When a loved one passes away, disputes can arise among family members over who will get what assets and how property will be distributed. Issues may also arise regarding what will happen to the deceased’s remains. Prior to 2016, Florida law was not well settled nor specific to deal with such disputes.

A crematorium authority is legally required to hand over the ashes to the person who delivered the body for cremation. That entitled individual has 120 days from the date of cremation to claim the ashes. There are no Florida state laws that restrict where you may keep or scatter ashes.

Pursuant to Florida Statutes Section 497.005(43)(a-i), the right and responsibility goes to the following people, in order-you, if you leave written directions before your death; your surviving spouse, unless your spouse is criminally responsible for your death; your adult child, or a majority of your children if you have more than one; your parents, your adult siblings, an adult grandchild, a grandparent, or any person in the next degree of kinship.

“In addition, the term may include, if no family member exists or is available, the guardian of the dead person at the time of death; the personal representative of the deceased; the attorney in fact of the dead person at the time of death; the health surrogate of the dead person at the time of death; a public health officer; the medical examiner, county commission, or administrator acting under part II of chapter 406 or other public administrator; a representative of a nursing home or other health care institution in charge of final disposition; or a friend or other person not listed in this subsection who is willing to assume the responsibility as the legally authorized person. Where there is a person in any priority class listed in this subsection, the funeral establishment shall rely upon the authorization of any one legally authorized person of that class if that person represents that she or he is not aware of any objection to the cremation of the deceased’s human remains by others in the same class of the person making the representation or of any person in a higher priority class.” According to the previously mentioned statute.

Another way to name the person who will carry out one’s final arrangements is to complete a Designation of Healthcare Surrogate. In the subject document, the maker of Principal can give their surrogate or Agent explicit power to carry out their final arrangements after their death. The said authority must be made clear in the healthcare document; otherwise, the Agent’s or surrogate’s decision-making power ends upon the Principal’s death. This method avoid additional documents and combines healthcare decisions and final wishes.

The disposition of a body is not a property right pursuant to Florida Statutes §732.6005(2), but a personal right of the decedent or deceased party; therefore, the decedent’s intent (as opposed to the survivor’s intent) controls the disposition of his own remains. See Cohen v. Cohen, 896 So. 2d 950 (Fla. 4th DCA 2005). Consequently, the remains of a decedent are not property under Florida Statutes §731.201(32), and therefore, are not subject to ownership by the decedent’s or deceased party’s beneficiaries.

In 2014, a case which received attention was when a father attempted to split the cremated remains of his deceased son in equal shares with his ex-wife (the mother), arguing that the ashes or cremains were part of his son’s probate estate. With little guidance outside of the common law, the court decided the remains were not property subject to probate division. The court relied heavily on case law which supported the proposition that generally, next of kin do not have a property right in their deceased family member’s remains. So, what was the solution? Ultimately, it was up to a trial court judge to decide what would happen to the remains. For many, such a solution may be unsettling, especially because a judge’s decision may not be consistent with what the decedent would have wanted.

On July 1, 2016, the Florida legislature addressed the matter and enacted a statute which codified the common law rule that remains are not estate property. The relevant statute plainly states that cremated remains are not property which are subject to division. So, who has the final say over what happens to someone’s remains? The statute makes the answer clear by providing a list of persons who may be authorized to make decisions regarding what will happen to someone’s remains. The list is in descending order of priority beginning with the decedent’s written instructions. Leaving behind instructions will provide your family with clarity regarding your own wishes—what you want to happen to your remains, who you want to keep your remains, and who will be responsible for making sure your instructions are carried out. If no instructions are left behind, the list provides who else may be legally authorized to make decisions regarding the remains. Whoever is authorized to make final decisions over the remains, may consent to the distribution of the remains. However, if the conflict continues once cremated remains are divided, the dispute will be resolved by the court.

Can written instructions of the decedent regarding the place and manner of the disposition of his remains be overridden? If so, what is the evidentiary standard for overriding a decedent’s written instructions?

Florida Statutes §732.804, reads in pertinent part: “Before issuance of letters, any person may carry out written instructions of the decedent relating to the decedent’s body and funeral and burial arrangements.” However, a written testamentary disposition of a deceased’s burial instructions is not conclusive of the decedent’s intent if it can be shown by clear and convincing evidence that he intended another disposition for his body. See Cohen, supra.

If the deceased party has not expressed their intent regarding the place and manner of the disposition of their remains, who has the right to control the place and manner of the disposition of a decedent’s remains if the matter is subject to a dispute?

This question was answered in Giat v. SCI Funeral Servs. of Fla., LLC, 2020 Fla. App. LEXIS 17520; 2020 WL 7239589 (Fla. 4^th DCA 12/9/20). In Giat, the decedent died without a Last Will or any written instruction regarding the disposition of his remains and his widow arranged for his funeral and cremation with Menorah Gardens. The decedent’s son filed suit to enjoin Menorah Gardens from cremating the decedent’s remains. The son stated in his verified petition that his father was born and raised Jewish and that his father had shared his wish with him to be buried in accordance with Orthodox Jewish law and custom and not to be cremated. The court held that “[b]ecause both parties dispute the decedent’s wishes, each party should be allowed to present evidence to determine the decedent’s wishes. Where a question of fact subject to proof is unanswered, an evidentiary hearing on the issue is required.”

The court reasoned that common law and not Chapter 497, Florida Statutes, controls the dispute between family members over the disposition of the decedent’s remains.

The focus of Chapter 497, Florida Statutes, is the relationship between funeral homes and the persons who seek their services. The definition of “legally authorized person[s]” specifies the persons with whom a funeral home may contract to arrange services. Section 497.005(43) does not purport to designate the right to control the manner of disposition of a corpse where there is a dispute among family members; that section does not provide what acts the listed persons can perform or what rights they have under Chapter 497. No section in Chapter 497 containing the term “legally authorized person[s]” designates the person with the right to control the manner of the disposition of the dead body if the matter is subject to dispute.

