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 nurse, nurse practitioner, licensed social worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or other person who by knowledge, skill, experience, training, or education may, in the court’s discretion, advise the court in the form of an expert opinion[.]” Read the rest of this entry

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 necessary. Read the rest of this entry

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.”) Read the rest of this entry

WILL CONTEST FLORIDA

Proving Incapacity: How Can You Determine Whether Dementia Played a Role in the Will Change? Tested Methods for a Challenging Evidentiary Task

In an earlier blog, I reminded readers that Florida is home to the nation’s largest geriatric population, many of whom are vulnerable to exploitation due to the infirmities of age and diminished mental capacity. A recent study discovered that the prevalence of dementia is estimated to double every five years in the elderly, growing from a disorder that affects 1 percent of persons 60 years old to a condition afflicting approximately 30 percent to 45 percent of persons 85 years old.

It Just Doesn’t Make Any Sense

Many times I am asked to represent persons who don’t live in Florida and don’t see their elderly Florida relatives on a daily basis. During their visits to Florida they notice a change in their elderly relative’s behavior, but don’t take any drastic measures because they don’t fear that their relative is in danger and because they are only visiting and don’t want to upset their elderly relative. After death, these persons then discover that their relative wrote a new will at the eleventh hour of their life with provisions that don’t make any sense. To the now disinherited family member who is looking for answers, I often ask whether their elderly relative could have been suffering from diminished capacity to an extent that the should be invalidated.

The Doctor Is In

It is at this point that the inquiry delves into a myriad of factors. One of the first things I look at is the medication that the elderly person was taking. Many doctors believe that some of the many forms of dementia are treatable and reversible and will make efforts to treat the diseases through various prescription drugs, for example: Aricept. Also, elderly persons frequently experience battles with debilitating depression which physicians will attempt to combat with prescription drugs. Often, there will be a change in dose or other medical evidence indicating whether or not the elderly person responded favorably to the medication or whether their condition continued to deteriorate.

Capacity

In Florida, testamentary capacity is the ability of a person to make a valid will. It requires that the person making the will understand the nature and extent of the property they own at the time the will is executed; the nature and effect of signing the will and an understanding of the planned disposition in the will. Finally, and most importantly, the person making the will must have knowledge of their natural relatives and the nature of their relationship with the person making the will.

Partial Incapacity Florida is unique in that its state decisional case law recognizes that a person might not lack capacity all the time for all purposes. What has developed in Florida is a principle of law called “partial insanity.” Under this principle, partial insanity may invalidate a will. See, In re Supplee’s Estate, 247 So. 2d 488 (Fla. 2d DCA).

Evidence I have had success where family members kept notes that were contemporaneous with their observations of their elderly relative, or where there is some evidence other than their own testimony pointing to the conclusion that their relative was suffering from progressive forms of dementia that affected their judgment at the time they executed the will. This evidence can take many forms, for example, I had one case where the evidence included my client’s father who went out driving a golf cart in his underwear. This one episode, coupled with other evidence that he had forgotten that one of his pieces of real estate had already been sold years ago, led to the conclusion that he did not understand the nature of his property at the time he executed the will.