A wrongful death lawsuit will inevitably be filed in connection with the fatal I-95 sport-utility crash that left two dead from the Hollywood Florida area.  Personal injury lawyers will hire probate lawyers to open the estates so a personal representative can be appointed to file a survival action and a wrongful death claim.  According to reports, the vehicle lost control and flipped over which might lead investigators for the wrongful death lawyers to examine whether any defect existed in the vehicle that may have caused it flip.   (more…)

Who Decides?

In the past, Florida Statutes and case law were lacking any real direction as far as who “owns” a deceased person’s body and ultimately who decides how to dispose of the deceased person’s body. Unfortunately, many people do not plan ahead for such an important decision and when one fails to make these arrangements in advance of death, families are left to decide which really means estate litigation lawyers have yet another fight on their hands. The failure to make burial arrangements often creates dissension among loved ones who may never have discussed what a deceased person’s wishes were as far as the disposition of their remains after death. Cremation or burial, where to be buried, whether to donate the body for science, or even what kind of funeral service are just some of the disputes that arise among loved ones. The Anna Nicole Smith and Schiavo cases were a couple of the more publicized disputes that with the help of elder law layers, the media and judges got turned into a three-ringed circus. (more…)

How Much Power Does a Power of Attorney Really Give?

As probate and trust litigation attorneys, day in and day out, we deal with claims for undue influence, lack of testamentary capacity, and improper execution of testamentary documents.  However, one issue that comes up periodically but often overlooked, is the breach of fiduciary duty by an attorney-in-fact by improperly using a power of attorney.  Often, a power of attorney is used to the detriment of the principal, and by extension the principal’s heirs.  It is standard practice for estate planning lawyers to recommend and prepare a durable power of attorney as part of a client’s estate planning package, as it is important for a mechanism to be in place so the principal’s family can manage his/her financial affairs in the event the principal becomes incapacitated. (more…)

Second District Finds No Authority Under Probate Code for Class Claims

The Second District Court of Appeals rendered a harsh rejection of a Lee County Circuit Court’s decision allowing a class action claim against a decedent’s estate.  Baillargeon v. Sewell, 2010 WL 1727892, 35 Fla.L.Weekly D978a, (Fla.2d DCA April 30, 2010) announced a decision important to inheritance lawyers and others interested in Florida probate law and Florida probate and will and estate administration issues. 

When Frank D’Alessandro (the Decedent) died, he was one of several defendants named in a class action lawsuit in federal court filed by Randolph Sewell and Daphne Sewell (the Sewells), on behalf of themselves and all others similarly situated, founded upon allegations involving a failed investment scheme.  The Personal Representative was substituted as a party in the pending action after decedent’s death.  Within three months after the first publication of notice to creditors, the Sewells filed a statement of claim “both individually and on behalf of [a] class of claimants.” In their statement of claim, the Sewells did not list the names and addresses of the other members of the putative class. (more…)

CRIMINAL PROSECUTION FOR FINANCIAL EXPLOITATION OF THE ELDERLY – THE SQUEAKY WHEEL GETS THE OIL

 “It was once said that the moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; and those who are in the shadows of life, the sick, the needy and the handicapped.”  — Hubert H. Humphrey

 It is a sad fact that most people who commit financial exploitation against the elderly get away with it. Often, the exploitation becomes so easy that the exploiter does it more than once and against more than one victim. Their actions become increasingly bolder, and with few exceptions, their greed leads them to steal larger sums of money from each new victim. This is why they must be prosecuted to the full extent, as there WILL be another victim.

Unfortunately, financial crimes against the elderly continue to escalate at an alarming rate and, more often then not, are never prosecuted. Because exploitation is misunderstood, those who witness it either do the wrong thing or nothing at all to prevent it. Witnesses often fail to act because they mistakenly believe that confused victims don’t have capacity but must be treated as if they did. When a reporting officer does not properly recognize an exploitation crime, they make a common mistake of classifying the crime as a civil matter because the incapacitated victim signed legal documents transferring assets or because consent was apparently given. Attorneys tend to shy away from pursuing criminal investigations on behalf of their clients because they couldn’t justify charging elderly or mentally infirm victims exorbitant fees. How could an attorney claim that an elderly client chose to retain his or her services at a specified rate per hour and then insist in the same breath that the client doesn’t have the capacity to make financial decisions?

Even more alarming, as my recent experience in attempting to have a home health aide arrested for theft from an elderly client (detailed below) revealed, is the general feeling of helplessness or careless attitude expressed by several law enforcement officers – why bother, even if one arrest is made, there’s a thousand more waiting in line to prey upon the elderly.  What is unclear is whether the increasing number of elderly exploitation cases is the cause or the result of this kind of thinking. (more…)