Florida law allows for a trustee in Florida to be removed for certain reasons.  The grounds to remove a trustee in Florida include:

(a) The trustee has committed a serious breach of trust;

(b) The lack of cooperation among cotrustees substantially impairs the administration of the trust;

(c) Due to the unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively, the court determines that removal of the trustee best serves the interests of the beneficiaries; or

(d) There has been a substantial change of circumstances or removal is requested by all of the qualified beneficiaries, the court finds that removal of the trustee best serves the interests of all of the beneficiaries and is not inconsistent with a material purpose of the trust, and a suitable cotrustee or successor trustee is available.

A trustee has the duty to administer the trust diligently for the benefit of the beneficiaries. A trustee must deal impartially with the trust beneficiaries, i.e., treat them even-handedly and act in the interest of the trust as a whole. Further, the law requires a trustee to seek approval from a court for the exercise of a trust power when it conflicts with the trustee’s individual interest.

LAWYER RATINGS

Adrian Thomas has achieved the highest lawyer rating in Martindale-Hubbel.

• AV® Peer Review Rating — An AV® certification mark is a significant rating accomplishment – a testament to the fact that a lawyer’s peers rank him or her at the highest level of professional excellence. A lawyer must be admitted to the bar for 10 years or more to receive an AV® rating.

Adrian Thomas has achieved the highest lawyer rating on Avvo. 

Adrian Thomas has been selected Florida Trend Legal Elite  for four consecutive years, 2008-2011.

See comments from Adrian Thomas’s clients.

Florida Guardianship Lawyers who focus on elder law topics can prepare wills and trusts, provide Medicaid plans or assist with guardianship for people who are mentally incapacitated.  Being mentally incapacitated is not the same as being mentally incompetent but the conclusion can sometimes be the same – someone cannot take care of himself or herself and needs a guardian to be appointed by the Court. 

The Law Offices of Adrian Philip Thomas, P.A. has Florida guardianship lawyers practicing with the firm, including Robert M. Trinkler, who has previously served as counsel of record in more than 2,000 guardianship and incapacity proceedings throughout the State of Florida and who has successfully handled hundreds of adversarial guardianship and incapacity matters. 

The lawyers at Law Offices of Adrian Philip Thomas, P.A. have extensive experience in all aspects of Florida guardianship proceedings.

Could Whitney Houston’s Tragic Death Been Avoided?

With the recent death of Whitney Houston, there has been a heightened awareness of substance abuse and more importantly how pervasive this problem is in all walks of society.  Addiction knows no barriers, whether they are social, racial or economic.  Today addiction is so common that few among us can say that they have not been personally affected by knowing someone who is or was addicted to drugs or alcohol.  The hope is that we may somehow intervene in the affairs of an addict before tragedy wreaks havoc upon them and those that they love.

Fortunately for those who are suffering from alcohol and substance abuse addiction problems in the State of Florida, the Florida Marchman Act was first passed into law in 1993 providing for both involuntary assessment and involuntary treatment upon the filing of a Petition for either or both relief.  This progressive legislation was initially introduced by Florida State Senator Hal S. Marchman and accordingly is now known as the “Hal S. Marchman  Alcohol and Other Drugs Services Act.”  An individual can voluntarily submit to such treatment, however, in many situations this is not likely and/or practical when the abuser is in denial of the abuse and more commonly the underlying problem, which often times is of a psychiatric nature.  The Florida Marchman Act provides for a thorough evaluation, which could include both a complete substance abuse and mental health assessment, that often times leads to the discovery of a “dual diagnosis”.

The Florida Marchman Act process typically commences upon the filing of a Petition for Involuntary Assessment when there is a good faith reason to believe that an individual is substance abuse impaired and because of the impairment, the individual has lost the power of self-control with respect to alcohol or substance use.  Such a Petition may be filed by the individual’s spouse, guardian, any relative, private practitioner, a service provider director or any three adults having personal knowledge of the person’s condition.   In the case of a minor, only the parent, guardian or service provider is authorized to file such a petition.

The Petition is filed with the clerk of court in the county in which the impaired person resides or is found and the court must set the petition for hearing within 10 days.  At the hearing, the court may enter an Order for Involuntary Assessment at a public facility unless prior arrangements for a private facility have been made.  The facility will assess and stabilize the patient for a period not to exceed 5 days.  Thereafter, a written assessment is sent the court which may then proceed with a Petition for Involuntary Treatment.

