Hiring a personal injury attorney in Florida requires a few steps regardless of the accident that occurred. A personal injury attorney who helps on your case needs as much information as you can provide, and you will find that the attorney can initiate a case for you. The suit that you file should follow all the steps below. You must abide by the rules for these cases in Florida, and you might find that the case is resolved quickly because of the work that your lawyer did.
1. Where Does Your Evidence Come From?
Evidence in your case must be collected as soon as possible. Your lawyer might ask you to take pictures of the scene, and they will ask you to save your clothes and shoes from that day. You might need to find eyewitnesses from the accident, and you must allow your lawyer to collate all this information. They will let you know what sort of case you have, and they will let you go if they have no case. Lawyers have an ethical duty to avoid all cases where evidence is not strong enough to proceed.
2. Can You Settle?
There are settlements reached every day in court, and you might have a chance to settle out of court so that you can end the suit that your lawyer filed. Your lawyer might negotiate on your behalf, and they will explain why they are asking for the amount of money they are asking for. Someone who plans to settle out of court is giving up their right to sue in the future. If you are comfortable with the settlement that you have received, you can stop the suit right there.
3. Who Can Be Sued For Damages?
You might sue a business because their negligence caused your accident, or you could sue a public entity for their negligence. Someone who owns property could be sued because of their negligence, and you might sue another driver if they hurt you in an accident. You must research who is truly to blame for the injury that you incurred, and you must ask your lawyer to look into who is truly responsible. Someone who plans to sue must also consider the ramifications of suing. Suing your employer could be tricky, or suing the local government might be difficult if they have a team of lawyers.
4. What Happens If You Go To Court?
You must be prepared by your lawyer for an appearance in court, and you must ask the lawyer if they have a plan to present your case. You could ask for a lot of money at the trial, and you are dependent on a judge or the jury to give you the compensation that you deserve. You must ask your lawyer what your chances are, and there are people who are afraid of being in court because of past experiences. Ask the lawyer if they can get your ready or close out the trial so that you are not testifying in front of a large group of people.
5. How Does Your Attorney Get Paid?
Your personal injury attorney does not get paid unless you get paid. There are a lot of people who will call an attorney hoping to have them look into a case, and the attorney will give you an assessment of the case. They will tell you what can be done to make your case more compelling, or they will give you a rate that you will be expected to pay when the case is closed. Do not sign off on anything until you know that the attorney has been incentivized to help you.
6. How Long Do These Cases Last?
The cases that are brought up for settlement take time to negotiate because both sides need to figure out how much they are willing to pay or accept. Someone who is concerned with making money from this process to pay their medical bills or make up for lost salary might need to wait until they get a better deal. Your lawyer will fun everything by you, and they will not close the case until you are happy. The case could take months to get to trial if you have to go to trial, and you must be patient with your attorney if they are still collecting evidence.
7. Who Qualifies For A Lawsuit?
Anyone can sue anyone for negligence at any time. You are not bound by local laws or statutes, and the only limitations are on the amount of the award that you are given. There are places where damages are capped, and your lawyer must have an idea of what that cap is so they know how to manage the case. Lawyers are familiar with the local justice system, and they also know the judges who will preside over your case. These connections make it easier for you to sue successfully, and you must find a lawyer who has been reviewed well by others.
8. The Case Supercedes Insurance
Your insurance company can only do so much for you when you are injured. The case that you file will supersede the insurance company, and they will be asked to stand aside while your attorney handles everything. There might be cases when your attorney will come from the insurance company, but you must speak to them before accepting that assignment.
9. Call AubreyDicuss at BRDM to assist you with your case every step of the way.
Aubrey is familiar with local laws, knows how to protect your rights, and will negotiate on your behalf. He will fight for the compensation that you know you deserve, and he will prepare you for anything that could happen. Aubrey might walk you through your settlement talks, or you could go to trial with your him because you know that you are entitled to compensation that will pay for your medical bills, your pain and suffering, and wages that were lost while you were disabled.
An interest in land is called real estate. The term interest the method by which a person deals with land. The person may own land, buy land sell land or lease land. All these terms show that the person has an interest in land. The transaction made to make the interest in land legal is called a real estate contract and once the contract is recorded in government records the person gets title to the land.
Real Estate Agents
Real estate transactions are terms used for buying or selling land or land with buildings called the property. Real estate transactions are performed by real estate agents. These agents represent the seller of the property or the buyer of the property. Some states have laws that allow real estate agents to represent both the seller and the buyer.
