When there are concerns that a loved-one may have limited mental capacity, it may be appropriate to petition the Court for implementation of a guardianship.  However, courts view guardianships as a last resort, and they will not usually grant them if there is a sufficient less restrictive alternative to guardianship.  Examples of these less restrictive alternatives would be a power of attorney, a healthcare surrogate, and/or a trust.

Nevertheless, there are times when courts have to intervene and initiate a guardianship.  Once a petition to determine incapacity is filed, the court orders that three (3) examining committee members assess the alleged incapacitated person’s mental health and they provide recommendations to the court as to whether or not they believe that a guardianship should be initiated by the court.

However, there has been some recent case law that may shed some light as to how strictly the court should consider these examining committee reports.  In Rothman v Rothman, 93 So.3d 1052 (Fla. 4^th DCA 2012), a petition to determine incapacity was filed and the examining committee member performed their assessment of the alleged incapacitated person.  Two (2) of the three (3) committee members found there to be no incapacity, while the other recommended a limited guardianship.  Pursuant to Fla. Stat. 744.331(4), the alleged incapacitated person requested the dismissal of the petition because a majority of the committee members concluded that there is no incapacity.  The trial court found Fla. Stat. 744.331(4) to be unconstitutional and denied the dismissal of the petition.  This court order was later appealed, and the appellate court cited In re Keene, 343 So.2d 916 (Fla. 4^th DCA 1977), which held that Fla. Stat. 744.331(4) should be strictly construed by the court and, as a result, the appellate court found that the trial court had erred in not dismissing the petition.

A guardianship should be viewed as a last resort; however, there are restrictions that the court must consider in determining how to handle a proposed guardianship.  Although courts are given great deference in assessing most situations, there is a proper procedure that the court must follow in implementing a guardianship and it is reversible error for the court to disregard these rules.

If you are concerned for a loved-one’s mental health and his or her ability to handle their finances, it would be wise to contact a Florida guardianship attorney to assess the viability and appropriateness of initiating a guardianship.

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 the case of a trust or trust amendment. In the July 2012, the Fourth District Court of Appeals provided such guidance in the court’s opinion of Jasser v. Saadeh. 

In Jasser, Karim Saadeh, was an elderly widower who emigrated from Jordan with his wife and three children and later became a very successful businessman. Shortly after Mrs. Saadeh passed away, Mr. Saadeh met a younger woman and loaned her a significant amount of money. His children became very concerned that their father was not fully capacitated and expressed their concerns to Saadeh’s estate planning attorney. Subsequently, the children initiated a guardianship proceeding against him which resulted in the appointment of an ETG. Following the hearing on the petition for appointment of an ETG, the court appointed a professional guardian and removed all of Saadeh’s rights except for his right to vote. The following day, two of the three examining committee members filed their reports which found Saadeh to be completely capacitated. As a result, Saadeh’s long-standing attorney filed an emergency motion to dissolve the guardianship.  Shortly thereafter, the professional ETG’s attorney and the court appointed counsel for Saadeh entered into an agreed order to resolve the guardianship. One of the provisions of the agreed order provided that Saadeh would execute an irrevocable trust  funded with all of his assets that named his children as co-trustees and that the pending incapacity proceedings would be dismissed.

Upon a motion for clarification of this agreed order, the court conducted a hearing whereat it determined that all of Saadeh’s rights, except for the right to vote, had been previously removed. Notwithstanding this fact, the ETG and her counsel directed Saddeh to execute a new irrevocable trust.

At a later hearing, the court permitted Saadeh to substitute his long-standing attorney for the court appointed attorney. Also, the court commissioned a new committee but allowed the guardianship proceeding to continue. This new committee unanimously found Saadeh to be totally capacitated and the trial court properly dismissed the petition to determine incapacity.

As a result of this dismissal, Saadeh filed a petition to set aside the irrevocable trust. The trial court subsequently determined that its prior order did not authorize the creation of an irrevocable trust and that since there was an ETG appointed with the power to contract, the ward had no legal capacity to enter into any contracts, including the trust agreement. Accordingly, the trust was deemed invalid and void.  The rationale behind this ruling was that when an individual’s rights are removed and delegated to a guardian, temporary or permanent, those rights cannot be simultaneously be exercised by the individual and the ETG. Therefore, the irrevocable trust was deemed void even though two separate examining committees found Saadeh to be totally capacitated contemporaneously with the execution.