To the contrary, section 497.383(2), Florida Statutes (2022), provides that “[a]ny ambiguity or dispute concerning the right of any legally authorized person to provide authorization under this chapter or the validity of any documentation purporting to grant that authorization shall be resolved by a court of competent jurisdiction.” This statute recognizes that, when there is a dispute over the disposition of a decedent’s remains, the issue is a matter of common law.

The preferred and recommended option to avoid disagreements over disputed remains is to plan ahead. With proper Florida Estate Planning, one can name the appropriate person to make these decisions in order to avoid disputes later on. 

In summary, if the deceased party expressed an intention on the disposition of their remains through a Last Will & Testament or other written directions, then the court will defer to the said Last Will or written directions unless an opponent can prove by clear and convincing evidence that the deceased party changed their mind. If the deceased never expressed an intention regarding the disposition of their remains in their Last Will, etc., then the court will defer to the next of kin. The next of kin are the heirs at law under the laws of intestacy. The law is still somewhat unclear as to who has priority when the next of kin disagree. The disposition of one’s remains is a sensitive issue and a decision which is best made by the decedent exclusively through their Last Will & Testament or other written directions.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

As previously reported, Powers of Attorney (POA) are prepared under state law and are not necessarily binding on federal agencies. These agencies have their own forms, rules, and regulations.

Again, it is noted that the Social Security Administration does not honor durable powers of attorney.

When it comes to managing a loved one’s veterans’ benefits, there is yet another process that caregivers must go through regarding the U.S. Department of Veterans Affairs (VA).

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 as well as having a standing authorization on file with Medicare is a better practice.

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

Family caregivers as well as parents should have 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 and or act on another’s behalf.

As for obtaining or renewing a passport for a minor child when the other parent is unavailable certain government forms are needed as follows.

Passports for minors aged 15 or younger require the consent of both parents unless one parent has sole legal custody. If a parent has sole legal custody, then the other parent’s consent would not be necessary.

Minors ages 16 and 17 can apply without the presence of their parents. Parental consent may or may not be requested. Passports for applicants sixteen (16) and older are valid for ten (10) years.

The U.S. Department of State Passport Services requires both parents to appear to get a passport for a minor child aged fifteen (15) or less. Passports for children under age sixteen (16) are only valid for five (5) years.

In cases where only one parent appears, the applying parent must submit either a notarized consent from the non-applying parent or proof of sole legal custody.

If one parent/guardian cannot go with the child to apply for the passport, they can provide permission by completing Form DS-3053 “Statement of Consent.” The completed form must be submitted with the child’s passport application.

Special circumstances when one or both parents cannot be present, include Form DS-3053, whichmay be used for many instances when either or both parents can be with their child for their passport application, but others fall under Form DS-5525, Statement of Exigent/Special Family Circumstances. If one parent is in prison, subject to a restraining order again the other parent or child, or subject to custody order which leaves them unable to sign DS-3053, then Form DS-5525 may be used.

One parent may also have sole custody of their child; a court order to this affect must be provided with DS-3053. Basically, if any legal guardian of the child is unable to appear in person, then there must be legal documents included with the passport application form.

There are custody situations when it is not possible for both parents to appear in person during the submission of the passport application. Depending upon the basis, a parent may be required to provide additional documents that prove they have the authority to apply without the consent of the other parent.

• If a parent has sole legal custody, they can submit certified copies of the following types of documents:

• Full court order that grants a parent sole legal custody or that specifically states they have legal permission to apply for their child’s passport;
• The child’s birth certificate or adoption decree on which there is only parent listed or named;
• Certified copy of an adoption decree listing one person as the only parent;
• A court order that the other parent is incompetent; and
• A death certificate of the other parent.
• If both parents have legal custody but one cannot appear, that parent can give permission for the other parent to apply by completing Form DS-3053, Statement of Consent:

• Sign the form in front of a notary in the U.S. or at a U.S. consulate or embassy, and
• Submit a copy of the front and back of the ID provided to the notary.

• If one parent cannot locate the other parent you must submit form DS-5525, Statement of Exigent/Special Family Circumstances; and
• Make Sure One’s Divorce Decree or Final Judgment of Dissolution of Marriage, etc., is Clear About Custody and Any Travel.

A parent may need a court to intervene if there is no prior court order or written parental contract that addresses international travel. A parent may want a court to establish specific travel protocols, such as authority to obtain a passport for a child, or to impose travel restrictions on a parent who is threatening to remove a child outside of the United States.

Depending on the circumstances, a court order may include:

• an award of sole legal custody of a child;
• protocols to obtain or renew a passport;
• requirement that the non-traveling parent sign a notarized statement and other forms permitting the child to travel;
• prohibition on a parent traveling abroad with the child without prior court approval;
• supervised visitation with the child;
• that a foreign embassy or consulate not issue any new passports to a foreign national parent and the child, if applicable;
• requirement that the passports of a foreign national parent and the child be held by a third party or in the court registry;
• requirement that a foreign national parent notify his/her country’s embassy consulate of the order prohibiting a new or replacement passport for the child.

If a parent refuses to follow the terms of a parenting plan or custody agreement, such as provisions related to traveling with children, the other parent can sue to enforce the contract. Similarly, if a parent fails to comply with an order, then the noncompliant parent can be found in contempt of court and subject to civil and criminal penalties. Under some circumstances a parent may be forced to seek an emergency order if his or her travel is imminent. It is always better if parents can cooperate.

The website Tavel.state.gov explains what is needed when a parent is unavailable or in the military, and there is a specific form the said parent needs to complete to get the passport for their minor child. 

Again, all children under age 16 must apply for a passport in person with two parents or guardians using Form DS-11. A child’s passport cannot be renewed using Form DS-82. Passports for children under age 16 are only valid for 5 years.

One must submit documentation that lists the parent(s) or legal guardian(s) of the child applying for a passport.

The following may be used to show parental relationship:

• U.S. birth certificate (also evidence of U.S. citizenship)
• Consular Report of Birth Abroad or Certification of Birth (also evidence of U.S. citizenship)
• Foreign birth certificate
• Adoption decree
• Divorce/Custody decree

Some documents, like a U.S. birth certificate, show both U.S. citizenship and parental relationship. These documents must be originals or certified copies (not photocopies).

