Florida Elder Abuse Attorney

An elder abuse attorney in Florida can mean many different things.  An elder abuse lawyer can refer to an elderly person being harmed in a nursing home or an elder abuse lawyer can mean a probate lawyer who is hired after or before death to correct an injustice done to an elderly citizen.  Our law firm receives inquires asking us to represent relatives who believed their love ones were financially exploited and they refer to this financial abuse as elder abuse.  Probate disputes perhaps always involve an old person being taken advantage of – the issue is whether a skilled probate lawyer can get the evidence to prove the financial exploitation.

THE POWERS AND LIMITATIONS OF POWERS OF ATTORNEY, AND CHANGES TO FLORIDA STATUTE 709

AS OF OCTOBER 1, 2011:  PART I.

Nearly all men can stand adversity, but if you want to test a man’s character, give him power.  Abraham Lincoln

Recent legislation has conformed Florida’s Power of Attorney Statute 709 to the Uniform Power of Attorney Act, with certain modifications, in an attempt to achieve greater consistency among the 50 states and Washington D.C.  On May 4, 2011, the Florida legislature passed Senate Bill 670, on June 21, 2011 the Florida Power of Attorney Act was signed into law by Governor Scott, and it became effective October 1, 2011.  Florida Statute 709 applies to powers created by individuals (with four exceptions), and does not apply to powers created by entities or corporations.  Florida Statute 709 applies to all Powers of Attorney used in Florida and governed by Florida law.  Florida Statute 709.01-709.11 has now become Florida Statute 709.2101-709.2402.

When a Powers of Attorney was executed before October 1, 2011 which conferred rights to an agent (or attorney-in-fact), those rights acquired under the Power of Attorney predating October 1, 2011 will continue to apply, as follows:  Florida Statute 709.2402(3) states, “[w]ith respect to a power of attorney existing on October 1, 2011, this part does not invalidate such power of attorney and it shall remain in effect.  If a right was acquired under any other law before October 1, 2011, that law continues to apply to the right even if it has been repealed or superseded.”

Under Florida Statue 709.2104, in order for a Power of Attorney to be durable, it must contain the words:  “This durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes,” or similar language specifically indicating the principal’s intent that the authority conferred is exercisable notwithstanding the principal’s subsequent incapacity.

For a Power of Attorney to be valid if executed after October 1, 2011, the agent (or attorney-in-fact) named in the Power of Attorney must be 18 years of age or older or a financial institution that has trust powers, has a place of business in this state, and is authorized to conduct trust business in this state.  Not just any financial institution will be permitted to take power as an agent after October 1, 2011.  The financial institution must meet the criteria as set forth in Florida Statute 709.2109(1).

What happens if the Power of Attorney was executed prior to October 1, 2011, but the agent named was a financial institution that does not meet the specific criteria as set forth in Florida Statute 709.2109(1)?  The Power of Attorney is valid if its execution complied with the law of Florida at the time of its execution pursuant to Florida Statute 709.2106(2).

Also, for the Power of Attorney to be valid if executed after October 1, 2011, it must be signed by the principal and also by two subscribing witnesses before a notary public pursuant to Florida Statute 709.2105(2).

What happens if the Power of Attorney was executed in another state which does not comply with the execution requirements in Florida?  Pursuant to Florida Statute 709.2106(3), a Power of Attorney executed in another state which does not comply with the execution requirements in Florida will be valid in Florida as long as it complied with the execution requirements of the state of execution at the time it was executed.

The new law now states that a photocopy of a Power of Attorney or an electronically transmitted copy of an original Power of Attorney has the same effect as the original pursuant to Florida Statute 709.2106(5).  This change in the law may create problems as an unscrupulous person may attempt to alter the Power of Attorney, then photocopy or electronically transmit the altered version in an attempt to utilize the powers conferred in the altered version of the Power of Attorney.  If you believe a person named as the agent or attorney in fact of a Power of Attorney is breaching their fiduciary duty, self-dealing, squandering assets, not investing the principal’s assets prudently, or utilizing an altered Power of Attorney, it is imperative that you promptly contact a skilled and competent attorney so that the appropriate action can be taken, including but not limited to the commencement of litigation against the person abusing the power of attorney.

