Florida Probate & Trust Litigation Blog

Florida Probate & Trust Litigation Blog

By Juan C. Antúnez of Stokes McMillan Antúnez P.A.

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Probate Law 2015 Seminar — Friday, December 4, 2015

Posted in Musings on the Practice of Law

rppt-sealI’m going to be one of the speakers at next week’s Probate Law 2015 Seminar. The organizers have put together a great program. If you’re able to attend, you should. It’ll be time well spent.

Here’s the official seminar summary:

This seminar is intended to provide practitioners with real life insight in handling challenging issues that arise in the course of a Florida probate proceeding. Speakers will focus on dealing with digital assets and the impact of mobile device technology on probate practice, the effect of a party’s death during the course of litigation, and recent developments in the law governing attorneys’ fees and personal representative commissions. Other topics include a primer on statutory entitlements under the Florida Probate Code, a beginner’s field guide to jurisdictional issues in trust and estate proceedings, as well as a session on the complex probate issues that can arise when dealing with modern families. The seminar also includes the always popular probate case law, rules, and legislative update, along with a presentation on the ethical dilemmas faced by fiduciaries and probate practitioners.

Fla/3d DCA: What’s a “reasonably ascertainable” probate creditor and why should you care?

Posted in Creditors' Claims

Golden v. Jones, — So.3d —-, 2015 WL 5727788 (Fla. October 1, 2015)


The Florida Supreme Court put to rest a statutory-interpretation issue involving F.S. 733.702(1)’s 3-month filing deadline for creditor claims that’s been roiling the Florida Probate Bar for years and lead to a split among 4 of our appellate courts. BONUS MATERIAL: You can access the Florida Supreme Court’s video of oral argument for this case by clicking here.

A cause of action against a probate estate is private property that’s protected by the Fourteenth Amendment’s due process clause. Which means it can’t be taken away from you in a probate proceeding without notice. But what we mean by “notice” depends on what kind of creditor you are. If you’re a known or reasonably ascertainable creditor, than you’re entitled to direct, personal notice. Otherwise all you get is publication notice in a local newspaper (which in today’s world equals no notice as a practical matter). This distinction’s at the core of our supreme court’s ruling in this case:

In Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 489–91, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988), the United States Supreme Court held that where a creditor is known or reasonably ascertainable, that creditor’s claim may not be barred merely by publication of the notice to creditors. Noting that a claim against an estate is property subject to protection by the Fourteenth Amendment, the Supreme Court weighed the important state interests in regulating the timeliness of creditors’ claims against the rights of those creditors to have their intangible interests in property protected by the Fourteenth Amendment. Id. at 485, 108 S.Ct. 1340. The Supreme Court determined that where a time bar is self-executing—such as the two-year statute of repose in section 733.710—there is insufficient state action to implicate the Due Process Clause of the Fourteenth Amendment. Id. at 485–87, 108 S.Ct. 1340. However, where a time bar is triggered by legal proceedings—such as the limitations periods in section 733.702—there is sufficient state action to implicate the Due Process Clause. Id. at 487–88, 108 S.Ct. 1340. The Court thus concluded that where there is sufficient state action and a creditor is “known or ‘reasonably ascertainable,’ then the Due Process Clause requires that [the creditor] be given ‘[n]otice by mail or other means as certain to ensure actual notice.'” Id. at 491, 108 S.Ct. 1340 (quoting Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983)).

With this background in mind, the Florida Supreme Court put to rest a statutory-interpretation issue involving F.S. 733.702(1)’s 3-month filing deadline for creditor claims that’s been roiling the Florida Probate Bar for years, and was at the center of 4! appellate court decisions, 3 of which ruled one way (Morgenthau, Lubee and Souder) and 1 which went the other (Golden). Proving once again that nothing’s ever certain in litigation, our supreme court held that 3 of the 4 lower appellate courts got it wrong! The one court that got it right was the 4th DCA in Golden (is it really that hard to read the text of a simple probate statute and do what it says?). Anyway, here’s how the court summarized its ruling:

We have for review Golden v. Jones, 126 So.3d 390, 390 (Fla. 4th DCA 2013), in which the Fourth District Court of Appeal held “that if a known or reasonably ascertainable creditor is never served with a copy of the notice to creditors, the statute of limitations set forth in section 733.702(1), Florida Statutes, never begins to run and the creditor’s claim is timely if it is filed within two years of the decedent’s death.” The Fourth District certified that its decision is in direct conflict with the decisions of the First and Second District Courts of Appeal in Morgenthau v. Andzel, 26 So.3d 628 (Fla. 1st DCA 2009), and Lubee v. Adams, 77 So.3d 882 (Fla. 2d DCA 2012), which held that even a reasonably ascertainable creditor who was not served with a copy of the notice to creditors is required to file a claim within three months after the first publication of the notice, unless the creditor files a motion for an extension of time under section 733.702(3) within the two-year period of repose set forth in section 733.710. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

Because we conclude that the limitations periods prescribed in section 733.702(1) are not applicable to known or reasonably ascertainable creditors who are never served with a copy of the notice to creditors and that the claims of such creditors are timely if filed within two years of the decedent’s death under section 733.710, we approve the decision of the Fourth District in Golden and disapprove the decisions of the First and Second Districts in Morgenthau and Lubee.

So what’s the take away?

Bottom line, if you’re a known or reasonably ascertainable creditor who’s never been personally served with notice, you have up to 2 years to file your claim. And you don’t have to ask a probate judge to pretty please give you an extension to file your claim under the very tough standard found in F.S. 733.702(3), which only allows for extensions if you prove fraud, estoppel or insufficient notice.

Based on the Florida Supreme Court’s ruling in Golden, there’s now an even greater premium on being a known or reasonably ascertainable creditor vs. an unknown or conjectural creditor, which means we can expect the litigation focus to turn in that direction. And that’s exactly what happened in the Soriano case.

“Reasonably ascertainable” creditors vs. “conjectural” creditors. Guess which one you want to be.