An escrow agent is a person who holds the funds and documents relating to a property until real estate transactions are completed. The purpose of employing and escrow agent is to safeguard the interests of the seller and purchaser. The escrow agent is a neutral party who keeps the seller’s documents and the purchaser’s funds in safe custody till the transaction is completed. Purchasers will make a purchase agreement and deposit a sum towards earnest money to show their genuine interest in closing the deal. If the purchaser backs out without good reason, the escrow agent will pay the money to the seller. If the seller backs out the earnest money will be paid to the purchaser.
Title is a record to show that the seller owns the property that is being sold. The title passes to the purchaser once the real estate deal is closed. The purchaser of the property should do a title search at a title office and get title insurance at first. This is to ensure that no claim is made on the property after the deal is closed. The seller may not reveal hidden title problems like unpaid taxes or details of a person with a right to the property like a legal heir.
Real Estate Attorneys
Though it is not necessary to take the help of a real estate attorney to close a real estate deal, it is wise to take the help of a real estate attorney. The attorney will be an expert at finding any legal hurdle in the property documents. The attorney will check the title and do a title search to ensure that there are no encumbrances or other problems with the title. There are many stages when to involve a real estate attorney. The title search stage, the property transfer stage, the contract review stage and the filing stage where the real estate deed needs to be filed at the county and state offices are stages when to involve a real estate attorney before closing a deal.
Purchasers should get a pre-approval for a mortgage. Showing that they are pre-approved will show the seller that the purchaser is financially strong and closing the deal will be quicker. Mortgage lenders will lock the rates of interest to be paid by the purchaser on the mortgage if the purchaser is pre-approved and they can pay at a fixed rate regardless of the fluctuations in the market.
Costs for Closing
Escrow companies charge fees for closing. It is important that the purchaser understands the exact costs involved in closing the deal. It is important that they negotiate with the escrow company nd make sure that no unnecessary fees are charged. Purchasers can also negotiate for a lower fees for many services of the escrow company.
Inspection of the Building
If the property to be purchased is a building or home, the purchaser should inspect the home after giving the seller notice. The purchaser can back out of the deal if the building has serious structural or other problems. The inspection of the building by the purchaser is a prudent step before closing a deal.
Inspection for Pests
The purchaser should get a specialist to inspect the property for pests. Normally mortgage companies expect a certificate from a specialist that a property is free of pest infestation.After Inspection
After the purchaser inspects the property and gets a pest inspection performed, the purchaser can negotiate the price with the seller again if the inspections reveal problems. If the purchaser l needs to spend money on repairs, the purchaser can ask for a reduction or back out of the deal. Some sellers agree to make the repairs before the deal is closed.
The purchaser should negotiate with the lender to get a reasonable interest rate and ask them to lock the interest rate. This will protect the purchaser from rate fluctuations. The purchaser can pay a fixed interest rate till the mortgage is paid in full.
Purchasers should set dates by which the seller should complete certain tasks. These tasks include disclosure of problems with the structure of the building and completion of repairs. The purchaser should also get a mortgage at an affordable interest rate within a certain date.
At this stage of the transaction the purchaser will deposit the entire purchase amount with the escrow agent. The purchaser will pay the closing costs. In some cases, the seller will pay the closing costs.
The purchaser should make a final inspection or walk through of the property. The purchaser should ensure that all repairs are completed by the seller and the seller has not taken away anything that was agreed to be sold to the purchaser.
Closing the deal
Closing the deal involves signing the papers. Purchasers need to be very careful at this stage. The documents will sometimes be more than 1000 pages. It is important the purchaser reads each page carefully to make sure that the interest rates are correct with no hidden charges. Finally, after documents are signed, the attorney will get the document recorded at the offices of the county and state recording offices.
Contact BRDM’s own Andrew Pardun for all of your real estate transaction. Having someone who knows the ins and outs of real estate law is beneficial to everyone involved, especially to you whether you are the buyers or the seller.
