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Florida Probate Blog

Posts Tagged: guardianship

Can a guardian change the trustee of a ward’s trust?

Written by on Jul 27, 2015| Posted in: Guardianship Litigation

Choosing someone to act as your successor trustee upon your death or incapacity is not a decision that you should take lightly. Not only does that nominated successor trustee have a duty and obligation to carry out your wishes, but that trustee also has a fiduciary obligation to act prudently and appropriately for the benefit of the subsequent beneficiaries. However, what if that nominated successor trustee turns out to be a bad choice? What if the settlor of the trust is determined to be incapacitated and cannot alter the terms of the trust? The 5th District Court of Appeals of Florida in Rene v. Sykes-Kennedy, 156 So.3d 518 (Fla 5th DCA 2015) recently dealt with such an issue wherein a person who created a revocable trust was subsequently determined to be incapacitated. The person had nominated a granddaughter to serve as the successor trustee of the trust upon the person’s […]

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Florida Guardianship Lawyer

Written by on Feb 24, 2012| Posted in: Estate Litigation

Florida Guardianship Lawyers who focus on elder law topics can prepare wills and trusts, provide Medicaid plans or assist with guardianship for people who are mentally incapacitated.  Being mentally incapacitated is not the same as being mentally incompetent but the conclusion can sometimes be the same – someone cannot take care of himself or herself and needs a guardian to be appointed by the Court.  The Law Offices of Adrian Philip Thomas, P.A. has Florida guardianship lawyers practicing with the firm, including Robert M. Trinkler, who has previously served as counsel of record in more than 2,000 guardianship and incapacity proceedings throughout the State of Florida and who has successfully handled hundreds of adversarial guardianship and incapacity matters.  The lawyers at Law Offices of Adrian Philip Thomas, P.A. have extensive experience in all aspects of Florida guardianship proceedings.

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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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