Elder Law Article

Probate

By: Kevin R. Albaum
Clark, Campbell, Lancaster & Munson, P.A.

Q: What is probate, and should I craft an estate plan to avoid it?

A: Probate is a court-supervised process of transferring assets after a person dies. Assets subject to probate do not include those that were payable to a named beneficiary (e.g., life insurance), owned by a trust, or owned jointly with rights of survivorship (e.g., joint bank account between spouses). Anything not directed to another person upon death may become subject to probate. Formal administration, which is the most common probate proceeding, typically takes approximately one year to resolve. Due to the time and legal expenses involved, it is advisable to craft an estate plan that avoids probate.

To avoid probate, an individual planning his or her estate should discuss with an attorney the proper way to title assets in multiple names or placing assets within a living trust. By titling all assets with multiple names (in the proper manner, so as to provide automatic transfer to the second owner upon death of the first), probate can be avoided. A properly funded living trust can hold a person’s assets and often can be administered without court intervention. The process is technical, and you are encouraged to get counsel to assist so as to best ensure avoiding a probate proceeding.

Although many dread probate proceedings, there may be advantages to court supervision. For example, the Florida probate process allows for an estate to clarify what creditor claims exist and cut off claims of lazy or careless creditors. In the court proceeding, a “notice to creditors” is filed, allowing a 90-day period for creditors to file claims against the decedent’s assets. If claims are not filed within the 90-day window, they are forever barred.

 

The June 4th edition of “The Law” will discuss liability issues of concern to nonprofit boards of directors.

Kevin Albaum is an estate planning and elder law attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. and a proud member of the National Academy of Elder Law Attorneys (NAELA). NAELA has designated May as National Elder Law Month to focus on educating seniors about legal options. NAELA and its member attorneys provide legal advocacy, guidance, and services to enhance the lives of seniors and people with disabilities. Questions can be submitted online to thelaw@clarkcampbell-law.com.

Elder Law Article

Guardianships

By: Kevin R. Albaum
Clark, Campbell, Lancaster & Munson, P.A.

Q: My father has difficulty living on his own. Does he need a guardian?

A: A common misconception exists that a guardianship is necessary whenever an aging adult experiences some level of incapacity or difficulty making personal, financial, or healthcare decisions. Subjecting a person to guardianship should be the last option, and it is often the most costly option. When you contemplate a guardianship for a friend or family member, ask yourself how you can help and protect the person in the least restrictive manner possible.

A meeting between concerned friends and family members can uncover support mechanisms already in place for safety and care and can expose any deficiencies. Alternatives to guardianship are available, including durable powers of attorney, revocable trusts, friends or family serving as representative payees for government benefits, hiring of a geriatric care manager, joint bank accounts, health care surrogates, and simple family and friend supervision and involvement. After exploring whether these options offset the incapacities of the aging adult, consult with an attorney to discuss initiating guardianship proceedings, wherein the court will determine the nature and extent of incapacity and appoint a guardian if appropriate. The scope of the guardian’s powers, if any, will depend on the extent of incapacity, which is determined primarily a court-appointed medical examining committee. The court and committee will explore and consider the least restrictive alternatives to guardianship, because guardianship may result in the aging adult losing rights to make his or her own decisions about travel, expenses, and other every day choices.

 

The May 21st edition of “The Law” will continue our coverage of National Elder Law Month with a discussion about the “probate” process that occurs when an individual dies without having specified beneficiaries for all assets.

 Kevin Albaum is an estate planning and elder law attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. and a proud member of the National Academy of Elder Law Attorneys (NAELA). NAELA has designated May as National Elder Law Month to focus on educating seniors about legal options. NAELA and its member attorneys provide legal advocacy, guidance, and services to enhance the lives of seniors and people with disabilities. Questions can be submitted online to thelaw@clarkcampbell-law.com.

Intellectual Property Law

Intellectual Property

By: Kyle H. Jensen
Clark, Campbell, Lancaster & Munson, P.A.

Q: How do I protect my written works and company logo?

A: A person or company who creates an original work, such as a children’s book or painting, obtains immediate rights in the form of a copyright. A copyright provides creators of literary, musical, pictorial, and other creative works with, among other things, exclusive rights to reproduce, distribute, and display or perform the work. But a copyright protects only those original, unique works that have been expressed in a tangible form. So, the mere idea for a painting or song is not protected until the creator puts pen (or brush) to paper.

While a copyright is immediate and automatic, enforcing your rights is made easier by registering the copyright with the United States Copyright Office. Registration creates a public record of the copyright claim, thereby giving rise to useful evidence in any infringement dispute that may arise. Registration also allows a copyright owner to obtain statutory damages and attorney fee recovery in a lawsuit for copyright infringement that takes place after registration.