Soriano v. Estate of Manes, — So.3d —-, 2015 WL 5965203 (Fla. 3d DCA October 14, 2015)

The U.S. Supreme Court’s drawn a clear distinction between the due process rights afforded to known or reasonably ascertainable probate creditors vs. unknown and conjectural creditors. Here’s how the 3d DCA summarized this point:

In Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) the United States Supreme Court . . . explained, it is not “unreasonable for the State to dispense with more certain notice to those beneficiaries whose interests are . . . conjectural . . .” Id. at 317. Years later, in Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988), the Supreme Court . . . held . . . “[I]t is reasonable to dispense with actual notice to those with mere ‘conjectural’ claims.” Id. at 490. See also Strulowitz v. Cadle Co. II, 839 So.2d 876, 880 (Fla. 4th DCA 2003) (noting a “personal representative has no duty to speculate and conjecture that someone might possibly have a claim against the estate” (citing Jones, 609 So.2d at 102)).

If you’re a “conjectural” creditor who happened to miss the creditor notice buried in the back of your local newspaper that no one ever reads, you’re stuck with F.S. 733.702(1)’s 3-month filing deadline. And if you miss that very short window of opportunity, you’re stuck arguing fraud, estoppel or insufficient notice under F.S. 733.702(3) to hopefully get an extension to file your claim when you finally find out the guy who owes you money died. The extension argument’s a tough one to win under the best of circumstances. On the other hand, you could argue none of this applies to you because you were really a reasonably ascertainable creditor all along, which means you have up to 2 years to file your claim if no one ever got around to personally serving you with notice. That’s what the creditor in this case tried to do.

Case Study:

Four months after the estate’s “notice to creditors” was first published in a local newspaper (i.e., after F.S. 733.702(1)’s 3-month filing deadline), Ms. Soriano filed a creditor claim against the estate, alleging she had an unsecured claim “based upon an imminent private tort action against [the Decedent] stemming from a criminal charge he incurred on May 28, 2013 in Monroe County, Florida.” Attached to the statement of claim was a document entitled “Traffic/Criminal Case Detail Information” which showed that the Decedent had been charged with misdemeanor battery in June 2013, and that the State nolle prossed the criminal case on December 4, 2013 (a month following Decedent’s death).

Ms. Soriano asserted she was a reasonably ascertainable creditor who wasn’t personally served with a notice to creditors, thus absolving her from F.S. 733.702(1)’s 3-month filing deadline. Whether or not you’re a reasonably ascertainable creditor is an intensely fact-specific decision. So both sides filed supporting affidavits. The estate’s personal representative (PR), Ms. Manes, filed an affidavit claiming she’d done everything a PR’s supposed to do to find creditors, and she had no idea the claimant existed. According to the 3d DCA, in response:

Ms. Soriano filed three affidavits from the following individuals: (1) Luke Bovill, the prosecutor in the criminal case against the Decedent; (2) Elena Vigil–Farinas, the Decedent’s criminal defense attorney; and (3) Robert C. Stober, Ms. Soriano’s personal attorney. Bovill’s affidavit averred that the Decedent was represented by Jessica Reilley, Esq., and that Bovill was aware Ms. Soriano had retained personal counsel. Vigil–Farinas’ affidavit averred that the Decedent’s “wife contacted me and paid the retainer for [Decedent’s] criminal defense.” Finally, Stober’s affidavit averred that he “was retained by Ms. Soriano to assist her with a workplace battery” committed by Decedent and that, on or about November 13, 2013,3 he “spoke with Mr. Manes’ criminal defense attorney, Jessica Reilly, and advised Ms. Reilly of my representation of Ms. Soriano.”

So was this enough to save the day for this creditor? No. Here’s why: she couldn’t prove the PR ever had actual notice of her intent to sue the estate or that the PR wasn’t diligent in her search for creditors. Sure, maybe the PR could have guessed this claim was coming, but according to her testimony she didn’t, and that was enough to block the claimant.

There is nothing in the affidavits filed by Ms. Soriano to suggest that Ms. Manes, or Decedent’s criminal defense counsel, had any actual knowledge of Soriano’s civil claim against Decedent. Nor is there any evidence (or assertion in the affidavits) that a search more diligent than that conducted by Ms. Manes would have revealed the existence of Ms. Soriano’s claim. Neither Ms. Soriano nor her attorney placed Ms. Manes on notice of any such claim. In fact, the affidavits fail to contain an averment that Ms. Soriano or her attorney placed anyone on notice that she was pursuing, or intended to pursue, a civil claim against Decedent or his estate.

It is the absence of any such averment that distinguishes the instant case from the cases relied upon by Ms. Soriano. Compare, e.g., In re Estate of Ortolano, 766 So.2d 330 (Fla. 4th DCA 2000) (finding appellant was a reasonably ascertainable creditor where it was established that the personal representative had actual notice of the contingent creditor’s claim); Foster v. Cianci, 773 So.2d 1181 (Fla. 2d DCA 2000) (same).

The affidavits presented to the trial court failed to establish that Ms. Soriano was a reasonably ascertainable creditor and further failed to establish that Ms. Manes, following a diligent search, should reasonably have ascertained that Ms. Soriano had a claim or a potential claim. The trial court properly denied Ms. Soriano’s petition because, as a mere conjectural creditor, she was not entitled to personal service of the notice to creditors, her petition was untimely, and her asserted claim was barred by section 733.702(1), Florida Statutes.

Lesson learned?

Our supreme court’s ruling in Golden highlights again the preferential treatment afforded to known or reasonably ascertainable creditors. On the other hand, the 3d DCA’s ruling in Soriano reminds us that just because you think you’re a reasonably ascertainable creditor, doesn’t make it so. If you’re involved in one of these cases you’ll want to use Soriano as an evidentiary road map; which means these cases all boil down to two questions:

  1. Did the personal representative have actual knowledge of the probate creditor’s existence?
  2. Would a reasonably diligent search have revealed the probate creditor’s existence?

Bench trials and unconscious bias, are judges people too?

Posted in Musings on the Practice of Law

Unconscious BiasIn Florida, inheritance disputes are decided by a jury of one: your judge. These cases are all bench trials, which has huge implications for litigants and the lawyers who advise them.

One obvious challenge for those of us making a living in Florida’s overworked and underfunded court system, is how do you help your judge make the best decisions possible under pressure-cooker conditions? For example, as I reported here, in Miami-Dade each of our probate judges was assigned an average of 3,069 new cases in FY 2013-14, and in Broward the figure was even higher at 3,899/judge. And as caseloads go up, court funding goes down, depriving our judges of the support most of us in private practice take for granted. The best strategies I’ve found for dealing with this particular challenge are summarized beautifully in Persuading a Cold Judge, a 2009 article published in the ABA’s Litigation magazine which I refer to all the time (and wrote about here).