The Jasser court distinguished this case from Holmes v. Burchett. In Holmes, an ETG was appointed for the ward. The trial court refused to permit an attorney retained by the ward from representing her during the incapacity proceedings. The appellate court concluded that until the ward is declared incapacitated, she is presumed to have capacity to contract and therefore to substitute her own privately retained counsel for the court appointed attorney. The Jasser court distinguished its ruling from Holmes since Holmes did not mention what rights were conferred to the ETG. Accordingly, the Holmes opinion does not stand for the proposition that even though a legal right to contract is removed from a ward, the ward continues to maintain the right to contract until found to be incapacitated.

Moreover, the Jasser court held that at the time of the execution of the trust, the right to contract was removed from Saadeh, as confirmed by the parties’ acknowledgement to the court the same day the trust was executed. Therefore, consistent with Section 736.0402 (1) Florida Statutes the court determined that “a trust is created only if a settlor has capacity to create a trust.”  The Jassercourt held that where there was an ETG who was appointed with the power to contract, the alleged incapacitated person/Ward could no longer exercise that power.  Moreover, the court held that when a trust is executed by a ward who is the subject of an ETG, such a trust is deemed to be void.

Should you or a loved one become the subject of a contested guardianship proceeding, an experienced Florida guardianship lawyer can advise you about your rights.  Call the attorneys at Adrian Philip Thomas, P.A. for a free consultation.

THE RIGHT IN FLORIDA TO CONFRONT EXAMINING COMMITTEE MEMBERS IN A CONTESTED INCAPACITY GUARDIANSHIP PROCEEDING

The Fourteenth Amendment of the United States Constitution, and Article I, Section 9 of the Florida Constitution, provide that no person shall be deprived of their fundamental rights without due process of law.  Procedural due process under the Florida Constitution guarantees to every citizen the right to have that course of legal procedure which has been established in Florida’s judicial system for the protection and enforcement of private rights applied in his or her case.  For these reasons, the Florida Legislature has required that in the adjudicatory hearing on a petition alleging incapacity, the partial or total incapacity of the person must be established by clear and convincing evidence.  The procedures to determine incapacity and the minimum requirements to comply with due process have been codified by the Florida Legislature at Florida Statute §744.331.  These include specific content of examining committee reports and strict time frames within which an examining committee shall be appointed by a court and within which the examining committee must complete their examinations and submit their reports to the court for consideration.

In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.  A Florida incapacity adjudicatory proceeding is not an exception to the constitutional requirements of due process.  In fact, the Florida Guardianship Act requires that the adjudicatory hearing on incapacity be conducted “in a manner consistent with due process.”  Florida Statute §744.331(5)(a)

As the (non-final) opinion Bishullang Shen v. Kathleen Parks, 2012 Fla. App. LEXIS 18965 (Fla. 4^th DCA,  4D11-4271, October 31, 2012) illustrates, due process in the Florida Guardianship Code require that in order for examining committee reports to be admitted, those reports have to meet the requirements of admissible evidence under the Florida Evidence Code. Currently, the Florida Evidence Code does not contain a hearsay exception for examining committee reports to be admitted into evidence.

In Shen an adjudicatory hearing based upon a petition for incapacity was conducted wherein the examining committee reports were accepted by the trial court even though the alleged incapacitated person objected to the admission to those reports based upon hearsay.  None of the committee members testified and there was no other testimony on which the court could base a finding on incapacity.  The 4^th District Court of Appeals reversed finding that because the Guardianship Act at Florida Statute §744.1095 provides that at any hearing under the guardianship law, the alleged incapacitated person has the right to remain silent, testify, present evidence, call witnesses, confront and cross-examine all witnesses and have a hearing, open or closed, the Rules of Evidence apply to those proceedings.  The court stated that “even if it could be said that the Guardianship Statute permits the court to consider the comprehensive examination portion of the reports in the face of hearsay objection, the statute does not reference the court’s consideration of the remainder of the report, which includes the diagnosis, prognosis, recommended treatment, evaluation of rights and finding of incapacity and need for a limited or plenary guardianship.”