Just as a copyright protects an owner’s original intellectual, creative work, a trademark (or service mark) is a protected word, phrase, symbol, or design that identifies a company and its product (or service). The creator of the trademark obtains rights only upon using the mark in commerce, such as by making sales of product. The general rule of “first in use, first in right” applies. Like with a copyright, registration is not required but is helpful. Registration can be made before the Florida Department of State and/or the United States Patent and Trademark Office. Registration discourages competitors from wholesale copying or mimicking of the mark, provides statewide or nationwide notice of your mark, and prevents registration of confusingly similar marks in the same area of commerce. In some cases, registration allows the mark owner to obtain triple damages and attorney fees when the mark is infringed.

Although the process for registration of copyrights and trademarks is highly accessible, some creators and business owners may prefer to consult with an attorney regarding registration. With regard to trademarks, legal counsel can assist in discussions with the registration office to make the registration process smoother. With regard to both copyrights and trademarks, legal counsel can help you best position yourself for proving your case in the event of a later infringement.

The May 7th edition of “The Law” will be the first of two articles written in honor of National Elder Law Month and will cover the guardianship process and determining whether your aging relative may need such legal protections.

Animal Law

Animal Cruelty

By: Clark, Campbell, Lancaster & Munson, P.A.

Q: It appears animal cruelty is on the rise. What laws are in place to protect these animals?

A: For years, compassion for animals and anger toward abuse have been triggered by circus elephant acts, killer whales in confinement, and greyhound races. But, partly because the law allows these exhibitions, only recently have we heard of changes, such as Ringling Brothers voluntarily retiring its elephants. The Florida legislature continues to expand protections for animals, including this month by taking a look at bills to protect greyhounds and horses involved in racing, with some lobbying groups trying to make greyhound racing unprofitable.

An extensive set of animal cruelty laws exist, primarily protecting livestock, dogs, and cats from the more horrifying stories we have heard recently, like animals being tied to railroad tracks or hung to death. A “zombie cat” allegedly buried alive was taken into possession by an animal welfare organization. While individuals could be accused of theft for taking another’s pet away regardless of suspected abuse, Florida allows certain organizations (in addition to law enforcement) to have an agent appointed for that purpose. When an animal is seized, a court hearing follows to determine whether the animal will be returned.

With limited exceptions, animal cruelty includes allowing any “unnecessary or unjustifiable pain or suffering”. Tormenting, starving, and mutilating all fall within this term and are at least a first degree misdemeanor (up to $5,000 fine / 1 year imprisonment) and as much as a third degree felony (up to $10,000 fine / 5 years imprisonment) for repeated, intentional acts, acts that result in death, or being any part of dog fighting (breeding, training, owning, promoting, betting, attending, or otherwise). Additional specific offenses prohibited by law include keeping a dog confined without exercise, abandoning in a public place, lassoing of horses for entertainment or sport, engaging in simulated bullfight exhibitions, allowing others to be exposed to a known contagious animal, and artificially coloring an animal under 12 weeks of age.

Contact animal control or other local law enforcement if you suspect animal cruelty is occurring in your neck of the woods.

 

The April 9th edition of “The Law” will celebrate National Public Health Week and address the dichotomy between science and the law on the issue of GMOs.

Questions can be submitted online to thelaw@clarkcampbell-law.com.]

Elder Law Article

Adding Durability to Your Estate Plan

By: Kevin R. Albaum
Clark, Campbell, Lancaster & Munson, P.A.

Q: How do I delegate authority in the event I become incapacitated?

A: A Power of Attorney is a legal document allowing a person (the “principal”) to delegate authority to an “agent” to act on the principal’s behalf. The document can be very specific and “limited” to allow the agent to complete a specific act such as selling the principal’s car, or it can be “general” to allow the agent to take most legal actions that the principal could also do on her own. Some such powers include creating trusts, making gifts of assets, selling property, accessing bank accounts, or signing contracts and other legal documents.

Generally, a Power of Attorney loses effectiveness when the principal becomes legally incapacitated unless the document specifically indicates otherwise, in which case the document becomes “durable”. A Durable Power of Attorney affords a principal planned protection should a health-related emergency or other unfortunate event causing temporary or permanent loss of capacity occur. Durable Powers of Attorney allow the agent to pay the principal’s monthly bills and make healthcare decisions during the incapacity.

Powers of Attorney drafted in Florida on or after October 1, 2011 are immediately effective from the date of execution. As a best practice, the principal should advise the agent of the Power of Attorney but not provide a copy of the document until the principal would like the agent to use it. The principal could let a family member or attorney hold the document or know of the document’s secure location and instruct the family member or attorney not to give the document to the agent until a certain time or event.