Both parents/guardians must authorize the issuance of the child’s passport. The best way to do this is for both parents/guardians to go with the child in person to apply for the passport.

When both parents/guardians who are civilians cannot appear in person, the procedure is described above.

However, if the non-applying parent is deployed by the military, he or she should be able to provide a notarized Form DS-3053 in most cases. In the rare case that the non-applying parent cannot be contacted, the applying parent must provide either military orders with a Form DS-5525 showing the non-applying parent cannot be contacted due to the fact that they are on a special assignment for more than 30 days outside of their duty station or a signed statement from the non-applying parent’s commanding officer that the military parent cannot be reached. 

A third party may apply for the child’s passport with a Form DS 3053 or a notarized statement from both parents/guardians giving that third party permission to apply for the child. The statement must include a photocopy of the parents/guardians’ identification. 

When the statement is from only one parent/guardian, the third party must present evidence of sole custody of the consenting parent/guardian giving that third party permission to apply for the child.

A written authorization from the parent that cannot appear in person must be less than three (3) months old.

Further, no child under age 16 is eligible to mail in a passport application. Additionally, a parent cannot apply online for the subject child’s passport.

In certain countries, a DS-3053 must be notarized at a U.S. embassy or consulate and cannot be notarized by a local notary public. Currently, these countries include:

Afghanistan	Indonesia	Pakistan
Algeria	Iran	Panama
Angola	Iraq	Philippines
Bangladesh	Jamaica	Saudi Arabia
Bulgaria	Kenya	Senegal
Cambodia	Kuwait	Sierra Leone
Cameroon	Laos	Somalia
Central African Republic	Lebanon	Sudan
Cote d’Ivoire	Liberia	Syria
Dominican Republic	Libya	Tajikistan
Egypt	Mali	Trinidad and Tobago
Equatorial Guinea	Mauritania	Uganda
Ethiopia	Mauritius	Ukraine
Gabon	Moldova	United Arab Emirates
Guatemala	Nepal	Venezuela
Guinea	Nicaragua	Vietnam
Haiti	Nigeria	Yemen
Honduras	North Korea

In addition, parents may enroll their U.S. citizen children under the age of eighteen (18) in the Children’s Passport Issuance Alert Program (CPIAP), one of the Department of State’s most important tools for preventing international parental child abduction.  If a passport application is submitted for a child who is enrolled in CPIAP, the U.S. government tries to alert the parent or parents to verify whether they approve the passport issuance.

Consequently, parents must be prepared with the proper legal documents when applying for or renewing a passport for their minor child in order to avoid problems or delay with the process.

If you should have any additional questions or would like to discuss your situation, concerns, and needs, please call an Attorney at CASERTA & SPIRITI.

Courts in various states follow different legal standards to decide how much a loss of a pet is worth, and whether pet owners are entitled to compensation for their emotional distress.

In the state of Florida, pets are generally considered personal property. Pets belong to a human individual and are the responsibility of that owner. Although one may feel as if their pet deserves the same treatment as a person, that does not mean that they are granted the same legal status as human beings under Florida law.

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When someone is liable for an injury to one’s pet, that owner may become emotionally  devastated and angry. Most owners want to be and believe they should be compensated for their loss. If it is only a matter of a veterinarian’s bill to treat the injury, the amount of that loss should be relatively easy to calculate. HOWEVER, what would be fair compensation if one’s pet died, or the owner or family member had to watch it suffer? While most Americans treat their companion animals like members of the family, the law generally treats them like personal property. The rules or laws vary from state to state when people sue over a pet’s injury or death. Courts in most states limit the compensation to the owner’s economic losses. In cases involving deliberate or malicious wrongdoing, some states allow courts to award compensation for the owner’s emotional suffering or extra money as a form of punishment.

When a dog or cat or other pet has been hurt, the first expense is usually for veterinary/medical care. The person responsible for the injury will probably be liable for those bills. Courts usually allow compensation only for “reasonable” treatment. The question of what is reasonable depends on several factors, including the extent of the injuries and the animal’s age and general condition.

If the veterinary bills were particularly high for an older pet, some judges may find that the owner is entitled to no more than the amount of the animal’s fair market value. On the contrary, many courts have rejected that approach. For example, a Kansas court found that owners of a 13 year old dog were entitled to reimbursement for reasonable veterinary treatment needed to get their pet back to health. Another Illinois court explained that the owners of a 7 year old dachshund had shown how much their pet was of value to them by paying nearly $5,000 in medical bills after a neighbor’s Siberian husky mauled it. Accordingly, they were entitled to compensation for the full amount of the bills rather than only the dachshund’s $200 market value.

Whenever a pet has been injured, keep records of all bills for treatment, medication, and hospitalization to use during negotiations or at trial. An owner probably will not be paid back for the time they took off from work to care for the dog or take it to the veterinarian, but it cannot hurt to keep a record of that time if it has been extensive.

There are three different ways that courts generally measure an animal’s economic value: fair market value, replacement value, or the special value to the owner.

• Like any other property, the fair market value of a pet is the amount that it would bring if it were sold on the open market. A few of the factors that go into calculating the market value of an animal include its purchase price, age, health, breed, and pedigree.
• Some courts award pet owners what it would cost to replace the animals. The replacement value is probably higher than the market value because it can include things like training and accomplishments (such as winning awards at shows).
• Periodically, an animal’s market or replacement value cannot be determined or does not reflect its true economic value based on its special services or usefulness to the owner. For example, in a case involving a prize-winning pedigreed dog, the court found that the animal’s value to its owner was $5,000, largely because the owner had spent a great deal of time and effort to give the dog specialized and rigorous training. The owner simply would not be able to find another dog like it on the open market. The court also considered the owner’s lost earnings from stud fees.

Because dogs or other animals kept for breeding are essentially business assets, their monetary value may include the lost potential revenue. However, judges may still stick to the replacement-value standard, reasoning that the owner can get another animal that will generate the same income.