Are Juries Really Such a Wildcard Compared with Judges?

Another fundamentally important issue to deal with in bench trials, which is less obvious but equally outcome determinative, are the unconscious biases that drive much of our decision making as human beings. Most studies investigating this kind of bias focus on the general public (which I’ve reported on here in the context of settlement negotiations). We now have research focusing specifically on judges, as reported in Are Juries Really Such a Wildcard Compared with Judges? Here’s an excerpt:

[A] growing body of research supports what many of us have always known—judges are people, too, and are subject to many of the same unconscious influences and decision-making shortcuts as jurors. Regardless of background, education, and occupation, we are all remarkably bad at understanding what influences us when we make decisions. . . . We think we know why we made certain decisions and what we relied on when doing so, but we often discount factors that had a larger impact on us than we thought. Judges are not immune to this either. Pertinent research on judicial decision making indicates that biases and errors occur both unconsciously and unintentionally.

Yes, judges are people too; so what’s to be done?

First, understand the problem. We’re not talking about intentional bias here. What we’re talking about are the factors affecting decision making that most of us are simply unaware of. The linked-to article does a good job of identifying the typical unconscious biases we’ll encounter in a courtroom. Yes, “who” your judge is matters (i.e., race, gender and background), but “how” his or her brain works is just as important. Our brains use a number of mental shortcuts, or “cognitive heuristics,” that help us make decisions more quickly and efficiently by operating in a matter of milliseconds, without our realizing that it is happening. Understanding how these mental shortcuts work, and what you need to do to make sure they’re working in a way that helps your judge do the best job possible, is crucial.

Second, be proactive, take steps to neutralize unconscious biases that hinder a judge from making thoughtful, well-reasoned decisions. The linked-to article provides a solid list of compensating strategies; here are my favorites:

Because external accountability can . . . increase deliberative processing, call attention to the fact that the decision will draw scrutiny, for example, through . . . appellate review. While risky, it could be effective if handled delicately.

On a more strategic level, use a narrative to tell a story in briefs, in opening statements, and through witness testimony. Having judges consider alternative explanations leads to more deliberative analysis, and simply attacking the adverse party’s story does not provide that alternative. Provide your own story that includes an alternative cause, motive, narrative, etc., so the judge has to consider both versions rather than just the strengths and weaknesses of only one.

An assessment of the judge’s inclination to tackle complex information can also help guide the complexity of the presentation. A judge who exhibits an inclination to make sure he or she understands complex evidence will inherently be more likely to make more deliberative decisions. However, if a judge is more prone to quick decisions, then counsel should make extra use of tools like simple visuals, decision trees, and tag lines to create a less effortful path to a favorable decision.

Bottom line, judges are people too. Understanding how they make decisions is crucially important in cases such as ours, where the same person is both judge and jury.

3d DCA: What’s a “notarial will” and when do they work in Florida?

Posted in Practice & Procedure

Malleiro v. Mori, — So.3d —-, 2015 WL 5714701 (Fla. 3d DCA September 30, 2015)


BONUS MATERIAL: You can access the 3d DCA’s video of oral argument for this case. Just click here, then enter case number 14-0095 in the search box, then press the search button. When you see this case listed, click the link to download the file to your computer. (Image: 16th-century painting of a civil law notary, by Flemish painter Quentin Massys)

As long as we’ve had probate courts, people have been trying to figure out how to avoid them. In common-law jurisdictions like Florida, the most common technique is to use non-probate assets that automatically transfer at death (known as the nonprobate revolution, it’s a trend that’s been accelerating for decades). In civil-law jurisdictions (i.e., all of Latin America) and mixed civil-law jurisdictions (like Quebec, Louisiana and Puerto Rico), they’ve come up with another way to avoid probate, and it’s called the “notarial will.”

What’s a “notarial will”?

Civil-law notaries, or “Latin” notaries, act in a quasi-judicial capacity when they’re involved in the preparation and execution of a person’s will. Which means that once your will’s been authenticated by a civil-law notary, you usually don’t need a probate court to do it over again after you’ve died. Bottom line: no probate.

What makes notarial wills “tick” is the level of authority a notary’s vested with in most civil-law jurisdictions, as noted by the 3d DCA:

The main characteristic of a notarial will is the central role played by the civil law notary in supervising the creation of the will and permanently storing the will. When performing this task, the civil law notary is acting in a quasi-judicial capacity in a manner that has no counterpart in common law jurisdictions and which should not be confused with the ministerial functions of a common law notary public. See Thomas A. Thomas & David T. Smith, Florida Estates Practice Guide, § 7.04(5) (2015).

But for this system to work, the notary’s required by law to retain custody of the original document. Here’s how this point was explained in In Defense of Notarial Wills, an article discussing notarial wills in Quebec:

[The notary] is required by the notarial code to retain the original will in a vault having maximum fire proof standards, burglar and dampness resistance. Therefore, the original is always available and cannot become lost, destroyed or mislaid. . . . Certified copies may be obtained from the notary or the depositary of his records with no other formality. The original will is never delivered except upon Court order in unusual circumstances, e.g. as evidence when the validity of its execution is questioned.

Do notarial wills work in Florida?

So here’s the problem. In common-law jurisdictions like Florida a court usually won’t validate/probate your will unless the original’s been deposited with the court. Copies don’t work unless you overcome the very tough “lost will” presumption of revocation (see here). This common-law emphasis on original documentation creates a fundamental conflict with a civil-law notary’s duty to retain custody of original wills, again as noted in In Defense of Notarial Wills:

Since the common law requires production of the original document for probate, the two systems of law contradict. The original notarial will cannot remain in the notary’s repertoire as required by . . . law and also be delivered for probate elsewhere.

What to do? Follow the steps laid out in F.S. 733.205, Florida’s specifically designed mechanism for dealing with foreign notarial wills. The statute lets you use an authenticated copy of a foreign notarial will “if the original could have been admitted to probate in this state.” In other words, all this statutory fix is supposed to do is let us use copies to address a civil-law notary’s duty to retain custody of his original documents, it’s NOT supposed to lower the standard for what kind of will is otherwise valid in Florida. It’s this last point that’s at the heart of the 3d DCA’s ruling in this case.

