As a follow up to the article posted in April 2021 on Florida medical records, we will discuss various issues, aspects, and their consequences.

A common question that clients ask when pursuing a medical malpractice case is, “Can medical records be altered to hide the evidence?” 

Though it seems that doctors and other medical providers accused of malpractice might simply change medical records to protect themselves, there are several reasons why doing so is not reasonable or practical.

Falsifying or altering a medical record is a crime punishable by a fine or even possible license restriction, suspension, or termination. Additionally, altering medical records can make it harder for doctors to prevail in medical malpractice cases. 

Juries do not trust liars, and a questionable change or amendment to a record may imply that something was being covered up. The consequences of discovering an act of altering a medical record are probably worse than the consequences of telling the truth.

Further, it is difficult to get away with falsifying medical records. Usually, in medical settings, documents are shared among a few doctors and nurses, not to mention a patient’s health insurance provider and testing facilities. 

Discrepancies can be spotted among different copies of a document as well as in a patient’s medical bills. With written records, forensic scientists can tell when a document has been changed by looking at inks and indentations in the paper. It is also easy to track changes in electronic documents.

Despite the risks, altered medical records still occur. At times, when a healthcare provider is discovered to have done such an act, difficult cases suddenly become much easier to win. Conversely, cases with much promise are occasionally lost because there is not an accurate record of what happened, preventing lawyers from being able to support their case with sufficient evidence.

Altering a medical record is a crime and can also be used against doctors in medical malpractice cases. However, it is not illegal for medical professionals to make honest updates to records, if they properly mark what they are doing and do not obscure information.

In order to make a correction, physicians should make a new note and include the current date and time. The note should be labeled, “Late Entry,” “Correction,” or “Addendum.” 

The physician or other medical provider should explain the relationship of the note to an earlier one, including the reason for the error, and the source of the new or added information. Records should always reflect who did what. Finally, they should draw a line through the incorrect entry. The old text, however, should still be legible.

If an omission in a medical record is noticed by a physician after a short amount of time and said physician can distinctly remember administering medication or other treatment, a late entry should be made. 

However, if a day or more has passed, it is unlikely that the physician can reliably remember exactly what happened. Filling in missing information after the fact may lead to a misrepresentation of events. As such, filling in omissions may also be an illegal act.

According to Florida Law, a healthcare provider who knowingly or willfully destroys, alters, or otherwise obscures a medical record or other information about a patient to conceal evidence is subject to the following:

For HOSPITAL LICENSING AND REGULATION

 395.302 Patient records; penalties for alteration.—

(1) Any person who fraudulently alters, defaces, or falsifies any medical record, or causes or procures any of these offenses to be committed, commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(2) A conviction under subsection (1) is also grounds for restriction, suspension, or termination of license privileges.

 For NURSING HOMES AND RELATED HEALTH CARE FACILITIES

400.1415 Patient records; penalties for alteration.—

(1) Any person who fraudulently alters, defaces, or falsifies any medical record or releases medical records for the purposes of solicitation or marketing the sale of goods or services absent a specific written release or authorization permitting utilization of patient information, or other nursing home record, or causes or procures any of these offenses to be committed, commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

 (2) A conviction under subsection (1) is also grounds for restriction, suspension, or termination of license privileges.

A medical record is essentially a summary of one’s health history. The primary care physician has a medical record for his patient, but so does every other healthcare facility said patient has used, from specialists to hospitals.

A patient can authorize their medical records be sent to another healthcare provider for continuity of care. Otherwise, one’s medical records will not be consolidated. There has been an effort in recent years to simplify the sharing of medical records between providers through digitization. Electronic health records (EHRs) contain a summary of one’s health and treatment history and can be shared more easily.

However, there still is not a standard nationwide software or process for medical professionals to share information. This means that a patient may have to put in multiple requests if they want a complete copy of their medical record.

Medical records can include the following:

• Personal Information (name, SSN, etc.);
• Family Medical History (risk of high blood pressure, anxiety, etc.);
• Medical History (medical conditions, past illnesses/complaints, pregnancies, immunizations, recreational drug use, allergies, etc.);
• Referrals;
• Examination Results (physicals, x-rays, lab reports, scans, etc.);
• Medication and Treatment History (drugs used, the possibility of drug interaction, success/failure of past treatments, past surgeries, etc.);
• Medical Directives (patient’s wishes about their medical care if they become unresponsive);
• Autopsy Report/Death Certificate.

Although patients have the right to access a copy of their medical records, original documents belong to the healthcare or medical facility which created them. 

Doctor’s offices and hospitals are required to keep medical records on the premises in a secure location. They may share patient records electronically with the subject patient’s other providers if granted permission by said patient. This is not an automatic or instantaneous process, however, which is why a patient is often asked questions about their medical history when they go to a new doctor or facility.

Under the Health Insurance Portability and Accountability Act (HIPPA), patients have a right to receive a copy of their medical and billing records. Facilities do charge a fee for copying and mailing records. However, they cannot legally deny a patient a copy of their medical records because they have not paid their fee. It often takes multiple letters and calls to get the facility to send the records.

In a lawsuit, medical records are essential evidence. Insurance carrier or providers can review medical records and will request a copy if a person files a lawsuit. A patient’s personal representative can also collect their medical records, which is especially useful in cases of wrongful death. 

The government and law enforcement also have the right to access medical records in certain situations.

There exist in various other states verdicts and settlements involving lawsuits which represent examples of falsifying medical records.

One question that gets asked is can a patient sue a doctor for lying in the records? A patient may be able to sue a doctor for falsifying medical records, but the said patient needs actual harm to resulting therefrom to have a reasonable likelihood of a settlement or verdict. In all the out of state examples of falsifying medical records, there was underlying harm to the patient.

NOW, as far as violation of the privacy or confidentiality under the foregoing HIPAA law, it must be noted that there is no private cause of action in HIPAA, so it is not possible for a patient to sue for a HIPAA violation. Even if HIPAA Rules have clearly been violated by a healthcare provider, and harm has been sustained as a direct result, it is not possible for patients to seek damages, at least not for the violation of HIPAA Rules.

What the said patient can do is the following:

File a Complaint with OCR-To report HIPAA violations, a patient must file a complaint to the Office of Civil Rights. Note that said patient can file this complaint in writing by e-mail, mail, or through the OCR Complaint Portal. Requirements for filing a HIPAA Privacy Complaint include:

• File the complaint within 180 days of when a patient discovered that the act a patient is complaining about took place;
• Ensure to provide extensive details about the patient or the affected individual if done in a representative capacity;
• Name the covered entitled or third-party associate involved;
• Provide details of the complaint, describing the acts one believes violate the requirements of the HIPAA rules;
• Once a patient has submitted their HIPAA Privacy Complaint, the OCR will go ahead and investigate the covered entity.

File a complaint with the DOH-Aside from licensing all healthcare professionals practicing in the state, the Florida Department of Health (DOH) is also tasked with reviewing complaints filed against them. If a FIPA-covered entity is found in violation of patient confidentiality, it can be held liable under the data privacy laws. The Florida Information Protection Act of 2014 (FIPA) came into effect on July 1, 2014, expanding Florida’s existing data breach notification statute requirements for covered entities that acquire, use, store or maintain Floridian’s personal information.  