 What about the confrontation clause?

Interestingly, the Shen court refused to address Shen’s argument that the statute provides a right to confront witnesses, which requires live testimony of the committee members.  Typically, when someone’s liberty interest is at stake, the Sixth Amendment of the United States provides that the person “enjoy the right … to be confronted with the witnesses against him …”  This right to confrontation is applicable to the states, including Florida, through the Fourteenth Amendment and is repeated in Article I, Section 16 of the Florida Constitution, which states in part, “but the person whose liberty is at stake, shall have the right … to confront at trial adverse witnesses …”  It would appear from a cursory review of both State and Federal Constitutional law that the confrontation clause would apply to Florida guardianship proceedings to prohibit the same hearsay evidence contained in the examining committee reports that were prohibited in Shen from being admitted based upon violation of the alleged incapacitated person’s rights under the confrontation clause.  This is because the confrontation clause is concerned with testimonial hearsay.  While the United States Supreme Court has declined to provide a complete definition of testimonial hearsay, various formulations of the definition of “testimonial” statements include materials such as affidavits, prior testimony when the party was unable to cross-examine,  or similar pre-trial statements that would reasonably be expected to be used in the prosecution of a legal proceeding involving a liberty or property right.  It would also include extra-judicial statements contained in formalized testimonial materials such depositions or prior testimony.    The Supreme Court of the United States has stated previously that “Statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial” constitute testimonial hearsay and appear to be that the same subject that was addressed by the Shen court.

The Shen opinion creates an opportunity for the Bar, the public and the Florida Legislature to address, consider, and balance the sensitive issues of an alleged incapacitated person’s constitutional rights under the Federal and State Constitution to have the ability to cross-examine witnesses who are testifying against him or her in a proceeding wherein his liberty interest is at stake, with the practical problem of requiring examining committee members to physically appear at multiple hearings (wherein they will most likely not be compensated) thereby creating an economic hardship on an already cash strapped mental health and judicial system.

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.

In Losh v. McKinley , a 93 year old widow, Frances Losh, was the subject of an incapacity proceeding filed by her only child, Carlin McKinley, who resided in Washington State.  Interestingly, the court appointed examining committee was varied in its three separate opinions as to the scope of Mrs. Losh’s alleged incapacity.  In fact, one of the committee members recommended no guardianship whatsoever and specifically found Mrs. Losh to be totally oriented to person, place and time.  The other two committee members recommended a limited guardianship, but not to the degree or scope that the trial court ultimately found.  In fact, one of these two committee members noted that Mrs. Losh was “alert, fully oriented, very well aware of circumstances and that she has excellent general knowledge”, however, she required assistance with managing her property and gifting.

Mrs. Losh, through counsel, refuted the committee reports and asserted that she was not incapacitated in any respect and cited that the proceeding was brought by her daughter for the sole and self-serving purpose of gaining control of her assets.  At the incapacity hearing Mrs. Losh testified in detail about her family, personal finances, property, health status and her prescribed medicines.  Mrs. Losh even provided plausible explanations for some of the initial allegations supporting the incapacity petition such as stating that she didn’t carry insurance on some of her properties since she had “enough money to cover any damage” and that she chose money market accounts over certificates of deposit because of the early withdrawal penalties.

At the conclusion of the hearing, the trial court expressed concern over Mrs. Losh’s “vulnerability to what we call undue influence” and found that there was some evidence that there might be an issue with her ability to handle everything going forward.  The trial court then found that Losh had a diminished capacity to handle her finances and proceeded to remove almost all of her rights even though none of the examining committee reports supported such a finding. Specifically,  the trial court entered an order that determined Mrs. Losh was incapable of exercising all of her rights except her right to vote; to determine her residence; to spend up to $1,500 and to fire her caregivers.