Recently I’ve come across several “durable powers of attorney” prepared by lawyers who do not regularly practice in estate planning or elder law. In some instances, the power of attorney does not allow the agent to perform certain acts that the principal intended; in others, improper execution renders the document entirely invalid. Presumably this is because the preparer of the power of attorney is not familiar with the major overhaul Chapter 709 of the Florida Statutes underwent in 2011. As a result, many times, if the principal has become incapacitated, the opportunity to cure the defective power of attorney already has passed, leaving caregivers and loved ones without adequate legal authority to perform on behalf of the principal. Understandably, the need for powers of attorney arises in situations other than estate planning, including for limited purposes, such as in real estate closings. This article is intended to highlight the most significant changes to Chapter 709, as well as to provide “planning pointers” useful for attorneys in all areas of practice, specifically including real property.
On October 1, 2011, Florida adopted its version of the Uniform Power of Attorney Act (2006).[i] Florida’s Power of Attorney Act (the “Act”)[ii] significantly impacted powers of attorney in terms of both execution and content:
Execution. A power of attorney executed in Florida[iii] before October 1, 2011 (a “pre-Act power of attorney”) is valid if its execution complied with Florida law at such time – for general purposes this means the power of attorney must have been signed by the principal and two subscribing witnesses.[iv] Post-Act powers of attorney must be signed by the principal and two subscribing witnesses and acknowledged before a notary public.[v] To ensure acceptance of the power of attorney by third parties, be sure that the witnesses are independent witnesses: financial institutions generally will reject a power of attorney wherein one of the witnesses is the agent named in the document.
Springing Powers of Attorney Eliminated. Post-Act contingent or “springing” powers of attorney are no longer allowed in Florida; however, those in existence prior to the Act continue to be recognized.[vi] Practically speaking, recognition of a pre-Act springing power of attorney will require a physician’s affidavit stating that the principal lacks the capacity to manage property.[vii] Clients requesting springing powers of attorney should be instructed that they are no longer recognized in Florida; however, to mimic the effect of a springing power of attorney, the client and the attorney can enter into a written escrow arrangement whereby the attorney is instructed to release the durable power of attorney to the agent only under certain circumstances.
Super Powers. Perhaps most significantly, the Act creates a list of seven “super powers” that must be separately enumerated and either signed or initialed by the principal in order for the agent to perform them on behalf of the principal:
Create an inter vivos trust;
Amend, modify, revoke, or terminate a trust created by or on behalf of the principal (but only if the trust instrument also explicitly provides for amendment, modification, revocation, or termination by the agent);
Make gifts over and above the federal gift tax annual exclusion;[viii]
Create or change rights of survivorship;
Create or change a beneficiary designation;
Waive the right to be a beneficiary under certain annuities and retirement plans; and
Simply put, if the power of attorney does not separately enumerate these powers with, at minimum, the principal’s initials next to each power, then the agent cannot perform these acts on behalf of the principal.
In the best-case scenario, inclusion of these powers would give the principal’s agent maximum flexibility to respond to changed circumstances, including changes in the tax laws, the principal’s financial well-being and health care needs, as well as the individual circumstances of the principal’s intended beneficiaries. For example, with regard to the power to create an inter vivos trust, if it were in the principal’s best interest, the agent could establish a trust to avoid probate of the principal’s estate or to qualify the principal for Medicaid benefits. As another example, with regard to the power to change a beneficiary designation, if one of the principal’s intended beneficiaries became disabled, the agent could divert life insurance or retirement proceeds otherwise payable directly to the beneficiary to a supplemental needs trust so as not to disturb the disabled beneficiary’s government benefits; another application of this power is that the agent could divert designated proceeds to a spendthrift trust for a beneficiary to guard against a divorcing spouse, creditors, or other predators.
In the worst-case scenario, an unscrupulous agent could abuse these powers to totally dismantle the principal’s estate plan to the detriment of the principal and the principal’s intended beneficiaries. While the Act does provide that an agent must preserve the principal’s estate plan (to the extent actually known by the agent, all relevant factors considered),[x] realistically an agent’s abuse of power may not be discovered until it is too late: the agent may have absconded or become judgment-proof, having expended the misappropriated property. For this reason, it is absolutely imperative that the preparer of a durable power of attorney discuss these “super powers” with the principal and encourage the principal to select an agent who is, above all else, trustworthy. Failure to discuss the inclusion of these powers with the principal ostensibly could give rise to claims of malpractice by the principal and his or her beneficiaries.
If the principal is uncomfortable granting one or more of these powers in the power of attorney, such powers should be deleted or omitted. There is more than one way to accomplish this: some practitioners simply omit the excluded powers from the final document, while others strike through an excluded power in the final document or write “omit” where the principal would have initialed had he or she desired to include it. Some practitioners believe that by implementing the strike-through method, the principal’s intent to exclude a particular power is more evident.
