Condominium Board Certification Courses in Miami
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Condominium Board Certification Course in Miami
It is Election Season again and pursuant to Florida Condominium Act, newly elected board members must complete the education curriculum administered by a Division-approved condominium education provider (in lieu of providing a written certification), either one year before or 90 days after election or appointment. The Law Office of Cuevas, Ortiz & Cubas, P.A. has been approved by the Department of Business and Professional Regulation, to present its approved course “Board Member Certification – Knowing Your Responsibilities”. The course will be presented by Andrew Cuevas, Esq. The course is free to all participants and continental breakfast is included, but you need to register as space is limited. To Board Members and Potential Board Members – we encourage you to register for the upcoming course. The course can be taken either before or after elections. To Property Managers – we encourage you to also register as the material will be interesting to all. Please also inform your clients/boards of the upcoming courses. Participants do not need to be clients of Cuevas, Ortiz & Cubas, P.A. WE WILL HAVE TWO LOCATIONS/DATES FOR THE COURSE:
Saturday, January 21, 2012 (Downtown Miami/Miami Beach/Brickell area) Doubletree by Hilton Grand HotelBiscayne Bay 1717 N. Bayshore Drive Miami,FL 33132 9:00 a.m. to 11:00 a.m. Continental Breakfast included Saturday, January 28, 2012 (Doral/Kendall/South Miami area) Intercontinental Hotel 2505 NW 87th Avenue Miami,FL 33122 9:00 a.m. to 11:00 a.m. Continental Breakfast included
To register, please contact Kathy Ramos, legal assistant to Andrew Cuevas, Esq., at (305) 461-9500 Ext. 3526, or send an e-mail to kramos@cuevaslaw.com. We ask that you register early to save your space. Mr. Andrew Cuevas, Esq., is the President of Cuevas, Ortiz & Cubas, P.A., and oversees the firm’s Community Association Division. If you have any questions regarding this article or any other questions, you can contact Mr. Cuevas at (305) 461-9500 or at acuevas@cuevaslaw.com. If you are interested in reading previous newsletters issued by the firm, please visit www.cuevaslaw.com, select the icon for News Room, then choose Newsletter, and thereafter select the category of Community Association News. The Law Office of Cuevas, Ortiz & Cubas,P.A.is providing this newsletter as a brief summary of certain aspects of community association law. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this news letter does not create any attorney-client relationship between the reader and Cuevas, Ortiz & Cubas, P.A.. The hiring of an attorney is a decision that should not be based solely on advertisements or this newsletter. Before you decide, ask us to send you free written information about our qualifications and experience. |
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Elections – Updating Issues Regarding Eligibility for Board of Directors
It is Election Season again and every year there seems to be a recurring theme to questions posed to our offices as community association attorneys: “Who is eligible to be a candidate for the Board of Directors?” There are slight but important differences between the laws that apply to Condominium Associations and those that apply to Homeowner Associations. Recently there were certain changes in the Condo Act and the HOA Act which impact Community Associations. This article is intended to make you aware of some of the changes, but is not intended to be a full explanation of rules governing elections. Condominium Associations – pertinent information / changes Florida Statute §718.112(2)(d) addresses some of the issues related to Candidacy and Voting Eligibility for condominium associations, and provides in part as follows:
Homeowner Associations – pertinent information / changes
The Law Office of Cuevas, Ortiz & Cubas, P.A., is authorized by the Department of Business and Professional Regulation for the State of Florida, as a Community Association Manager Continuing Education Provider, and has obtained approval to administer the Board Member Certification Course titled “Board Member Certification – Knowing Your Responsibilities”. Please feel free to contact our office with any questions. Mr. Andrew Cuevas, Esq., is the President of Cuevas, Ortiz & Cubas, P.A., and oversees the firm’s Community Association Division. If you have any questions regarding this article or any other questions, you can contact Mr. Cuevas at (305) 461-9500 or at acuevas@cuevaslaw.com. If you are interested in reading previous newsletters issued by the firm, please visit www.cuevaslaw.com, select the icon for News Room, then choose Newsletter, and thereafter select the category of Community Association News. The Law Office of Cuevas, Ortiz & Cubas,P.A.is providing this newsletter as a brief summary of certain aspects of community association law. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this news letter does not create any attorney-client relationship between the reader and Cuevas, Ortiz & Cubas, P.A.. The hiring of an attorney is a decision that should not be based solely on advertisements or this newsletter. Before you decide, ask us to send you free written information about our qualifications and experience.