FIPA modified Florida’s existing data breach notification law and applies to commercial and government entities. FIPA applies to all covered entities. A covered entity is a sole proprietorship, partnership, corporation, trust, estate, cooperative, association, or other commercial entity or government entity that acquires, maintains, stores, or uses personal information.

More importantly, FIPA is an extraterritorial law, which means any company that acquires, uses, stores, or maintains the Personally Identifiable Information (PII) of Floridians must comply. This includes covered entities with no physical footprint in Florida. 

File a Report with a Third-Party Payer-Note that patients with Tricare, Medicare, VA, military, or Public Health Service can report or file their complaint to the Office of the Inspector General of that exact agency. However, note that one does not always have the luxury of time when it has to do with filing their complaint after they have discovered a HIPAA violation.

It is advisable the patient file a complaint immediately after discovering the violation. To get the best possible outcome, a patient is recommended to seek the expertise of a competent attorney experienced in this area.

Some common HIPAA violations in the state of Florida include:

Information disclosure: When employees of a covered entity divulge PHI to unauthorized individuals, their employer is believed to have violated HIPAA regulations.

Inadequate PHI access controls: Aside from being barred from disclosing PHI, employees of covered entities are also restricted from accessing patient files if they are not so permitted. Illegal access to patient files is considered a serious HIPAA violation.

Lack of a risk analysis policy: Covered entities are expected to conduct risk analysis regularly to note whether PHI is prone to attacks. Failure to do this is also considered a serious HIPAA violation.

Lack of a risk management policy: Once risks are identified, covered entities are expected to immediately implement a risk management process to manage those risks in a reasonable time- frame. Note that failure to implement a risk management plan is considered a HIPAA violation.

Lack of HIPAA-compliant agreements: Covered entities will also have to enter into HIPAA-compliant agreements with third-party agents, including vendors and business associates. Also, note that not doing this is considered a HIPAA violation.

Failure to PHI on Portable Devices: The inability to protect devices containing PHI, such as using strong passwords and encryption, is noted as a HIPAA violation. Downloading PHI to personal and unprotected devices is also noted as a gross violation in the State of Florida.

Exceeding the deadline for issuing breach notifications: In Florida, covered entities are expected to issue breach notifications within 30 days after finding out about a data breach. Defaulting is essentially considered a HIPAA violation.

Improper disposal of PHI: HIPAA rules mandate covered entities to securely destroy PHI that is no longer needed. Failure to do this is considered a direct HIPAA violation.

Limiting patients from accessing their PHI: Under HIPAA, patients are expected to be granted access to their medical records and get copies on request. Owing to that, denying patients this right is a violation of HIPPA.

Outlined above are some of the few ways to report HIPAA violations in the State of Florida. Although the OCR is the primary organization which receives complaints, a patient can leverage other ways of reporting if they do not feel comfortable going through this type of process.

The Department of Health and Human Services’ Office for Civil Rights – the main enforcer of HIPAA Rules – can issue civil penalties for HIPAA violations. OCR investigates complaints about potential HIPAA violations and investigates data breaches. When individuals are discovered to have violated HIPAA, civil penalties may be appropriate.

Also note that one can report to a supervisor at one’s employment, their company’s Privacy Officer, or the Compliance officer when they suspect there is a HIPAA violation in their organization. Once they receive the complaint, the organization is expected to investigate the violation internally and note whether the complaint meets the threshold for reporting under the breach notification rule.

If one works in healthcare they should have a good working knowledge of HIPAA rules, exercise diligence, and ensure that HIPAA Rules are always followed, but what happens if they violate HIPAA? What are the likely repercussions for accidentally or knowingly violating HIPAA Rules? What happens if HIPAA laws are violated will depend on the type of violation, its severity, the harm caused to others, and the extent to which the subject individual knew that HIPAA Rules were being violated.

If at the time of the violation one was unaware that they make a mistake, the violation was minor, and no harm has been caused, the violation may be dealt with internally. Verbal or written warnings may be issued and further training on HIPAA compliance would be appropriate.

For more serious violations, especially in cases where HIPAA Rules have been knowingly violated, termination is likely. The violation may be reported to licensing boards who can place restrictions on licenses. Suspension and loss of license is also possibility.

The Department of Health and Human Services’ Office for Civil Rights, the main enforcer of HIPAA Rules, can issue civil penalties for HIPAA violations. OCR investigates complaints about potential HIPAA violations and investigates data breaches. When individuals are discovered to have violated HIPAA, civil penalties may be appropriate.

There are four tiers of civil penalties based on the level of knowledge that HIPAA Rules were being violated:

Tier 1 applies to individuals who did not know HIPAA Rules were being violated or by exercising a reasonable level of diligence would not have about a violation of HIPAA. The minimum penalty is $100 per violation up to a maximum of $25,000 for repeat violations.

Tier 2 applies to reasonable cause, which has a minimum fine of $1,000 per violation, up to $100,000 for repeat violations.

Tier 3 apples to violations involving willful neglect of HIPAA Rules when the violation has been corrected within the required timeframe. The minimum fine is $10,000 per violation up to a maximum of $250,000 for repeat violations.

Tier 4 is reserved for willful neglect of HIPAA Rules with no attempt to correct the violation. The minimum penalty is $50,000 per violation up to a maximum of $1.5 million for repeat violations.

The maximum penalty, regardless of the tier, is $50,000 per violation with a cap of $1.5 million.

The Office for Civil Rights can refer violation cases to the Department of Justice when there have potentially been criminal violations of HIPAA Rules. Criminal penalties for HIPAA violations are rare, but they are possible when healthcare employees have knowingly violated HIPAA Rules.

The tiers for criminal penalties are:

Tier 1 – Negligence/Reasonable cause – A fine of up to $50,000 and up to one year in prison

Tier 2 – False pretenses – A fine of up to $100,000 and up to 5 years in prison

Tier 3 – Personal gain or malicious intent – A fine up to $250,000 and up to 10 years in prison.

Consequently, when a patient obtains a copy of their medical records, they should thoroughly review them. Occasionally, one might come across an error or learn that confidential information was improperly disclosed, the foregoing may be a general overview of what direction or avenues they may be able to take.

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.

Thanksgiving began as an autumn harvest feast and has been celebrated for hundreds of years. The holiday gives the residents of the United States an opportunity to reunite with family and friends, enjoy a traditional meal, and express gratitude, although in recent years, it is also associated with parades, football, Black Friday shopping, and initiates the holiday season.

If one is curious about the time-honored Thanksgiving traditions or wants to navigate the holiday legally, the following are some of interesting history, laws and legislation surrounding the Thanksgiving holiday in the United States.

On October 6, 1941, the House passed a joint resolution declaring the last Thursday in November to be the legal Thanksgiving Day. The Senate, however, amended the resolution establishing the holiday as the fourth Thursday, which would take into account those years when November has five Thursdays.

Throughout U.S. history, Thanksgiving has been held on various days.

