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.

It is reported that Florida has one of the highest rates of deadly automobile accidents in the United States according to one of the latest reports on motor vehicle accidents. It is important to note that these conclusions are drawn from data from various sources with different methods for counting car accidents. For instance, the state of Florida has a higher proportion of the total amount of all car accidents compared to the state’s proportion of the total country’s population.

Florida’s overall automobile crashes make up about 6.2% of the total United States automobile accident crash volume. However, Florida’s proportion of automobile accident injuries is a remarkable 13.4% and accounts for more than 9.1% of roadway deaths resulting from an automobile accident.  Consequently, the studies appear to show that Floridians crash as often as expected but have a higher likelihood of causing accident-related injuries or deaths.

To date, Florida has not required Bodily Injury Liability coverage for its drivers to operate a car legally.  Only after a driver causes an accident that results in bodily injuries to another person, are they required to have either Bodily Injury Liability coverage or post a bond for the required amount of coverage.

It often arises that people get into an auto accident in Florida where the responsible or at fault driver has no Bodily Injury Liability insurance (BI). In these situations, it would be wise to be proactive and purchase an automobile insurance policy that comes with Uninsured Motorist (UM) coverage. Accordingly, if a Florida resident gets into a motor vehicle accident and the liable driver does not have BI insurance coverage, an individual will still be able to file their personal injury claim under the UM coverage they have with their own automobile insurance company. Their insurance carrier will then process the claim following the same process or procedure as it would for an opposing insurer. The only difference is that the claim will be against one’s own UM coverage and not against another driver or vehicle owner. Likewise, if involved in a hit-and-run accident where the responsible driver has fled the scene before information can be obtained, one can again seek compensation from their own UM coverage with their automobile insurance company.

If you should have additional questions, please contact your insurance agent, insurance carrier or one of the attorneys at CASERTA & SPIRITI before an auto accident occurs.

• Last Will & Testament-This document covers the disposition of an individual’s property and/or assets after death.

• Durable Power of Attorney-This document grants or authorizes someone else (agent) the legal authority to act in a person’s (the principal’s) place, specifically it names an agent to handle financial matters on their behalf.
• Healthcare Power of Attorney also called a Designation of Health Care Surrogate in Florida is a type of Healthcare Advance Directive-This document names the person (agent) who has the power to make medical decisions for an individual if they become incapacitated.
• Living Will, also known as a Healthcare Advance Directive-This document outlines one’s wishes for medical care if they cannot make decisions for themselves. It includes instructions for removal of life support, lifesaving measures (such as resuscitation), or whether the patient would want hydration or nutrition. There are other documents, which are written medical orders from a physician, nurse practitioner or physician assistant called Physician Orders for Life Sustaining Treatment (POLST) form or Do Not Resuscitate (DNR) form.

• Declaration of Preneed Guardian -This document designates, nominates or appointments of an individual(s) as guardian(s) for oneself or for minor children that they are currently serving as guardian for or are the parents. This form is not effective immediately. If a preneed guardian is appointed for a competent adult individual, then the guardianship will not take effect unless the individual is incapacitated and otherwise unable to manage their own affairs. If a preneed guardian is appointed for minor children, then the guardianship is not effective until the current guardian is either incapacitated or dead.  If the other parent of the subject minor children is still living, then guardianship would remain with that surviving parent unless their rights have been terminated by a Court. In a situation where one is a single parent, or if both children’s parents die simultaneously, some document appointing guardianship would be recommended to ensure the minor children are placed under the care of the individual or individuals of the declarant’s choice.

Of course, an individual or couple may need more than the foregoing documents. If one has multiple properties, high net worth, or wants to avoid probate proceedings, an individual contemplating doing an estate plan in Florida may need a trust or other instruments or documents to protect certain assets or meet the individual’s particular needs or circumstances.

Consequently, it would be suggested that said individual or couple should contact and discuss their situation with an experienced estate planning attorney, such as the attorneys at CASERTA & SPIRITI, to fully customize their particular estate plan to meet their specific needs. 

Motor vehicle car accidents are the leading cause of death for children; however, drowning follows closely behind as the second leading cause of death among children under the age of 15. Drowning is also one of the leading causes of death among adults and the elderly as well. 

Herein we will point out the primary risk factors, types of drowning accidents, causes and injuries, common drowning locations as well as who may be held liable in these types of cases. 

There about six risk factors in many drowning deaths. Many people are potentially at risk for drowning but knowing the risk factors can lower that overall risk. The following factors increase the risk for accidental drowning and other unintentional injuries while in or near the water.

Males are at a higher risk of drowning, having twice the mortality rate of females, as well as a greater chance of being hospitalized in non-fatal drownings and other injuries in the water.

Around the world, children aged one to four have the highest drowning rates, followed by children five to nine years of age. Lack of adult supervision, along with the fact that children often misjudge their own swimming ability and also fail to realize the dangers of water play.

Given that the use of alcohol and drugs impede reaction time, judgment, and physical abilities, swimming or boating under the influence places an individual at a higher risk for drowning.