Quite frequently, as an inheritance lawyer who handles lawsuits with last will and testaments and codicils, I am asked questions regarding Florida inheritance disputes and the procedures for proving a lost or destroyed will.

To establish and probate a lost or destroyed will, the specific content of the will must be proved by the testimony of two disinterested witnesses or, if a correct copy is provided, it must be proved by one disinterested witness.  In one court case involving a Florida inheritance fight, a lawyer provided a copy of the missing will to the court and presented a disinterested witness who testified that it was a correct copy.  Even though there was conflicting testimony by the other witness (who stood to gain if the will was rejected) that the will was later revoked by the decedent, the Court still found the lost or destroyed will could be admitted to probate.

These types of cases involve a lawyer’s command over the substantive provisions of the Florida Probate Code and an understanding of the rules regarding will and trust contests in Florida.

The Trustee’s Duty to Inform and Account

The trustee is the person with legal title to trust assets; however, the trust beneficiaries are the true owners of the trust assets.  The trustee has a legal duty to inform and to account to the beneficiaries and the trust beneficiaries are entitled to inspect all documents and papers relating to the trust. The existence of a legal duty is important because it gives beneficiaries rights and remedies and exposes a trustee to liability for breach of those duties.

In Florida, the trustee’s duty to inform and to account is found in the Florida Statutes (Florida Trust Code) at §736.0813, which states that the trustee shall keep the qualified beneficiaries of the trust reasonably informed of the trust and its administration.  This duty includes notifying the beneficiaries of the trustee’s name and address, notifying the beneficiaries of an irrevocable trust that the trust exists and that they have certain rights, providing a copy of the trust instrument upon request, providing a trust accounting (F.S. §736.08135), and disclosing assets and liabilities.

All too often, this office is contacted by beneficiaries who have no idea what is going on with the administration of a trust and the trustee refuses to provide the information requested, even after a demand for an accounting has been filed with the courts.  Sometimes it is because there is a contentious relationship and the trustee is being spiteful, but sometimes it is because the trustee is trying to hide misappropriation or mishandling of trust assets.  If you are the beneficiary of a trust and have not received full disclosure from the trustee, you should contact a skilled trust attorney to protect your rights and to compel a trustee to perform his or her duties.

New Changes to Spousal Shares in Florida Intestate Estates

Beginning October 1, 2011, new rules regarding Florida Intestate Estates will go into effect, drastically changing what happens in estates involving spouses who die without a Will. Florida law has long recognized the rights of married persons whose spouse dies intestate, or without a Will. The surviving spouse’s share was determined based upon whether the deceased spouse had children, and whether those children were also the children of the surviving spouse.

Under the current law, Florida Statute §732.102, the intestate (without a Will) share of the surviving spouse is:

(1)  If there is no surviving descendants of the decedent, the entire intestate estate.

(2)  If there are surviving descendants of the decedent, all of whom are also lineal descendants of the surviving spouse, the first $60,000 of the intestate estate, plus one-half of the balance of the intestate estate. Property allocated to the surviving spouse to satisfy the $60,000 shall be valued at the fair market value on the date of distribution.

(3)  If there are surviving descendants, one or more of whom are not lineal descendants of the surviving spouse, one-half of the intestate estate.

After October 1, 2011, if a married person dies without a Will and is survived by a spouse and children, all of whom are also the children of the surviving spouse, then the surviving spouse will receive 100% of the deceased spouse’s probate estate. This is a fairly significant change to Florida Statute §732.102 (2). The reasoning behind the change appears to be that a married couple with children born of their marriage would most likely want their spouse, who is also the mother or father of their children, to inherit 100% of their estate. However, this may not always be the case, especially where one spouse comes from a wealthy family who prefers that their wealth be passed along through their family blood lines.  If all the money goes to the surviving spouse and he or she gets remarried then perhaps none of the family money is passed down through the blood line.  If it is important to avoid this conclusion, then estate planning should be done to ensure proper disposition of the estate.

