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.

The Fourth of July has not always been a holiday. Independence Day celebrations did not become commonplace until after the War of 1812. July 4th did not become a federal holiday until 1870. Each year, Americans observe the nation’s birthday on the 4^th of July, i.e., Independence Day.

The Fourth of July celebrates the passage of the Declaration of Independence by the Second Continental Congress on July 4, 1776. The Declaration announced the political separation of the thirteen (13) North American colonies from the Kingdom of Great Britain.

Although Independence Day has been celebrated for most of the nation’s history, it did not become an official holiday until 1870.

In 1938, the U. S. Congress passed a law that guaranteed paid time off for holidays, including Independence Day. It would be equivalent to the pay of a regular working day. Federal holidays in the United States are calendar dates that are designated by the U.S. government as holidays. On U.S. federal holidays, non-essential federal government offices are closed, and federal government employees are paid for the particular holiday. There are a total of eleven (11) federal holidays.

Foundingfather and President John Adams refused to celebrate July 4th as Independence Day. The nation recognizes July 4 as the date to celebrate since the Declaration of Independence was adopted on that date. However, the actual vote for independence occurred on July 2, 1776.

In the United Kingdom and some other countries, the Revolutionary War is called the American War of Independence.

The tradition of fireworks on the 4th of July came from the 1777 celebration in Philadelphia, Pennsylvania. A ship fired a 13-gun salute to honor the thirteen (13) colonies, and the Sons of Liberty set off fireworks over Boston Common.

Every 4th of July, the Liberty Bell in Philadelphia is tapped, and not actually rung, thirteen (13) times in honor of the original colonies. The White House did not hold their first 4th of July party until 1801. The stars on the original American flag were in a circle wherein all the Colonies would appear equal.

The Declaration of Independence, which officially broke all political ties between the American colonies and Great Britain, set forth the ideas and principles behind a just and fair government, and the Constitution outlined how this government would function. The Constitution was written and signed in 1787. Thereafter, in 1789, the first Congress of the United States adopted ten (10) amendments to the U.S. Constitution, i.e., the Bill of Rights and sent them to the states for ratification.

Unlike the other founding documents, the Declaration of Independence is not legally binding, but it is powerful, nonetheless. President Abraham Lincoln called it “a rebuke and a stumbling-block to tyranny and oppression.” History and media show that it continues to inspire people around the world to fight for freedom and equality.

According to historical accounts, the Second Continental Congress, assembled in Philadelphia, formally adopted Richard Henry Lee’s resolution for independence from Great Britain. The vote was unanimous, with only New York abstaining. The colony of New York never voted on the issue of independence, or any other issue, for that matter. The reason for this: the state of New York never sent its delegation any explicit instructions of what to do. Without any instructions, its delegate Morris was forced to abstain from voting.

Thomas Jefferson wrote the Declaration of Independence, but that is not his handwriting on the vellum page above John Hancock’s signature and fifty-five others. The neat, elegant script of the Declaration belongs to Timothy Matlack, a brewer and beer bottler from Pennsylvania.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

An inalienable right, said Richard Foltin of the Freedom Forum Institute, is “a right that can’t be restrained or repealed by human laws.” Sometimes called natural rights, inalienable rights “flow from our nature as free people.”

It also posited that all men are created equal and that individuals have a civic duty to defend these rights for themselves and others.

Again, on July 4th, the Continental Congress formally adopted the Declaration of Independence, which had been written primarily by Jefferson. Although the vote for actual independence took place on July 2nd, from then on, the fourth (4^th) became the day that was celebrated as the birth of American independence.

On August 2, 1776, roughly a month after the Continental Congress approved the Declaration of Independence, an “engrossed” version was signed at the Pennsylvania State House (now Independence Hall) in Philadelphia by most of the congressional delegates (engrossing is rendering an official document in a large clear hand). Not all the delegates were present on August 2. Eventually, fifty-six of them signed the document. Two (2) delegates, John Dickinson and Robert R. Livingston, never signed. Only John Hancock actually signed the Declaration of Independence on July 4, 1776.