Individuals who live close to the water and have greater access are at a higher risk simply because they spend more time in, around and/or on the water.

Certain medical conditions make it riskier to be in the water alone.

As flooding disasters become more frequent, more accidental drownings can result.

In Florida, some of the cases of drowning include swimming pools, which are prevalent, at private residences, at resorts, or in amusement parks. Water activities are also popular given the number of lakes, rivers, and top-rated beaches. However, many drowning accidents occur in swimming pools, leaving families distraught. Typically, these are negligence cases caused by the subject pool owner and/or the manufacturer of the product in question. 

While there are guidelines, regulations, and laws in place to prevent drowning accidents, such accidents still occur. The Residential Swimming Pool Safety Act (RSPSA)- 2021 Florida Statutes, Chapter 515,  starts by acknowledging that avoiding death by drowning is most effectively achieved with the supervision of a responsible adult. Given that many swimming pool accidents occur with no adult present, RSPSA requires swimming pools in Florida to have a minimum of one of the following safety measures installed:

• Pool must have isolated access from the home according to pool barrier requirements,
• Pool barrier must be a minimum of four feet in height and not easily climbed,
• Pool must be equipped with an approved safety cover,
• All doors and entrances to the pool area must have self-closing and self-latching devices at 54 inches or higher,
• Any doors or windows with direct access to the pool must have exit alarms, and
• Pool must be equipped with a pool alarm that sounds when water is entered.

Property owners, who fail to comply, can face criminal charges. If a property owner or an injured party are unsure about RSPSA guidelines, please contact a Personal Injury Attorney at CASERTA & SPIRITI who can explain the applicable legal process. 

Common causes of drowning accidents may include:

• Slip and fall incidents on the pools surrounding surfaces,
• Broken pool ladders or pumps,
• Diving accidents,
• Inappropriate water levels,
• Negligent lifeguards,
• Poor equipment maintenance,
• Out of place emergency safety and floatation devices, and
• Poor overall construction, among others. 

Without appropriate supervision and safety equipment, water activities can become dangerous. 

Drowning accidents bring devastating emotional trauma, pain, suffering, as well as tremendous expense. If a loved one is lost because of a drowning accident, and it is believed another party was responsible for the loss, by law, injured party themselves or a family member may be entitled to compensation.

It only takes one inch of water to cause an accidental drowning incident. The most common locations for accidental drownings are:

• Lakes,
• Rivers,
• Oceans,
• Swimming pools,
• Bathtubs, and
• Buckets.

The elderly and infants have a greater risk of drowning in the bathtubs, though individuals aged five to 64 also drown in bathtubs. A child under the age of six should never be left unsupervised in a tub since they may slip and fall and be unable to pick themselves up or call for help.

Though adults do drown in tubs (a result of falling, sleeping, or passing out), they more often drown in swimming pools, natural bodies of water, and hot tubs. Alcohol or drugs, which impair judgment, balance, and coordination, are often a contributing factor to adult accidental drowning. Pre-existing medical or physical conditions, like seizure disorders, can also increase the risk of drowning.

If it is believe another party is liable for a loss, that injured party will need a knowledgeable drowning accident lawyer who understands the law and can analyze the subject case to determine liability. It is also important to note that if one is considering a personal injury or wrongful death claim against those believed to be liable in the said accident, they will need to do so within the statute of limitations or deadline of the state of Florida or be barred from any type of recovery. If injured in a swimming pool accident, in Florida, the statute of limitations is four years from the date of incident to make a claim. On the other hand, if there is a death of a loved one in a drowning accident, there is only two years to file a wrongful death lawsuit in Florida. It is best to act as soon as possible after an accident and contact an experienced Attorney.

Those potentially liable in a drowning accident is dependent on several factors, including where the accident happened and if a product involved in the accident was defective. Regarding the location of the accident, the following parties can be found at-fault:

• The property owner or tenant of the property,
• Neighborhood Associations,
• Recreational Centers,
• Day Camps, and
• Hotel or Resort, among others.

These parties are required by law to ensure safe conditions to protect guests who visit their property, premises, or establishment, and when they fail to do so, they can be held liable. 

In the same way, a designer, manufacturer, wholesaler, or retailer may be liable if a defective product resulted in a drowning accident. For instance, if a life jacket or other safety device failed, causing an individual to drown.

In a swimming pool or drowning accident, the key to recovering compensation is determining liability and proving negligence, which requires investigating the claim, gathering the needed evidence, and legal representation. 

If an individual has suffered a personal injury or lost a loved one in a swimming pool accident, an expert is needed who cares and understands liability and negligence.

If someone needs guidance following the loss of a loved one in a drowning accident, or suffers injury themselves in Florida, contact the lawyers as well as the professional legal team at the law firm of CASERTA & SPIRITI.  Injured parties and families should consider retaining experienced legal counsel to guide them through the process while protecting legal rights and ensuring a fair recovery for the compensation deserved from a tragic loss, which may include medical costs, pain and suffering, rehabilitation, lost wages, disability, among others.