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Florida Probate Blog

Category: Guardianship Litigation

Emergency Temporary Guardianship

Written by on May 23, 2011| Posted in: Guardianship Litigation

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, […]

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End of Life Directives and Preneed Guardians in Florida

Written by on Jan 19, 2011| Posted in: General

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 […]

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Being of unsound mind…

Written by on Apr 15, 2010| Posted in: Guardianship Litigation

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 […]

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Guardianship and Power of Attorney

Written by on Mar 15, 2010| Posted in: General

Many clients request information on the differences between Guardianships and Powers of Attorney.  These are important topics when decisions must be made for a family member who has been deemed incapacitated, can no longer manage their own finances or make their own medical decisions. An ordinary or standard power of attorney document provides the authority for another person (the agent or attorney-in-fact) to make decisions and take actions on the principal’s behalf when the principal is unable to do so for himself or herself.  In the event the principal becomes physically incapacitated, and for example, they break a hip and need extensive rehabilitation, then the principal will not be able to attend to their normal monthly payment of bills or banking transactions.  Also, the principal may plan to take an extended trip or vacation, and may need to have documents executed while they are away.  The ordinary or standard power […]

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Alternatives to Guardianship

Written by on Aug 10, 2009| Posted in: Guardianship Litigation

When an issue arises concerning whether and to what extent a guardianship or alternatives to guardianship should be considered, it is imperative to consult a probate attorney to explore all of the options and the implications involved in this complicated judicial process.

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Incapacity and Guardianship Loopholes

Written by on Mar 2, 2009| Posted in: Guardianship Litigation

Fifth District Court of Appeals Encourages Legislature to Clarify Statute The decision of whether and when to petition for incapacity of an elderly relative is challenging and can rarely be accomplished without the assistance of an experienced practitioner. However, even with an experienced attorney the frustration level is high for parties involved in the guardianship process, due in part to the lack of clarity and direction contained in the relevant portions of the law. The procedure for asking a Florida court to declare someone incapacitated is codified in Florida Statute §744.331(4) which explains the process following the petition to determine incapacity: “Within 5 days after a petition for determination of incapacity has been filed, the court shall appoint an examining committee consisting of three members. One member must be a psychiatrist or other physician. The remaining members must be either a psychologist, gerontologist, another psychiatrist, or other physician, a registered […]

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Preferential Treatment

Written by on Feb 17, 2009| Posted in: Guardianship Litigation

Third District Upholds Palm Beach Probate Court’s Appointment of Guardian Not Related to the Ward by Blood or Marriage. The decision of whether and when to have a loved one declared incompetent is a difficult and challenging process, and should involve an attorney who is familiar with the issues and procedures of guardianship law. In Florida, the guardianship statutes provide for certain procedures to protect the rights of the person who is allegedly incompetent. The process generally involves the filing of a Petition to Determine Incapacity. Fla.Stat. §744.331(1). Thereafter, the Court will appoint an examining committee to assess the mental and physical condition of the person who is allegedly incapacitated. Fla.Stat. §744.331(4). Depending on the report presented to the Court, a hearing will be conducted wherein testimony and other evidence is heard, and the Court decides if the alleged incapacitated person is actually incapacitated and then whether a guardian is […]

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The Conflicting Roles of a Guardian

Written by on Jan 21, 2009| Posted in: Guardianship Litigation

Guardianships are an area of my practice that requires a lot of finesse when counseling clients who are serving conflicting roles when trying to make decisions in the name of the ward. What is a guardian? Typically, a guardian is a person (or sometimes an entity, such as a financial institution), who is appointed by the court to handle another person’s real and personal property and/or to take care of the person (referred to as “the ward.”)

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Florida Guardianship Litigation: Statute of Limitations Medical Malpractice Case

Written by on Sep 16, 2008| Posted in: Guardianship Litigation

When is a Guardian barred from suing the doctors that allegedly caused her daughter’s brain damage? Mrs. Thomas was named as plenary guardian for her daughter, Tammy, after Tammy suffered a heart attack and brain damage while giving birth to her baby.  Mrs. Thomas claims that Tammy wouldn’t have been hurt, except for the doctor taking too long to deal with Tammy’s high blood pressure.  On Tammy’s behalf, and she sued the doctor, the hospital, and others. The trial court ruled that Mrs. Thomas took too long to bring the lawsuit, and it was barred as a matter of law by the Florida Medical Malpractice Statute of Limitations.  Under that Florida law, Mrs. Thomas has two (2) years to file suit.  Calculating  that deadline is key: on what date does time begin to run for the plenary guardian? The appellate court answered that question by sending the case back to […]

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