Generally, a second hearing is conducted upon the Petition for Involuntary Treatment upon the court’s receipt of the written report from the assessment facility recommending the need for involuntary treatment.  The court may order the involuntary treatment for a period not to exceed 60 days and may have the Sheriff take the patient into custody for delivery to a licensed treatment facility.

Any individual who is the subject of a Florida Marchman Act has the right to counsel at every stage of a petition for involuntary assessment or treatment.  The court will appoint counsel if requested or if needed and the person cannot afford to pay.  An unrepresented minor must have a court-appointed guardian ad litem.  All filings and proceedings held pursuant to the Florida Marchman Act are held strictly confidential.  Pursuant to Section 397.501 Florida Statutes:  “The records of service providers which pertain to the identity, diagnosis, and prognosis of and service provision to any individual are confidential in accordance with this chapter and with applicable federal confidentiality regulations and are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. Such records may not be disclosed without the written consent of the individual to whom they pertain…”

The confidentiality provision is a great public policy to prevent a chilling effect upon individuals who may otherwise avoid filing a Marchman Act petition for fear of the negative effect and stigma that may be associated with the filing and the ultimate treatment of a substance abuse impaired individual.

In conclusion, the Florida Marchman Act, is a very valuable part of Florida law which can literally save someone’s life if it is both properly and timely invoked.  One may wonder if the tragic outcome of the life of Whitney Houston may have been different if she was a resident of the State of Florida and had been the subject of a Marchman Act proceeding.

Estate Law Florida

What is “estate” law?

From a lawyer’s perspective, the term “estate” refers to many different things.

Gross Estate

The Internal Revenue Service uses the term “gross estate” to mean every asset in which a decedent had an ownership interest on his or her date of death.  This includes real estate, life insurance, bank accounts, stocks, etc.  If a decedent dies with significant wealth, his estate is subject to an “estate tax” and the attorney will need to prepare a Federal Estate Tax Return, form 706.

Probate Estate

The term “probate estate” refers only to those assets owned by the decedent in his or her sole name.  Some decedents have nothing subject to probate, some have a few assets subject to probate, and other decedents have all of their assets subject subject to probate.

Trust Estate

If a decedent had a revocable or “living” trust, then the assets owned by the trust are referred to as the “trust estate.”  These assets are not subject to probate in the court system and are therefore separate and distinct from the probate estate.  A decedent may have both probate estate and a trust estate depending on the ownership of the assets at the time of death.

So the term “estate law” is an umbrella term that includes many subcategories:  gross estate, probate estate, and trust estate.  If an attorney practices estate law and is engaged to do “estate administration,” the work will include some or all of the various types of estates discussed above.

What is a Trustee?  Who is a personal representative?

Is a Florida trustee’s fiduciary duty different from a Florida personal representative’s?  To answer this question, you must first ask what is the difference between a trustee and a personal representative.

A trustee is someone or some entity appointed in a trust to perform the tasks listed in the trust, which typically include the distribution of assets to the beneficiaries and handling any other issues that may arise in the administration of the trust.  A trust is a private document and is usually prepared for tax purposes, creditor protection and avoiding probate.  A personal representative is someone or some entity list in a Will or appointed by the probate court to administer the estate of a deceased person.

The duties and responsibilities of a trustee and a personal representative are listed in different sections of the Florida Probate Code (Fla. Stat. §§736 and 733, respectively), but Fla. Stat. §733.602(1) states as “a personal representative is a fiduciary who shall observe the standards of care applicable to trustees.”

Although the duties of a Florida trustee and personal representative are listed in different sections of the Code and Florida law goes into much further detail regarding the duties and responsibilities of a trustee, ultimately the law provides that the duties and responsibilities of a trustee and a personal representative are essentially the same and may be used interchangeably.  The Florida law makers believed that because a trustee and a personal representative are appointed with the important job of administering assets and have been trusted with great power and responsibility, it makes sense that each one should be held to similar standards.

For further information regarding the differences between a trustee and a personal representative and whether either one is fulfilling its fiduciary duties, it may be in your best interest to contact a Florida trust and estate lawyer or probate attorney.