In October1621, the Plymouth colonists and the Wampanoag tribe shared an autumn harvest feast that is acknowledged today as one of the first Thanksgiving celebrations in the colonies. For more than two centuries, days of thanksgiving were celebrated by individual colonies and states. Colonists in New England and Canada regularly observed “thanksgivings,” days of prayer for such blessings as safe journeys, military victories, or abundant harvests. Americans model their holiday on the 1621 harvest feast shared between English colonists and the Wampanoag. This feast lasted three days and was attended by 90 Wampanoag Native American people and 53 Pilgrims (survivors of the Mayflower). On December 11, 1621, Governor Edward Winslow of the Plymouth Colony wrote a letter in hopes of attracting more colonists. In it, he described a three-day feast shared by the Plymouth settlers and the local Wampanoag people.

There are only two surviving documents that reference the original Thanksgiving harvest meal. Curiously, turkey was NOT on the menu for the first Thanksgiving! They describe a feast of freshly killed deer, assorted wildfowl, a bounty of cod and bass, and flint, a native variety of corn harvested by the Native Americans, which was eaten as corn bread and porridge.

Alexander Hamilton once proclaimed: “No citizen of the U.S. shall refrain from turkey on Thanksgiving Day.” Hamilton’s proclamation became reality, and according to the National Turkey Federation, about 45 million to 46 million turkeys are consumed each Thanksgiving, since it is a bird indigenous and native to North America and thereby set the American table apart, for example, from the British table.

Jefferson signed a proclamation for a day of “Thanksgiving and Prayer,” to be held on December 9, 1779. At that time, the Virginia General Assembly was responsible for formulating state government policies, not the governor. This proclamation did not establish a permanent annual observance.

In 1789, President George Washington issued a proclamation designating November 26 of that year as a national day of thanksgiving to recognize the role of providence in creating the new United States and the new federal Constitution.

Thomas Jefferson refused to endorse the tradition when he declined to make a proclamation in 1801. For Jefferson, supporting the holiday meant supporting state-sponsored religion since Thanksgiving is rooted in Puritan religious traditions.

Later, President James Madison proclaimed two Thanksgivings in 1815, one in the spring and one in the fall.

President Abraham Lincoln started the modern practice of a national Thanksgiving holiday. Amidst a raging Civil War, President Abraham Lincoln issued a “Proclamation of Thanksgiving” on October 3, 1863, 74 years to the day after President George Washington issued his first presidential Thanksgiving proclamation. The foregoing began in 1846, by the editor of Godey’s Lady’s Book, Ms. Sarah Josepha Buell Hale who launched a letter-writing campaign to support her cause for a designated day for the Thanksgiving holiday. Finally on September 28, 1863, she wrote directly to President Lincoln, asking him to use his powers to create the holiday. Her 36-year quest was finally fulfilled. Hale was also a New England-born poet, editor, activist, and philanthropist best known for authoring the poem “Mary’s Lamb,” or “Mary Had a Little Lamb,” as it is known today.

On June 28, 1870, President Ulysses S. Grant signed into law the Holidays Act that made Thanksgiving a yearly appointed federal holiday in Washington D.C. On January 6, 1885, an act by Congress made Thanksgiving, and other federal holidays, a paid holiday for all federal workers throughout the United States.

In both 1939 and 1940, President Franklin D. Roosevelt proclaimed Thanksgiving on the third Thursday in November, to lengthen the shopping season for Depression-era retailers to help businesses still suffering from the lingering effects of the Great Depression.

Roosevelt’s proclamation proved controversial, with some states continuing to celebrate on the fourth Thursday of the month. In 1941, Congress put an end to “Franksgiving” by passing a joint resolution that officially established the date of Thanksgiving.

At the end of 1941, Roosevelt signed a bill officially making Thanksgiving Day the fourth Thursday of November, regardless of whether it is the last or the second-to-last Thursday of the month.

It is now a well-established tradition that the President is gifted and later pardons a turkey every Thanksgiving. There are conflicting stories about the origins of the turkey pardon because the tradition of presenting the President with a turkey dates back many decades.

In 1865, President Abraham Lincoln spared a turkey that his son took a liking to, but it was not until 100 years later that President John F. Kennedy spared the first Thanksgiving turkey. The first president to issue a formal pardon to the turkey was George H.W. Bush during a ceremony in the White House Rose Garden in 1989.

To detail the turkey pardon history-while the presidential turkey pardon has become a yearly tradition, it is a relatively new tradition. The first turkey spared by a president has been traced to Abraham Lincoln. According to an 1865 dispatch by White House reporter Noah Brooks, Lincoln’s son Tad asked his father to spare the turkey’s life. Tad had adopted the turkey as a pet. Although Lincoln spared this turkey’s life, the turkey was planned for Christmas dinner not Thanksgiving dinner.

Reports of turkeys sent to the White House as gifts at Thanksgiving can be traced back to the 1870’s. Horace Vose, a Rhode Island poultry dealer, began sending turkeys to the White House in the 1870’s until 1913. Vose’s death in 1914 brought about the opportunity for others to send turkeys to the president for Thanksgiving. Official presentations of live turkeys to the president began in 1947 with the National Turkey Federation presenting a live turkey to President Truman. Because of this media notoriety, President Truman is often credited with the first turkey pardon, but he did not pardon the turkey.

In 1963, President Kennedy spared a turkey’s life at the presentation event when he stated, “Let’s keep him going“.  In 1973, during the Nixon presidency, the turkey was sent to Oxen Hill Children’s Farm. First Lady Rosalynn Carter (wife of President Jimmy Carter) sent the 1978 turkey to Evans Farm Inn to live in a mini zoo. It became the norm for the turkeys to be sent to farms during the Reagan administration.

The pardoning became formalized and official in 1989, when President George H. W. Bush pardoned that year’s Thanksgiving turkey. “He’s granted a presidential pardon as of right now — and allow him to live out his days on a children’s farm not far from here.” Since 1989, each year, the U.S. President officially pardons a turkey from the Thanksgiving table.

Currently, Thanksgiving has become somewhat controversial. The holiday may be about being thankful in principle, but it is considered by many as an acknowledgment of the role of colonialism in North America and the displacement and oppression of the Native Americans. Indigenous Peoples in America recognize Thanksgiving as a day of mourning. It is a time to remember ancestral history as well as a day to acknowledge and protest the alleged racism and oppression which they claim they continue to experience to date.

As for the two-day holiday-the Friday after Thanksgiving is a state holiday in California, Delaware, Florida, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Nebraska, Nevada, New Hampshire, North Carolina, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, and West Virginia.

The foregoing is just a brief and general legal and historical overview of Thanksgiving.                                                                                                                                  

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.

PROBATE is the legal transfer of ownership of assets from a deceased party to the living, whether heirs or beneficiaries, or creditors, etc.

There are three (3) types of probate administration under Florida law: formal administration and summary administration as well as a non-court supervised administration proceeding called “Disposition of Personal Property Without Administration.”

A formal probate administration usually takes 6-12 months under most circumstances to process. This process includes appointing a personal representative (i.e., the “executor” known in other states), a 90-day creditor’s period that must run, payment of creditor’s claims and more.

In Florida, a person can avoid probate by using joint ownership with rights of survivorship, beneficiary accounts, lady bird deeds, and living trusts. Two people may own real estate or personal property as joint tenants with rights of survivorship (or JTWROS).

Formal administration is required for any estate with non-exempt assets valued at over $75,000 when a decedent or deceased party has been dead for less than two (2) years. A formal administration is also required any time that a personal representative is needed to settle the affairs or act on behalf of the decedent.