Mrs. Losh appealed this ruling and the appellate court reversed the trial court as it found that the evidence, as well as the findings contained in the trial court’s order determining limited incapacity, was “completely insufficient to justify a finding of incapacity.” The opinion provided small consolidation to the trial court by acknowledging that although trial court’s actions were well intended, they appeared to be motivated out of concern for Mrs. Losh’s ability to make future decisions relating to her person and property.  The appellate court agreed with Mrs. Losh and determined that these findings were not supported by clear and convincing evidence of Mrs. Losh’s incapacity to justify the removal of her rights, the requisite standard of proof for such proceedings.  Therefore, the appellate court reversed and remanded the case to the trial court with instructions to restore Mrs. Losh to full capacity and to dismiss the guardianship proceeding.

The appellate court  specifically stated that the trial court does not have authority to remove an individual’s rights merely out of concern for his or her future conduct, even if well intended, as this is an impermissible deprivation of rights. This premise is consistent with the appellate court’s prior ruling In re: Maynes v. Turner 746 So. 2d. 564 (Fla. 3d. DCA 1999) which held that “in our present day paternalistic society we must take care that in our zeal for protecting those who cannot protect themselves, we do not unnecessarily deprive them of some rather precious individual rights.”

Losh v. McKinley is an important case as it re-affirms the “clear and convincing” legal standard of the burden of proof required in all guardianship and incapacity cases, the longstanding legislative intent of the Florida Guardianship Law and the fundamental right to due process.

If you or a loved one becomes the subject of an incapacity or a guardianship proceeding in the State of Florida, please contact the Florida guardianship attorneys at Adrian Philip Thomas, P.A. to discuss how we may be of assistance to you.

Florida guardianship lawyers frequently encounter disputes in connection with what rights a vulnerable adult should have judicially delegated to a guardian.  Those disputes often develop into contests regarding the duration of those delegated rights and whether and to what extent the rights can and should be restored to the alleged incapacitated person.  Many factors and variables enter the legislatively created mechanism for determining these issues.

Sometimes, prior to, during, and even after incapacity proceedings, the Florida guardianship lawyer will discover that a family member or other person has orchestrated the execution of a will or trust by the alleged incapacitated person.  These situations present difficult legal and ethical issues for the Florida guardianship attorney.

The Florida Trust Code contains a section providing that “a trust is created only if: (a) the settlor has capacity to create a trust.”  §736.0402(1)(a).  Proceedings to determine the competency of a person are controlled by statute and where a statute prescribes a certain method of proceeding to make that determination, the statutes must be strictly followed. Under Florida Statutes, before depriving an individual of all of their civil and legal rights an individual must be incapable of exercising his rights at all, whether wisely or unwisely.  However, the Fourteenth Amendment of the United States Constitution in Article I, Section 9 of the Florida Constitution provides that no person shall be deprived of their fundamental rights without due process of law.  Procedural due process under the Florida Constitution guarantees to every citizen the right to have that course of legal procedure which has been established in the Florida judicial system for the protection and enforcement of private rights applied in his or her case.

These principles were addressed recently in In Re: Karim H. Saadeh, 37 Fla.L. Weekly D1696 (4^th DCA), Case Number 4D09-3974, 4D09-4879, 4D10-149, 4D10-1193, and 4D10-3991 (July 18, 2012).

In Saadeh, a man in his 80’s had children who he discovered had drained his bank account.  Ultimately, the children consulted a lawyer and petitioned through a professional guardian for incapacity for the appointment of a guardian to exercise all delegable rights of Mr. Saadah.  At the same time, the professional guardian also filed a Petition for an Emergency Temporary Guardian and scheduled a hearing six days after the filing of the Petition.

At the hearing, the court found that the evidence showed Saadeh was diagnosed with high state Alzheimer’s and was in danger of financial abuse.  The court removed all of Saadeh’s rights except his right to vote and the order also appointed the professional guardian as an emergency temporary guardian and delegated to her the power to exercise all delegable legal rights and powers of the ward with the exception of Saadeh’s right to vote.

Subsequently, in what appears to be an effort by the children to “settle” the guardianship, the professional guardian/emergency temporary guardian had Mr. Saadeh sign a new trust agreement.  Thereafter at a hearing to determine incapacity, the court considered the examining committee reports and based upon the unanimous determination of the examining committee that Mr. Saadeh was competent the court dismissed the Petition for Incapacity.