Acceptance by Third Parties. The Act provides guidelines for third parties in accepting or rejecting powers of attorney. Generally, a third party is required to accept or reject a power of attorney “within a reasonable time,” which means four business days for financial institutions.[xi] Third parties may require the agent to sign an affidavit stating that the power of attorney is in full force and effect.[xii] Importantly, a party who improperly rejects a power of attorney may be liable for damages, including attorney fees and costs, incurred in an action to compel acceptance of the power of attorney.[xiii]
Use in Real Property Transactions. When drafting a power of attorney which may be used in real property transactions, the principal’s name should be the same as in any title documents previously recorded in the Official Records to ensure consistency for chain of title purposes: “A good, quick check is to compare the name and signature of the principal in the power of attorney against any name and signature of the principal in the records search.”[xiv] Additionally, Section 695.01(1), Fla. Stat. (2017) requires that a power of attorney used to convey real property must be recorded in order to protect creditors and other certain purchasers for value.[xv]
In order to sell or convey real property using a power of attorney, using a broad term such as “real estate transactions” generally is insufficient; the best practice is to specifically delineate the power to “sell, convey, mortgage, encumber, lease, etc.” in the power of attorney.[xvi]
Regarding the form for signature by the agent, the preferred signature block for insuring purposes is: Patricia Principal, by Alicia Agent, her attorney-in-fact.[xvii] The notary acknowledgment must identify the agent as the person appearing before the notary. The acknowledgment simply may state the agent appeared before the notary, but the better practice is to show that the agent, as attorney-in-fact for the principal, appeared before the notary.[xviii] Lastly, always provide a copy of the power of attorney to the closing agent in advance of the closing; presenting the power of attorney on the day of the closing certainly will cause delays because the closing documents will not have been prepared properly.
[viii]See 26 U.S.C. § 2503(b) regarding the federal gift tax annual exclusion, which currently allows an individual to give away up to $14,000.00 per recipient per year without the gifts counting against the individual’s lifetime exclusion from federal estate and gift tax (currently $5.45 million; see 26 U.S.C. § 2010).
[xvi]Id. and see, for example, Dingle v. Prikhdina, 59 So. 3d 326, 327 (Fla. Dist. Ct. App. 2011) (“Generally, the rule is that a power of attorney must be strictly construed and the instrument will be held to grant only those powers which are specified.”) (citingBloom v. Weiser, 348 So. 2d 651 (Fla. Dist. Ct. App. 1977)).
About the Author: Rachel Drude-Tomori, Esq., LL.M. is the lead Partner in charge of the Estate Planning & Probate Department at Battaglia, Ross, Dicus & McQuaid, P.A. Rachel currently serves as Chair of the Probate Section of the St. Petersburg Bar Association and Administrator of the Thomas E. Penick, Jr. Elder Law Inn of Court. Named a Super Lawyers Rising Star in Estate Planning for 2017 and 2018, Rachel assists business owners, corporate executives, and high net worth individuals and their families to protect their legacies from government and creditor interference through estate planning and wealth transfer techniques.
(June 19, 2018 Saint Petersburg, Florida) Battaglia, Ross, Dicus & McQuaid, P.A. one of Tampa Bay’s oldest and prestigious law firms today announced that six of its attorneys have received the 2018 Florida Super Lawyers distinction. Howard P. Ross, Aubrey O. Dicus, and Sean K. McQuaid have all been named to the 2018 Florida Super Lawyers. Caitlin C. Szematowicz, Rachel L. Drude-Tomori, and Andrew R. Pardun have been named to the 2018 Florida Rising Star List.
Each year, no more than five percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area.
“Having six of our lawyers recognized the year of the Firm’s 60th anniversary is a reflection of the respect that we’ve earned within the community”, said Howard Ross B.C.S., Partner and Shareholder at BRDM.
Since 1958, Battaglia, Ross, Dicus & McQuaid, P.A. has been recognized for their skill and experience in handling complex litigation, injury cases, complicated commercial transactions, and corporate matters. While civil and commercial litigation is the firm’s largest area of practice, their work also encompasses business and personal transactions, appellate law, employment law, alternative dispute resolution, wills, trusts and probate, real property and title insurance, as well as criminal defense matters.