This new law is in line with the Florida legislature’s history of implementing increased protection for surviving spouse’s in the State of Florida (e.g., elective share, homestead protection, exempt property, family allowance, and pretermitted spouse statutes).

There are certain procedures that need to be followed in seeking the determination of incapacity and the appointment of a guardain.  Needless to say, they are quite stringent.  Florida courts understand the gravity of implementing a guardianship and do not take such a course of action lightly.  The relevant statutes in determining incapacity are found in Chapter 744, Florida Statutes, along with the Guardianship Rules within the Florida Probate Rules.

The first step in the process is having your attorney file a petition to determine incapacity.  This petition must be filed in the county where the alleged incapacitated person resides or is found.  In addition, it must be signed by the party seeking such a determination under penalties of perjury (also known as a “verified petition”).  Pursuant to Fla. Stat., 744.3201(3), a petition for appointment of a guardian must be filed simultaneously with the petition to determine incapacity.  If the petition to determine incapacity is dismissed for lack of a finding of incapacity, and there is a further finding that the petition was filed in bad faith, the court may assess costs against the petition pursuant to Fla. Stat., 744.331(7)(c).

The court has the authority to declare a person unable to perform or exercise the following rights (but not delegate them to the guardian): to marry; to vote; to personally apply for government benefits; to have a driver’s license; to travel; to seek or retain employment.  Other rights that may be removed and may be delegated to the guardian include the following: to contract; to sue and defend lawsuits; to determine his or her own residency; to consent to medical treatment; to manage property or make any gift or disposition of property; and to make decisions about his or her social environment or other social aspects of his or her life.

Once the petition has been filed with the court, along with payment all of the proper filing fees, the court appoints an attorney to represent the alleged incapacitated person (“AIP”).  This court-appointed attorney for the AIP represents the expressed wishes of the AIP consistent with the rules regulating the Florida Bar.  In addition, the court appoints an examining committee to determine the mental capacity of the AIP.  Depending on the county where the proceedings are held, the examining committees are either selected by the mental health clerk and appointed by the court or they are selected from a local list by the attorney for the proposed guardian.  Each committee member performs an assessment of the AIP and prepares a report, which is provided to the court and appropriate counsel.  The court relies heavily on these committee reports in making its own determination on whether the AIP is, in fact, incapacitated.

While making a determination on an AIP’s incapacity, the court will always consider whether there is a less restrictive alternative to a guardianship.  One such alternative is a durable power of attorney.  If the person has the mental capacity to execute a durable power of attorney document, the guardianship may be avoided.  However, a durable power of attorney does not provide the attorney-in-fact with the power to force the maker of the document to do anything that the maker does not want to do.  It simply provides the attorney-in-fact with the right to perform the tasks outlined in the document.

Another such alternative is a designation of health care surrogate.  If such a surrogate has been designated in writing, he or she has the authority to make the medical decisions for the person.  Some documents also provide the surrogate with the right to make decisions on the person’s mental health as well.

If a person’s quandary pertains to his or her assets and those assets are jointly owned, the other joint owner can act without the consent of the other, depending on the type of assets it is.

Fla. Stat. §393.12 provides for a Guardian Advocate for developmentally disabled persons.  Such a guardian may be appointed without the necessity of a determination of incapacity.  Additionally, this guardian may make all medical and residency decisions.  Fla. Stat. §394.4598 provides for the appointment of guardian advocate for the purposes of mental health decisions only.  This guardian is appointed when a patient in a mental health facility has been found to be incompetent to consent to his treatment.

Elder Law – Abuse of the Elderly

In the context of trust and estate litigation, clients occasionally believe the conduct of others rises to the level of criminal liability.  While filing a lawsuit for breach of fiduciary duty or undue influence can help the client collect money, there are times that a client believes that getting money is insufficient.  Short of requesting charges be filed by the police or State Attorney, there is a Florida law that is commonly referred to as the abuse of the elderly statute that goes beyond the traditional recovery of money when a senior adult is abused.