As the 4^th DCA pointed out, however, “Unfortunately, this did not end the litigation, far from it.”  Saadeh had already filed the Petition to Revoke the Trust.  In his Petition, he claimed the following:

1. He had executed the trust upon undue influence, coercion and duress without understand its terms;
2.  His children participated in the coercion and duress imposed on him and stood to gain substantially through the provisions of the trust;
3.  He was denied the right to consult with counsel of his choice;
4.  The trust was inconsistent with the terms he previously discussed he would be willing to enter;
5.  He did not agree to a trust that he could not revoke; and
6.  Because he had never agreed to the trust when the settlement was presented to the trial court, a fraud on the court had been committed.

The Fourth District Court of Appeal found that the attempted amendment to the trust during the pendency of the incapacity proceedings was irregular, illegal and rendered the trust amendment invalid.  The trust amendment was invalid because neither the emergency temporary guardian (ETG) nor even the court-appointed counsel for Mr. Saadeh intended to restore any right to Mr. Saadeh during the period of the temporary guardianship.  In fact, the same guardian/counsel made statements to the court that all Mr. Saadeh’s rights had been removed at a hearing on the same day he had executed the trust agreement.  The Fourth District Court of Appeal affirmed the trial court’s ruling that once the ETG assumes the rights for the ward, those same rights are thereby removed from the ward and both cannot simultaneously exercise those rights.  Because the original order had delegated to the ETG all legal rights reserving only the right to vote in the ward, the right to contract (for example sign the trust amendment) by Mr. Saadeh had been removed at the time the trust was executed.  Therefore, because Mr. Saadeh did not have the right to contract at the time the trust was executed, it was invalid pursuant to §736.0402.

This case demonstrates the necessity of strict compliance with all guardianship statutes and underscores the importance of the procedural and substantive due process safeguards built into Chapter 744, Florida Statutes.  It is important reminder that citizens and Florida attorneys who handle contested guardianships to remain mindful of strict compliance with the procedural’s framework for contested guardianships in Florida.

If you have a question about whether someone has the capacity to create a trust in Florida, call the Florida guardianship lawyers at Adrian Philip Thomas, P.A. for a consultation.

FLORIDA GUARDIANSHIP ATTORNEY’S FEES

Lawyers in Florida who handle contested guardianships and inheritance disputes concerning Wills and Trusts frequently encounter issues regarding what law is to apply to fee dispute resolutions.  As practitioners, it is always important to provide the correct and applicable law to the trial court so that the issue may be resolved appropriate through application of the correct law in existence at the time the dispute arose to the specific facts and circumstances leading to the fee dispute.

A case illustrating the importance of guiding the trial court with the correct law was issued by the Second District Court of Appeals in the Guardianship of Kay RC (Fla. 2^nd DCA, case number 2D10-5956, March 9, 2012).  This case involved a lawyer who represented the guardian of the ward.  The guardian discharged the attorney and retained another law firm and the first lawyer applied for fees relating to the work he had performed in his representation of the ward.  The guardian objected claiming that the lawyer was billing for administrative tasks and that the guardian could have performed the same work at no cost to the ward.  The trial court granted the Petition but awarded fees for a lesser amount then requested.

Another Petition for Fees was submitted by the lawyer and the court held a hearing denying the Petition and cited a case from 1997 which held that an attorney was not entitled to recover fees for time spent in collecting fees from the ward or the ward’s errors because that work did not inure to the ward’s benefit and was not statutorily authorized.  On appeal, the Second District Court of Appeals found that the trial court had erred in relying on a 1997 case that had been superseded by statutes first adopted in 2003 which authorized fees that are not substantially unreasonable.  This statute codified at Florida Statute §744.108(2)(a)-(i) provides the criteria that the trial court should consider when determining fees for a guardian or an attorney.

After a judicial hearing is held and the ward is found to “lack the capacity to manage some or all of his/her property or to meet at least some of the essential health and safety requirements of such person”(§ 744.102(12), Florida Statutes), the proceeding for an involuntary guardianship is implemented.  The Court may appoint either a plenary or limited guardian, depending on the extent and severity of the ward’s incapacity. 