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UNIT OWNER RIGHTS OF PARTICIPATION DURING ASSOCIATION MEETINGS
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Unit Owner Rights of Participation During Association Meetings
A frequent complaint that has been made to me over my years of legal practice as a community association attorney comes from unit owners who complain that Board Members do not let them participate at the association meetings, and otherwise treat Board Meetings as one-way dialogues that are not to be interrupted. This error on the part of Board Members should be avoided as unit owners have rights established by statute to participate at association meetings. This right of participation however does not extend to non-unit owners holding the proxy of a unit owner, but may extend to a person holding a power-of-attorney from the unit owner as well as a person holding a power of attorney for a corporate owner. Most recently, I received a complaint that a property management company actually cancelled a Board Meeting because the Board President refused to allow a unit owner to video tape the meeting. Unit owners have rights that should be respected, and such act by the Board President and the property manager are actionable. Florida Statute §718.112 establishes several provisions that are automatically provided in the Bylaws of the condominium association documents, with any conflict being resolved in favor of the statutory provision. Section 718.112(2)(c) states that unit owners may tape record or video tape meetings, and have the right to speak at such meetings with reference to all designated agenda items. The Board of Directors of the condominium, through their rule making authority, may establish reasonable rules governing the frequency, duration, and manner of unit owner statements. It is recommended that condominium Boards modify their existing rules so that the unit owner rights are protected, while also establishing clear procedures and limitations with the right to participate so as to not affect the effective flow of a meeting. If such rules are adopted, they probably should: 1) Not limit the total number of unit owners authorized to speak 2) Limit a unit owner’s maximum time to three minutes or more per agenda item 3) Establish where video tape and audio tape equipment may be situated so as to not to affect the view of other unit owners, while still protecting the right to obtain the recordings. A question naturally arises if a unit owner brings their legal counsel for the purpose of addressing one or more issues to be raised at the association meeting. Should the Board allow the attorney to address the Board and the other unit owners with their concerns? It is my opinion that based on the attorney/client relationship established between the unit owner and their attorney, that indeed a power of attorney has been granted by the unit owner to the attorney and therefore the attorney should be allowed to address the Board on behalf of the unit owner, as any other unit owner, with all corresponding limitations that are placed on unit owner participation. The Board should be aware that if the attorney is asking a question that requires a “legal response” or the interpretation of documents, that the Board should be careful with such response and possibly respond to such questions by stating that the Association’s attorney will provide an appropriate response to the question in writing. Mr. Andrew Cuevas, Esq., is the President of Cuevas, Ortiz & Cubas, P.A., and oversees its Community Association Division of the firm. If you have any questions regarding this article or any other questions, you can contact Mr. Cuevas at (305) 461-9500 or at acuevas@cuevaslaw.com. If you are interested in reading previous newsletters issued by the firm, please visit www.cuevaslaw.com, select the icon for News Room, then choose Newsletter, and thereafter select the category of Community Association News. The Law Office of Cuevas, Ortiz & Cubas, P.A. is providing this newsletter as a brief summary of certain aspects of community association law. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this news letter does not create any attorney-client relationship between the reader and Cuevas, Ortiz & Cubas, P.A.. The hiring of an attorney is a decision that should not be based solely on advertisements or this newsletter. Before you decide, ask us to send you free written information about our qualifications and experience.
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CUEVAS, ORTIZ & CUBAS, P.A. AT THE PROPERTY MANAGER EXPO
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Meet us at the PROPERTY MANAGER EXPO!!!!! Miami Beach Convention Center, Miami Beach, Florida Our offices will be participating at the PROPERTY MANAGER EXPO and we would like to invite you to visit us on BOOTH 612 at the Miami Beach Convention Center on TUESDAY, October 18th from noon to 6:30 pm. You will have the opportunity to meet some of our staff!!
Property Manager Expo Date: Tuesday, October 18, 2011 Time: 12:00 to 6:30 pm Location:Miami Beach Convention Center Drive Miami Beach, Fl 33139
If you have any questions, feel free to contact our offices at (305) 461- 9500 and ask for Kathy Ramos, Yessenia Godinez or Ana Madero.