Probate assets include, but are not limited to, the following: a bank account or investment account in the sole name of a decedent or deceased party. A life insurance policy, annuity contract, or individual retirement account payable to the decedent’s estate.

If an Estate is valued above the Probate threshold, and the assets (everything the deceased party owned) were held in the deceased’s sole name, then Probate will be needed, regardless of whether they left a valid Will.

State laws may vary slightly, but the typical scheme of most states, including Florida (F.S. §732.101 to §732.111), is that intestate property (without a valid Last Will) passes in the following order (sometimes known as next of kin): spouse, lineal descendants (children or grandchildren), parents, siblings (and children of deceased siblings).

An inheritance tax, also called an estate tax, is a tax based on the wealth of a deceased person. Florida does not have an inheritance tax, consequently, the Florida’s inheritance tax rate is zero. A beneficiary of a deceased person in Florida does not owe any state taxes on inherited property.

As far as the need for a lawyer for Florida Probate, the answer should be-Yes. In nearly all cases, a person will need a Florida Probate Lawyer. Except for “disposition without administration” (very small estates) and those estates in which the personal representative) is the sole beneficiary, Florida law requires the assistance of an attorney.

To begin or initiate the probate process, a petition for probate must be filed with the clerk of the Florida circuit court in the county where the deceased testator (creator of the Last Will & Testament) resided and the Last Will must be admitted to probate.

The personal representative of the estate as designated in the Last Will is then appointed by the court. If a Last Will & Testament is not present or a personal representative of the estate is not named, a person may petition the court to be assigned as the personal representative of the estate. If the court appoints someone as the personal representative of the estate, said individual will be issued Letters of Administration by the court. These letters of administration give said person the authority to settle or act on behalf of the estate.

As the personal representative of the estate, one must then provide notice of the probate to all interested parties. This includes notifying beneficiaries and heirs of probate. The personal representative must also publish a Notice to Creditors which notifies creditors of the probate of the estate. If the deceased party died age 55 or older, a Notice to Creditors must also be sent to Florida Medicaid/AHCA (Agency for Health Care Administration), regardless of whether it is known if the decedent received any such benefits during their lifetime. This Notice to Creditors must specify the date by which creditors must give their claims.

The next step for the personal representative is to ensure that the final expenses of the deceased are paid for out of the estate, that any required taxes are paid, and that any outstanding debts are paid from the estate. There is a specific order in which outstanding debts and creditors must be paid with some claims taking precedence over others so that if there is not enough in the estate to cover all debts, those that take priority will be paid first.

Once debts, taxes, and final expenses have been taken paid or resolved, the personal representative of the estate must petition the court for permission to transfer the remaining assets of the estate to the beneficiaries as indicated in the Last Will. If there was no Will present, the assets must be distributed as dictated by Florida state law. The estate is then concluded.

The best way to make sure that the administration of an estate is done correctly is to consult a probate attorney. With a probate attorney assisting the personal representative, one can ensure that they do not miss important deadlines or skip necessary steps in the probate process that could hold up the probate process or cause complications.

Some of the most common mistakes that are made and steps that are forgotten when a probate attorney is not hired to assist with probate include:

• Waiting too long to start the probate process.
• Not maintaining an open line of communication with heirs and beneficiaries of an estate.
• Not keeping an accurate inventory of estate assets.
• Failing to educate oneself on the probate process so that one can know what to expect from the process;
• Procrastinating on any part of the probate process;
• Failing to file a 706 Federal Estate Tax Return when applicable;
• Failure to secure assets of the estate;
• Failing to identify property that is exempt from probate;
• Failing to make the proper notifications to creditors;
• Failure to keep proper accounting of expenses incurred during the probate process;
• Failing to get the “approval or authorization” from the court to distribute assets among heirs and beneficiaries of an estate;
• Waiting too long to market real estate;
• Failing to conclude the estate;
• Paying creditors and claims against the estate improperly or in the wrong order;
• Filing a Last Will that is not the most recent version of the Last Will; and
• Failing to claim or properly utilize the available family allowance.

The foregoing is a brief general overview of the probate process.

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.

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An injured victim shoud NOT wait to contact an Attorney after their auto accident.  Uncertainty may be one of the feelings a victim experiences after a car accident.

For instance, a car accident victim may be uncertain about whether they can file a claim for compensation. They may be uncertain about the severity of their injuries. They may think about contacting a lawyer, but they may be uncertain about how a lawyer can assist them. They may be uncertain about the cost of seeking such assistance.

The foregoing is some of the reasons auto accident as well as other accident victims often wait to seek legal assistance. We discuss the reasons in greater detail below and why accident victims should strongly consider contacting an experienced Personal Injury attorney as soon as possible.

Personal Injury attorneys can assist the victim in seeking full compensation for their injuries and damages. Normally, accident clients do not pay upfront fees and costs while the attorney is working on their claims.

If a person is injured in a car crash and needs to go to the hospital to get treatment, it is likely they have a valid claim. This is particularly true in Florida, which is a no-fault state. That means an accident victim can seek compensation from their own insurance policy for medical bills and some other expenses, regardless of fault for the crash.

A person may be uncertain if the other driver can be held liable for the crash. However, it is difficult to be certain without discussing the incident with an experienced attorney. One should not rely on their initial assumptions about the matter or what the at-fault driver or his or her insurance company may say.

If one needs significant compensation, their no-fault coverage may not be sufficient. Consequently, said individual may need to file a claim against the liability insurance carrier of the at-fault driver.

An injury might be much worse than one realizes. Even if the injury appears serious, a person may not realize just how costly the injury can be to treat. Damages are not just medical bills. An accident victim may be unable to work while recovering. Ultimately, said individual may never be able to return to work in the same type of job.

Many times, an injury has a psychological component. Some victims experienced post-traumatic stress disorder. If the injury creates physical limitations, these can cause emotional distress.

No matter what one may think or what insurance companies may express, they are not concerned with providing all the compensation the victim may need. If the injury turns out to be more serious than first realized, and one agrees to an early settlement with the insurance company, said individual may be left footing the bill for additional medical costs and other damages.

Experienced Personal Injury attorneys are prepared to evaluate accident claims and determine all the compensation one may be entitled to receive. Attorneys are prepared to aggressively pursue compensation and usually have the resources and experience to take the subject case to court if the insurance company denies or short-changes the claim.

Many injury victims do not know about all the services an attorney provide for them throughout the legal process. Essentially, an attorney can deal with the legal process on behalf of the accident victim. Accordingly, the lawyer can negotiate with the insurance company, investigate the crash, gather evidence, file legal documents, and take the case to court if necessary.

These services free up the accident victim to focus on medical treatment and healing. While some victims may not make a full recovery, the goal is to make the best medical recovery possible. An accident victim does not need the added burden of filing an insurance claim.

An initial consultation with a Personal Injury attorney to discuss their accident case is usually FREE. Attorneys can explain their fees in the consultation so the client will know what to expect.

Crash victims may make false assumptions about the cost of hiring an attorney. They may think hiring a lawyer for a car crash or accident claim is like hiring a lawyer for other types of matters.

However, Personal Injury attorneys work on contingency, i.e., a percentage of the recovery. What this means is that a client does not pay up front. The attorney does not get paid unless the victim or client receives compensation.