The elder abuse statute (Florida Statute §415.1111) allows for the prosecution of abuse, neglect or exploitation on behalf of a vulnerable adult against any perpetrator.  Such an action pursuant to the statute must be brought by the vulnerable adult, 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.  The statute permits recovery of reasonable attorney’s fees, costs and damages to a party who prevails, and the remedies are in addition to other legal and administrative remedies available to a vulnerable adult.

What can make this statute challenging in the trust and estate litigation context is the threshold issue of standing.  Standing is a party’s right to make a legal claim or seek judicial enforcement of a duty or right.  For a child of an elderly (“vulnerable”) parent to be able to bring a claim under 415.1111 on the parent’s behalf, he or she must either be the guardian of the parent, have the parent’s consent, or be appointed personal representative of the parent’s estate after death.  So as far as estate (“post-death) litigation goes, to satisfy the standing issue one must be the personal representative.

In trust litigation, the elder abuse law does not apply easily.  What is the remedy for a child who is replaced as co-trustee with the parent on a revocable trust by a new acquaintance who does not have the parent’s best interest at heart?  Without consent of the parent to file an elder abuse lawsuit, the child must petition for and be appointed guardian by the Circuit Court.    It has been argued that a very comprehensive durable power of attorney may grant to the child such consent as to confer standing under Florida Statute 415.1111.

The abuse of elderly law is an additional arrow in the quiver of the estate and trust litigation lawyer.

THE POWERS AND LIMITATIONS OF POWERS OF ATTORNEY

With Great Power Comes Great Responsibility.  Voltaire

There are important differences between standard powers of attorney and durable powers of attorney but each document is ripe for being abused.  A 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 not able to pay bills or banking transactions or the principal plans to travel and needs to have documents signed while away, then the ordinary or standard power of attorney document would authorize the principal’s chosen agent or attorney-in-fact to execute documents, receive and pay bills and make banking transactions on the principal’s behalf.  A standard power of attorney would become invalid if the principal became mentally incapacitated.

A durable power of attorney (even more likely to be used for improper, illegal and selfish reasons) is a document that authorizes the principal’s chosen agent or attorney-in-fact to execute documents, receive and pay bills and make banking transactions on the principal’s behalf, but would remain effective even if the principal became mentally incapacitated.  It is possible to have the power of attorney document drafted to be broad in scope, giving the agent or attorney-in-fact the authority to make any and all property, financial, medical and personal decisions for the principal; or the power of attorney document could be drafted to authorize the agent or attorney-in-fact to perform very limited, specific duties for the principal.

Florida Statute 709.08 outlines how to create a durable power of attorney, who may serve as the agent or attorney-in-fact, and provides information as to the durability of the power of attorney in Florida Statute 709.08(3)(b), which states:  “The attorney in fact may exercise the authority granted under a durable power of attorney until the principal dies, revokes the power, or is adjudicated totally or partially incapacitated by a court of competent jurisdiction, unless the court determines that certain authority granted by the durable power of attorney is to remain exercisable by the attorney in fact.”  So, if the durable power of attorney is drafted to include specific language granting the attorney in fact authority to act, even after the principal has been deemed incompetent, that authority will remain intact until the death of the principal.

A little known fact is Florida law (Florida Statute 709.08(7)) outlines the powers and limitations of the durable power of attorney.   The attorney in fact has full authority to perform, without prior court approval, every act authorized and specifically enumerated in the durable power of attorney, but may not: 

1) perform duties under a contract that requires the exercise of personal services of the principal;

2) make any affidavit as to the personal knowledge of the principal;

3) vote in any public election on behalf of the principal;

4) execute or revoke any will or codicil for the principal;

5) create, amend, modify or revoke any documents or other disposition effective at the principal’s death or transfer assets to an existing trust created by the principal unless expressly authorized by the precise language of the power of attorney because when the principal dies, the attorney in fact has no further authority to act for the principal; or

6) exercise powers and authority granted to the principal as trustee or as court-appointed fiduciary.  The attorney in fact cannot execute documents for the principal as trustee if the principal had been appointed the trustee of a trust.