Case Study:

This case involves an Argentine notarial will that was apparently accepted as valid by an Argentinian court. The notarial will was typed up and signed by the notary, but it wasn’t signed by the testatrix or her witnesses, as explained by the 3d DCA:

The Testator orally pronounced her testamentary wishes to a notary who transcribed them. The Argentine will sets forth that the Testator made her attestations before the notary in the presence of three witnesses who were identified by name, address, and national identity card number. The Argentine will explains that the notary typed up the testamentary wishes and presented the typed document to the Testator, who declined to read it. The document was then read back to the Testator, who orally approved it in the presence of the witnesses. The notary signed and stamped the will, but the Testator and the witnesses did not sign it.

The Argentine will revoked a prior will singed in New York that favored a different group of beneficiaries. So which will’s valid matters. A few years after the Argentine will was created, the testatrix moved to Miami where she died owning property both in the U.S. and Argentina. The probate court in Miami ruled the Argentinian will was valid — even though it wasn’t signed by the testatrix.

The general rule in Florida is that we’ll accept the validity of a will created by a nonresident anywhere else on the planet, as long as one non-negotiable, bare minimum requirement is met: it’s signed by the testator. Under F.S. 732.502(2), oral (i.e., nuncupative) wills aren’t valid in Florida under any circumstances. And it doesn’t matter how strong the evidence is that the foreign will accurately reflects a person’s testamentary intent, or even if a court in another jurisdiction’s blessed it (as I reported here in a case involving an unwitnessed holographic will that was approved by court order in Colorado but rejected in Florida), if the will’s not signed, it’s not going to fly in Florida. But F.S. 732.502(2) shouldn’t be a problem for most notarial wills because the norm seems to be that these wills are always signed, as noted by the 3d DCA:

A treatise that surveyed the practices of different countries concerning notarial wills noted four stages commonly involved in the creation of a notarial will:

First, the testator makes an oral declaration of the will to the notary and two witnesses. Second, the notary (or an assistant) reduces the will to written form. Third, after being read aloud by the notary, the will is signed by testator, notary, and witnesses, with the notary adding information about the execution, including, usually, its date and place and the names of witnesses. Finally, the will is retained by the notary and, in some countries, registered in a central register.

1 Kenneth G.C. Reid, Marius J. de Wall & R. Zimmerman, Comparative Succession Law, Testamentary Formalities 449 (2011). Significantly, according to this treatise, the required third step in the creation of a notarial will is the signing of the will by the testator. Indeed, the treatise does not mention or acknowledge any type of notarial will that is not signed in some manner by the testator. Id.

Can a written will still be considered an invalid oral will?

Whether the Argentine notarial will at issue in this case is valid or not depends on whether a written will that’s not signed by the testator is still considered to be an invalid oral will. At the trial court level the argument seems to have been that since the will is in writing, it’s not an invalid oral will. The challengers argued that if it’s not signed, it’s an oral will — even if the will’s in writing. Here’s how this argument was reported by the DBR in Which Will Work? Court Chooses New York Version Over Argentina:

“This will certainly was reduced to writing, so it wouldn’t meet the definition of a nuncupative will,” said attorney Sergio Mendez, who represented the heirs under the second will.

Mark Hasner, the attorney for the New York beneficiaries, disagreed.
“Florida law is clear that nuncupative wills are not admissible,” he said. “The testator never signed her Argentinean will and therefore it fits into the definition.”

By the way, Florida courts have dealt with this kind of mixed oral/written will argument in the past. A will can be in writing and still contain an invalid oral directive that’s unenforceable. See Estate of Corbin v. Sherman, 645 So.2d 39 (Fla. 1st DCA 1994). On the other hand, just because a will contains a reference to unstated oral instructions, doesn’t make it invalid, as the 3d DCA held in Glenn v. Roberts (see here). In this case the 3d DCA focused on the fact that the will wasn’t signed by the testatrix, ultimately ruling against it. Here’s why:

In one sense, every notarial will is nuncupative: it is orally pronounced by the testator to the notary. . . . Nevertheless, there would be no point to recognize foreign notarial wills in section 733.205 if they were all barred by the prohibition of nuncupative wills in section 732.502(2). We decline to interpret these provisions in a manner that renders one of them a nullity. . . . Instead, we hold that section 732.502(2)‘s prohibition of nuncupative wills does not bar all notarial wills, but does bar notarial wills that are unsigned by the testator. We reach this conclusion based upon the near universal emphasis in both foreign and domestic probate laws on the importance of the testator’s signature. This reading of the statute honors the policy of comity reflected in section 733.205 by recognizing the validity of most notarial wills, almost all of which are apparently signed by the testator according to the authorities disclosed by our research. It also honors the policy of limiting fraud and mistake reflected in section 732.502(1)‘s strict formalities for wills in general and 732 .502(2)‘s exclusion of nuncupative wills from acceptable foreign wills.

Lesson learned? Think global, act local:

Florida is a hub for international business and investment. Which means a lot of people own property in Florida, but reside and work in another state or country, frequently owning property in several jurisdictions. So it shouldn’t come as a surprise to anyone that multi-jurisdictional estates (be it the state-to-state or country-to-country variety) are a large part of our practice here in Florida. This case highlights what can go wrong when someone has a will prepared back home, and assumes it’ll automatically work in Florida too. It ain’t necessarily so. When in doubt, the safe bet is to simply sign a new will in Florida drafted by a Florida lawyer who knows what he’s doing. A little bit of collaboration with our non-U.S. brethren is probably a good idea too, as noted in a DBR report on this case entitled Which Will Work? Court Chooses New York Version Over Argentina:

Hasner said the opinion . . . underscored the importance of collaboration when it comes to estate planning for people like Isleno, who had property in two countries. “I think the big takeaway is estate planning lawyers need to have communication with the offshore planners as well,” he said.

By the way, if you’re looking for an easy way to meet top international attorneys (and just about anyone else who makes a living working with international estate planning clients), your best bet is to join your nearest STEP branch. I’ve been a member of the STEP Miami Branch for some time. If you have any interest whatsoever in international trusts and estates matters, STEP is where you want to be.