If one waits to contact a lawyer, such delay could hurt one’s chances of recovering full compensation. There are many reasons for the foregoing. An example, over time your memory of the incident can fade. A person could forget crucial details, which makes it harder to build a strong and compelling case. For a car accident in Florida, medical treatment for injuries sustained in the said accident must begin within fourteen (14) days of the subject accident or one’s own auto insurance carrier may deny PIP or other first party benefits (not paying medical bills or wage loss incurred) thereby reducing the recovery for the claim.

An individual may speak with the insurance company representative while waiting and may be tempted or even encouraged to accept a lowball settlement offer. An accident victim could say something to the insurance company that could be used against them. An innocent party may have admitted fault or downplayed their injuries.

An attorney can give a victim of an accident tips on protecting their claim. If one waits to contact a lawyer, they will not have the benefit of these tips. An unrepresented party may do things that hurts their case, such as skipping medical appointments or waiting to seek treatment.

Waiting could also make it harder on the attorney. There are deadlines for reporting, seeking medical treatment as well a Notice Requirements depending on the defendant or responsible third party and a statute of limitations for filing personal injury claims in a Florida court. That means if a lawsuit is not filed within the subject timeframe from the date of the accident, an innocent victim may be barred from doing so and from recovering rightful compensation.

An accident case may not make it to court, but it is important to be prepared for that. The possibility of a lawsuit often causes insurance companies to offer more compensation. The insurance company is only going to be concerned about a potential lawsuit if an experienced personal injury attorney is involved.

If you are injured in an accident, car or otherwise, promptly call the attorneys at CASERTA & SPIRITI for a free consultation of your potential case.

Doing a project, yourself may seem extremely rewarding in many aspects of life, but in more specialized areas such as Estate Planning, it may merit having an experienced attorney assist you.

A great deal of information exists on the internet pertaining to estate planning; however, there are significant shortfalls in attempting to create a plan without an attorney. There are several reasons one should avoid such a move and retain the services of an attorney.

Ultimately, the primary goal of an estate plan is to ensure one’s assets end up in the right hands after one passes away. Consequently, a person’s estate plan will be implemented at the time of one’s death (or at a later date that the subject individual designated in a trust). Therefore, what happens if there are mistakes?

The fact is that at such time it is too late to correct errors after one has died. One’s family and/or  loved ones will not, for the most part, be able to legally amend or correct the mistakes which could lead to one’s assets ending up in the wrong hands. For the most part, changes to an estate plan can only be made up to the point of death or incapacity, and then, after those timeframes, the estate plan becomes irrevocable. A person’s beneficiaries may also lose much of the privacy an estate plan aimed to provide them.

Another key issue here is that if assets cannot be divided or distributed as one really wished, then those loved ones or potential beneficiaries may have to litigate over what they want, or thought should have been the result. This situation can cause unnecessary rifts between loved ones who previously had no reason to put their relationships at risk.

The most recent estate planning trend is online websites, computer programs as well as traditional office supply stores that offer free or inexpensive templates or forms. These templates or forms claim to provide the consuming public with everything they require to get a legal, proper, and secure estate plan in place. Unfortunately, oftentimes, these templates and/or forms often fall short.

These templates or forms claim to be universal or nationally oriented which simply is not how estate planning works. There are too many laws, rules or regulations that differ from state to state and from circumstance to circumstance. For example, witness requirements, acknowledgements, and notarizations which are required and can differ in each state, may cause significant issues after the incapacity or death of the creator of the document or plan.

The safest and most logical way to achieve a proper estate plan is by seeking the assistance of and working with an experienced estate planning attorney. The foregoing is not a self-serving statement since attorneys offer this service but is presented to warn, or at least caution, the public in order to protect them and their surviving family members and/or loved ones from unfortunate results.

Knowing what documents and estate plan to prepare is vitally important and should be timely discussed with an experienced Estate Planning Attorney before an unfortunate event occurs.

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 Durable Power of Attorney is an important part of incapacity Estate Planning, but NOT the only document. Every adult should have such a document in place since anyone at any age can suffer a life-altering accident that leaves them incapacitated. If this event occurs and a person does not have a durable power of attorney in place, that individual will force their family and/or loved ones to enter into an expensive and time-consuming legal process for Guardianship. After an accident, an injured or incapacitated party not only needs someone to advocate on their behalf, but also ensure they have the legal means or authorization to do so. 

Once a person understands the significance of these documents, they should have one prepared. Furthermore, it is preferred not to download a “Do It Yourself” power of attorney document. Having an attorney is the preferred means of knowing that such document is done correctly. Without an experienced attorney, one will not have the confidence and peace of mind that comes with proper estate planning. If a person has a power of attorney, and it does not grant the Agent the authority to make a particular and required decision on the principal’s behalf if the principal becomes incapacitated, that becomes a major problem and then may require a Guardianship be established unnecessarily.

It is not hyperbole to state that a durable power of attorney is one of the most essential documents in an estate plan. It authorizes a designated person (another or Agent) to make financial and medical decisions for the principal (the person who creates the said document). Further, one must note that it is effective immediately upon execution, i.e., signing it before two (2) Witnesses and a Notary. Prior to 2011, Florida residents could have a springing power of attorney. It was named that because it “sprung” into effect upon incapacity as opposed to it being signed. If a Florida resident created an estate plan prior to 2011, they will need to update it since these documents are no longer valid and/or may not be accepted. 

Even though a durable power of attorney is a significant document, it is not an all-encompassing estate planning tool. For example, an Agent can act on behalf of their living elderly parent by way of a durable power of attorney. With Powers of Attorney for financial matters as well as for medical decisions (Healthcare) such documents enable the adult child or Agent to manage the parent’s finances, pay bills, and purchase needed items using the parent’s money. If the parent becomes incapacitated, the adult child or Agent under the power of attorney can speak to the parent’s physicians and advocate on the parent’s behalf in order to receive the type of treatment in accordance with the subject parent’s wishes or dictates.

A durable power of attorney grants the Agent the ability to care for their parent, the principal. It does terminate at the parent’s death! All the power granted during life is no longer available after death. People who assume a durable power of attorney is an end-all may not have prepared a Last Will or a Trust, which leaves the previous attorney-in-fact or Agent powerless.

Each document in an estate plan serves a different purpose and function and becomes effective at different stages and are all relevant.

A substantial portion of estate planning centers on a designated someone, an Agent, or Personal Representative, to be legally authorized and/or have the ability to act on the behalf of and take care of a person, the principal or testator, if such principal or testator (one who creates a Last Will & Testament) is incapacitated or passes away. Regardless of the amount of assets one may or may not have, creating a proper estate plan will organize, assist, and enable authorized competent trustworthy family members or loved ones or the surviving family or loved ones act on an incapacitated principal’s behalf or distribute assets of the deceased party’s estate.

Knowing what documents to prepare is vitally important and should be timely discussed with an experienced Estate Planning Attorney before an unfortunate event occurs.

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.

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Protecting An Inheritance Of A Child From Their Spouse

For whatever reason, a major concern among parents doing estate planning is how to protect an adult child’s inheritance from their spouse. It may stem from an animosity or concern over a child’s problematic partner. A number of them are concerned about a divorce attacking and attaching the assets distributed to their surviving children. There are a few others who believe that heirlooms, property and/or inheritances should be kept within the family.

