information to a caregiver unless the beneficiary has submitted written authorization to the Centers for Medicare & Medicaid Services (CMS) or provided verbal permission over the phone, Medicare beneficiaries may be able to answer basic questions verbally thereby granting their caregivers authorization to discuss coverage details.

However, having a standing authorization on file with Medicare is a better practice. As with all legal authorizations, it is best to take care of the paperwork well in advance. The “1-800-MEDICARE Authorization” Form can be completed over the phone with the assistance of a customer service representative or by completing and mailing in a hard copy. Mailing in the paper form may involve several weeks’ delay before one is authorized to act on another’s behalf. If one is looking to assist a Medicare beneficiary file an appeal or complaint or request a coverage determination, they will need to be officially appointed as their representative.

The Medicare Appointment of Representative form (CMS-1696) is very similar to the SSA application.

Private insurance companies often have their own versions of these forms as well, so it is best to inquire with insurers about their specific authorization requirements.

The Office of Personnel Management and the Railroad Retirement Agency also appoint representative payees and the responsibilities are virtually the same.

As a representative payee, one only has the power to manage Social Security or other applicable agency benefits for the parent, friend or loved one (the beneficiary) and not any other money or property for that person unless some other documents, such as Powers of Attorney, or the subject government agency appoints them to do so.

Family caregivers should consider investing in a copier or printer. They will constantly need more copies of POAs and other documents to prove they are legally authorized to access sensitive or confidential information, speak with important entities and/or medical providers and make decisions about a loved one’s finances and/or care.

When advocating for a loved one, many situations can be resolved practically and amicably by a combination of goodwill, clear explanations and reasonable questions posed to the proper people. One can request to speak with a supervisor. If one is not available, or if rational discussion proves ineffective, one may invoke their right to contact an attorney, a political representative, or a bureaucrat at the state or federal level who oversees or regulates that person, organization, or industry.

Taking responsibility for someone else’s well-being is an important and often complex task. One should learn and know their rights, the rights of the care recipient and the responsibilities involved. Consequently, the sooner a caregiver and their loved one get all the proper documents in place, the more likely they will avoid problems in the future. If you should have any additional questions or would like to discuss your situation, concerns, and needs, please call an Attorney at CASERTA & SPIRITI.

After a motor vehicle accident involving injuries, an Examination Under Oath (EUO) provides an opportunity for a representative of an auto insurance carrier to question their insured under oath in the presence of a court reporter.

The EUO is a formal process used by insurance companies to gather more information about a claim, prevent fraud, or allow the insured party to prove their losses if there is missing or destroyed evidence.

Most insurance policies require an insured to submit to an Examination Under Oath as part of the insurer’s investigation prior to deciding coverage. The said policies allow carriers to examine their insureds and omnibus insureds, i.e., individuals not named but covered under the subject policy. Any failure by the insureds to cooperate with this policy condition or term may result in a denial of coverage.

An EUO is a process by which the insured is asked a number of questions by the insurer’s lawyer, under oath, about the subject claim. The Florida Rules of Civil Procedure do not apply to Examinations Under Oath. Since an EUO may be conducted by an attorney for the insurer and involves sworn testimony regarding the insured’s claim, it is recommended that all insureds have an attorney present. The insured’s attorney will be able to keep an eye on the propriety and scope of the insurer’s conduct and questions to protect the insured’s interest in the claim.

Since an EUO is a sworn statement which can be used by the insurer in evaluating the claim, and in a future court proceeding, it is vital that an insured answer all questions truthfully. An insured should refrain from speculation or exaggeration in any way. If one does not recall or know the answer to a question it is acceptable to simply say “I don’t recall” or “I don’t know.”

An insured should only speak if there is a question pending and only address that question. One should not volunteer additional information. Even though it may seem like one is being cooperative, this conduct often provides the insurer with more information on which to ask further questions and delve deeper into the subject claim. One must consider that the insurer’s goal is to not have to pay the claim. The more information one volunteers the greater basis for a potential defense against paying the claim.

An Examination Under Oath can last as little as one (1) hour and as long as eight (8) hours. The duration of the EUO is often unknown at the outset and depends on a number of factors. Some factors may include who the insurer has as their attorney, how complicated the claim may be, how many insurance benefits are being claimed, the age of the claim, as well as how many prior claims the insured may have, among others.