Special value to the owner can be particularly relevant in cases involving assistance animals, which require extensive specialized training and become more useful to their owners the longer they work with them. Laws in a number of states specifically entitle the owner to collect extra penalties from the person responsible for killing or hurting a service animal, as well as reimbursement for the replacement cost and other expenses needed while doing without the animal’s assistance.

For most pet owners, whose pets do not win prizes or collect stud fees, the real value of their companion animals cannot be measured by what someone else would pay or what it would cost to buy a replacement. Lawmakers in several states have begun to recognize this fact. In Tennessee, pet owners may recover non-economic damages (up to $5,000 in 2017) as compensation for the loss of “companionship, love and affection” in certain cases when their pets have been killed intentionally (and illegally) or through negligence. Further, a few courts have found that sentimental value could be one element in an animal’s actual value to the owner if it does not have a meaningful market value. However, when judges recognize the sentimental value of pets, it is usually in the context of compensating the owner for out-of-pocket treatment costs that exceeded the pet’s market value.

To date, courts in most states, including Florida, follow the traditional view that owners are not entitled to recover non-economic losses for sentimental value or lost companionship when their pets are killed through negligence.

Some owners try to circumvent the limitations on compensation for the value of a pet by suing those responsible parties for their pet’s loss for the mental suffering the owners experienced. Whether they can be successful depends in part in which state they reside and the nature of the actions that led to pet’s injury or death.

Courts in most states do not allow claims for emotional distress when those responsible were simply negligent .  A damaged pet owner may have more success when the responsible party acted maliciously or meant to make the owner suffer, i.e., what is known as “intentional infliction of emotional distress”. In a particularly egregious case, a Washington appellate court found that a cat’s owner was entitled to $5,000 for the sleeplessness, depression, and other emotional distress that was experienced after three boys maliciously set the cat on fire.

Generally, pet owners can sue for two types of mental distress: first, the shock and distress caused by seeing an accident or mistreatment, and second, the grief and long-term effect the loss has on their lives. The more outrageous the conduct of the person being sued, the more likely the court is to award compensation for emotional distress, and the larger the award is likely to be. Proving mental suffering is not easy. Pet owners, however, can testify about how they felt when their pets were killed and how the loss disrupted their lives. If they sought medical treatment or psychological counseling, then it may strengthen the claims.

When a court orders someone who injured or killed a pet to pay the owner, that money is intended to compensate for the economic and, at times, emotional loss. In some states, courts may also award “punitive damages” intended to punish the wrongdoers for outrageous or deliberate actions. For example, California law specifically allows these types of awards, which are known in that state as “exemplary” damages”, for injuries to animals “committed willfully or by gross negligence” pursuant that state’s statute.

Punitive damages may be especially appropriate in animal cases, where compensation is likely to be low. A Minnesota court explained in a particular case that if compensatory damages do not make it worthwhile to sue, the wrongdoing will go unpunished unless there are punitive damages assessed. 

If asked, most owners would likely say their pet’s value is “priceless.”  In fact, a study by Kelton Research found that 81% of those surveyed consider their dogs, and other types of pets, to be true family members, on a par with their children. The death of a pet can be devastating to the human companion/owner, especially if the death is the result of a negligent or intentional act. In the legal world, however, a pet’s worth has been, for the most part, limited. 

Historically, the recovery for the death of a companion animal has been limited to a loss of property claim with damages calculated by the fair market value of the animal. For those of us with mixed breeds or older pets, which would mean they are literally worth nothing. 

This area of law is changing, however. A few courts have allowed juries to base a pet’s economic worth on other factors, such as special training, original purchase price, and cost to replace. These damages are known as “actual” or “intrinsic” damages.

In one case., the plaintiffs/owners sued their veterinarian and animal hospital, alleging the defendants (responsible parties) negligently administered anesthesia during a diagnostic treatment which resulted in the death of their pet German Shepard. The plaintiffs complained that because of the defendants’ negligence, they were deprived of the companionship, loyalty, security, and friendship of their dog. The trial court dismissed the case, ruling the law did not allow a pet owner to recover for loss of companionship. On appeal, the court agreed with that ruling, stating that pets are an item of personal property. However, the court also recognized that some items of personal property have no market value, such as pets, heirlooms, photographs, and trophies. The court held that where an object which has no value is destroyed, the measure of damages to be applied is the value to the owner. 

Other state courts have recognized the sentimental value of pets to their owners. In LaPorte v. Associated Independents, Inc., 163 So. 2d 267 (Fla. 1964), the Florida Supreme Court upheld a $1000 punitive damage award to the owner of Heidi, a miniature dachshund who was killed when a garbage collector, maliciously, and with extreme and utter indifference threw a garbage can at her. The court held that the affection of an owner for their dog is a very real thing, and that the malicious destruction of a pet should allow for recovery of damages beyond the value of the animal.

However, a Florida appeals court has refused to expand the law to allow emotional distress damages in a veterinary malpractice case where there was “no impact.” The impact rule requires some form of physical impact prior to recovery of emotional distress damages. In Kennedy v. Byas, 867 So. 2d 1195 (Fla. 1st DCA 2004), the owner of a basset hound sought emotional damages for veterinary malpractice in the treatment of his dog. The appeals court refused to allow the damages, stating that it would not abandon the impact rule and allow emotional damages in veterinary malpractice cases. It cited some earlier contrary decisions but ruled otherwise, i.e., Johnson v. Wander, 592 So. 2d 1225 (Fla. 3d DCA 1992), which was a veterinary malpractice case where, as in the foregoing case, the trial court entered a partial summary judgment on the claims for damages for emotional distress and subsequently granted a motion to change the case from circuit court to county court due to the lower jurisdictional amount sought in the claims remaining. In that case, the Third District held that a jury question was presented on the issues of gross negligence and mental pain and suffering as claimed by the dog’s owner and the trial court improperly transferred the case to county court as being a claim for less than the circuit court jurisdictional amount. In Knowles Animal Hosp., Inc. v. Wills, 360 So. 2d 37 (Fla. 3d DCA 1978), the Third District specifically held that a dog owner was entitled to collect for emotional damages in a veterinary malpractice case. 