A basic choice one has is to leave the inheritance to just one spouse, i.e., their own child. Even if one’s child resides in a community property state, an inheritance would be considered individual property. Florida statutes define non-marital or separate assets as the property received by either spouse separately by bequest, descent, non-interspousal gift, or devise. Therefore, an inheritance is considered a non-marital asset. A spouse should not be entitled to any part of another spouse’s inheritance.

However, once that property becomes comingled or mixed with other marital assets then it may become community or marital property. The subject child will need to place the inheritance in an account in their name alone, and they will not be able to place any new funds in the said account. The child will need to be careful to keep their inheritance separate and should likely consult with an attorney to ensure they do not inadvertently comingle their property.

Likewise, sometimes the income produced by one spouse’s property can be considered community or marital property. Consequently, comingling the income from the inheritance with the inheritance itself could destroy its separate nature or status.

As an alternate strategy, a parent can leave their child’s inheritance in a Trust, naming them as Trustee. Creditors, divorcing spouses, and others will not have access to the child’s inheritance to the extent that assets are left in the Trust. Again, depending on the withdrawal rights and other terms and conditions set up in the Trust, the surviving child could withdraw funds and still comingle the withdrawn funds/assets or otherwise use them to benefit their spouse.

If there is a greater concern, the Trust can be set up with an independent third-party Trustee. Such an arrangement can limit the child’s access to their inheritance. Assets could only be disbursed or distributed at the discretion of the said Trustee; therefore, the Trust creator would need to be clear about establishing those withdrawal or distribution rights when drafting the Trust.

Another inheritance protection strategy can be taken by the adult child- they can sign a prenuptial agreement before getting married or ask their spouse to sign a postnuptial agreement if the inheritance is received during the marriage.

By careful thought or consideration and planning one can attempt to bypass a child’s partner in their estate plans. Consideration and provisions should be made in the event the child predeceases their parent and/or their spouse. Ultimately, consulting an experienced estate planning attorney can greatly assist the individual doing an estate plan in considering potential what-ifs and plan accordingly.

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 Power of Attorney is a powerful legal document or instrument which delegates in writing authority from one individual to another. The creator of the power of attorney, also known as the “Principal,” grants the right to act on their behalf to an “Agent.”  A Power of Attorney can be specifically prepared to expand or restrict delegated enumerated powers based on the wishes of the subject Principal. The benefit of having a Power of Attorney is that it can be used to avoid the need for a court supervised Guardianship should the Principal become incapacitated and no longer have the ability to manage their own financial affairs and property management as well as medical decisions.
   
One of the most common questions encountered is, “when does the Power of Attorney actually takes effect”?  In the past, Florida allowed for the execution of what was referred to as a “springing” Power of Attorney. The term springing refers to the fact that an Agent is only permitted to act upon the satisfaction of a condition. For example, a springing Power of Attorney could be conditioned to only become effective upon written confirmation that the Principal was incapacitated. This type had a notable feature in that it allowed individuals to give a Power of Attorney to a relative without having to worry about them accessing a bank account or transferring property while the Principal still maintained full capacity. Unfortunately, changes in Florida law resulted in the abolition of springing Powers of Attorney. Currently, when a person executes a Power of Attorney the Agent is immediately granted the power to act regardless of whether or not incapacity exists.

Consequently, since Agents have immediate authority to act, the Principal grant the power to only a person they trust completely! Further, discussions should be had with the prospective Agent so they understand the Principal’s wishes as to how their affairs should be handled or managed. Any additional questions should be directed to an experienced estate planning attorney.

Preparing a Durable Power of Attorney for financial matters and a Healthcare for medical decisions are part of a responsible estate plan.

Now, what is the level of capacity that is needed to create a Last Will & Testament?  The person making the Last Will & Testament (Last Will) must has sufficient capacity to comprehend:

• the nature and extent of his or her property (i.e., what are the assets and their relative size);
• his or her relationship to the persons who were, or should, be the natural objects of his or her estate; and
• a general understanding of the effects/process of the Last Will.

Florida courts have said that the person making the Last Will must have sufficient active memory to collect in their mind, without prompting, the particulars or elements of the business to be transacted, and to hold details in their mind for a sufficient length of time to perceive at least their obvious relationships to each other, and be able to form some rational judgment regarding them. A testator/testatrix (maker of the Last Will) who has sufficient mental power to do the foregoing is, within the meaning and intent of the Statute of Wills, a person of sound mind and memory, and is competent to dispose of their estate by a Last Will.

The foregoing can also extend to a Revocable Living Trust. With the above test, a person must know what their assets are and the people to whom they would most likely want to leave those assets. And, just as important, the individual should understand the effects of their Last Will or Trust. Practically speaking, creating a Revocable Living Trust may be more complicated than creating a Last Will, so it may be argued that the capacity to create a Trust is a higher standard than that of creating a Last Will. 

Again, there are other legal standards of capacity. After testamentary capacity, there are generally three (3) other areas of capacity in the Estate Planning and Elder Law area:

• capacity for Guardianship purposes;
• capacity to create a Durable Power of Attorney (financial matters);
• capacity to make one’s own Healthcare/medical decisions.

Some Florida families become extremely concerned when their loved one is having health issues and may be at the end of their life. However, if a loved one dies without a Last Will, their assets will  go to their family under Florida state laws of Intestacy or next of kin.

If it is uncertain whether a person has capacity to create a Last Will, an experienced attorney may be needed to assist in documenting the individual’s capacity to make a Last Will. At times, a physician is used to write a letter or report as to capacity, if the attorney is still unsure.

Finally,  under section 732.501, Florida Statutes, “Any person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a will.” Further, a Power of Attorney can be signed in Florida any time someone has the required capacity, i.e., so long as the individual signing the Power of Attorney is over 18 years of age, understands the powers they are delegating, knows to whom they are entrusting the said powers and how delegating that power can affect the property or person subject to the Power of Attorney, they then have the capacity needed to sign the subject Power of Attorney.

Even when there are times when the same individual may not have the capacity as described herein,

there are times when a person can make their own decisions. These are referred to as “lucid moments.” During a lucid moment, as long as the person comprehends the powers they are delegating, to whom they are delegating them, and how delegating those powers can affect their property or person, they may be able to sign a Power of Attorney or a Last Will if they are capable of understanding the significance and effect of executing a Last Will and the extent of their property and to whom they are distributing their assets after death.

Pursuant to Florida case law, whether or not a maker or creator of a Last Will, Trust, Durable Power of Attorney or Healthcare was of sound mind or had the capacity is determined at the time the subject document or instrument was executed.

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.

With millions of people having a form of dementia across the U.S. and the world, Estate Planning attorneys need to assess their potential clients to ascertain whether they are still capable and should be given the opportunity to contribute to and have input in their own lives as well as the lives of those around them. It is important to understand their changing needs as their disease advances, but even those with the most severe cases can still take part in an important way in the world around them.

The term “lucid intervals” comes into play. These intervals are moments of clarity for people with degenerative brain diseases. In these moments of clarity, they may regain many of their memories and mental functions. It is important to not only recognize these moments but also to give them credence.

