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Florida Probate Blog

Author: Robert M. Trinkler

Termination or Suspension of Durable Powers of Attorney

Written by on Sep 19, 2013| Posted in: General

Often times we are contacted by clients that inquire as to whether or not a Power of Attorney can be terminated and/or suspended for their elderly loved one who becomes incapacitated.  Typically this issue presents itself when an elderly loved one is requested or coerced to execute a Power of Attorney in favor of another family member during a period of time when their capacity may be compromised.  In some circumstances, the Power of Attorney may validly executed and later abused after elderly loved one’s capacity comes into question.  A valid Power of Attorney is a very valuable tool when properly utilized and likewise can be disastrous if abused.  It is not uncommon for us to receive inquiries from clients who discover that their elderly loved one is being financially exploited by someone abusing a Power of Attorney.  A Power of Attorney is a writing that grants authority to an […]

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EMERGENCY TEMPORARY GUARDIANSHIPS AND TRUSTS

Written by on Dec 10, 2012| Posted in: Guardianship Litigation

Under Florida law, prior to the appointment of a permanent guardian but after the filing of a petition to determine incapacity, a probate court may appoint an emergency temporary guardian (“ETG”) for the person and/or property of an alleged incapacitated person. Before the appointment of an ETG, the court must specifically find that there appears to be imminent danger that the physical or mental health or safety of the person will be seriously impaired, which would be sufficient grounds for the appointment of an ETG of the person. Likewise, if the court determines that the person’s property is in danger being wasted, misappropriated or lost, then an ETG of the property may be appointed. Until recently, there was no clear guidance as to what effect the appointment of an ETG had upon the ability of the alleged incapacitated person to make changes to his or her estate planning, particularly in […]

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Due Process in Guardianship and Incapacity Proceedings

Written by on Oct 19, 2012| Posted in: Guardianship Litigation

Losh v. McKinley 86 So.3d 1150 (Fla. 3d DCA 2012) When the Florida Guardianship Law (F.S. Chapter 744) was enacted more three decades ago, its then progressive legislative intent was clearly stated within the statute and still remains in effect today.  The statute unequivocally demands that it is to be liberally applied and construed to ensure that the least restrictive form of guardianship is made available; that viable alternatives to guardianship are considered prior to adjudicating a person incapacitated and that due process protections are to be afforded to every person who may become subject to guardianship and incapacity proceedings within the State of Florida.  In a recent Third District Court of Appeals case, Losh v. McKinley 86 So.3d 1150 (Fla. 3d DCA 2012), these fundamental protections were again upheld as public policy mandates due process for these individuals prior to a trial court’s removal of his or her rights. […]

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Florida Marchman Act

Written by on Feb 21, 2012| Posted in: Estate Litigation

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.

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