Holding HandsIndividuals lacking the capacity to execute legal documents cannot sign releases settling claims against tortfeasors. Sometimes, families of developmentally disabled adults will execute Powers of Attorney to facilitate day to day transactions made on behalf of their disabled relative. Unfortunately, those Powers of Attorney are not legally valid, as the disabled principal lacks the requisite competency to execute the document. Therefore, you should not rely on Powers of Attorney in settling cases for adults with developmental disabilities.

Instead, the disabled individual’s family must secure legal guardianship before executing a release on behalf of their disabled family member. This process has the tangential benefit of providing actual legal authority for the family to make financial, residential, and medical decisions on behalf of the ward. Once guardianship is secured, the guardian should re-sign your fee agreement in their official capacity, and may then execute a settlement release.

Our firm has experience working with families to make the guardianship process painless and efficient. Call (352) 354-2654 or email cdavid@circuit8law.com anytime regarding guardianship or probate issues affecting settlements in the state of Florida.

In a previous blog article, I opined on the importance of identifying and signing up the future personal representative of a decedent’s estate when accepting a wrongful death case. However, you may find yourself in a position where the future personal representative has retained another firm, while a separate survivor entitled to damages seeks to hire your firm as their individual counsel. Such a case, while not ideal, could nonetheless be profitable.

PieWhile Florida’s Wrongful Death Act does not allow individual survivors to file separate wrongful death actions (only the personal representative has authority to file), Florida case law provides a right for individual survivors to hire separate counsel, and entitles that outside attorney to be compensated from the settlement based on their contribution to the prize. Wiggins v. Estate of Wright, 850 So. 2d 444, 446 (Fla. 2003);Wagner, Vaughan, McLaughlin & Brennan, P.A. v. Kennedy Law Grp., 64 So. 3d 1187, 1191 (Fla. 2011).

The above cited cases state that when survivors hire separate attorneys, they lose “commonality of interest,” and each attorney may be entitled to a separate fee. Under Wagner, “in those circumstances where survivors have competing claims and are represented by separate attorneys, the fee payable to the personal representative’s attorney and the survivors’ separate counsel will be determined by the work performed by each.”

Orange and AppleOur firm is sometimes brought into a case after another probate/guardianship firm has begun the estate administration or guardianship process, but has not been able to competently usher a settlement through the various obstacles associated with child injury and wrongful death cases in Florida. I have been shocked by “normal” probate attorneys neglecting to protect the interests of plaintiff’s firms, despite the work of the plaintiff’s firms to create windfall settlements benefiting the estate or injured child. Probate firms with practices comprised of mostly non-settlement related cases may not have the requisite knowledge of Florida’s statutory settlement schemes and related case law to:

  1. Protect settlements from creditors
  2. Ensure efficient settlement approval

HouseFlorida law protects “homestead” property from creditors both during the owner’s lifetime and after their death. Article X section IV of the Florida Constitution provides that individuals may own on piece of real property within the state immune from forced sale. This protection inures to the heirs of the property owner, effectively protecting a piece of family property indefinitely for future generations. To qualify for this exemption, the parcel, if located within city limits, must be no larger than one half acre. Outside of a municipality, the parcel may be as large as 160 acres.

While the homestead exemption is an extremely strong form of asset protection, it does not apply to taxes, mortgages, or construction liens. If the property owner has a spouse or minor children, the property cannot be devised (given away in a will) except to the spouse and then, only if the owner has no minor children outside the marriage. A property need not be designated as “homestead” for tax purposes the fall under the umbrella of constitutional protection.

In probate proceedings, we submit a pleading to the court titled “Petition for Determination of Homestead Status,” which, when signed by the circuit judge, gives notice to all that the property is off limits to creditors and simultaneously transfers title to the lawful recipients to the property.

Florida Probate Law Group has facilitated millions of dollars in wrongful death and child injury settlements. Why do injury attorneys turn to us to handle these important issues?

Protecting Client Funds

We are experienced in defeating liens and claims in wrongful death cases. Sometimes, plaintiff’s attorneys ask us “are you sure this is legal?” the first time we neutralize a five or six figure threat to a pending settlement. We assure you it is not only legal, but part of our professional and ethical responsibility towards the settlement recipient. Read more about that process here.

When a guardianship is secured, a bevy of new responsibilities arise, which, if left ignored, will raise the ire of the Circuit Court and land both the Guardian and their attorney in front of an annoyed Judge. By keeping important dates calendared and filing required paperwork on time, attorneys can keep their guardianship cases running smoothly.

There are three main categories of compliance to be addressed:Clock

  1. Guardianship Education Course

Due Diligence for Personal Injury Attorneys Handling Minor Settlements and Wrongful Death Cases

Success, in so much of the work we do as attorneys, rests on how prepared we are. Handling a personal injury case involving probate and guardianship is no different. Even the best civil trial attorneys can find themselves in a nightmare when stepping out of their area of expertise and representing their client in probate court. I’ve seen so many, otherwise simple cases, go awry, not only when I served as the Probate and Guardianship Trial Court Staff Attorney for the Eighth Judicial Circuit where I reviewed thousands of petitions, but also when my firm has been hired to pull a case out of the mud for an injury firm. The following tips are meant to help you know what to anticipate if you choose to handle the court approval, guardianship or estate administration for a personal injury client, so you can adequately prepare and avoid disaster.

Step 1: BEFORE You Get Involved

Contact Information