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Visa Lottery 2013
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IMMIGRATION LAW ALERT – VISA LOTTERY DearClient/Colleague: We are pleased to inform you that the DV Immigration Visa Lottery for 2013 has begun. This Lottery provides 55,000 permanent residence visas (“green cards”). The following countries are excluded: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India Jamaica, Mexico, Pakistan, Philippines, Peru, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and ‘Vietnam . All other countries are eligible, including Hong Kong SAR,Macau. SAR, andTaiwan. If your parents or spouse were born in a country not excluded, then you have “Derivative Status”, and you may still apply. If your spouse is not excluded, then your spouse can include Your application must be filed prior to the deadline which is Thursday, November 3, 2011. If you or someone you know wishes to participate in this visa lottery, please contact our offices for further details at (305) 461 9500. Immigration will only accept one application per person. This application is separate and apart from any other type of visa application, and will not adversely affect or prejudice any application that may have been already filed with the Immigration Service or an American Embassy abroad. We appreciate the confidence you have in our law firm to handle your immigration matter and look forward to hearing from you soon! Do not delay, contact us now! ————————— AVISO DE IMMIGRACION – LOTERIA DE VISAS
Estimado Cliente/Colega: Le informamos que la Lotería de Visas de Inmigración del programa de Diversidad de Visas para el 2013 ha comenzado. Esta lotería proporciona 55,000 visas de residencia permanente (“tarjetas de residencia”). Los países excluidos para este beneficio son los siguientes: Bangladesh, Brasil, Canda, China (nacidos en el continente), Colombia, Republica Dominicana, Ecuador, El Salvador, Guatemala, Haití, India, Jamaica, México, Pakistán, Filipina, Perú, Corea del Sur, Reino Unido (excepto el Norte de Irlanda) y sus territorios, y Vietnam. Todos los demás países son elegibles, incluyendo Hong Kong SAR, Macau. SAR, y Taiwán. Si sus padres o cónyuge nacieron en un país que no esta excluido, entonces tiene un “Estado Derivado”, y puede aplicar. Si su conyugue no esta excluido, entonces su esposo/a puede incluirlo/a en su aplicación separada. La Lotería esta disponible para cualquier persona mayor de 18 años. Su aplicación debe ser presentada antes de la fecha limite que es Jueves, Noviembre 3, 2011. Si usted o alguien que usted conoce desean participar en esta lotería de visas, por favor contáctenos al (305) 461-9500 para mayor información. Inmigración solo aceptara una aplicación por persona. Esta aplicación es separada y aparte de cualquier otro tipo de aplicación para visas, no afectara o perjudicara cualquier aplicación que haya presentado con el Servicio de Inmigración o Embajada Americana en el exterior. Agradecemos la confianza que tienen en nuestra firma para manejar su caso de inmigración y esperamos su llamada. No espere, llámenos ahora!
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CAN UNIT OWNERS AVOID PAYMENT OF MAINTENANCE OBLIGATIONS?
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Can Unit Owners Avoid Payment of Maintenance Obligations?
