Children worry about their elderly parents, particularly when the parents begin new relationships. Children may be particularly worried when their parent gives or loans money to a new significant other. This sometimes leads to children seeking to have a parent declared incapacitated, thereby preventing the parent from having control of his or her financial affairs. This was the case in Jasser v. Saadeh, 97 So.3d 241 (Fla. 4th DCA 2012). In that case, Mr. Saadeh, an 80-year-old-man, loaned money to a new girlfriend that he met after the death of his wife. When his children found out, they sought to have their father declared incapacitated. After the children filed for a determination of incapacity, a settlement agreement was reached, in which Mr. Saadeh signed a trust agreement that put his belongings into an irrevocable trust, for which he was the sole lifetime beneficiary, with his children as the remainder beneficiaries. Mr. Saadeh was told that if he signed the document, the proceedings would be over. However, after the settlement order was entered into, and based on reports that Mr. Saadeh was not in fact incapacitated, the court questioned whether the settlement was valid. Mr. Saadeh retained counsel and contested the formation of the trust. The court ultimately found that the trust was void, and Mr. Saadeh’s assets were returned to him.
There are some inherent problems with settlements for guardianship litigation. The person whose capacity is questioned is asked to enter into an agreement, however, if a guardian has been appointed, the ward (in this case Mr. Saadeh) legally is not capable of entering into contracts. The person or people seeking the settlement (presumably the children) cannot be sure that once the guardianship is terminated their parent will abide by the settlement agreement. Therefore, they may be disinclined to settle because they cannot be certain that the parent will not dispose of his or her property if determined to be incapacitated. Finally, even when the parties can reach an agreement, if a petition to determine incapacity has already been filed, the petition cannot be dismissed until the court determines whether or not the person is incapacitated.
This dilemma was present in Jasser v. Saadah when the children sought to have the trust upheld. After the court restored Mr. Saadah’s rights and held that the trust was void, the children sought to have a court establish a trust in their favor. When the trust was contested, the children successfully argued that the order allowing the trust to be created was final, which resulted in a dismissal. The court ruled that petitions of incapacity cannot be dismissed, because that could be dangerous to those who are actually incompetent, in addition to potentially being unfair to competent individuals who are wrongly alleged to be incapacitated. Further, the court declared that because an emergency guardian was appointed to Mr. Saadah, and his rights had been removed before he signed the trust, Mr. Saadah did not have the ability to enter into a contract, making the trust invalid and void.
If you believe that someone you know should be declared incapacitated, or if you know someone who has wrongfully been alleged to be incapacitated, please do not hesitate to contact the experienced and knowledgeable legal team at Chepenik Trushin LLP. We are ready, willing, and able to assist you with matters involving incapacity, as well as any estate planning, probate, trust, or guardianship issues you may have.