There is a study by the National Library of Medicine, which goes into the various levels of capacity people may exhibit and ultimately states that “Capacity to make one’s own decisions is fundamental to the autonomy of the individual.” Consequently, there should be a plan for the moments when capacity improves or stabilizes.

There are varying levels of capacity for those with degenerative brain diseases, and medical professionals and loved ones should play a role in recognizing those levels of capacity without bias.

For example, “sundowning” is the process of medical or psychological conditions worsening as the day goes on, which is essentially named for the time period when the sun goes down or after dusk. If a loved one experiences sundowning, should decisions made earlier in the day during the more “lucid” period be invalidated because of a later lack of clarity?

Florida families need to empower their loved ones by providing them with the proper channels to express themselves and contribute to their own lives. Awareness should be raised on the abilities the elderly adult or loved one retains while battling any form of dementia.

After a diagnosis of Alzheimer’s disease or another type of dementia, a family has much to process and consider. In addition to dealing with the emotions that reasonably flow from this diagnosis, families must also make arrangements with the diagnosed elder adult in order to make plans for their current and future needs.

This situation can appear over-whelming, however, it is crucial that a family uses the early stages of the disease to fully understand the diagnosed elder adult’s wishes and get their input for moving forward.

It is much easier for everyone to be on the same page regarding a Power of Attorney as well as a Last Will and/or Advance Directives long before it or they become necessary because obtaining said Power of Attorney as well as other documents when the elder adult in question is already well into the disease process is more time consuming and difficult.

 

A Power of attorney is a legal document which allows someone to act on behalf of someone else regarding healthcare or financial decisions. There are many types of powers of attorney, each of which serves a unique or specific purpose. However, a Durable Power of Attorney is the most common for elderly adults.

Selecting who has Power of Attorney is a weighty decision. By Florida law, the person who is selected is called the Agent. This person should be a trustworthy and competent adult who is willing and able to manage complex medical and financial decisions and responsibilities on behalf of the diagnosed or incapacitated adult (the Principal). A financial institution that has trust powers [like a bank or trust company], so long as it has a Florida location and is authorized to conduct business in the state of Florida, can also be named an Agent.

At times, families choose to split power of attorney duties so that no one person is in charge of every decision. In these cases, they divide duties into healthcare decisions and financial decisions, creating two powers of attorney, one for each category.

Ideally, elders or any adult planning on a power of attorney should name their trusted Agent and have the papers drawn up and executed prior to any medical crisis, including a dementia diagnosis. However, if a loved one has not yet been diagnosed with dementia, those family members together with the subject adult can work together to name an Agent and execute a valid the power of attorney.

In general, a person with dementia can sign a power of attorney if they have the capacity to understand what the document is, what it does, and what they are approving. Most seniors living with early stages of dementia are able to make this determination.

If there is no power of attorney designation, and the older adult is further along in the disease’s process, the matter can get more complicated. If an older adult is unable to understand the power of attorney document and process, the family will need to enlist the aid of the local court whereby a judge can review the case and grant someone in the family (or a court appointment) the designation of conservator or Guardian. A conservatorship or guardianship allows the person or public guardian named by the court to make decisions about the person’s finances or other decisions. A guardianship allows the person named by the court to make decisions about the person’s healthcare. This procedure may be burdensome but can become necessary and may be the only way to advocate for a loved one and their wishes.

The Article will continue at a later date!

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.

Florida has a growing number of lawful gun owners. These firearms may include antiques, rifles for hunting, and handguns for personal protection. While these owners may be careful to ensure they have the correct registration, license and storage during their lifetime, their firearms raise questions when they die. When acting as the Personal Representative (PR) for that person’s estate during probate administration, then it is up to the said PR to ensure these items are handled carefully and within the law.

The following is a general overview of the subject. Specific cases should be discussed with an Estate Planning Attorney experienced with the state & federal laws regarding firearms.

A Personal Representative (in some states-Executor) in charge of a decedent’s estate may not be able to simply give a beneficiary a firearm as stated in the deceased’s Last Will & Testament. There are situations in which the heir’s or beneficiary’s possession of the gun may be illegal, e.g., if they are a convicted felon. The same can be said for the Personal Representative’s (PR) possession of the firearms. The PR is not exempt from the law because they are acting on behalf of an estate. If the PR is not entitled to possess a gun, they should promptly contact an attorney about ensuring the firearms are stored in a lawful place during the probate process.

As a Personal Representative, carefully review the decedent’s estate planning documents, including whether they have a Gun Trust, and speak with a probate attorney experienced with Firearms law before doing anything with the decedent’s firearms. Numerous federal and state laws regulate the sale or transfer of firearms, making the gifting process complicated. If the PR transfers a gun improperly or to an unlawful owner, the said PR could violate the law. Also, if the decedent did not plan for how their guns were to be handled, the PR will need to know how to dispose of them.

If the weapon or an accessory is covered by the National firearms Act (NFA), then the PR must follow all federal rules regarding its transfer and ensure the proper taxes are paid on the transfer, if applicable. These are also known as Title II weapons and include machine guns, sawed-off shotguns, and other destructive devices like grenades. Common accessories like silencers are also regulated by the NFA.

All owners must properly register NFA weapons with the federal government. When an owner wishes to transfer a weapon to someone else, the transfer of registration must be approved. This scenario is true for a sale during the owner’s life or distributing it after death. As the PR, one will need to obtain the correct Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) form to ensure all rules are followed in applying for the transfer. One would also have to check the current status of the law to see if a chief law enforcement officer needs to sign off on an application to transfer registration.

This complicated procedure is why individuals often create Gun Trusts, which owns the firearms and enables multiple people to possess and use them. Additionally, firearms or guns held in trust can continue to be owned by the trust and possession can simply move to the beneficiary after the original possessor’s death. One would not have to go through the formal transfer procedure required by law or pay taxes on the transfer. If the decedent had a Gun Trust, contact an attorney experienced in this area about ensuring its proper administration and that the law is obeyed.

If the decedent owned a firearm not regulated by the NFA, then the transfer to a beneficiary will be easier. A PR should ensure that the beneficiary is at least 18 years old, has obtained any necessary license, and is not prohibited from owning firearms under the law. A PR should also ensure that the transfer is properly recorded. Florida does not require owners to register their firearms or obtain a license for certain handguns, rifles, or shotguns, therefore one may be able to transfer these to a beneficiary more easily.

The laws surrounding firearms are vast and complex.

A Florida Gun Trust is a revocable trust that owns certain firearms subject to federal regulation. The Gun Trust is an alternative to individual ownership of the firearm. All qualified Trustees may share the use and possession of the firearm. Privacy is achieved since the trust may add or remove Trustees who can use the firearm without public disclosure.

When using a Gun Trust, the firearm is owned by the trust itself, not an individual person. With a revocable gun trust, the names of the Trustees and beneficiaries can be changed during the grantor’s lifetime. A Gun Trust can also be called an NFA Trust, Class 3 Trust, Firearms Trust, or Title II Trust.

Generally, a Gun Trust allows multiple qualified users to share use of a Title II firearm. Gun trusts make it easier to avoid criminal liability in owning, sharing, and using a Title II gun; and upon the death or incapacity of the Trust grantor, a Florida Gun Trust allows private inheritance of the gun without probate or potential criminal liability.