With boilerplate forms at your fingertips on the internet, you may be tempted to go at this venture without an attorney. However, legal help is wise to ensure the Power of Attorney document meets your specific circumstances and ensure that you have adequate protections in place, including protection from abuse of the powers by the agent.

The March 26th edition of “The Law” will address animal cruelty in the recent news and the legislature.

[Kevin Albaum is an estate planning and elder law associate attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@clarkcampbell-law.com.]

Animal Law

Don’t Get Bitten by Pet Liability

By: Clark, Campbell, Lancaster & Munson, P.A.

Q: What is my liability if my dog bites someone?

A: While each year only about one or two Floridians die from dog bites, some five hundred state residents could go to the hospital with injuries. In what is hopefully not a signal that the legislature thinks dogs are inherently dangerous nuisances, a whole chapter of Florida Statutes covers damage by dogs. Some of the provisions are more unusual than others, such as that it is lawful to kill a dog roaming over the country if that dog is known to have killed sheep. (Please think twice before assuming a loose dog in your neighborhood fits this definition.)

The most talked about provision is the “dog bite statute”, which generally pegs the pet owner with responsibility for his dog biting anyone who is not trespassing. One exception or reduction to the owner’s liability may exist if the bitten person negligently provoked the dog in a way that the person should have known would lead to a bite. Also, where the owner posts a conspicuous sign at his home reading “Bad Dog”, he may be able to limit or eliminate his liability for bites (except where those bites are of children under 6 or where the owner has acted negligently, which could include failure to supervise children). Of course, the owner should not expect to get such protection if he tells his party guests to ignore the yard sign’s warning.

Despite a common misconception otherwise, Florida does not have a “one free bite” rule allowing owners insulation from liability when their dogs have not shown prior dangerous tendencies. However, dogs deemed “dangerous” or under investigation by animal control authorities are subject to heightened standards (that may differ from county to county) and strict criminal penalties for owners of such dogs who do in fact bite.

One final point: reduce your worries by verifying that your homeowner’s insurance covers your dog’s bites.

 

The March 12th edition of “The Law” will cover crafting an effective power of attorney as part of your estate and long-term care plan to help you delegate authority and avoid fraud or misuse of your assets.

Questions can be submitted online to thelaw@clarkcampbell-law.com.]

Real Estate Law Article

Toolbox Grows for HOAs with Delinquent Owners

By: Clark, Campbell, Lancaster & Munson, P.A.

Q: How can homeowners’ associations collect assessments while awaiting a first mortgage holder foreclosure?

A: Depressed property values and myriad bank-owned properties have left lenders slow to foreclose. Homeowners may enjoy delay; but, HOAs can lose out on their assessments.

Recent changes in Florida law have altered the assessment collection landscape.

First, an HOA can now foreclose on its lien for unpaid assessments without cutting off a future buyer’s liability for past assessments. Associations now have an incentive to foreclose, take ownership and rent out the premises during the pendency of the first mortgage foreclosure.

Second, associations can now request an “order to show cause” at the outset of the mortgage foreclosure, forcing the court to require the homeowner to show cause for why a foreclosure judgment should not be immediately entered. This change may end up greatly reducing a lender’s delay.

As most associations are aware, associations typically can recover up to 12 months of past assessments from the foreclosing lender if the lender takes title after the foreclosure sale.

Please note, however, that a federal court in January cut off that liability because of lender-friendly language in one association’s governing documents. It is of the utmost importance for associations to review and amend documents as necessary to remove impediments to collecting assessments.

The March 13 edition of “Simply the Law” will cover maximizing homestead exemptions, particularly for senior citizens.

Questions may be submitted online only to simplythelaw@clarkcampbell-law.com.

Landlord and Tenant

Occupants Who Don’t Sign the Lease Do So at Their Own Peril

By: Clark, Campbell, Lancaster & Munson, P.A.

A: When entering into a residential lease agreement, tenants may consider having one or more occupants not sign the lease. This issue often arises because tenants think it is unnecessary for all of them to sign, some tenants do not anticipate remaining in the residence for the entire lease term, or because a tenant’s credit may impact his or her ability to be approved. Tenants should consider the legal ramifications and potential costs of signing or not signing the lease.

Each tenant who signs the lease is bound by the terms of the lease and is liable for all rent due under the lease. Tenants who occupy the residence but have not signed the lease may not, depending on the lease terms, be liable for rent. If a non-signing tenant refuses to contribute, the signing tenant is still responsible for the rent, and the landlord is likely to pursue the signing tenant, and not the non-signing tenant, for that rent.

If the lease does not specifically provide that the non-signing tenants may reside in the residence, those tenants may be staying in the residence illegally. If the illegal tenants fail to leave upon the landlord’s demand, the landlord typically has the right to terminate the lease and evict all tenants, regardless of whether they have paid rent.