Many state courts have been reluctant to allow non-economic damages.

The courts have instead deferred to their respective legislatures to step in and enact laws on damages in pet cases. Tennessee as the first such state to enact legislation. Known as the T-Bo Act, the Tennessee legislation allows for non-economic damages for the negligent, intentional, or unlawful act of another or animal of another. It limits recovery to cases involving cats or dogs and the cap on damages is $5000. 

An Illinois’s statute limits claims for cases in which the defendant subjected the animal to aggravated cruelty or torture or engaged in bad faith which led to the animal’s death or injury. The law applies to any animal to which the plaintiff has a right to ownership, not just cats and dogs. Therefore, a horse owner would have an avenue of recovery. However, damages are limited to $25,000 for each act of cruelty. Attorney’s fees and costs can be recovered under the statute.

Connecticut then followed suit with its own statute, but it is much more limited as to recovery. It only allows recovery in situations where the act was intentional and is limited to cats and dogs. The statute does not allow for emotional damages for owners, but instead names types of economic damages that may be recovered and allows for punitive damages. Attorney’s fees are allowed for a prevailing human companion. 

Other states have followed with their own legislation. California and Montana have enacted statutes which allow for exemplary damages in cases of willful or gross negligence. Maryland allows for compensatory damages in cases where the defendant tortuously causes death or injury to a pet. The damages are limited to $7,500.

A court decision exists in Florida, in a divorce context, where a court addressed the issue of pets in divorce. In the case of Bennett v. Bennett, 655 So. 2d 109 (Fla. 1st DCA 1995), the First District Court of Appeal defined the family pet as personal property and rejected a trial court’s order that provided post-divorce visitation for the parties’ dog, including a weekend visitation schedule and every other Christmas holiday. Consequently, the court recognized that post-divorce custody and visitation issues would lead to continuing enforcement issues. Although the court recognized that some other states have provided pets with special status in divorce proceedings, the Florida court declined to extend such protections to Florida pets. In refusing to provide any special considerations or status to pets in divorce, the court also recognized the substantial burdens placed on the Florida court system associated with post-divorce enforcement of child support and visitation matters in regular human custody cases. Accordingly, the subject pet’s fate was dictated by an application of equitable distribution principles that defined its existence as personal property, affording no special consideration of the pet’s interests. While the trial court was trying to reach a fair solution under difficult circumstances, the appellate court made clear that pets are animals not subject to a best interest analysis and that their fate must be resolved by following the dictates of Florida’s equitable distribution formula. The personal property calculation taken in conjunction with the court’s rejection of a pet’s “special status” in a divorce would appear to limit the trial court’s authority to take noneconomic valuation testimony about potential harm or abuse to the said pet. The lack of other reported court decisions in Florida makes it difficult to discern the court’s intent in Bennett beyond the prohibition of pet visitation awards.

Bills have been introduced in many other states over the years but have had little success. Legislators appear to be reluctant to change the status of pets as property and potentially open the flood gates for more litigation in both the national and state court systems.

If you or your pet have been injured because of the negligence or malice of others or have any questions regarding the foregoing or want to discuss any other legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

The basis for any good Estate Plan is a strong Last Will & Testament.Estate Planning is the process of creating a legally binding plan for what will happen to a person’s assets (i.e., personal & real property) usually known as one’s estate after a person passes away. While Estate Planning can take many forms, a Last Will & Testament or Last Will allows one to dictate how and to whom their estate and/or assets will be distributed after paying appropriate expenses in an organized and streamlined fashion.

In a marriage, many things are done together, i.e., bank accounts get combined or are joint, vacations and other activities are done together, etc. It is technically possible to do one’s Estate Planning together as well. In Florida, a married couple can create a “Mutual Will or Agreement” mirroring the exact same wishes to their own individual Last Wills. HOWEVER, this is not the best idea or way to do things.

Specifically, Florida does not recognize Joint Wills. As a result, a married couple must create two separate Last Wills. This situation limits a married couple’s ability to ensure that their spouse would not change or revoke their Last Will upon their death. Many married individuals fear that their spouse will alter their Last Will and Testament following the death of their spouse. In most Last Wills, married couples agree to transfer all their assets and property to the surviving spouse when they pass away. However, when one spouse dies, the other spouse can freely change the beneficiaries in their own Last Will or otherwise deviate from the agreed upon plan. Joint Wills are used to prevent the surviving spouse from altering their Last Will upon the death of the first spouse. Consequently, since Joint Wills are not valid in Florida, married couples can create a Mutual Will Agreement.

A Mutual Will Agreement (MWA) is different from a Joint Will. Unlike Joint Wills, an MWA is a valid and enforceable contract in Florida under Fla. Stat. § 732.701. Essentially, an MWA is a contract between two spouses that outlines the contents of their Last Wills. This agreement can also be used to prevent spouses from changing their own Last Wills upon the death of the spouse who dies first.

To be valid, a Mutual Will Agreement must be signed by both spouses in the presence of two witnesses. Married couples can benefit from entering into this agreement to eliminate the risk that the surviving spouse might change their Will upon the other spouse’s death.

In the absence of a Mutual Will Agreement preventing them from changing or revoking the Last Will, the Testator, who is the person who created the Last Will and Testament, has a right to amend or revoke their Last Will any time before their death.

As previously mentioned, an Estate Plan is something very personal to an individual. It is made to explain a person’s wishes for the future, so it should reflect the specific intent of that individual. While many things are shared in a marriage, a Last Will, especially as it relates to a person’s assets, their extended family, and personal belongings, should be tailored exclusively to said individual.

There are also logistical concerns to consider. If one spouse passes away before the other, which tends to be the case, the Last Will could becomelocked. The living spouse might be unable to make any changes to it for the rest of their lifetime. What is more, the distribution of assets would beginwhile one spouse was still alive, which can be awkward or emotionally difficult. This is one of the main reasons why every adult should have their own individual Last Will & Testament.

