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”)?
FLORIDA SUPREME COURT ADOPTS “ATTORNEY-FIDUCIARY PRIVILEGE” RULE
The attorney-client privilege is one of the oldest legal concepts and the backbone of providing effective legal services. It keeps the communication between an attorney and her client secret and protects it from disclosure, with some exceptions, even when other rules compel disclosure. It is the attorney’s duty and the client’s right―an assurance that she may communicate with her attorney frankly and openly.
The privilege covers communication relating to legal representation between the lawyer and her client that the client intends not to disclose to third persons. Fla. Stat. § 90.502. This privilege is not, however, absolute and many jurisdictions have recognized an exception in fiduciary relationships. This exception allows beneficiaries of a trust to obtain privileged communication between the trustee who administers the trust for their benefit and the attorney who advised the trustee on her fiduciary duties.
Legal Capacity and Estate Planning – How to Safeguard a Will from Future Litigation or Contests
When a loved one grows older, ages and declines, 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.
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.
WILLS, TRUSTS, and ARBITRATION AGREEMENTS
In previous blog posts, we have shown how wills and trusts are favored vehicles when protecting someone’s assets. Perhaps one of the purposes of a well-drafted will or trust is to avoid hearing the judge’s gavel when knowing who gets what part of the inheritance. Unfortunately, contentions amongst the parties may well exist. The good news is that since 2007, parties have another alternative to resolve disputes that arise out of a will or a trust. Florida Law provides the option for parties to have a clause in their will or trust requiring arbitration. See Fla. Stat. § 731.401.
Arbitration, is a private (not state-sponsored) method of resolving disputes. Arbitration is not to be confused with mediation: While mediators help the parties in finding a solution, arbitrators decide a dispute.
A Will can be challenged by Caveat or Functional equivalent
On March 9, 2018, Florida’s Second District Court of Appeal held that the functional equivalent of a caveat may serve to properly contest a will.[1] The court observed that the Appellant in the case at issue “filed a pleading styled ‘Answer and Affirmative Defenses’ and did not file a pleading styled ‘caveat.’”[2] Nonetheless, the court found the pleading sufficient to function as a caveat.[3] Here is why.
First, what is a Caveat?
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.
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”)?
Florida Probate Litigation Lawyer Blog