Farah & Farah e-newsletter: September 2012
In This Issue
Amendment 7 – Patient’s Bill of Rights
This amendment to the Florida Constitution provides valuable information to assist you in making medical choices and allows you the patient to review the record of your healthcare providers. Also, under this amendment you the patient have the right to access any records that may be received in the course of business by a heath care facility or provider concerning any medical related incidents. In fact, the nice thing about this provision is that before you have a procedure or surgery performed at a particular facility you are entitled to all information related to whether or not that facility or healthcare provider committed a medical mistake or other acts of neglect relating to the procedure or operations that you intend to have performed. Upon written request you have access to all information to any incident resulting in jury or death.
This amendment was passed in November of 2004 allowing you the power to make an informed decision as to who will provide your medical care. An example would be if you were to need to have a knee replacement you can find out the track record of the hospital and doctor performing the knee surgery. You can find out if that doctor had any issues with other patients that have had the same procedure performed.
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If You Rent Your House You Could Lose Your Homestead
You could lose your homestead classification by renting your home. Under Florida law, if you rent your home for long periods of time you lose the benefit of the homestead exemption. The reason is that when you are the long term renter, the owner is absent from the property. However the situation is much more difficult to determine when homeowners rent out their homes for short periods of time and may remain on the premises during the course of the rental. This can raise the issue as to whether or not you are entitled to homestead exemption because even though you live there on the property you are renting it out for short periods of time and you still consider the home to be your primary place of residence.
Under Florida Law, you will probably lose your homestead if you rent out the entire dwelling or the entire home. But even if you rent out the entire house you don’t lose your homestead if you establish your primary residency on January 1 of that year. For instance if you are residing in the home on January 1, and you rented on January 2, you will still have homestead for the entire year, but you can’t use this type of exception for two consecutive years. Some people rent parts of their homes but leave some of their personal property there and then try to argue that they didn’t rent the entire house therefore they are entitled to homestead. The courts haven’t given us clear guidance on what they would do in these grey area cases.
What we do know is that property appraisers with the down economy and the reduction of property values are trying to find ways to increase tax revenue and aggressively pursuing the removal of homestead where the homeowner has engaged in a rental situation. One case involved a condominium on Amelia Island where the owner had a unit in a corporate rental pool. The owner locked off two closets and argued that because the closets were locked off from the tenets that he did not rent out the entire house entitling him to homestead. However, the court said that even though the entire house was not rented by keeping two closets full of personal stuff; they would not allow him to keep the homestead because the main living areas of the house were leased out. Having your homestead exemption can be valuable. If you intend to rent your house out make sure you comply with Florida’s law so that you don’t lose your valuable homestead exemption.
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Your Legal Not Moral Obligation to Help Someone in Need
It’s always been interesting to me what legal duty the law imposes on a proprietor of a business to aid someone that you know is ill or injured on your property. What we are discussing here is not a moral obligation but a legal obligation. Florida law is pretty clear when it comes to this issue. The proprietor is not required to take any action beyond that which is reasonable in the case of an ill or injured person on the property. Typically, you will be seldom required to do more than just give first aid as you can reasonably provide. It’s like taking reasonable steps to give first aid which can include just dialing 911.
There was a case involving a health club where a customer died of cardiac arrest. The health club was sued because the fitness club did not have a CPR qualified employee on site for medical emergencies and their employees failed to administer CPR so the person died. According to the ruling the club had no legal duty to have a defibrillator on the premises or to have people there ready and willing to perform CPR. Their only duty in this particular case was to call professional medical assistance within a reasonable amount of time and inform them that one of their customers was probably having a heart attack.
There was another case where a customer was passed out drunk and left alone lying hear the ocean on a commercial fishing pier and he rolled in to the water and drowned. The relatives sued the pier operator for negligence and the court ruled that the owner or proprietor couldn’t just sit by and ignore and step over an unconscious customer lying in a dangerous place on his premises. He must take some minimal steps to safe guard any customer upon his premises from extreme danger.
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Durable Powers of Attorney
Florida law allows a competent person to execute a durable power of attorney which is designed to give people a piece of mind knowing that someone else will make important decisions for them if they become incapacitated. A durable power of an attorney is when someone acts on your behalf if you lose your ability to make your own decisions. A typical power of attorney terminates when the person who executed it or created the power of attorney becomes mentally incapacitated or dies.
Durable power of attorney is valid when the person who executed or authorized it becomes incapacitated; the problem is that if given to the wrong person it could be used to stead from the incapacitated individual. What you can do to prevent someone who holds a durable power of attorney from taking advantage of someone who is mentally incapacitated is to put provisions in the agreement that will prevent or minimize abuse. The person holding the power of attorney should not have the authority to make gifts over a certain amount of money without consulting the family members and the attorney.
Another way is to have the attorney who drew the power to hold it until notified by the agent that the principle can no longer handle his affairs. For example, a son may notify an attorney to then provide the son with the power of attorney. The attorney can then talk to the father and the father’s doctor to see if in fact the father is no longer able to make such choices and if convinced he can then release the document to the son and let him take charge.
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