The National Firearms Act (NFA) regulates the possession and use of firearms. Title I of the Act pertains to ordinary pistols, rifles, and revolvers. Most firearms in the U.S. are Title I firearms.

Florida law allows ownership of Title I firearms. The NFA does not require reporting the ownership or transfer of Title I firearms to the federal government.

Title II firearms include more advanced weapons, such as machine guns, silencers, suppressors, short barrel shotguns, and other destructive devices (Molotov cocktails, bazookas, etc.). Federal and state laws impose significant regulation of Title II firearms, and transferring these weapons requires filing documents with the government.

The federal government changed the rules for transferring Title II firearms in 2016. An individual transferring a Title II firearm must file an ATF Form 4 with the government and pay a $200 transfer fee. Form 4 includes a photograph of the applicant and FBI fingerprint cards. Notice of the application must be given to the chief law enforcement official (CLEO) in the county where the applicant resides.

Again, Title II firearms may not be owned by “prohibited persons.” A prohibited person includes any individual who has been convicted of a crime punishable by one year or longer, individuals diagnosed with a mental defect, an undocumented immigrant, a person convicted of domestic violence, or a person who uses marijuana (despite the legality of marijuana in a number of states). This rule applies to individuals and to Trustees of a Trust.

Federal law makes it illegal for anyone other than a registered owner who is not a prohibited person to have access to or possess a Title II firearm. Violation of the law does not require unauthorized use or possession, and mere dominion and control over the firearm by an unauthorized person is a felony. Violation of this rule is punishable by up to a 10-year prison term and $250,000 in fines.

Consequently, without a Gun Trust, an individual Title II gun owner who shares their firearm with a friend or family member who is not a registered owner of the firearm or who themselves are a prohibited person risks criminal prosecution.

It is important to note that it may not matter for criminal liability purposes if an unauthorized person did not intend to possess or use a Title II firearm.

A Florida Gun Trust may legally purchase and own a Title II firearm. An individual party to a Trust who has the authority to manage the Trust’s firearms is referred to under federal law as the “responsible person.” Typically, the Settlor or Grantor (creator of said Trust) and Trustees are the responsible persons. A Gun Trust provides quite a few benefits over individual ownership of Title II firearms as follows:

• Sharing the Use of Firearms. Multiple individuals may not co-own or share a Title II weapon. Multiple Trustees of a Gun Trust, however, may share the same weapon if the Trustees are not prohibited persons. Title II firearms may be used by any qualified Trustee of a trust. A Grantor may add or remove Trustees over time. All Trustees must not be prohibited persons, and Trustees cannot transfer firearm possession out of the trust without complying with applicable state and federal regulations.
• Avoiding Criminal Liability. In the case of individual firearm ownership, the mere access to the firearm by a friend or family member may be a felony. Including the same friends or family members in the trust avoids criminal liability traps.
• Privacy. A Florida Gun Trust is a private document. The trusts are not registered with the state, and the general public cannot access the trust agreement online. Upon the death of the Trust Grantor, the Gun Trust will not be filed or recorded.
• Control After Death or Incapacity. In the case of individual firearm ownership, the death of the registered owner may cause the firearm to be an asset in a public probate proceeding. Probate administration may result in the transfer of the Class II firearm to a minor, a prohibited person, or other unauthorized owner. Such transfer could result in government confiscation or a criminal violation of the NFA. On the other hand, if the Grantor of a Gun Trust is incapacitated or dies, the firearm remains a trust asset so that no transfer of title is required. Trust firearms are not involved in the decedent’s probate proceedings. The NFA does not consider the inheritance of a firearm by a trust beneficiary to be a regulated transfer. The successor beneficiaries of the trust do not have to file an ATF form, pay a transfer fee, or report to the local CLEO. The remaining Trustees, or beneficiaries added as Trustees after the Grantor’s death, may still legally use, and control the firearm.

While a Florida Gun Trust is also a revocable living trust, the Gun Trust has special provisions to comply with the NFA regulations. A properly drafted Gun Trust should include at least the following provisions:

1. A Gun Trust should not leave firearms to just any individual. The Trust should leave weapons only to adult beneficiaries who may legally own the weapon in the beneficiary’s state of residence and who are not prohibited persons according to the NFA.
2. The Trust document should define “prohibited persons” and ensure that successor or additional Trustees are not prohibited persons.
3. The original Grantor and Trustee of the trust should consider that successors Trustees may not be knowledgeable about NFA rules. The Trust document should explain to a successor Trustee the guidelines for their exercise of discretion in the handling and conveyance of Title II Trust firearms.
4. Arrangements should be made for termination of the Trust and the distribution to responsible and lawfully qualified successor beneficiaries.
5. The power to amend or revoke the Trust must be restricted so that proposed amendments will not result in a violation of state or federal firearm laws.
6. The Trust should explain the duties of the Trustee to repair and maintain firearms and give Trustees powers to store and use firearms.
7. The Trust must include typical living trust provisions regarding property other than firearms, including cash, that the Settlor may contribute to the Trust or obtain from the sale of Trust firearms.
8. Consider appointment of a Trust protector to, among other things, replace Trustees when appropriate, modify the Trust to comply with changing firearm laws, move the Trust to another jurisdiction, or resolve disputes among beneficiaries and Trustees without having to engage in formal mediation or litigation.

People cannot buy a firearm and then transfer the firearm to a Gun Trust without filing an ATF Form 4. The best practice is for the gun owner (the Trust Grantor/Settlor) to first create the Gun Trust Agreement. Next, the initial Trustee should open a Trust bank account, and the Grantor should contribute enough money to the Trust to purchase the firearm. Thereafter, the Trustee can purchase the firearm in the name of the said Trust.

The responsible person should then file an ATF Form 4 application. Each responsible person in the Trust Agreement (usually the Grantor and all Trustees) needs to complete his own ATF Form 23 as an individual.

A few internet websites sell allegedly standard Gun Trust forms cheaply. The customer merely fills in some blanks to generate forms to be submitted to the government. Saving money may not be the best choice when an innocent error or misunderstanding of website instructions could result in criminal liability and confiscation of the firearm.

As an example, a Gun Trust must comply with Florida Trust statutes. An online trust that does not meet all requirements of Florida Trust Law may be invalid. Some online trust forms do not limit possession of the trust’s firearms meaning that control and access may be inadvertently given to a prohibited person resulting in criminal liability. Also, the person using a standardized online form may pay for the firearm with his own personal funds rather than first opening a Trust checking account. This direct purchase would be improper and illegal.

Finally, the Florida Supreme Court has held that it is the unauthorized practice of law for a non-lawyer to draft a living trust. A Gun Trust is a specialized type of living trust. An internet site that drafts a Gun Trust for a Florida resident may be engaged in the unauthorized practice of law in Florida. If a Florida attorney sponsors it, then it may be a different story.

Florida law does not require Gun Trusts. However, without a Gun Trust, the use and access to Title II firearms are strictly regulated and restricted to the individual owner.

Finally, the National Firearms Act allows a Title II weapon to be owned by either an individual or another legal entity, including a Trust.

A Gun Trust may own any type of firearm, whether or not subject to NFA Title II rules. It may be recommended to have a separate Trust for Title II firearms so that a technical NFA violation causing a forfeiture would not affect Title I firearms, which may be owned individually or in a separate Trust.

 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.