In a plenary guardianship, all of the Ward’s delegable rights are delegated to the guardian; no rights are reserved for the Ward.  § 744.102(9)(b), Florida Statutes.  These delegated rights are found in § 744.3215(3)(a-g) and include the following: to contract; to sue and defend lawsuits; to apply for government benefits; to manage property or to make any gift or disposition of property; to determine his or her residence; to consent to medical and mental health treatment; and to make decisions about his or her social environment or other social aspects of his or her life.  A plenary guardianship is the most common type of guardianship.  There are statutory procedures in place wherein the ward may have his rights restored at a later time; however, according to a 1998 study commissioned by the Claude Pepper Foundation, such restoration of rights only occurs in 2.63% of guardianship cases. 

In a limited guardianship, the appointed guardian is appointed to exercise some, but not all, of the delegable rights listed above.  § 744.102(9)(a), Florida Statutes.  The order appointing a limited guardian must state the scope of the guardians delegated rights and duties. 

A preneed guardian may also be appointed in two instances.  First, a person designates who shall serve as his or her own guardian in the event the person becomes incapacitated or needs a guardian for any other reason.  Second, a parent may select the person(s) who will serve as the guardian of their minor children should the parent die or become incapacitated while the child is still in the age of minority.  A preneed guardian eliminates the need for prolonged litigation in the appointment of a guardian because the court must appoint the selected guardian if that person is otherwise qualified to do so, pursuant § 744.3046(7). 

A “standby” guardian may be used by the Court after a guardian is appointed.  A “standby” guardian takes on the duties and powers of the appointed guardian within twenty (20) days of the death or resignation of the appointed guardian.  However, the “standby” guardian has no immediate duties or powers.

Elder Law Concepts is not always for the Elderly.

In some cases, a parent may see their child go through a sudden, unexpected fight with cancer; a brother may be trying to take advantage of his wealthy but impaired sibling by stealing his financial assets; or a daughter might have witnessed the advisors of her mentally incompetent mother conspiring to misappropriate her assets.   There may be circumstances where immediate action is necessary in order to protect the health and/or financial welfare of such a person.  In these cases, an adult interested in the welfare of a loved-one may wish to petition the court for an emergency temporary guardianship (ETG).  While, the typical ETG is used for incapacitated senior citizens, there are scenarios with teenagers and other young adults who may be abusing drugs and/or alcohol as to warrant the imposition of an emergency temporary guardianship. 

 §744.3031 (1), Florida Statutes, states as follows regarding the requirements for the appointment of an emergency temporary guardian:

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 or that the person’s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken. 

If appointed with the task of being the emergency temporary guardian, this guardian would be required to take an oath to faithfully perform the duties of a regular guardian.  This temporary guardianship will last for 90 days or until a permanent guardian is appointed, whichever comes first.  Such duties would include the handing of the ward’s finances, the making of medical decisions if no healthcare surrogate had been nominated, and the overall maintenance of the ward’s affairs.  Additionally, the emergency temporary guardian must file a final report of the ward’s financial status no later than 30 days after the expiration of this appointment.    

The most important factor for the court to assess in deciding whether an emergency temporary guardian is necessary is how apparent the “imminent danger” actually is to the person in question.   

The interpretation and application of “imminent danger” is extremely subjective and varies on a case-by-case basis.  Although case law is rather bare on the subject, the court in Batzle v. Baraso, 776 So.2d 1107 (Fla. 5^th DCA, 2001) approved the appointment of an emergency temporary guardian when the ward was diagnosed with a progressive form of cancer.  In this case, the appointment was approved even though there was no adjudication that the ward was mentally incompetent.  The court in Borck v. Borck, 906 So.2d 1209 (Fla. 4^th DCA, 2005) authorized the appointment of an emergency temporary guardian after finding that the ward was suffering from Alzheimer’s disease, was legally blind, and was hearing impaired.  In addition, the petitioner made allegations that the ward was being abused by the respondent and that this abuse was interfering with the nursing staff’s ability to properly care for the ward.

It is always difficult to see a loved-one who is physically or mentally suffering; and it is even worse to see others trying to take advantage of that illness for their own personal or financial gain.  Depending on the specific circumstances, the appointment of an emergency temporary guardian can be a very useful tool to help prevent such a misappropriation of a love-one’s assets and/or protect the ward’s physical health and well-being.