Finally, a non-signing tenant’s rights to remain in the residence are subject to the rights of the signing tenant. Depending on the lease or other agreements between the parties, the signing tenant may be able to evict the non-signing tenant. Non-signing tenants should consider his or her rights under the lease and whether it would be prudent to enter into a separate agreement with the signing tenant that sets forth the terms upon which the non-signing tenant can stay in the residence.

The February 26th edition of “The Law” will cover Florida dog bite laws and other pet ownership liability issues.

Corporate Law Article

Refunds and Store Credits

By Joseph A. Geary, Attorney
Clark, Campbell, Lancaster & Munson, P.A.

Q: “I returned merchandise and received a certificate from the store against future purchases. May the store impose time limits or other conditions on my use of the certificate?”

A: Generally, no. Under section 501.95, Florida Statutes, a “credit memo” (defined as “a certificate, card, stored value card, or similar instrument”) issued in Florida in exchange for returned merchandise, when the instrument is redeemable for merchandise, food, or services, may not have an expiration date, expiration period, or any type of postsale charge or fee imposed on it, including, but not limited to, service charges, “dormancy” (non-use) fees, account maintenance fees, or cash-out fees. Credit memos sold or issued by financial institutions or money services businesses, however, are not subject to these rules if the credit memo is redeemable by multiple unaffiliated merchants.

 

Q: “Are Florida retail establishments required by law to offer a refund, credit or exchange on goods sold?”

A: No. However, section 501.142, Florida Statutes, requires a retail establishment that sells goods to the general public and offers no cash refund, credit refund, or exchange of merchandise to post a “no refund” sign at the point of sale. The absence of such a sign means the store has a refund or exchange policy. A copy of the policy must be given, in writing, to a consumer upon request. A store that fails to comply with these rules must give the consumer, upon request and proof of purchase, a refund (not an exchange or credit) within 7 days from the date of purchase. The merchandise must be unused and in the original carton (if there was one) when the merchandise was purchased. Food, perishables, custom-made goods, custom-altered goods, or goods that are prohibited by law from resale are exempt from these rules.

 

Q: “Who enforces these laws? Are there penalties for non-compliance?”

A: The Florida Department of Agriculture and Consumer Services is principally charged with enforcing these laws. If the Department finds that a person has violated or is operating in violation of any of these laws, it may enter an order imposing a civil fine not exceeding $100 per violation and/or order the violator to cease and desist. Local governments may also issue a warning for a first violation and fines of up to $50.00 per violation for second and subsequent violations. An aggrieved consumer has no private right to sue at this time.

Corporate Law Article

“Oh, You Shouldn’t Have!”

By Joseph A. “Jay” Geary
Clark, Campbell, Lancaster & Munson P.A.

Q: Do the gift cards I received during the holidays expire? Are there any charges or fees for use or non-use?

A: Generally, Florida law provides that consumer “gift cards” (i.e., instruments issued on a prepaid basis primarily for personal, family, or household purposes) are not subject to expiration dates or fees. However, as with any general rule, there are exceptions.

Florida law (§ 501.95(1) (b), Fla.Stat.), defines a “gift certificate” as:

* * * a certificate, gift card, stored value card, or similar instrument purchased for monetary consideration when the certificate, card, or similar instrument is redeemable for merchandise, food, or services regardless of whether any cash may be paid to the owner of the certificate, card, or instrument as part of the redemption transaction, but this term shall not include [theme park and entertainment] tickets * * * or manufacturer or retailer discounts and coupons.

Under Florida law, the general rule is that a gift certificate purchased in Florida may not have an expiration date or period, or any type of post-sale charges or fees imposed on the gift certificate, such as service, “dormancy” (i.e., “inactivity”), account maintenance or cash-out fees.

Nevertheless, a “gift certificate” may have an expiration date of not less than three (3) years if given as a charitable contribution, or not less than one (1) year if given as part of an employee incentive plan, AND, in either case, the expiration date is prominently disclosed in writing at the time it is provided. Gift certificates given by a financial institution or a money services business (for example, pre-paid Visa debit cards) may have expiration dates if redeemable by multiple unaffiliated merchants.

This article describes Florida law applicable to “gift certificates”. Certain federal laws also apply to gift certificates, gift cards, general-use pre-paid cards and to “loyalty, award, or promotional” gift cards. The last category of cards may allow the imposition of service fees, dormancy charges, and expiration dates, provided they are prominently disclosed when the card is issued. Federal laws exempt certain cards from the restrictions on expiration, fees and certain charges, including cards: for pre-paid telephone services; not marketed to the general public; and issued in paper form only.

The January 15 edition of “The Law” will cover liability for damage from your neighbor’s overhanging tree limbs.

[Joseph A. “Jay” Geary is a shareholder with the law firm Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@clarkcampbell-law.com.]