Articles Posted in Guardianships

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.

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 become 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.

The Shifting Landscape of Guardianship Law: Three Consecutive Years of Changes

(Published in The Florida Bar Journal, September 2016) 

Members of The Florida Bar Real Property, Probate and Trust Law Section’s (RPPTL) Guardianship, Power of Attorney and Advance Directives Committee are keenly aware that there have been major changes to Florida’s guardianship laws in the last several years. The political climate of the past few years has been decidedly against guardianships and, in particular, professional guardians, due to perceived abuses by them. The current political climate is due in part to hearings held before the Florida Legislature during the 2014 session in which organized members of the public testified about the horrors of guardianships. While some of the horror stories came from disgruntled family members unhappy with the results of their particular guardianship litigation, others made legitimate points regarding the need to improve the system.

Estate Planning for Young Professionals: Don’t Wait to Start Planning

Discussing one’s death can be an awkward and uncomfortable experience at any age. It is a topic that most individuals avoid at all costs, especially young adults, as if the mere discussion of one’s future demise will somehow bring it about. While it may not be pleasant dinner conversation, discussions of what will and should happen in the event of death should take place sooner rather than later.

Most young professionals do not feel a sense of urgency when it comes to estate planning, and believe that they have all of the time in the world.  Many young professionals also do not have much of an estate to speak of, maybe some bank accounts, some property if they are lucky, and likely a lot of student debt. Many individuals with few assets do not see the need for any type of estate plan. However, such an outlook is shortsighted and fails to take into account assets that will be acquired in the future. Early estate planning can protect the estate an individual does have, maximize the value and income of both their current and future assets, and also ensure seamless transfer of assets to loved ones in the event of death.

The path to a guardianship begins with a petition to determine incapacity. Next, there is an examination of the alleged incapacitated person by a three-person examining committee. Finally, there is a hearing on the matter where there must be clear and convincing evidence that the alleged incapacitated person is in fact incapacitated and that their rights should be removed.

The process of obtaining a court appointed guardianship is not easy. Courts view the removal of a person’s rights as a final option and do not grant guardianships without conducting a thorough review and exhausting all other options. The court places an extremely high value on protecting the alleged incapacitated person and their rights. A person alleged to be incapacitated is entitled to procedural due process in determining incapacity. According to Florida Statute, an alleged incapacitated person has the right to:

(1) Remain silent and refuse to testify at the hearing. The person may not be held in contempt of court or otherwise penalized for refusing to testify. Refusal to testify may not be used as evidence of incapacity; (2) Testify; (3) Present evidence; (4) Call witnesses; (5) Confront and cross-examine all witnesses; and (6) Have the hearing open or closed as she or he may choose. Fla. Stat. § 744.1095.
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When the mental faculties of a person come into question, the court can be petitioned to implement a guardianship. Courts, generally, view this as a last resort when there is no viable alternative. Guardianships can be limited in their scope or plenary. Part of the guardianship processes is an examination of the alleged incapacitated person by a three-person examining committee. Questions often arise about the rights and duties of the examining committee in the examination of an alleged incapacitated person. Under the Florida guardianship statutes, before depriving an individual of all of his or her civil and legal rights, “the individual must be incapable of exercising his rights at all, whether wisely or otherwise.” Losh v. McKinley, 86 So. 3d 1150, 1153 (Fla. 3d DCA 2012)(quoting McJunkin v. McJunkin, 896 So.2d 962, 963 (Fla. 2d DCA 2005)). Florida Statute Section 744.331(3) outlines the rights and duties of the examining committee in determining incapacity. There are rights related to the examination and report conducted and issued by the examining committee as well as the hearing on the matter.
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When a ward is incapable of taking care of his or her own interests, a court usually appoints a “guardian” to take care of that individual. A guardian may be appointed when a person experiences mental incapacity or a disability. A court may also appoint a guardian for a minor child in the event that the child’s natural guardian(s) are unable to serve as legal guardians of the child. But, what is the process that the court goes through when choosing a guardian? Who is qualified to be a guardian? Florida statutes and case law provide answers to many of the questions that come up when a court needs to select a guardian.

The basic qualifications for any guardian are (1) that he or she is 18 years or older and (2) that he or she is a resident of Florida. Fla. Stat. § 744.309. However, the resident requirement does have some flexibility built in and several exceptions do apply. See Fla. Stat. § 744.309(2).
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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.
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In their wills, many parents choose to leave property to their children. Others may give their children certain property while they are still living. Children may also have an interest in property as a result of a trust set up by one or both of their parents. But, what if these children are still minors? Is it legal for a parent or natural guardian to transfer property to minors? Who is authorized to make decisions with regard to that property? Can the minors themselves make decisions to alter or sell the property?

Generally, “[t]he fact that a person is a minor does not prevent him from acquiring and holding title to property.” Watkins v. Watkins, 123 Fla. 267 (1936). However, complications often arise out of a minor owning real or personal property or having some other property interest transferred to him or her, such as having to pay property taxes on real estate. In this circumstance, the natural guardian of the child will have to assist the child. When the aggregate sum of the property does not exceed $15,000, the natural guardian(s) of a minor may “(a) settle and consummate a settlement of any claim or cause of action accruing to any of their minor children for damages to the person or property of any minor children; (b) collect, receive, manage, and dispose of the proceeds of any settlement; (c) collect, receive, manage, and dispose of any real or personal property distributed from an estate or trust; (d) collect, receive, manage, and dispose of and make elections regarding the proceeds from a life insurance policy or annuity contract payable to, or otherwise accruing to, the benefit of the child; and (e) collect, receive, manage, dispose of, and make elections regarding the proceeds of any benefit plan . . . of which the minor is a beneficiary, participant, or owner.” Fla. Stat. § 744.301(2). However, when the amount of the property exceeds $15,000, the rights of the natural guardians are limited and subject to review and permission of the court. Until the minor reaches the legal age of majority, he or she is under a type of “disability” because she lacks the capacity to enter into binding contracts. However, if the minor does not want to sell the property or does not need to sell the property, he or she may choose to hang on to the property until he or she reaches the age of majority.
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Some residents of Miami-Dade or Broward County may currently serve as guardian for a ward or may become an appointed guardian in the future. A ward means a person for whom a guardian has been appointed. A person may need a guardian because they become incapacitated or because they are a minor. The responsibilities of a guardian will vary depending on the ward’s needs. 1156484_old_couple A guardian is defined in the Florida Statutes Section 744.102 defines a guardian as a person who has been appointed by the court to act on behalf of a ward’s person or property, or both. A guardian for a ward can live close by or in a different location. For example, if a Miami-Dade County resident becomes incapacitated, their guardian may reside in the same county, in another county in Florida such as Palm Beach County, or even in another state.

Often after someone is appointed guardian they will have questions about their responsibilities and compensation. Florida Statute Section 744.108 specifically addresses the issue of fees for guardians. The statute allows for a reasonable fee for services rendered and reimbursement for costs incurred on behalf of the ward. The court will take into account different factors including the time and labor required, the difficulty of the questions involved, the fee customarily charged in the area for similar services, the amount of income earned by the estate, and the responsibilities and potential liabilities assumed by the guardian. The court will also consider the nature and length of the relationship with the incapacitated person, the experience, reputation, diligence, and the abilities of the person performing the service. Therefore it is highly important for a guardian to keep accurate records of costs associated with the guardianship responsibilities.
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