In our efforts to prosecute association foreclosure cases, we have seen many different defenses and counter claims presented by unit owners in an effort to justify their failure to meet their obligations to pay monthly maintenance. We have seen claims that repairs to their units have not been conducted, landscaping is not presentable, the Association is not properly insured, counter claims for breach of fiduciary duty due to mishandling of funds, and many other creative defenses and counter claims. Unfortunately from time to time judges will either agree with unit owners and not grant the Association’s Motion for Summary Judgment on the issue or otherwise utilize their discretion to give unit owners more time to meet their obligations. A recent decision of the Third District Court of Appeal clarified this issue and clearly came down on the side of the Association’s arguments. In Coral Way Condominium Investments, Inc. vs. 21/22 Condominium Association, Inc., 36 Fla. L. Weekly D 1677 (Fla. 3rd DCA, August 3, 2011), the question posed to the Court of Appeals was whether the owner of six commercial condominium units was justified in not paying association dues. A Special Assessment was passed by the Association in the amount of $348,703.75 to pay for flood damage repairs and cleaning of the air conditioning system’s condenser coil. The Condominium had suffered flood damage when a pipe burst in the building’s air conditioning system caused by sediment build-up in the air conditioning system’s lines. The Unit Owner disputed the need and validity of the Special Assessment and demanded that the Association provide proof of the need for such an extensive assessment. The Unit Owner’s review of Association records allegedly revealed that the Association had paid, as a common expense and as a charge to all unit owners, expenses that were not common expenses, including payments for maintenance expenses that did not concern common elements and improper payment of legal fees that were not incurred by the Association. Additionally, the Unit Owner claims that the records revealed that the Association had received a lump sum payment in connection with a rooftop lease that had not been accounted for. The Association demanded payment of the Unit Owner’s portion of the Special Assessment, plus interest, attorneys’ fees and costs and provided Unit Owner with notice that it would record separate claims of lien against each ofCoral Way’s respective units. The Unit Owner refused to pay the special assessment and the claims of lien were subsequently recorded, and thereafter the Association foreclosure action was filed. The Unit Owner claimed that: (1) the validity of the special assessment was at issue; and (2) that the Board breached its fiduciary duty with regard to usage of Association funds. The Court ruled that there was no genuine issue of material fact existing as to the validity of the special assessment, and that the Association has the power to make and collect assessments for common expenses. See §§718.111(4), 718.115(2). The common expenses of an association include expenses incurred in the operation, maintenance, repair or replacement of the common elements, and any other expense designated as a common expense by the association’s declaration or bylaws. §718.115(1). The common elements of a condominium include condominium property which is not included within the units. § 718.108(1)(a). Furthermore, the process of passing the assessment was correct. The Unit Owner contended that the special assessment would not have been necessary were it not for the Association’s alleged breach of fiduciary duty, which the Unit Owner argues depleted the Association’s funds. The Court ruled that avoidance of the payment of a valid assessment, however, is not a remedy available to unit owners to cure unauthorized acts by officers or directors of an association. The Court further stated that “if the officers or directors of an association act in an unauthorized manner, the unit owners should seek a remedy through elections or, if factually supported, in an action for breach of fiduciary duty.” A unit owner’s duty to pay assessments is conditional solely on whether the unit owner holds title to a condominium unit and whether the assessment conforms to the declaration of condominium and bylaws of the association, which are authorized by chapter 718, Florida Statutes. The Court concluded that the foreclosure claim and breach of fiduciary duty counter claim were properly severed, as the facts giving rise to each claim are not inextricably interwoven, and that the Association could proceed with its foreclosure action. Mr. Andrew Cuevas, Esq., is the President of Cuevas, Ortiz & Cubas, P.A., and oversees its Community Association Division of the firm. If you have any questions regarding this article or any other questions, you can contact Mr. Cuevas at (305) 461-9500 or at acuevas@cuevaslaw.com. The Law Office of Cuevas, Ortiz & Cubas, P.A. is providing this newsletter as a brief summary of certain aspects of community association law. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this news letter does not create any attorney-client relationship between the reader and Cuevas, Ortiz & Cubas, P.A.. The hiring of an attorney is a decision that should not be based solely on advertisements or this newsletter. Before you decide, ask us to send you free written information about our qualifications and experience. |
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The Obama Administration’s Immigration Announcement is NOT an Amnesty Program!
Consumer Warning for DHS Annoucement 2011-08-18 Dear Clients, Please review the enclosed PDF which explains in depth the announcement made by the Obama administration last week in reference to deportations. If you have any questions, please feel free to contact our offices. Mr. Roberto J. Ortiz, Esq., is the Vice President of Cuevas, Ortiz & Cubas, P.A., and oversees the Immigration Division of the firm. If you have any questions regarding this article or any other questions, you can contact Mr. Ortiz at (305) 461-9500 or at rortiz@cuevaslaw.com. ——- Estimados Clientes, Adjunto encuentre documento que explica en detalle el anuncio hecho por la Administración del Presidente Obama la semana pasada con relación a deportaciones. Si usted tiene alguna pregunta, no dude en comunicarse con nuestra oficina. El Abogado Roberto J. Ortiz, Esq., es el Vicepresidente de Cuevas, Ortiz & Cubas, P.A. y dirige el Departamento de Inmigración de nuestra firma. Si usted tiene alguna pregunta con relación a este articulo o cualquier otra pregunta en general, usted puede comunicarse con el Sr. Ortiz al (305) 461 9500 o a rortiz@cuevaslaw.com. Cuevas, Ortiz & Cubas, P.A.