The attorney in fact is held to a high standard of care pursuant to Florida Statute 709.08(8).  They must exercise a standard of care applicable to a trustee of a trust, and if the attorney in fact’s exercise of power is improper, they will be liable to interested persons for damage or loss resulting from their breach of fiduciary duty as the attorney in fact to the same extent as a trustee of an express trust.  If the power of attorney exceeds their power, exercises improper powers, breaches their fiduciary duty, self-deals, acts as a trustee for the principal, or does not invest the principal’s assets prudently, the interested persons may have standing to initiate litigation against the power of attorney.

Inevitably, relatives abuse powers of attorney.  They confuse the power granted to them with the improper use of that power by serving their own selfish financial gain.  With great power comes great responsibility to protect the person granting the power.  Far too often, my clients hear the threat “I can do whatever I want to with the power of attorney.” 

If you believe a person holding the power of attorney is breaching their fiduciary duty, self-dealing, squandering assets, or not investing the principal’s assets prudently, it is imperative that you promptly contact a skilled and competent attorney so that the appropriate action can be taken, including the commencement of litigation against the person abusing the power of 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.

My probate practice regularly performs cleaning services for the messes caused by maladministration of estates by fiduciaries.  Unfortunately, with increasing frequency, estates and their beneficiaries are victimized not only by negligent fiduciaries, but by attorneys who steal from the estates.

For example, one attorney was recently charged with stealing more than $300,000 in guns, jewelry and art from a friend who died of cancer.   A beneficiary named in the will contacted police after receiving nothing from the estate.    Evidently, the lawyer was unsuccessful in attempting to be appointed personal representative of the estate.  Further, the lawyer was charged with forgery for allegedly signing the decedent’s name on a check two days after the man passed away.  Finally, the lawyer was charged with perjury for allegedly claiming to be executor of the estate when he re-registered several guns in his name.

Misconduct by Florida attorneys involved in handling wills and trusts is not uncommon.  All too often I am asked to investigate and ultimately prosecute will contests which involve attorneys playing an active role, not only in the procurement of the will, but in having themselves or their relatives named as beneficiaries under the will. The Florida Supreme Court has adopted a portion of the American Bar Association’s Model Rules of Professional Responsibility, and in particular, the prohibition against lawyers playing a role in the drafting and execution of a will or trust where they are named as a beneficiary.

Rule 4-1.8. Conflict of Interest; Prohibited and Other Transactions

(c) Gifts to Lawyer or Lawyer’s Family. A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this subdivision, related persons include a spouse, child, grandchild, parent, grandparent, or other relative with whom the lawyer or the client maintains a close, familial relationship.

This code provision was relied on in disciplinary proceedings against a lawyer in The Florida Bar vs. Anderson, 638 So.2d 29 (Fla. 1994). In October 1988, Anderson, a probate lawyer, undertook the representation of Mary Sisler. Between that time and Sisler’s death two years later, he prepared nine testamentary instruments, six of which named him or his wife as beneficiaries of Sisler’s estate. The Court found his conduct to be unprofessional even though Anderson did not intend that either he or his wife benefit from the bequests and even though he received no real benefit from any instrument he drafted for Sisler. The Court found, however, that Anderson was attempting, inartfully, to effectuate Sisler’s intent to shield the bequests from the creditors of the Palm Beach Festival, her intended beneficiary.

The Anderson decision and the Rule of Professional Responsibility upon which it is predicated, underscores the deep-rooted policy in Florida that a lawyer who drafts a will in which the attorney or a member of his family is a beneficiary raises the issue of undue influence that taints the entire will and may destroy the validity of other bequests as well. Florida law will not tolerate this conduct as it frustrates the intentions of a client who has entrusted the attorney with the responsibility of seeing that the estate is distributed according to the client’s wishes. Further, in the cases I have handled, I invariably find that the attorney’s credibility as a witness on testamentary capacity is impaired by the attorney’s personal interest in the outcome.