You can access the 3d DCA’s video of oral argument for this case. Just click here, then enter case number 14-0095 in the search box, then press the search button. When you see this case listed, click the link to download the file to your computer

2014 . . . Florida Supreme Court’s Mediator Ethics Advisory Committee (MEAC) Opinions

Posted in Settling, Mediating & Arbitrating Inheritance Cases

The Florida Supreme Court’s Mediator Ethics Advisory Committee (MEAC) has been issuing formal advisory ethics opinions to certified and court-appointed mediators since 1994. MEAC opinions deal with ethics questions governed primarily by Florida’s Rules for Certified and Court-Appointed Mediators.

The vast majority of trusts and estates cases settle, and many of those settlements happen with the help of a good mediator. I’ve been at this game for close to 20 years now, so even before I became a certified mediator I (like most litigators) had a common-sense idea of what should and shouldn’t happen in a mediation conference. But what are the rules? Glad you asked.

The Florida Supreme Court’s Mediator Ethics Advisory Committee (MEAC) has been issuing formal advisory ethics opinions to certified and court-appointed mediators since 1994. MEAC opinions deal with mediation-related ethics questions governed primarily by Florida’s Rules for Certified and Court-Appointed Mediators.

As a practicing lawyer, I’m convinced one of the best risk-management tools available to us are the ethics rules. Not because we need someone to tell us it’s a bad idea to lie, steal or cheat; but because we need someone to point out the pitfalls that are NOT self-evident. As former Secretary of Defense Donald Rumsfeld famously put it, it’s the “unknown, unknowns” you need to worry about. Which is why MEAC opinions are valuable tools more of us should be aware of. To that end, here’s my summary of the MEAC opinions for 2014:

Opinion No. 2014-002

Summary: As is clearly stated in the civil, family, juvenile and appellate rules, a mediator may report only “agreement” or “no agreement” to the court without comment or recommendation. No descriptors or modifiers may be used in the mediator report. Note: MEAC 2014-002 rescinds MEAC 2012-009, Answer to Question One, and any other opinion in consistent with it. Citations: Rules of Civil Procedure 1.730(a) – (b); Rules of Juvenile Procedure 8.290(o)(2); Rules of Procedure 9.740(a); Rules of Procedure 12.740(f)(3) Sections 44.401-405, Florida Statutes; MEAC Opinions 2013-006, 2012-009, 2010-012 and 2010-007.

Opinion No. 2014-004

Summary: In the scenario presented, if conducting mediation in a language common to all parties and the mediator, it is inappropriate for a mediator to then memorialize any agreement reached in a language other than the one in which the mediation was conducted. Citations: Rules 10.340(d) and 10.410, MEAC Opinion 2011-017.

Opinion No. 2014-005

Summary: A mediator’s fee may never be based on the outcome of the mediation. Citations: Rules 10.340(d) and 10.410, MEAC Opinion 2011-017.

Opinion No. 2014-006

Summary: A mediator may not file a Notice of Mediation unless there is a court order referring the parties to mediation and the parties have selected that mediator or the parties have stipulated in writing to mediation and to that mediator in their case. Citations: Rule 10.520.

Opinion No. 2014-007

Summary: This opinion contains multiple questions regarding the confidentiality provisions of a Residential Mortgage Foreclosure Mediation Program (“RMFM Program”). The confidentiality of a court-ordered mediation begins when the order is issued by the court referring the parties to mediation. Whether subornation of perjury constitutes an exception to confidentiality under section 44.405, Florida Statutes, is a legal question and therefore the MEAC will refrain from responding to this inquiry. If one of the conditions for termination of the mediation set forth in rule 10.420(b) is present, a mediator is required to terminate the mediation. A mediator shall not report to the court or the RMFM Program Administrator directly, or indirectly, as to the cause for termination. Citations: Rules 10.310 and 10.420(b)(2)-(5), Sections 44.401-44.406, Florida Statutes, MEAC Opinion 2010-007.

Opinion No. 2014-008

Summary: Rule 10.420(a), Florida Rules for Certified and Court-Appointed Mediators, by use of the term “shall,” makes delivering an opening statement (orientation session), by a mediator, mandatory. Citation: Rules 10.200, 10.420(a) and (c), MQAP Opinion 1995-009.

Opinion No. 2014-009

Summary: A trainee observing a mediation to fulfill mentoring requirements for initial mediator certification may not serve in the dual capacities of trainee and language translator or interpreter. Citation: Section 44.403(2), Florida Statutes, In re: Procedures Governing Certification of Mediators, Fla. Admin. Order No. AOSC11-1 (January 10, 2011), MEAC Opinion 2011-017.

Opinion No. 2014-0010

Summary: If a mediator mediates a case pursuant to or governed by local rule 9019-2(C)(4)1 of the U.S. Bankruptcy Court for the Southern District of Florida, the mediator is accountable to the court in a manner consistent with the Florida Rules for Certified and Court-Appointed Mediators (see rules 10.500 and 10.520). If the parties wish to proceed after having being advised by the mediator in the orientation session of this federal court’s requirements regarding mediator disclosure to the court, there is no violation of mediator ethics. Citations: Rules 10.500, 10.520, Florida Rules for Certified and Court- Appointed Mediators, Section 44.405, Florida Statutes Local Rule 9019-2(C)(4), U.S. Bankruptcy Court for the Southern District of Florida MEAC Opinion 2012-005.

Opinion No. 2014-0011

Summary: MEAC notes a distinction between the filing of a notice of mediation with the court and notifying the parties in writing of the date, time, and specifics of a mediation. The Florida Rules for Certified and Court-Appointed Mediators and Florida procedural rules regarding mediation make mention of a mediator notifying parties but are silent as to whether a mediator may or may not file a notice of mediation with the court. The Committee is of the opinion that a mediator may not file a notice of mediation with the court unless the parties have agreed to use the mediator; the court has designated a mediation program which selects that mediator; or the court selects that mediator directly. Citations: Florida Rules for Certified and Court-Appointed Mediators, Florida Rules of Appellate Procedure 9.720, Florida Rules of Civil Procedure 1.700, Florida Family Law Rules of Civil Procedure 12.010 and 12.740-12.742, and Florida Rule of Juvenile Procedure 8.290.

Interview with a Probate Lawyer: Michael J. Schlesinger

Posted in Interview with a Probate Lawyer
Attorney Michael Schlesinger filed lawsuit to retrieve $1 million commission.

