photo

The Law Offices of Adrian Philip Thomas

  • Guardianship and Power of Attorney

    March 15th, 2010

    Posted by Adrian P. Thomas

    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 of attorney document would authorize the principal’s chosen agent or attorney-in-fact to sign documents, receive and pay bills and make banking transactions on the principal’s behalf.  An ordinary or standard power of attorney would become invalid if the principal became mentally incapacitated. Read the rest of this entry

    Print This Post Print This Post

    Posted in General, Guardianship Litigation | 2 Comments »

  • ELDERLY EXPLOITATION vs CIVIL THEFT

    March 1st, 2010

    Posted by Adrian P. Thomas

    DISTINGUISHING DAMAGES SOUGHT BY FIDUCIARIES AND INDIVIDUALS UNDER FLORIDA STATUTES §415.1111 and §772.11

    When trying to decide between which cause of action to file against a person who has committed financial exploitation against or theft from a vulnerable or disabled adult, one must first establish who has been damaged, the vulnerable or disabled adult themselves, or an individual with an expectancy in inheritance or other interest expected from the vulnerable or disabled adult, and whose expectancy or interest was lost or diminished as a result of the exploitation or theft against the vulnerable adult.

    Pursuant to Fla. Stat. §415.1111, “A vulnerable adult who has been abused, neglected, or exploited . . . has a cause of action against any perpetrator and may recover actual and punitive damages for such abuse, neglect, or exploitation.” [reproduced below] The action may only be brought by the vulnerable adult, or that person’s guardian, by a person or organization acting on behalf of the vulnerable adult with the consent of that person or that person’s guardian, or by the personal representative of the estate of a deceased victim without regard to whether the cause of death resulted from the abuse, neglect, or exploitation. This cause of action allows for punitive damages. Read the rest of this entry

    Print This Post Print This Post

    Posted in Estate Litigation, Probate Litigation | No Comments »

  • Substituted Parties

    February 24th, 2010

    Posted by Adrian P. Thomas

    What Happens When a Party Dies During a Lawsuit?

    One of the hotly-contested issues among Florida probate lawyers in the context of inheritance lawsuits involving beneficiaries of wills and trusts is whether and to what extent appellate courts have jurisdiction over orders entered in Florida lawsuits involving last wills and testaments and lawsuits involving Florida trusts, trustees and beneficiaries. 

    Generally, Florida Rule of Appellate Procedure 9.110, which governs “Appeal Proceedings to Review Final Orders of Lower Tribunals and Orders Granting New Trial in Jury and Non-Jury Cases,” applies to proceedings that seek review of orders in probate and guardianship matters that finally determine a right or obligation of an interested person as defined in the Florida Probate Code.”   The dissenting opinion in one recent case in the First District Court of Appeals in Florida dealt with the issue of whether the  a court’s determination of whether notice of was properly served on a creditor constitutes an appealable order.  Grainger v. Wald 35 Fla.L.Weekly D381b (Fla. 1st DCA February 12, 2010).  Read the rest of this entry

    Print This Post Print This Post

    Posted in Estate Litigation, Probate Litigation | No Comments »

  • Appellate Standards of Review

    January 26th, 2010

    Posted by Adrian P. Thomas

    The appellate process is often a confusing landmine of rules, procedures and traps for the unwary.  One of the essential elements for an inheritance lawyer in understanding the appellate review process is the applicable standard of review for particular issues addressed in the court of appeals. 

    In Florida, in the context of inheritance law court decisions, the different district courts of appeal are not required to defer to lower tribunals on issues of law.  Stated another way, appellate review of a decision that is based on a legal conclusion involves no more than a determination whether the applicable issue of law was correctly decided in the lower tribunal. This concept is commonly referred to as the de novo review doctrine. Read the rest of this entry

    Print This Post Print This Post

    Posted in General, Probate Litigation | No Comments »

  • Pretermitted Children: Evidence Must Be Compelling to Disinherit

    January 22nd, 2010

    Posted by Adrian P. Thomas

    What is a Pretermitted Child?

    A pretermitted heir describes a person who would likely stand to inherit under a Last Will and Testament, except that the person who wrote the Will did not know or did not know of the child at the time the Will was written.  Many jurisdictions have enacted statutes that allow a pretermitted child to demand an inheritance under the Will 

    Florida’s probate code provides when a testator omits to provide by Will for any of his or her children born after making the Will and the child has not received a part of the testator’s property equivalent to a child’s part by way of advancement, the child shall receive a share of the estate equal in value to that which the child would have received if the testator had died intestate, unless it appears from the Will that the omission was intentional, or the testator had one or more children when the Will was executed and devised substantially all of his or her estate to the other parent of the pretermitted child and that other parent survived the testator and is entitled to take under the Will.  Fla.Stat. §732.302. Read the rest of this entry

    Print This Post Print This Post

    Posted in General, Probate Litigation | 1 Comment »

  • Elder Abuse

    January 12th, 2010

    Posted by Adrian P. Thomas

    The following article is published on the National Committee for the Prevention of Elder Abuse website, which can be accessed by clicking this link.

    Mental Capacity, Consent, and Undue Influence

    What do these concepts have to do with preventing elder abuse and neglect?