While most EUOs do not last the entire day, the insured should be prepared to be available for a full day as the insurer has the right to use the entire workday to conduct its EUO. Failure to attend an EUO for a reasonable period of time may provide the insurer with grounds to deny the claim. Consequently, an insured should plan to be available for a full day.

A policyholder or insured should prepare for an EUO. It is recommended that a policyholder or insured create a timeline for the claim. While an insured need not know the precise dates or amounts claimed for specific damages, an insured should be familiar with the events of the claim, the parties involved, what actions have been taken since the loss and essentially have a reasonable working knowledge of their claim.

The insurer will often require the insured to produce documents prior to an EUO. The insurer will often send a schedule or exhibit requesting specific documents or documents that relate to a specific area of inquiry on the subject claim. An insured should perform due diligence in trying to find and produce as many documents as possible that are responsive to the insurer’s requests.

Copies of all responsive documents should be sent to the insured’s attorney well in advance of the EUO so that the insured’s attorney has sufficient time to review the documents prior to producing any documents to the insurer.

An insured is not required to search for documents. An insured is only required to produce responsive documents that are in their immediate possession.

There are often issues as to which questions an insured must answer and which questions, or type of questions, an insured can refuse to answer. The general rule is that an insured must answer all questions relating to the subject claim and an insured should try to answer all reasonable inquiries posed by the insurer. One can ask the examiner to rephrase a poorly worded or unclear question or ask them to repeat the question if they missed it.

The pervasive thread running throughout Florida case law or court decisions is that the policyholder or insured may not refuse to answer questions on the actual loss itself or circumstances surrounding that loss. If the question is material to the investigation, i.e., pertaining directly to the loss or surrounding circumstances, then the policyholder or insured must answer the question or risk violating their insurance policy provisions.

If there are any additional QUESTIONS regarding the foregoing matters, contact or call the Attorneys at CASERTA & SPIRITI before an unfortunate and unexpected accident occurs!!

In a settlement, the injured person agrees to a payment amount from the insurance company or other driver or at fault party, and in exchange gives up the right to pursue any further legal action in connection with the accident or incident.

The amount one recovers reflects the full settlement sum minus attorney fees, court costs, liens, and other expenses. Receiving the settlement check usually marks the end of the personal injury case.

In most cases, injured parties have incurred medical bills which may have been paid by insurance, Medicare, Medicaid, Worker’s Compensation or may remain unpaid. What concerns most clients is not the total recovery or settlement amount but the net proceeds they will receive after bills, liens, expenses, and fees are paid. Attorneys should negotiate with not only the at fault party or their liability insurance but also lienholders as well as medical providers (physicians, clinics, MRI facilities, hospitals, etc.) who provided care for the subject case.

Most medical treatment provided and paid by an insurance will have a right of subrogation or reimbursement when the case settles, except for Personal Injury Protection (PIP Insurance) in a motor vehicle accident. The foregoing includes traditional health insurance carriers, Worker’s Compensation and others like Medicare, Medicaid, or the VA. Temporary disability insurance as well as Med-Pay auto insurance coverage may also have a right of reimbursement.

The reasons a case progresses slowly can be based on several general points. Acase may be delayed by legal or factual issues. The case may involve significant damages and substantial compensation. The client/patient has not reached maximum medical improvement or has not completed treatment from the injuries sustained in the accident 

It can take anywhere from a few months to years for an accident case to settle. There may be much for each side to investigate, and if an innocent party suffered extensive injuries and property damage, this scenario could also explain why the settlement process is lengthy. Further, negotiating liens and medicals bills can sometimes take the same or longer time than the underlying case, particularly when the policy limits are low, and damages are large.

The reimbursement right of each entity can differ significantly considering how lien rights are calculated and/or protected by state or Federal law or statute and by the circumstances of each individual case. For example, Federal law provides protections to certain insurance companies governed by ERISA law, which provides them the right to insist on their full lien recovery from the settlement. Certain public hospitals have greater protections under state law as well.

A Settlement Closing Statement itemizing the Fees, expenses & liens should be given to the client prior to the signing of a Release of Claims so that they are fully informed as to what the final total amount recovered would be as well as their net recovery.This document is prepared by the client’s personal injury attorney and must be reviewed and approved by the client before any money can be disbursed. The closing statement will set forth the funds that will be going to the client’s personal injury attorney for his or her fees, the costs involved in the litigation or case, the money that is being paid to providers, and the amount of money that will be disbursed to the client. Often this document is signed as well as the release when the settlement funds are received or prior thereto.