If a person has any children from an earlier relationship, that would be even a greater reason to create their own Last Will. Blended families should be protected with individualized and customized Estate Plans since they may not be recognized in probate court without one.

The parties may even go as far as to include a “non-mutual” clause in their own individual Last Will & Testament. If used, then the “non-mutual” clause should expressly state that the surviving spouse can change or revoke their own Last Will despite any interest received. This additional expression of intent will show that one’s specific wishes are their own and should not be copied onto or from their spouse’s. Married individuals can include the foregoing language in their respective Last Wills.

If you have additional questions or would like to discuss your legal issues, including Estate Planning, please contact an attorney with CASERTA & SPIRITI at your earliest convenience. As the old saying goes-there is no better time to start than the present! 

When an estate is subject to probate, the entire process can get more difficult than expected. Heirs and beneficiaries can have disputes, and the process can become public, so people can minimize what assets are actually probated, if any.

Trusts can avoid probate but can also be problematic since they must be administered.

Certain steps can be taken to avoid probate through designation of beneficiaries or some type of joint ownership, which transfers ownership from a deceased party to the living through other means.

Bank accounts usually have two ways to avoid probate: joint ownership (by the entireties-Husband & Wife or with right of survivorship) or designated beneficiaries (or In Trust For, Transfer on Death, Payable on death, etc.). If a person owns a bank account jointly with another person when they pass away, the other person will assume ownership of the account. The same applies if a person owns account but has a beneficiary designation through their financial institution. The foregoing can often be referred to as “payable or transfer on death.” However, if an individual customer designates a beneficiary who is no longer able to assume ownership of the account due to either death or incapacity then the said account may be subject to probate or a legal guardianship.

The same rules of bank accounts apply to insurance policy benefits. Any applicable benefits of medical or life insurance policies will transfer without being subject to probate so long as beneficiaries have been properly designated.

Like bank accounts and insurance policies, an individual’s financial investment accounts can have a beneficiary designation as well.

Further, an important aspect of estate planning those individuals or clients need to understand is that accounts which have a beneficiary designation will generally supersede any language written in a Last Will & Testament. If a person has a beneficiary designation for an IRA through the account/institution itself, any bequest or distribution in one’s Will for the same account will be considered invalid.

The right to survivorship prevents a home (homestead or primary residence) and other properties from being subject to probate if there is a surviving spouse at the time the estate is executed. The previously mentioned means one’s home will remain in one’s spouse’s name without having to go through probate.

If property or assets do not specify the proper ownership language, then it is possible that the deceased party’s portion of the property may be subject to probate. In that case, a co-owner or spouse keeps their part or interest of the property, but the deceased’s portion may need to be probated and end up in the hands of another party.

If one’s spouse predeceases them and the survivor never remarries, then the entire property may be subject to probate unless it is transferred or distributed through a trust or other vehicle or designation.

As for real property, if a married couple wants to transfer the said real estate without need of probate to, for example, their children, the Remaindermen, a Lady bird deed may be the appropriate vehicle to convey the property after the death of the last spouse. A lady bird deed in Florida is a legal form that transfers property upon death inexpensively and without probate. A lady bird deed allows the current property owner to use and control the property during the owner’s lifetime, while the property automatically transfers upon death to designated beneficiaries/Remaindermen. The document or instrument is somewhat like a designation of beneficiary on real property.

It would merit speaking with an experienced estate planning attorney to review applicable documents to ensure a person takes advantage of these alternate methods of avoiding probate.

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 Florida legislature revamped its Florida’s Power of Attorney law, which became effective on October 1, 2011, and imposed many new requirements. A Power of Attorney is a document in which a person (the “Principal”) designates another individual to act on that Principal’s behalf (the “Agent”). Florida law provides the option to create a “Durable” Power of Attorney, which is still effective even if the said Principal becomes incapacitated, thereby reducing the potential need for a court-appointed legal Guardian.

Florida statute 709.2120(5) states that a bank, or business, cannot unreasonably reject a Power of Attorney. An Agent looking to enforce a Power of Attorney against a bank, which has unreasonably rejected the Power of Attorney, can be awarded costs and attorney’s fees for legal action taken to confirm the document’s validity. A bank which rejects a Power of Attorney does so at its own peril.

A bank must accept or reject a Power of Attorney within four (4) days (excluding weekends and legal holidays). Additionally, the bank may not require that their own Power of Attorney form be used if the one presented to them is valid and has proper authority or provisions for the Agent to conduct banking transactions.

A bank may reject a Power of Attorney if it is not correctly executed. A Power of Attorney is properly executed if signed by the Principal in the presence of two (2) Witnesses before a Notary Public under Florida Statute Section 709.21405. Furthermore, Section 709.2106(5), shows that copies are just as effective as the original Power of Attorney document. Therefore, a bank should NOT require an original document.

Generally, a regular Power of Attorney becomes invalid once the Principal becomes incapacitated. Florida Statute section 709.2104 allows a Power of Attorney to be durable (remain effective if the Principal becomes incapacitated) if it says: “This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes”.

If a bank rejects a Power of Attorney because it was not properly executed or it is not durable and the principal lacks capacity, then the said bank or institution has a valid reason to do so.

However, the following actions can be initiated if the subject document is properly executed and has the required durable language, but the bank still refuses to honor it.

Florida Statute 709.2119 and 709.2120 allows actions a bank may take to ensure a Power of Attorney is valid and reliable. It also outlines the consequences for failure to accept and honor a valid Power of Attorney.

Since banks have a responsibility to protect people’s (its customer’s) finances, they may question a Power of Attorney.

Banks, which are presented with a Power f Attorney for the first time, may exercise great caution in reviewing said document for authenticity, and to ensure said instrument was not later revoked by the Principal or one who signed it. While the banks are protected from liability in the state of Florida if the Power of Attorney appears in all respects to be valid, the bank may be compelled to replace stolen funds when it accepted an obviously revoked or fraudulent instrument. With this protection from liability, Florida law requires banks to honor a Power of Attorney presented to it.