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Secretary Napolitano Announces Initiatives to Promote Startup Enterprises and Spur Job Creation
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Secretary Napolitano Announces Initiatives to Promote Startup Enterprises and Spur Job Creation
Secretary of Homeland Security Janet Napolitano and U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas have outlined a series of policy, operational, and outreach efforts to fuel the nation’s economy and stimulate investment by attracting foreign entrepreneurial talent of exceptional ability or who otherwise can create jobs, form startup companies, and invest capital in areas of high unemployment. “TheUnited Statesmust continue to attract the best and brightest from around the world to invest their talents, skills, and ideas to grow our economy and create American jobs,” said Secretary Napolitano. “Today’s announcements will help our nation fully realize the potential of existing immigration laws.” “Current immigration laws support foreign talent who will invest their capital, create new jobs for American workers, and dedicate their exceptional talent to the growth of our nation’s economy,” said Director Mayorkas. “USCIS is dedicated to ensuring that the potential of our immigration laws is fully realized, and the initiatives we announce today are an important step forward.” These actions mark the six-month anniversary of Startup America, a White House-led initiative to reduce barriers and accelerate growth forAmerica’s job-creating entrepreneurs. They have also been one key focus of the President’s Council on Jobs and Competitiveness, which has recommended taking action to help ensure thatAmerica can out-innovate and out-compete the world in a global economy. USCIS has published a Frequently Asked Questions (FAQs) document on its website clarifying that entrepreneurs may obtain an employment-based second preference (EB-2) immigrant visa if they satisfy the existing requirements, and also may qualify for a National Interest Waiver under the EB-2 immigrant visa category if they can demonstrate that their business endeavors will be in the interest of the United States. USCIS will complement these FAQs with internal training on the unique characteristics of entrepreneurial enterprises and startup companies and incorporate input from the upcoming stakeholder engagements detailed below. The EB-2 visa classification includes foreign workers with advanced degrees and individuals of exceptional ability in the arts, sciences, or business. Generally, an EB-2 visa petition requires a job offer and a Department of Labor certification. These requirements can be waived under existing law if the petitioner demonstrates that approval of the EB-2 visa petition would be in the national interest of theUnited States. In response to stakeholder feedback, USCIS has also updated existing FAQs to clarify that an H-1B beneficiary who is the sole owner of the petitioning company may establish a valid employer-employee relationship for the purposes of qualifying for an H-1B nonimmigrant visa – which is used by U.S. businesses to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as science, engineering, and computer programming. The EB-5 immigrant investor program is also being further enhanced by transforming the intake and review process. In May, USCIS proposed fundamental enhancements to streamline the EB-5 process which include: extending the availability of premium processing for certain EB-5 applications and petitions, implementing direct lines of communication between the applicants and USCIS, and providing applicants with the opportunity for an interview before a USCIS panel of experts to resolve outstanding issues in an application. After reviewing stakeholder feedback on the proposal, USCIS is developing a phased plan to roll out these enhancements and is poised to begin implementing the first of these enhancements within 30 days. Created by Congress in 1990, the program stimulates theU.S.economy through capital investment and resulting job creation by immigrant investors. As of June 30, 2011, it is estimated that the program has resulted in more than $1.5 billion in capital investments and created at least 34,000 jobs. USCIS has also announced the expansion of its Premium Processing Service to immigrant petitions for multinational executives and managers (often referred to as “E13″). The Premium Processing Service allows employers to expedite processing of their petitions, absent evidentiary deficiencies, fraud or national security concerns. Finally, USCIS is launching a new series of engagement opportunities for entrepreneurs and startup companies. These opportunities will focus on soliciting input from stakeholders on how USCIS can address the unique circumstances of entrepreneurs, new businesses and startup companies through its policies and regulations in the employment-based arena. Mr. Roberto J. Ortiz, Esq., is the Vice President of Cuevas, Ortiz & Cubas, P.A., and oversees the Immigration Division of the firm. If you have any questions regarding this article or any other questions, you can contact Mr. Ortiz at (305) 461-9500 or at rortiz@cuevaslaw.com. Cuevas, Ortiz & Cubas, P.A.
