POWERS OF ATTORNEY & THE GOVERNMENT-Part 2 CHILD PASSPORTS

Posted by CSG Firm on November 7, 2022

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.

FLORIDA PROBATE-AN OVERVIEW

Posted by CSG Firm on October 31, 2022

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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CLAIMING RETIREMENT BENEFITS AFTER DEATH

Posted by CSG Firm on October 10, 2022

There are valid reasons to make an adequate and accessible record of one’s retirement accounts. After death, an individual’s survivors will want to file claims for any outstanding benefits, and if said individual ever becomes incapacitated prior to death, the person in charge of their finances will have to manage those accounts for the subject individual.

To make these tasks easier for one’s loved ones or family members, a person should keep a list of basic information about their retirement accounts, pension plans, and Social Security benefits, etc. There are some essential guidelines on what may happen to retirement benefits after death.

Each of one’s retirement accounts and pension plans should specifically name a beneficiary, rather than using a Last Will & Testament to name beneficiaries for the retirement plans. Money remaining in the accounts at death, as well as any pension payments due to the deceased owner, will pass directly to the beneficiaries named or designated, without the complications, inconvenience, and expense of a Probate Administration in the court system.

For some plans, including 401(k)s and most pension plans, the law requires a person to name their spouse as beneficiary unless he or she signs a form giving up that right. For IRAs and employer profit-sharing retirement plans, one may name any beneficiary they choose. If they live in a community property state, such as California, however, one must be aware that a spouse has a legal right to half of the money that the other spouse earned during marriage. If a person is married and does not want to leave all retirement benefits to their spouse, one should seek the advice of an attorney to ensure they know the applicable laws, rules, or regulations.

If one has created a living Trust to avoid Probate, it is generally not wise to name the Trust as the beneficiary of the retirement accounts. Retirement funds are already exempt from Probate, and by naming a Trust as beneficiary, inheritors (individual heirs or beneficiaries) are likely to lose some of the benefits and flexibility they would otherwise have.

After death, a person’s family may be entitled to Social Security survivor benefits. Eligible family members will receive monthly payments, i.e., as much as the full retirement amount that would have been paid to the deceased party.

A spouse of a deceased party qualifies for benefits if he or she is:

at least 60 years old, or
at least 50 years old and disabled, or
any age, if he or she is caring for your child, and the child is under age 16 or is disabled and receiving Social Security benefits.

A deceased party’s unmarried children are entitled to survivor benefits if they are:

under the age of 18, or
between 18 and 19, but attending elementary or secondary school full time, or
age 18 or older and severely disabled, with a disability that started before age 22.

Other eligible survivors may include a deceased party’s dependent parents, divorced spouse, stepchildren, and grandchildren.

In addition to ongoing survivor benefits, a surviving spouse or minor children may also be eligible for a one-time payment of $255 upon an individual’s death. For additional information, review the Social Security website at www.ssa.gov .

It should not take long to make a record of one’s retirement plans and accounts. Taking a little time to do it now may save a person’s loved ones and/or family members a great deal of trouble later.

At minimum, one should make a list of every plan that they have, whether or not it pays benefits now, or expect benefits in the future. Remember to include:

employer-sponsored plans or pensions,
IRAs (traditional, Roth, SIMPLE, or SEP-IRAs), and
Keogh, profit-sharing plans, or self-employed 401(k)s for small business owners.

For each account, list the following information:

the name of the managing organization or financial institution,
the account or identification number,
contact information for the account manager or adviser (if any),
whether or not one is currently receiving benefits, and if so, how much, and
the location of the plan statements.

An individual should also list and describe their Social Security benefits, including those based on their earnings (or disability) that go to one’s family members as well as those they expect in the future.

It is crucial to review one’s list of accounts and benefits periodically. Update records if a person acquires or terminates a plan or changes the location where one files their plan statements.

Distinct items of a person’s retirement information may be sensitive, so an individual should want to file their list in a secure location, such a locked cabinet or fireproof safe at home or bank safe deposit box. However, it is critical to advise those persons closest to them where the information is located and how to access it. Most importantly, if one has named a Personal Representative or Executor in a Last Will & Testament or an Agent under a Durable Power of Attorney for financial matters and/or under a Healthcare/medical power of Attorney, be certain those designated individuals can locate, ascertain, or access this vital information when needed.

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.

Don’t Wait to Contact an Attorney After a Car Accident

Posted by CSG Firm on October 3, 2022

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Why It’s Best to Have an Attorney Prepare an Estate Plan

Posted by CSG Firm on September 25, 2022

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

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

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

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

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

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

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

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

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

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

A Durable Power of Attorney is an Important Part of Incapacity Estate Planning, But NOT the Only Document

Posted by CSG Firm on September 19, 2022

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

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

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

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

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

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

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

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

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

Protecting An Inheritance Of A Child From Their Spouse

Posted by CSG Firm on September 12, 2022

Protecting An Inheritance Of A Child From Their Spouse

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

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

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

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

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

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

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

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

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

LABOR DAY-A Little Law & A Little History

Posted by CSG Firm on September 5, 2022

Many people in the United States observe Labor Day as a time off from work, an opportunity to enjoy a backyard barbecue with friends and family and a final festive occasion of Summer prior to a busy Fall, i.e., getting back to school and work as well as holiday season.