Should a Florida bank nevertheless refuse to honor a Power of Attorney, the bank, again, has only four (4) days to provide a written reason for the rejection. Florida banks may legally reject Powers of Attorney on several bases, including, a belief that an elderly person is being subjected to physical or financial abuse by the Agent presenting the Power of Attorney, the bank has requested a lawyer’s opinion or Affidavit from the Agent, but not received one, the bank is aware that the said Agent has had their authority revoked, or the bank believes in good faith that the Power of Attorney is not valid or does not grant, by it’s terms or provisions, the authority that the said Agent is attempting to exercise.

If a bank denies a Power of Attorney, they must state the reason or reasons in writing and provide that to the Agent. The bank also has the right to request an opinion of counsel from the Agent upon providing a written explanation of the reason for the request. The bank may also require the Agent to provide an Affidavit explaining that the Principal has not died, revoked, or suspended the subject Power of Attorney.

If the readers have any questions or concerns regarding the foregoing topic, please contact the Elder Law Dept. of CASERTA & SPIRITI. Our attorneys are experienced in dealing with Florida banks regarding Powers of Attorney. We can send an inquiry to the bank’s legal department to ensure a proper legal basis is provided in writing for rejection or advocate on the Agent’s behalf to ensure the bank accepts the subject Power of Attorney.

With the passage of time, increasingly more aspects of daily life move online. The emergence of the recent pandemic has only accelerated that trend. One can work from home, go on virtual tours to various destinations, or even take classes from the comfort of one’s home or dorm room. To extrapolate, it is unsurprising that there is an emerging trend for virtual estate planning in Florida as well as most other states across the nation.

Estate planning that operates from a website or using web based tools primarily, also known as  online estate planning or Do It Yourself estate planning,  offers an alternative or complement to traditional estate planning with a lawyer.  There are now various online legal tech companies, which offer products that allow an individual to prepare a Last Will & Testament as well as other legal documents on their own, without necessarily hiring an attorney.

As an estate planning tool, the way online planning works is that, for a specified fee, a person receives digital access to templates for common estate planning documents, such as Last Wills, Living Trusts, and Healthcare Directives, among others. The templates are claimed to be state specific, designed to comply with or follow the laws of each state. Consequently, a virtual planning platform might offer one document template for Florida, another for New York, California, Pennsylvania, etc. However, not every service makes all their forms available for use in every state.

As part of the process, the planning software asks for one’s basic identifying information and estate planning goals, along with information more specific to the form one is creating. When preparing a Last Will, a person will describe their estate planning assets in Florida and elsewhere as well as their designated beneficiaries and identify persons to serve as the Florida Personal Representative (or Executor) and alternate, if any.  Once the customer information has been inputted, the software populates editable fields within the template. If everything works as intended, an individual will supposedly end up with a legally valid document that becomes effective after it has been printed out, signed, and properly witnessed, and notarized in accordance with Florida law (or the laws of whichever state is applicable).

Importantly, virtual estate planning is usually limited to document preparation. The software cannot provide legal advice or represent a person in a probate proceeding in Florida or elsewhere.  Therefore, for the concept to work correctly, a person needs to already have a fairly good grasp of what they are trying to accomplish and the basic approach they want to take.

Web based preparation of legal documents is by no means restricted to estate planning. Online legal tech companies also offer numerous business related forms such as articles of incorporation, partnership agreements, and operating agreements for LLCs in Florida and elsewhere.  HOWEVER, the personal nature of estate planning, and the widespread popular need for estate planning documents have led to rapid growth in the number of people planning their estates online. In turn, the proliferation has fueled concern among some legal professionals.

 

The primary selling points of online estate planning are that the process is convenient and cheaper than hiring a locally licensed lawyer. Online legal tech companies boast that they can help the public prepare a Last Will for less than a private attorney. An individual may have a challenging time finding a lawyer who can draw up a Will for them that cheaply. HOWEVER, a Legal Services/Legal Insurance Plan can provide a member the personal or individualized touch of a local lawyer with the competitive rates as the online services. In fact, some Legal Insurance or Legal Services Plans even pay for a basic estate plan involving no tax planning as well as business documents and other specified legal services. Therefore, one has the best of both worlds.

Specifically, there are basically four (4) major types of legal plans offered: document provider, as discussed above, where people create their own paperwork; discount legal plans where people receive discounted hourly rates for legal services through screened attorneys;  Employee Assistance Programs (EAP) where members have an initial free consultation and additional legal services can be provided at a discounted rate, and Legal Insurance Plans where members pay a set premium and receive services from a Plan attorney, and many, if not most, services are paid by the Plan (whether it is with an in house attorney or participating outside third party attorney).   Many of these Plans can be a benefit one gets from their employer, or they can purchase a plan individually whether as an independent member or as a retiree.

Considering that many consumers or potential clients simply cannot afford to hire a lawyer, the importance of price should not be ignored. When the choice is between using templates provided by a credible online platform or having no help at all, virtual planning is a choice for many people. A better option, however, may be to join a Legal Services/Legal Insurance Plan that directs a member to participating attorneys and the member gets legal services for a discounted rate or the Plan may pay for the services in their entirety. These Plan Attorneys can also provide services remotely with the use of telephone, email, and other internet services.

Efficiency and convenience are also noteworthy advantages of online estate planning or the use of Legal Services/Legal Insurance Plan attorneys. By using a service that one can access from home or work on their own time, one can avoid the need to take time off from work or otherwise disrupt their schedule to meet with a lawyer. Therefore, after the necessary information is supplied, the appropriate documents are created, so the overall process takes less time and may be more convenient.

As stated, the convenience of pre-built online templates comes with a loss of personalization. Most online templates cannot be customized beyond the user-populated fields. If the form is perfectly suited to one’s circumstances, that may not be a problem. However, every person’s situation is different. If a person has an unconventional family structure, large or complex estate, or any other situation not contemplated by the template, the said individual might not be able, on their own, to tailor the documents to do what they really require or need.