Attorney Michael Schlesinger of Schlesinger & Associates, PA in Miami was on the winning side of Sugar v. Estate of Stern, an appeal involving a failed attempt to invalidate a settlement agreement based upon alleged oral statements made during the negotiations leading up to the signed contract.

Michael J. Schlesinger of Schlesinger & Associates, PA in Miami was on the winning side of Sugar v. Estate of Stern, an interesting 3d DCA case I wrote about here involving a failed attempt to invalidate a settlement agreement based upon alleged oral statements made during the negotiations leading up to the signed contract.

I invited Mike to share some of the insights he drew from this case with the rest of us and he graciously agreed.

1. What strategic decisions did you make that were particularly outcome determinative on appeal?

Although the legal issues, the effect of a prior settlement and general releases, are not a difficult area to argue, the record in this case was tremendous.  It took me many hours to get my hands around it. I reviewed every single page to show that the positions being taken by the Appellee were totally inconsistent with the facts and prior orders of the court.   I had to convince the appellate court that settlement agreement(s) were final, that the general releases covered all known and unknown claims and that the opposing party’s position that the issue sought to be used to open up the settlement was unknown at the time of the settlement agreement and court approval of same, was simply not credible based upon the record.  So I then used the opposing parties and their counsel’s own filings made at the time of the settlement and compared them to the clearly contradictory position taken to the trial court below to show that the issues were being improperly re-litigated by the other side.

 2. If you had to do it all over again, would you have done anything different in terms of framing the issues for your trial-court judge?

I did not argue the case to the trial court below but I did review the transcript and I cannot point to an issue that in hindsight should have been raised.  Moreover, if you review the transcript, it appeared that the trial court understood that the prior settlement was final and that the general release covered the alleged “new” claim.  But for some reason, the trial court found the exact opposite causing my clients to file the subject appeal.  As a footnote, the trial court granted my clients’ motion to recuse while the appeal was pending.

3. Any final words of wisdom for probate litigators of the world based on what you’ve learned in this case? 

This case was unique for me and very difficult to write the appeal.   My clients were behind the eight ball when I was retained.  The opposing counsel as well as the other parties wrongly, in my opinion, demonized my clients to the trial court and it was expected the same tactic would be used on the appeal.  However, I knew from experience in the Gil v. Hernandez II case, that the law on settlements in probate litigations seems to be very clear now in the 3rd DCA, that a general release will cover any known or unknown claims and in practice when drafting settlement agreements, it is incumbent of all practitioners in our field to spell out if any claims are “carved” out from the settlement.  Also, make sure you check every pleading or filing made by your opponent, as what they argue now may not be what they argued then.

3d DCA’s advice to settling parties: GET IT IN WRITING!

Posted in Practice & Procedure, Settling, Mediating & Arbitrating Inheritance Cases

Sugar v. Estate of Stern, — So.3d —-, 2015 WL 5603469 (Fla. 3d DCA September 24, 2015)


BONUS MATERIAL: You can access the 3d DCA’s video of oral argument for this case. Just click here, then enter case number 14-1433 in the search box, then press the search button. When you see this case listed, click the link to download the file to your computer.

One of the big selling points for settling disputes is finality: you may not have gotten everything you wanted, but at least it’s over. Not so in this case. As noted by the 3d DCA, the four sisters involved in this “bitter, expensive, and divisive intra-family dispute” have been locked in heated litigation for years after presumably settling their claims not once — but twice — in two related settlement agreements, both executed in 2011. Ever since then they’ve been litigating over exactly what it was they agreed to!

I first wrote about this case in 2013. Then the issue was whether a settlement agreement could be “reformed” to correct a mutual drafting mistake (as I reported here, the 3d DCA said “yes,” it can). This time around the key issue was whether a settlement agreement can be re-written after the fact based on one side’s alleged oral misrepresentations and/or lack of full disclosure during the settlement negotiations leading up to the written contract.

Case Study:

In 2005 the decedent transferred approximately $350,000 from her account in Bank Leumi in Israel to the appellants’ family. Now fast forward to 2011; the decedent has been adjudicated incapacitated and three of her daughters (the appellees) are locked in litigation with the decedent’s fourth daughter and her husband (the appellants). Both sides accused the other of misappropriating mom’s funds. These accusations lead to litigation and the two settlement agreements at issue in this case.

According to the appellees, during settlement negotiations one of the appellants denied knowing anything about any Israeli account. Based in part on that oral representation the parties settled their disputes in 2011, exchanging mutual global releases/waivers. Bank Leumi didn’t release information about the $350,000 transfer until 2013. When this information came to light, the appellees apparently went through the roof. The appellants were hauled back into court, where they were ordered to “disgorge” the $350,000 transfer back to the estate because “they did not make a full disclosure.” Not so fast said the 3d DCA, reversing the disgorgement order on several grounds. The two I found most interesting are great real-life examples of what NOT to do when settling a case. Both boil down to one simple rule: GET IT IN WRITING!

Oral representations = NO evidence:

The final written settlement contract in this case stated it was “based upon the representations of the parties as of the date of the settlement,” but did NOT (a) incorporate those specific representations into the written agreement or (b) attach them or refer to separate writings detailing those representations. According to the 3d DCA, if you don’t get the specific representations in writing (e.g., there are no accounts in Israel), they’re meaningless. Why? Because you can’t use oral statements made during settlement negotiations as evidence. They’re privileged. Which means for litigation purposes, they basically don’t exist. So saith the 3d DCA:

[Oral representations made during settlement negotiations have] no apparent evidentiary foundation in a later attempt to avoid the settlement terms because of alleged misrepresentation. Statements during settlement negotiations concerning liability, the absence of liability, or value, are privileged and inadmissible in subsequent proceedings in the same case. § 90.408, Fla. Stat. (2014); see also Bern v. Camejo, 168 So.3d 232, 236 (Fla. 3d DCA 2014); Agan v. Katzman & Korr, P.A., 328 F.Supp.2d 1363, 1372 (S.D.Fla.2004).[FN6]

[FN6]: The common way to bar the attempted resurrection of alleged representations during settlement negotiations is the use of a merger/integration provision in a written settlement agreement.