The public should remember the work of those in the labor movement who fought for workers’ rights and also celebrate the essential role workers play in America’s growth and development.

Historically, the Labor Day holiday began with a heated campaign by workers in the late 19th Century to win support and recognition for their contributions.

Labor Day traditionally is celebrated on the first Monday in September.

There are two versions as to the origins of the holiday. One version is set in September 1882 where the Knights of Labor, the largest and one of the most important American labor organizations at the time, held a public parade in New York City on September 5^th, featuring various labor organizations with the aid of the fledgling Central Labor Union (CLU) of New York. Subsequently, CLU, Matthew Maguire, proposed that a national Labor Day holiday be held on the first Monday of each September to mark the previously mentioned successful public demonstration.

In another version, Labor Day set in September was proposed by Peter J. McGuire, a vice president of the American Federation of Labor. In spring 1882, McGuire reportedly proposed a “general holiday for the laboring classes” to the CLU, which would begin with a street parade of organized labor and end with a picnic fundraiser for local unions. McGuire suggested the first Monday in September as an ideal date for Labor Day since the weather is good because of the time of year, and it would fall between the July 4^th celebration/holiday and Thanksgiving Day. The state of Oregon became the first U.S. state to make it an official public holiday. Twenty-nine (29) other states had joined by the time the federal government declared it a federal holiday in 1894.

Ultimately in July 1894, President Grover Cleveland signed into law legislation creating a national Labor Day holiday in early September. This signing was done while federal troops in Chicago crushed a strike by railroad and Pullman sleeping car company workers, leaving some thirty people dead.

The federal law, however, only made it a holiday for federal workers. As late as the 1930s, unions encouraged workers to strike to make sure they got the day off. All U.S. states, the District of Columbia, and the United States territories have subsequently made Labor Day a statutory holiday.

Worldwide, Communist and Socialist factions chose May 1st as the date to mark the Haymarket affair. A 1904 conference issued a plea that trade unions stage rallies on the first day of May and demanding to make the eight-hour workday a standard. They organized the action in the name of “universal peace.” The 1st of May is a national, public holiday in many countries across the world, generally known as “Labour Day,” “International Workers’ Day,” or a similar name, although a number of countries celebrate a Labor Day on other dates significant to them, such as Canada, which celebrates Labor Day, like the U.S., on the first Monday of September. The Haymarket affair occurred on May 4, 1886, during a period of time when most American laborers worked eighteen (18) to twenty (20) hours per day. Tens of thousands of workers protested in cities across the U.S. to demand an eight-hour (8) workday. Police in Chicago attacked protesters, beat, and shot at the group and killed six. When outraged Chicagoans attended an initially peaceful protest the next evening in Haymarket Square, police advanced on the crowd again. An unidentified person detonated a bomb which killed a police officer, leading the police to open fire on the protesters and provoke violence that led to the deaths of about a dozen workers and police.

Consequently, the Labor Day holiday was and is meant to be a day that the citizens of the United States recognize and celebrate the contribution, achievements, and dedication of the working class. It is a way of thanking, acknowledging, and paying tribute to all the contributions American workers have made to the growth and develop of the nation since the Industrial Revolution of the 1800s.

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 Value of a Pet When Injured or Killed in Florida and Other States (An Overview)

Posted by CSG Firm on August 29, 2022

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.

Capacity to Make a Will or a Power of Attorney in Florida-Part 2

Posted by CSG Firm on August 21, 2022

A Power of Attorney is a powerful legal document or instrument which delegates in writing authority from one individual to another. The creator of the power of attorney, also known as the “Principal,” grants the right to act on their behalf to an “Agent.” A Power of Attorney can be specifically prepared to expand or restrict delegated enumerated powers based on the wishes of the subject Principal. The benefit of having a Power of Attorney is that it can be used to avoid the need for a court supervised Guardianship should the Principal become incapacitated and no longer have the ability to manage their own financial affairs and property management as well as medical decisions.

One of the most common questions encountered is, “when does the Power of Attorney actually takes effect”? In the past, Florida allowed for the execution of what was referred to as a “springing” Power of Attorney. The term springing refers to the fact that an Agent is only permitted to act upon the satisfaction of a condition. For example, a springing Power of Attorney could be conditioned to only become effective upon written confirmation that the Principal was incapacitated. This type had a notable feature in that it allowed individuals to give a Power of Attorney to a relative without having to worry about them accessing a bank account or transferring property while the Principal still maintained full capacity. Unfortunately, changes in Florida law resulted in the abolition of springing Powers of Attorney. Currently, when a person executes a Power of Attorney the Agent is immediately granted the power to act regardless of whether or not incapacity exists.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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