    Evaluating alleged elder abuse often involves determining what an older person understands or understood in the past. Inducing someone to sign a legal document or give a gift, for example, may constitute abuse if the person does not fully understand the transaction, appreciate the value of what they are giving away, or comprehend the implications of what they are doing. One of the first questions often raised in abuse investigations is “did this person understand what he or she was doing when he gave a gift or transferred property. Was coercion, trickery, or undue influence employed?”

    All Americans have a Constitutional right to exercise choice about how to live their lives. That extends to refusing help that is offered. If however, the person lacks sufficient mental capacity to make decisions, society may, under certain circumstances, intervene on their behalf without their consent. Consequently, another fundamental questions workers must consider when they offer help is “does this person have sufficient mental capacity to accept or refuse my help?” The appropriate level and type of help that is needed will also be dictated by the person’s mental capacity. Read the rest of this entry

    Print This Post Print This Post

    Posted in General | No Comments »

  • Probate Appeals

    January 5th, 2010

    Posted by Adrian P. Thomas

    The issue of what probate rulings are appealable in the context of will contests and probate litigation is complicated, confusing, and subject to debate among jurists and attorneys in Florida.  Generally, the issue is governed by appellate rules, which authorize appeals of “orders entered in probate and guardianship matters that finally determine a right or obligation of an interested person[.]”  Due to the ambiguity of the language of the rule, the Florida Supreme Court has offered guidance in the form of comments to an amendment to one of the rules:

    “[I]n probate and guardianship proceedings it is not unusual to have several final orders entered during the course of the proceeding that address many different persons.  An order of the circuit court that determines a right, an obligation or the standing of an interested person as defined by the Florida Probate Code may be appealed before the administration of the probate or guardianship is complete and the fiduciary is discharged.” Read the rest of this entry

    Print This Post Print This Post

    Posted in Estate Litigation, General, Probate Litigation | No Comments »

  • Tick Tock

    December 28th, 2009

    Posted by Adrian P. Thomas

    District Courts Uphold Probate Court Dismissals of Untimely Filed Claims.

    Creditors of estates typically must file a claim against a probate estate within three months of receiving notice that the decedent had died and a probate estate has been opened.  Otherwise, the creditor (or anyone else seeking a claim against an estate) is generally limited to two years following the decedent’s date of death to seek recovery of money from a probate estate.  These principals have been codified by the Florida legislature in the Probate Code.

    The two leading cases interpreting these sections of the Probate Code are Comerica Bank & Trust, FSB v. SDI Operating Partners, LP, 673 So.2d 163 (Fla.4th DCA 1996) and  May v. Illinois Nat. Ins. Co. 771 So.2d 1143 (Fla. 1999).  Comerica involved an action arising from alleged environmental pollution of land once owned by the Decedent.  The current owner of the polluted land filed an action in a Michigan court against the Decedent more than a year after the decedent’s death (the date of death was June 20, 1992) seeking money damages and other relief.  Id. at 164.  Later, the land owner assigned to SDI all of its causes of action against the other defendants, including the lawsuit against Decedent.  Id.   

    On September 27, 1994 more than two years after the Decedent’s death, SDI filed a petition to enlarge the time for filing a claim in the Decedent’s probate estate, which the probate court granted over the Personal Representative’s objection that section 733.710 of the Florida Probate Code unavoidably barred the claim as untimely.  Read the rest of this entry

    Print This Post Print This Post

    Posted in General, Probate Litigation | No Comments »

  • The Golden Rule: he who has the gold, makes the rules.

    December 14th, 2009

    Posted by Adrian P. Thomas

    How do I find out what assets are in a probate estate?

    With increasing frequency in Florida, friend and relatives of a loved one are left wondering what happened to the estate that they knew existed prior to death but apparently disappeared after the probate estate is opened and the last will and testament is admitted to probate.   Often, the source of the confusion is communication between the family members and the decedent prior to death concerning an understanding of the content and value of the estate.

    But what can you do when the loved one dies, a will is admitted to probate, and the friends and relatives who thought they were beneficiaries never hear a word or receive any notice or information regarding the assets of the estate and the particulars from the attorney administering the estate?  Read the rest of this entry

    Print This Post Print This Post

    Posted in General, Probate Litigation | No Comments »

  • ‘Til Death Do Us Part

    December 11th, 2009

    Posted by Adrian P. Thomas

    In Florida, can a spouse be disinherited?

    Several years ago, the Florida Legislature enacted HB 301 effective October 1, 1999, for decedents dying on or after October 1, 2001 (known as the elective share statute). This law changed a long-standing rule that spouses could be disinherited. Florida courts now repeatedly interpret and apply the new elective share statute in a manner consistent with the recognized strong public policy favoring protection of the surviving spouse against being disinherited.

    The question often arises as to whether assets placed by a decedent into an irrevocable trust are subject to a claim by the surviving spouse under the new elective share statute. The answer depends on the specific facts of each case and on a court’s understanding of what assets constitute the decedent’s “probate estate.” First, one must analyze the definitions written into law by our elected officials in Tallahassee and Washington. Read the rest of this entry

    Print This Post Print This Post

    Posted in Estate Litigation | No Comments »