Once the Release of Claims and Settlement Closing Statement are signed and the insurance draft or check is received and then deposited in the law firm’s Trust Account, the case against the responsible party is concluded, if pre-suit or a dismissal is filed with the Court in the lawsuit unless the case went to verdict and/or a judgment was obtained. Thereafter, once the settlement check clears the bank, all liens must be resolved and paid as well as the attorney’s fees and expenses, and then, the net proceeds are paid to the client. At that point, the subject case should be concluded.

If you have been injured in an accident or have any additional QUESTIONS regarding the foregoing matters, contact or call the Attorneys at CASERTA & SPIRITI.

A Last Will & Testament is a document the allows an orderly disposition or distribution of assets after one’s death. To create an effective Will in Florida, the Testator or creator of the Will needs to comply with certain requirements.

Many states, if not all, require a person to be at least 18 years old and of sound mind to create a valid Will. The Testator must be aware of what they are doing and what document they are signing, and they must be mentally competent and cannot be adjudicated incompetent in a prior legal proceeding (i.e., a Court). Also, an emancipated minor can create a Last Will & Testament in Florida.

According to Florida Statute Section 732.502, every valid Will must be in writing (typed or handwritten) and signed by the testator in front of at least two attesting witnesses. Oral, videotaped or audio taped, and holographic (written entirely in the testator’s handwriting but not witnessed) Wills are not legally valid in the state of Florida. The Testator’s signature must be at the end of the document, and two attesting witnesses must also sign it in the presence of the testator as well as each other. Witnesses must be competent and at least 14 years old but preferably an adult. In Florida, notarizing a Will is not necessary to make it valid. However, a notary is required to make a Will self-proving, which means it can be admitted to probate without needing said witnesses’ testimony, which can speed up the process.

A Testator can include almost any type of asset in their Will, including any asset in which they hold an individual, separate, or divisible interest. Assets can include real or personal property, bank accounts, investments, and cash. A Testator can then designate how and to whom they want their property distributed. For example, they can identify a single Beneficiary (those who will inherit under the Will) to receive a specific asset or assign a percentage of their assets to each Beneficiary.

Florida law explicitly provides that a married Testator can disinherit the surviving spouse as a Beneficiary to their estate by including a provision in the will explaining their intent to do so. However, any marital property owned by both spouses, such as the marital home, cannot be the subject of such disinheritance, unless the surviving spouse elects to waive their right to inherit such property usually by way of a prior prenuptial or postnuptial agreement. In addition, without the martial agreement, a surviving spouse has spousal rights to a deceased spouse’s property whether or not the decedent provided for such in their will. These rights include exempt property, a family allowance, an intestate share, a pretermitted spousal share, an elective share, and homestead property rights. Said spouse is entitled to either the property left them in the subject Will or their “elective share,” based on Florida Statute Section 732.201. The elective share is 30 % of the decedent’s estate, including probate assets and most non-probate assets. A spouse can seek whichever is greater, meaning they can seek the election so that a Court performs the calculation. If the elective share is more than what was left to them in the Will, then the surviving spouse receives the elective share. If a person leaves their spouse more than the elective share, they may still receive the property designated in the Will. If a Testator tries to disinherit their spouse or leave them as little as possible, then the surviving spouse may request to receive their elective share of the subject estate.

Florida law recognizes valid Wills executed in other states or from a different country, so long as the subject Will is valid in that jurisdiction.

Creating a Will is a straightforward way to plan for what will happen to an individual’s estate after death. However, it is crucial that a person follow the exact requirements under Florida law to ensure that this document is legally valid and that one’s assets transfer according to their wishes. In Florida, a person can type or handwrite their Will, but it must be signed at the end in the presence of two witnesses. Said witnesses must be competent and over 14 years old, and they must also sign the Will in the Testator’s presence and in the presence of each other. If a Court considers the document invalid for any reason, it will distribute a person’s property according to Florida’s intestacy laws (i.e., next of kin as described by the applicable statutes).

If you have any further questions or need assistance in Florida when creating, redoing, revising, orupdating your Last Will & Testament, please contact one of the attorneys of CASERTA & SPIRITI at your earliest convenience.