By the way, the 3d DCA’s advice about incorporating integration clauses into our settlement contracts is good, but it doesn’t go far enough in my opinion. I’m also a big fan of including anti-reliance and anti-sandbagging clauses, both of which are explained in a great ACC slide presentation entitled Avoiding and Resolving Contract Conflicts – Integration Clauses.

3d DCA: “Fool me once, shame on you; fool me twice, shame on me.”

There’s no excuse for lying during settlement negotiations, but then again there’s also no excuse for getting duped again by not documenting the lie in your written contract. “Fool me once, shame on you; fool me twice, shame on me.” So saith the 3d DCA:

[A]fter the assertion of claims involving dishonesty, the claimant in negotiations culminating in a settlement and release cannot rely on oral representations made by the party already asserted to have been dishonest. Finn v. Prudential–Bache Sec., Inc., 821 F.2d 581, 586 (11th Cir.1984); Sutton v. Crane, 101 So.2d 823 (Fla. 2d DCA 1958); Columbus Hotel Corp. v.. Hotel Mgmt. Co., 156 So. 893 (Fla.1934). This is as simple as the adage, “fool me once, shame on you; fool me twice, shame on me,” but was expressed more eloquently by Justice Davis of the Supreme Court of Florida in Columbus Hotel Corp.:

And, where parties are given to understand that they are dealing at arm’s length in the compromise of an already existing controversy that itself comprehends charges of legal fraud, misconduct, and dishonest suppression of material facts, as was the situation with the parties now before this court in the instant proceeding, there arises no duty on the part of one of the antagonists to reveal his own peculiar situation to his adversary, on pain of being held liable for fraudulent concealment of facts if he does not do so.

156 So. at 902 (emphasis omitted).

“It ain’t over till it’s over.” – Yogi Berra

After all these years and two appellate decisions, it looks like this estate has yet to see its final day in court. As reported by the Daily Business Review in Fight Over Big Estate Draws Fire for Running Up Legal Fees, both sides are gearing up for continued litigation:

Sugar said Stern’s $12 million estate has dwindled to about $6 million on mounting legal fees and court costs.

“Hopefully this decision will bring finality and stop the bleeding of legal fees from what we thought were baseless claims,” said Sugar’s attorney, Michael Schlesinger of Schlesinger & Associates in Miami. . . . “It’s a shame that all these fees were paid out of the estate to challenge a settlement that was final in 2011.”

The Sugars won’t walk away without trying to recover that money.

Schlesinger said they’ll now turn their attention to forcing their in-laws’ attorneys to “disgorge the sizable legal fees and compensation paid to them.”

The three sisters, meanwhile, also aren’t likely to retreat. They are gearing to pursue litigation over taxes owed on funds in the Israeli account.

Stay tuned for more . . .

Firm announcement: Juan Antúnez is certified by the Florida Supreme Court as a Circuit Civil Mediator

Posted in Settling, Mediating & Arbitrating Inheritance Cases

Alternative dispute resolution (ADR) has been utilized by the Florida Court System to resolve disputes for over 30 years, starting with the creation of the first citizen dispute settlement (CDS) center in Dade County in 1975. ADR processes offer litigants court-connected opportunities to resolve their disputes without judicial intervention. In Florida, this has resulted in one of the most comprehensive court-connected mediation programs in the country. The Florida Dispute Resolution Center (DRC) was created during the mid-1980s to provide assistance to the courts in developing ADR programs and to conduct education and research on ADR in general. The Supreme Court of Florida, through the DRC, offers certification for mediators in the areas of county court, family, circuit court, dependency and appellate cases.

I’m pleased to announce I’ve been certified by the Florida Supreme Court as a Circuit Civil Mediator (certification # 32893 R). I am a big believer in the value of niche-specific expertise, so the plan is to limit my mediation practice exclusively to probate and trust litigation matters.

My mediator’s pledge:

I’m committed to the process of mediation and the goal of self-determined resolution. I will work hard to gain an unbiased understanding of your case. I will explore all the evidentiary, legal and practical issues driving your particular dispute to spark meaningful dialogue and negotiations. I will foster a joint problem-solving mentality. I will ask hard questions: What do you aspire to? What would you be content with? What could you live with? I will work collaboratively with all sides to identify and develop creative options and solutions. I am personally invested in your success. In short, I AM A DEAL MAKER, NOT A MESSAGE CARRIER.

If I can be of service, please do not hesitate to contact me by calling 305-379-4008 or emailing me at jantunez@smpalaw.com.

I look forward to successful mediations for all!

2015 legislative news: Florida overhauls its elder guardianship system

Posted in Contested Guardianship Proceedings, Probate & Guardianship Statutes

(Source: Sarasota Herald-Tribune, Elder guardianship: A well-oiled machine.)

Most of the 2015 legislative changes to our Probate and Trust Codes were rolled into House Bill 343, which I reported on here. This blog post is all about this year’s overhaul of our adult guardianship system, which was spearheaded by Rep. Kathleen Passidomo, R-Naples, and advocated for by AARP Florida, among others.

House Bill 5 was the legislative vehicle for a wide-ranging package of reforms responding to criticisms of Florida’s existing elder guardianship system (some valid, some not so much), many of which were chronicled in a special multi-part investigative series published by the Sarasota Herald-Tribune entitled Elder guardianship: A well-oiled machine. In my opinion, to the extent we do have a “systemic” problem, the root cause is an underfunded and overworked court system where judges are routinely expected to juggle thousands of cases at a time with little or no support. Bottom line, you get what you pay for.

Regardless of whether you believe our court system needs better funding (my prescription) or improved checks and balances (HB5’s approach), I think it’s safe to say that but for the Herald-Tribune’s investigative reporting, nothing would have changed (yay for newspapers!). So it must have been with no small amount of satisfaction that this same team reported on HB5’s passage in Adult guardianship bill becomes law. Here’s an excerpt:

With Florida’s population aging in advance of the rest of the nation, [the bill’s author and primary sponsor, Rep. Kathleen Passidomo, R-Naples,] said she saw an urgent need “to give courts a little more tools as they manage guardianship files. We put in some language that hopefully lets the bad guys know we’re looking over their shoulders.”

The law — which includes criminal penalties for exploitation or abuse of a ward, requires more notice of emergency temporary guardianship proceedings, and makes it harder to suspend a family member’s power of attorney during the litigation process — takes effect on July 1.