When a person collaborates directly with a capable attorney, they can discuss their individual circumstances, needs, concerns, and goals. Experienced attorneys can draft provisions customized to one’s particular situation and are also more familiar with the idiosyncrasies of state law that can cause potential estate planning headaches. Web based software is much less likely to identify and address these state specific statutes that might affect only a minority of their users. Therefore, the use of a Legal Services/Legal Insurance Plan Attorney comes in to promote convenience without sacrificing the personal attention, skill, and experience of a local attorney.

 If you should have any additional questions or would like to discuss your situation, concerns, and needs, please contact an attorney at Caserta & Spiriti. The firm participates with about fifteen (15) different Legal Services/Legal Insurance Plans.

Whether you are involved in an auto accident with a Phantom vehicle, Uninsured vehicle, unknown Hit & Run, a vehicle and driver with No Bodily Injury Liability (BI) coverage or a vehicle or driver with Not enough BI coverage, you need Uninsured Motorist (UM) coverage.

If you are forced off the road or cut off by a turning vehicle that keeps going and no impact occurs, an unknown phantom vehicle has caused your accident. A phantom vehicle is one that never hits you but causes you to take evasive action leading to a crash with property damage and/or injuries to you or to any passengers in your vehicle. When the phantom vehicle is never identified, who pays for your injuries and damages to your car?

Accidents involving phantom or unknown hit & run vehicles require prompt and careful investigation. Many times, eyewitness testimony is critical to verify the details of what you may or may not have seen yourself. These cases may even require an accident reconstruction expert to verify that what you and the witnesses say happened, reasonably occurred in that manner.

Your own automobile policy is your only opportunity for paying the medical bills incurred in said accident as well as any pain and suffering sustained in an accident caused by a phantom or unknow hit & run vehicle. One’s own No Fault or Personal Injury Protection (PIP) coverage will pay your medical bills under Florida No-Fault Automobile law. Collision coverage in your auto policy will pay for the damages to your vehicle. If you are injured, your bodily injury claim (pain, suffering, disability, lost ability to work) would need to be recovered under an Uninsured Motorist Coverage

(UM) on your automobile policy.
 
Most auto insurance policies will have a specific definition for what is a phantom vehicle under the terms of the policy. You will have to prove you were injured by a phantom vehicle that falls within the description in your policy.

The same can be said regarding accidents involving an at fault vehicle, which is uninsured as well as and an unknown Hit & Run vehicle.

A slightly different scenario exists if the responsible third party or other vehicle has the minimum coverage required by Florida law, which is PD Liability and PIP coverages. Those coverages will take care of that driver’s own medical bills (i.e., PIP) and it will take care of your Property Damages claim (i.e., damage to your vehicle that said driver caused-PD Liability).

Finally, there is the situation where you sustain significant injuries and the at fault other vehicle merely has a minimum $10,000.00 BI coverage, which is insufficient to cover your claim. If you have UM coverage, and the other party offers it policy limits, following required procedures under Florida law & under your own automobile policy, your UM becomes UIM or Underinsured Motorist coverage and can be stacked on top of the at fault party’s BI policy limits. An example would be if you have $10,000 in UM/UIM coverage, and the at fault other party has $10,000 BI coverage, you could potentially recover $20,000.00.

One cannot adequately emphasize the importance of having UM on your automobile policy. When shopping for insurance directly or through an Agent, you must clarify and itemize the coverages since the term “Full Coverage” has a different meaning among the consuming public and the insurance industry. Usually, the insurance industry says “full” to mean what is required by state law and in Florida that means only PIP & PD Liability coverages, & that’s it! You must itemize the coverages you want and inquire as to their cost. UM coverage can protect you from the multitude of drivers and vehicles on Florida’s roadways that have minimal or no insurance or are unknown phantom or hit & run vehicles.

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!!

An Estate Plan should reflect your circumstances in life. Consequently, it may need to be revised from time to time. Estate Planning is the process of predicting and organizing, during a person’s life, for the management and disposal of that person’s estate during their lifetime, in the event of incapacity and after death. As for the latter aspect, it is also the process of creating or establishing a legally binding plan for what will happen to your estate, i.e., the payment of taxes and expenses as well as distributing assets such as real property, money, personal belongings, etc., after your death. An Estate Plan is customized to everyone’s particular or individual needs, circumstances, or situations. Planning can be done using wills, trusts, insurance policies and other instruments. It will change alongside changed circumstances or after significant life events.

You may need to change or update your current or prior Estate Plan after one or more of the following significant life events.

After getting married or remarried and you have someone new in your life, you will want to include or at least consider them in your Estate Plan. If you have a new spouse or a long-term partner who you want to be included in your Estate Plan, you will need to add them yourself. Make sure to do this modification sooner rather than later.

After divorcing, it may seem obvious that you would no longer want all or any of your assets to be distributed to your ex-spouse. Certain matters may be reworked by law or statute, but if you want your ex-spouse properly removed from your Estate Plan, you should actually do it and revise your plan accordingly to avoid unintentional outcomes or surviving family members having to deal with uncomfortable consequences later.

After having a child through birth, adoption, or marriage, adding a new child to your family is always a significant event. After you have added a new child, make sure to add them to your Estate Plan as well. This is especially important for blended families when adding stepchildren, if applicable.

After relocating to another state or country, one must consider that Estate Planning rules may vary from state to state and certainly in foreign countries. If you have recently moved to or from Florida, you want to work with an Estate Planning attorney experienced in that state or country to update your prior Estate Planning to be valid in your new state or country. 

After a substantial financial change, whether you win the lottery or file bankruptcy or any other significant change, it is important to change your Estate Plan after the size of your estate has been substantially altered. If you have recently had a positive financial change, then more Estate Planning opportunities may be available to you. If your finances have taken a dive, make sure to change your Estate Plan to protect your future.

If you need assistance in Florida when redoing, revising, orupdating your Estate Plan, please contact one of the attorneys of CASERTA & SPIRITI at your earliest convenience. We have many years of experience with Florida Estate Planning and can assist you in making the appropriate changes which are best suited for your current circumstances.

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

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

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

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

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

            2. Manage money, assets, and property carefully;

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

            4. Keep good records.

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

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

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