Recently, it was reported that the percentage of people filling out living wills and healthcare surrogate forms has increased little since Congress enacted the Patient Self Determination Act ordering healthcare facilities to provide information to patients about advance directives.

What are advance directives?

With about 80 percent of deaths occurring in hospitals or nursing homes, you can use advance directives, in the form of a living will, to let their doctors and family know what kind of treatment you do not want in case you are incapable of making the decision.  A living will does not mean you want to forego life-saving treatment; it simply sets forth how you want, or don’t want, aggressive high technology treatment, feeding tubes, respirators, and other life support measures.

Although the original health care bill provided that Medicaid could pay for consultations about end of life issues, this provision was unfortunately dropped as part of the final bill, due in part to the “death panel” hysteria and the labels that were attached to the issue.

It’s a good idea to sit down with your family and talk about your decisions and instructions.  Another potential area to address is to consult an attorney and discuss the possibility of a pre-need guardian.  A “preneed guardian” is a person named in a written declaration to serve as guardian in the event of the incapacity of the declarant as provided by statute.  Florida’s preneed guardian statute works as follows:

• A competent adult may name a preneed guardian by making a written declaration that names such guardian to serve in the event of the declarant’s incapacity.  The written declaration must reasonably identify the declarant and preneed guardian and be signed by the declarant in the presence of at least two attesting witnesses present at the same time.
• The declarant may file the declaration with the clerk of the court. When a petition for incapacity is filed, the clerk shall produce the declaration.
• Production of the declaration in a proceeding for incapacity shall constitute a rebuttable presumption that the preneed guardian is entitled to serve as guardian. The court shall not be bound to appoint the preneed guardian if the preneed guardian is found to be unqualified to serve as guardian.
• The preneed guardian shall assume the duties of guardian immediately upon an adjudication of incapacity.
• If the preneed guardian refuses to serve, a written declaration appointing an alternate preneed guardian constitutes a rebuttable presumption that such preneed guardian is entitled to serve as guardian. The court is not bound to appoint the alternate preneed guardian if the alternate preneed guardian is found to be unqualified to serve as guardian.
• Within 20 days after assumption of duties as guardian, a preneed guardian shall petition for confirmation of appointment. If the court finds the preneed guardian to be qualified to serve as guardian pursuant to ss. 744.309 and 744.312, appointment of the guardian must be confirmed. Each guardian so confirmed shall file an oath in accordance with s. 744.347 and shall file a bond, if required. Letters of guardianship must then be issued in the manner provided in s. 744.345.

One of the fundamental advantages to the preneed guardian advance directive is it essentially insures that the person or professional you want to serve as your guardian is in fact the one selected by the court.  Of course, this is subject to the qualification and fitness of the person selected.  For example, in Davis v. King, 686 So. 2d 763 (Fla. Dist. Ct. App. 5th Dist. 1997) in a contested guardianship litigation, the court found the preneed guardian unqualified to serve as plenary guardian upon a determination of the ward’s incapacity based on evidence that the preneed guardian had paid off her mortgage using the ward’s money, had purchased real property owned by the ward for less than market value, and that the ward’s bank account had been depleted during the same time period.

Your mother’s incompetent to handle any of her affairs…but she can sign a new Will cutting you out!

An interesting and potentially very difficult element arises in last will and testament contests when the testator has been declared incompetent.  Even though the lawyers in our firm focus their practice on the probate litigation and trust litigation issues,  we recently dealt with a difficult set of circumstances in a will dispute that underscored the importance of being able to prove the decedent’s mental capacity at the time of her signing her estate planning documents.  In this matter the decedent/testator had been appointed a plenary guardian, meaning her rights had been taken away and given to a guardian. 

Our client had been separated from her family (all of whom resided out of state) and a recent friend had petitioned the Court for appointment of a guardian, which the Court approved.  While under the care of the guardian, the testator was moved around so that the out-of-state relatives did not have contact with her and were unable to locate her for substantial periods.  Despite that a guardian was being appointed, the decedent was seen by a physician and psychiatrist and was found to be lucid.  She then signed a will, leaving her recent friend (who had asked for the guardianship in the first place), and charities which he solely controlled, the entirety of her quite substantial estate. Read the rest of this entry