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FLORIDA’S NEW POWER OF ATTORNEY
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FLORIDA’S NEW POWER OF ATTORNEY ACT BECOMES EFFECTIVE OCTOBER 1, 2011
On May 4, 2011 theFloridalegislature voted to pass Senate Bill 670 which significantly revises Chapter 709, theFloridalaw governing powers of attorney. The changes enacted by the legislature go into effect on October 1, 2011. The new law makes significant changes to how a power of attorney is executed, when a power of attorney becomes effective (springing upon the incapacity of the principal or upon execution), how a power of attorney is revoked or terminated, limitations of duties and authority for the agent, liability of the agent and third parties’ reliance upon the power of attorney. What is a power of attorney? A power of attorney is a document that grants authority to an agent to act in the place of the principal. A power of attorney may be durable or nondurable. A durable power of attorney is one that is not terminated by the incapacity of the principal, whereas a nondurable power of attorney is terminated upon the principal’s incapacity. Execution. Powers of attorney executed after the effective date of the Act (October 1, 2011) must be signed by the principal and by two subscribing witnesses, and be acknowledged by the principal before a notary public. A power of attorney executed before October 1, 2011 is valid if its execution complied with the laws ofFlorida at the time it was executed. Under the Act, a photocopy or electronic copy of a power of attorney has the same effect as the original, unless otherwise provided in the power of attorney. Changes to Springing Powers. A springing power of attorney is one which does not become effective until the incapacity of the principal. Following the effective date of the Act powers of attorney may no longer be contingent upon the incapacity of the principal and must be effective as of the time they are executed (except for certain military powers of attorney). Revocation. A power of attorney may be revoked by the principal at any time by executing a new power of attorney or other signed writing evidencing the principal’s intent to revoke the power of attorney. Under the Act the revocation may be accomplished without witnesses or notarization and the principal is not required to give notice of the revocation to the agent. Suspension and Termination. The authority granted under a power of attorney is suspended upon the initiation of a judicial proceeding to determine the principal’s incapacity or to appoint a guardian. The suspension continues until the court dismisses the proceeding or enters an order adjudicating incapacity. A power of attorney terminates upon: (a) death of the principal; (b) incapacity of the principal when the power of attorney is not durable; (c) adjudication of incapacity of the principal by a court; (d) revocation of the power of attorney by the principal; (e) termination of the power of attorney pursuant to its terms; or (f) accomplishment of the purpose of the power of attorney. Appointment of an Agent. The agent must be a natural person who is 18 years of age or older or a financial institution that has trust powers, has a place of business inFlorida, and is authorized to conduct trust business inFlorida. Under the new law when a principal designates two or more persons to act as co-agents, each co-agent may exercise its authority independently, unless the power of attorney provides otherwise. The agent accepts the appointment as agent by exercising authority or performing duties as an agent or by any other conduct indicating acceptance of the agency. The Act adds a new provision to Chapter 709 relating to expenses and compensation of the agent. Duties of Agents. The Act goes a lot further than existing Chapter 709 to define the duties of Agents. The Act divides the duties of agents into two categories, those duties that apply notwithstanding a contrary provision in the power of attorney and those duties that apply in the absence of a contrary provision in the power of attorney. Authority of Agents. An agent may only exercise the authority specifically granted to the agent in the power of attorney. General provisions in a power of attorney purporting to give the agent authority to do all acts that the principal are not effective under the Act. Property. An agent may exercise authority granted in a power of attorney with respect to property owned by the principal, including property acquired after execution of the power of attorney and property outside the state ofFlorida. Prohibited Powers. The Act does not allow an agent to: (a) perform duties under a power of attorney that require the personal services of the principal; (b) make any affidavit as to the personal knowledge of the principal; (c) vote in any public election on behalf of the principal; execute or revoke any will or codicil for the principal; or (d) exercise authority granted to the principal as trustee or court-appointed fiduciary. Authority Requiring Separate Signed Enumeration. One of the most significant changes from existing Chapter 709 includes a provision providing that there are certain authorities that the agent may exercise only if the principal