Since 1952, the original parchment document of the Declaration of Independence has resided in the National Archives exhibition hall in Washington, D.C., along with the Constitution and the Bill of Rights. Before then it had a number of homes and protectors, including the State Department and the Library of Congress. For a portion of World War II it was kept in the Bullion Depository at Fort Knox, Kentucky.

It must be noted that there is a visible message on the back of the document, which reads, “Original Declaration of Independence dated 4th July 1776.” 

To safeguard the original record copies of the Declaration of Independence, the U.S. Constitution and the Bill of Rights, the National Archives decided to ban all photography in the Rotunda, where the historical documents are displayed.

This Declaration has also inspired revolutionary movements outside the United States. It encouraged Antonio de Nariño and Francisco de Miranda to strive toward overthrowing the Spanish empire in South America, and it was quoted by the marquis de Mirabeau during the French Revolution.

Ultimately, the Declaration of Independence endures as a great historical landmark in that it contained the first formal assertion by a people of their right to a government of their own choice.

If you have any questions about the forgoing article, or have any legal questions or concerns, please contact the attorneys at the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

There are over 1,500 national holidays. On May 8, 1914, the United States Congress passed a law designating the second Sunday in May as Mother’s Day. Specifically, President Woodrow Wilson signed a bill designating the second Sunday in May as a legal holiday to be called “Mother’s Day” …dedicated “to the best mother in the world, your mother.” It is the second largest consumer spending holiday in the United States according to the National Retail Federation. 

The creation of a national Mother’s Day is attributed to three women, i.e., Ann Reeves Jarvis, Julia Ward Howe, and Ann’s daughter, Anna M. Jarvis.

Eventually, Anna Jarvis from Philadelphia wished to memorialize her mother’s life and started campaigning for a national day to honor all mothers.

Her efforts came to fruition, when in May of 1907, Anna Jarvis memorialized her mother’s lifelong activism with a memorial service held at the Methodist Church in Grafton, West Virginia, where Anna’s mother had taught. The following year, on May 10th, a Mother’s Day service was held at that same church to acknowledge all mothers. Consequently, the idea that the second Sunday in May be set aside to honor every mother, whether living or deceased, was born.

Ms. Jarvis’s efforts came to the attention of the mayor of Philadelphia, who proclaimed a local Mother’s Day. While West Virginia was the first state to officially adopt the holiday, others followed suit.

From the local and state levels, Ms. Jarvis later traveled to Washington, D.C. where federal politicians lent verbal support.

Proclamation of the day by the various states spurred Representative J. Thomas Heflin of Alabama and Senator Morris Sheppard of Texas to present a joint resolution to Congress that Mother’s Day be observed nationwide. The resolution was passed by both houses.

Historically, the tradition dates to pagan celebrations in ancient Greece in honor of Rhea, the mother of the gods. In Rome, as well, Cybele, a mother of goddesses, was worshipped as early as 250 B.C. In the 17th Century, England celebrated a day called “Mothering Sunday” on the fourth Sunday of Lent.

One can include their mother-in-law on this date as well. However, National Mother-in-Law Day, which is modeled after Mother’s Day, is officially celebrated on the fourth Sunday in October. That occasion honors the other mother in many people’s lives. Gene Howe, the editor of an Amarillo, Texas newspaper, started the holiday in honor of mothers-in-law. It was first celebrated on March 5, 1934, in Amarillo, Texas. 

Through the years, celebrants observed the occasion on various days. In later years, the Mother-in-Law Day Committee developed and selected honorees each year. Then in the 1970s, the American Society of Florists proclaimed the last Sunday in October to be National Mother-In-Law-Day. Since that time, the date has been observed accordingly.

The foregoing is merely a summary of the holiday. If you should have any legal concerns or issues, please call the attorneys at the law firm of CASERTA & SPIRITI.

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.