Articles Posted in Guardianships

Guardianship – What is it?

Answer: A court intervention to safeguard the property and personal care of an individual unable to make such decisions themselves.

A person under guardianship becomes a ward of the court.  State law establishes the process for determining an adult’s need for guardianship, which involves a finding of incapacity.

What is Elder financial Exploitation?

The Florida Department of Elder Affairs defines elder financial exploitation as “the illegal or improper use of another individual’s resources for personal profit or gain.”  This exploitation takes on many forms involving deception and/or coercion, including the improper use of a power of attorney.

What is a Power of Attorney (“POA”)?

Elder abuse: the farmer population as the next potential target

Florida is a state well-known for its agriculture. In fact, within the United States, it is safe to presume that most people think that the best oranges come from Florida (we certainly think they do). Agriculture is the second most important economic activity in Florida, preceded only by tourism. Agriculture contributes $104 billion in revenue to the state and employs two million people.

According to a 2016 study by Oregon State University and Portland State University, the average age of farmers is 60 years old. Additionally, it is believed that in the next twenty years, 10 million acres of farmland are going to change ownership. Like all other people, we can expect health issues to arise as our farmers age. Studies suggest that 38% of people who are over 85 years old have dementia or some impairment in their mental faculties.

Undue Influence

For a Will to be valid, certain conditions must be met. The testator must have legal capacity, be at least eighteen years old, have testamentary intent, and the will must not be a product of undue influence or duress. The first two requirements are usually relatively easy issues to resolve, but undue influence and duress are not always clear. As the Supreme Court of Florida explained, “[u]ndue influence is not usually exercised openly in the presence of others, so that it may be directly proved, hence it may be proved by indirect evidence of facts and circumstances from which it may be inferred.”[1]

The Fourth District Court of Appeal, in Blinn v. Carlman,[2] stated that, “[w]hen a will is challenged on the grounds of undue influence, the influence must amount to over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower of the testator.” When a will is a product of undue influence, it, by definition, is not the intent of the testator, and therefore courts should not give effect to it.

Guardianship:  When No Less Restrictive Alternative is Available

What is guardianship?

The simple answer: court intervention to safeguard the property and care of an individual unable to make such decisions themselves.

Legal Capacity and Estate Planning- How to Help Safeguard a Will from Future Litigation

When a loved one grows older, their caretakers’ ever growing to-do list can be overwhelming. After dealing with the basic, everyday needs of an aging family member, it may sometimes be easy to overlook the fact that your loved one does not have a valid will. By not addressing this issue, the task of handling final affairs and estate distribution after their death becomes increasingly more difficult. If you are responsible for someone who is at risk for developing Alzheimer’s, dementia, or any other disease that can affect their mental capacity, it is important that you consult with an estate planning lawyer who can ensure that a proper will is drafted in accordance with the laws of the state of Florida.

Florida courts have held that a will can be properly admitted to probate if the testator was competent at the time the will was executed.  Jervis v. Tucker, 82 So.3d 126 (FL 4th DCA 2002).  A testator will be found to have been competent if they possessed the ability to “mentally understand in a general way the nature and extent of the property to be disposed of, and the testator’s relation to those who would naturally claim a substantial benefit from the will, as well as a general understanding of the practical effect of the will as executed.” American Red Cross v. Estate of Haynsworth, 708 So.2d 602, 605 (FL 3rd DCA 1998). Florida courts will apply these standards and also evaluate the facts specific to a particular case in order to determine if a testator was of “sound mind” when they created the will. Estate planning lawyers play an important role in this process and have the responsibility of ensuring that the testator is legally competent at the time the will is created.

Do incapacitated wards need prior court approval to marry? Subsequent ratification is enough

Already in 1888, the United States Supreme Court first recognized the right to marry as one of the fundamental rights of all individuals.  Describing marriage as “the most important relationship in life,” the Court went on upholding that marriage is “the foundation of the family and society, without which there would be neither civilization nor progress.”  Maynard v. Hill, 125 U.S. 190 (1888).

Regretfully, when it comes to marriage of incapacitated persons, they are sometimes the victims of emotional abuse, neglect, and financial exploitation.  For this reason, a guardianship court may remove an incapacitated person’s right to marry if there is clear and convincing evidence that he or she is incapacitated with respect to that right.  Fla. Stat. 744.3215(2)(a); 744.331(6).  However, even when a guardianship court does not remove the right to marry, an incapacitated person’s right to marry becomes “subject to court approval” when his or her right to contract has been removed.  Fla. Stat. 744.3215(2)(a).  This legal framework aims at protecting the ward by allowing a court to assess the risks of abuse and exploitation, while upholding the ward’s fundamental right to marry, to the greatest extent possible.

Priority of Medical Decision-Makers when Incapacitated

Throughout life, many unexpected things can happen. Have you ever wondered who will get to make difficult medical decisions for you if you are incapacitated or otherwise unable to? The Florida Legislature has, in § 765.401 Fla. Stat. (1992), made a list in order of priority of such proxies.

The first person on the list is a court-appointed guardian if one has previously been appointed and has been authorized to consent to medical treatment for the patient. Likewise, a guardian advocate previously appointed by the court will be first in line to make decisions for one who has a developmental disability. It is important to note that guardian appointments are not required before a medical decision can be made.

MORE MONEY, MORE PROBLEMS? 6 DO’S AND DONT’S OF ESTATE PLANNING AND INTELLECTUAL PROPERTY

At the end of last year it seemed as if every day there was a new report of a celebrity dying unexpectedly. As fans around the world mourned the death of some of Hollywood’s most iconic figures, reports of their estate planning, or lack thereof, also filled the headlines.

Prince: Intestacy and streaming music rights collide

Elder Abuse and Undue Influence Awareness

Did you commemorate World Elder Abuse Awareness Day? June 15, 2017 marked the twelfth annual World Elder Abuse Awareness Day, or WEAAD. Elder abuse, especially elder financial exploitation, has been called the crime of the 21st century. However, based on national surveys, elder abuse remains one of the least investigated and least addressed types of violence in national action plans. Experts predict that by the year 2025, the global population of those aged 60 years and older will more than double, from 542 million in 1995 to about 1.2 billion. As the global elderly population grows, so does the risk of financial abuse.

To raise awareness around the world and promote a better understanding of abuse of older adults, the International Network for the Prevention of Elder Abuse and the World Health Organization at the United Nations launched WEAAD in 2006. WEAAD’s theme this year focused on preventing financial exploitation of the elderly in the context of human rights. The 2017 WEAAD also stressed the need for countries to take concrete action and develop strategies addressing financial exploitation for older adults.