signs or initials next to the specific enumeration of the authority in the power of attorney, such authority is consistent with the agent’s duties and the exercise is not otherwise prohibited by another instrument. Liability of Agents. Generally, the Act now defines the agent as a fiduciary who owes specific duties to the principal and who can be held liable for improper acts or omissions. Furthermore, the Act provides that (a) absent a breach of duty to the principal, an agent is not liable if the value of the principal’s property declines and (b) an agent who acts in good faith is not liable to any beneficiary of the principal’s estate plan for failure to preserve the plan. The Act provides for and defines the scope of damages and costs recoverable for a breach of duty. Specifically, an agent who violates its duties is liable to the principal or the principal’s successors-in-interest for the amount required to restore the value of the principal’s property to what it would have been had the violation not occurred and to reimburse the principal or the principal’s successors-in-interest for the attorneys fees and costs paid from the principal’s funds on the agent’s behalf in defense of the agent’s actions. Third Party Reliance. The Act imposes a requirement that a third person must accept or reject a power of attorney within a reasonable time. For financial institutions, four (4) business days is presumed to be a reasonable time. For other third persons, reasonableness will depend on the circumstances and the terms of the power of attorney. The third person may require the agent to execute an affidavit setting forth certain facts establishing the continuing validity of the power. A third person may also in good faith request an English translation of any power not wholly in English and an opinion of counsel as to any matter of law concerning the power of attorney. The Act also imposes a requirement that a third person who rejects a power of attorney must state in writing the reasons for the rejection. A third person is not required to accept a power of attorney if: (a) the third person is not otherwise required to engage in the transaction with the principal; (b) the third person has knowledge of the termination or suspension of the agent’s authority or the power of attorney; (c) a timely request by the third person for an affidavit, English translation or opinion of counsel is refused by the agent; (d) the third person believes in good faith that the power is not valid or the agent does not have authority; or (e) the third person has knowledge of a report to adult protective services stating a good faith belief that the principal may be subject to physical or financial abuse by the agent or someone acting for or with the agent. A third person who, in violation of the Act, refuses to accept a power of attorney is subject to a court order mandating acceptance of the power of attorney and liability for damages, including attorney’s fees and costs, incurred in any proceeding that confirms the validity of the power of attorney or mandates its acceptance. A third person who in good faith accepts a power of attorney may rely upon the power and the actions of the agent which are reasonably within the scope of the agent’s authority. A third person who acts in reliance upon the authority granted to an agent will be held harmless by the principal for any loss or liability incurred as a result of actions taken before the receipt of notice that the agent no longer has authority. A third person who acts in good faith upon any representation, direction or action of the agent is not liable to the principal or the principal’s estate, beneficiaries or joint owners for such acts. These changes to Chapter 709 are the most extensive changes to the power of attorney statute since 2005. It is important that you consult an attorney when creating a power of attorney to verify that your instrument complies with the formalities and requirements of Florida law to ensure that it will be effective for your needs. If you have any questions about your current powers of attorney or anticipate major life changes which may require use of a power of attorney please contact our office. Cuevas, Ortiz & Cubas, P.A. |
Asesoria de Immigracion/ Immigration Meetings
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ASESORIA DE IMMIGRACION EN CARACAS- VENEZUELA IMMIGRATION MEETINGS IN CARACAS – VENEZUELA
El Bufete de Abogados de Miami Cuevas, Ortiz & Cubas, P.A. le participa que durante los días 10 y 11 de Agosto de 2011, el Abogado ROBERTO ORTIZ estará dando Asesoría de Inmigración y Negocios hacia los Estados Unidos en la ciudad de Caracas, Venezuela. The Miami Law Firm, Cuevas, Ortiz & Cubas, P.A., announces that Attorney ROBERTO ORTIZ will be meeting clients in the city of Caracas, Venezuela on August 10th and 11th, 2011. PREVIA CITA/ APPOINTMENTS ONLY VALOR DE LA CITA/COST: Bs. F. 860 (Effectivo/Cash) Para hacer su cita o si desea mayor información, por favor contactar a:/ To make an appointment or if you would like more information, please contact: Mirna Nunez Sheena Narvaez Karla Navarro
TELEFONO EN USA/ CONTACT NUMBER IN THE U.S.: (305) 461 9500
Cuevas, Ortiz & Cubas, P.A.
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