“This legislation advances Florida guardianship law,” said Zayne Smith, associate state director of advocacy for AARP Florida, which worked to get it passed. “It clarifies how and when guardians are appointed, better protects wishes and rights of wards and codifies the duties and responsibilities of court-appointed guardians. Legislators who sponsored and supported guardianship legislation during session deserve kudos.”

A working lawyer’s guide to HB5’s legislative reform package:

For those of us in the trenches, a good first start in terms of making sense of how HB5’s reforms will actually impact our day-to-day practice is the bill’s Legislative Staff Analysis, which I’ve summarized and annotated below.

[1] Fiduciary Duties of a Guardian:

HB5 amends F.S. 744.107 and F.S. 744.1075 to authorize a court to appoint the Office of Criminal Conflict and Civil Regional Counsel as a court monitor for an indigent ward. The bill would serve to codify current practice in that the Office of Criminal Conflict and Civil Regional Counsel are currently providing this service. The Regional Conflict Counsel Offices were created by act of the legislature in 2007 to represent indigent clients. Here’s a link to Region One’s website, which in turn has links to all of the other regions.

The bill creates F.S. 744.359, which provides that a guardian may not abuse, neglect, or exploit a ward under the guardian’s care. Exploitation is described as any action whereby a guardian commits fraud in obtaining appointment as a guardian, abuses his or her power as guardian, or wastes, embezzles, or intentionally mismanages the ward’s assets. Any person believing that a guardian is abusing, neglecting, or exploiting a ward must report the incident to the central abuse hot-line of the Department of Children and Families. And courts are directed to interpret F.S. 744.359 in conformance with F.S. 825.103, which creates criminal penalties related to the exploitation of an elderly person or disabled adult.

The bill amends F.S. 744.361(1) to confirm and codify pre-existing Florida law that a guardian is a fiduciary with respect to a ward under the guardian’s care. The bill further amends F.S. 744.361 to impose additional statutory duties upon a guardian as a fiduciary:

  • To act only within the scope of the authority granted to the guardian;
  • To act in good faith;
  • To act in the ward’s best interests; and
  • To keep clear, distinct, and accurate records.

Specific to guardians of the person, the bill creates the duty of a guardian to:

  • Consider the expressed desires of the ward;
  • Allow the ward to maintain contact with family and friends except where contact may harm the ward (the court may review such decisions upon petition by an interested person);
  • Not restrict the physical liberty of the ward more than necessary;
  • Assist the ward in developing or regaining capacity if medically possible;
  • Notify the court if the guardian believes that the ward may have capacity to exercise one or more of the ward’s removed rights;
  • Make provisions for medical services and, to the extent possible, acquire a clear understanding of the risks and benefits of a recommended course of treatment;
  • Evaluate the ward’s medical and health care options, financial resources, and desires in making decisions regarding the ward’s residence; and
  • Advocate for the ward in institutional and residential settings.

[2] Guardianship Plan:

HB5 amends F.S. 744.367 to revise when a guardian of the person must file an annual guardianship plan. Where a calendar year filing is required, the plan must be filed between September 1 and December 1 of the previous year. Otherwise, the plan must be filed between 60 and 90 days before the last day of the anniversary month. The bill also amends F.S. 744.369 to provide that a guardian may continue to act under a previous year’s annual guardianship plan until the next year’s annual guardianship plan has been approved by the court unless otherwise ordered by the court.

[3] Emergency Temporary Guardianship:

HB5 amends F.S. 744.344(4) to allow for the appointment of an emergency temporary guardian if a petition for appointment of a guardian has not been ruled upon at the time of the hearing on the petition to determine incapacity. The bill also amends F.S. 744.3031 to require that notice of the filing of a petition for appointment of an emergency temporary guardian and any hearing thereon be served on an alleged incapacitated person, and the alleged incapacitated person’s attorney, at least 24 hours prior to commencement of the hearing unless the petitioner can demonstrate that substantial harm to the alleged incapacitated person would occur if notice was given.

[4] Costs and Fees of Examining Committee:

HB5 amends F.S. 744.331(7)(c) to provide that if the petition is dismissed or denied, the fees of the examining committee are paid upon court order as “expert witness” fees under F.S. 29.004(6). This change implements the provisions of F.S. 29.004(6), which awards fees to court appointed experts generally, and provides a secure source of funding to insure that the members of the examining committee are reasonably compensated as contemplated by F.S. 744.331 without incentive to find incompetency. The bill also provides that, where the petitioner was found to have filed a petition in bad faith and the state has paid the members of the examining committee, the petitioner must reimburse the state for fees paid.

[5] Power of Attorney:

HB5 amends F.S. 709.2109 to provide that if proceedings are initiated to determine the principal’s incapacity or for the appointment of a guardian advocate, the power of an agent under a power of attorney is not automatically suspended if the agent is the parent, spouse, child, or grandchild of the principal (“relative agent”). The power of such agents to act on behalf of the principal may only be suspended by the court pursuant to a request by verified motion.

The bill also creates F.S. 744.3203, which specifies the motion procedure to suspend the authority of a relative agent. The motion may be filed at any time during proceedings to determine incapacity but must be filed before the entry of an order determining incapacity. The plain language of the bill suspends the power of a relative agent upon the filing of the motion. The motion must:

  • Set forth one of the following grounds for suspending the authority of the relative agent:
    • The agent’s decision is not consistent with the alleged incapacitated person’s known desires;
    • The power of attorney is invalid;
    • The agent has not discharged his or her duties or incapacity or illness renders him or her incapable of discharging those duties;
    • The agent has abused powers; or
    • There is a danger that the property of the alleged incapacitated person may be wasted, misappropriated, or lost unless the authority under the power of attorney is suspended.
  • Allege specific statements of fact demonstrating that there are grounds to justify the suspension of the power of attorney.
  • Be verified by the petitioner under penalty of perjury.

It is not grounds to suspend a power of attorney if a dispute exists between the agent and the petitioner and the matter is appropriately resolved in a different forum or a legal proceeding other than a guardianship proceeding.

The court must schedule an expedited hearing on the motion upon the response of the relative agent. Notice of the hearing must be provided to all interested persons, the alleged incapacitated person, and the alleged incapacitated person’s attorney. If the agent’s response sets forth an emergency situation, the property or matter involved, and the power to be exercised by the agent, notice is not required. The court order must set forth what powers the agent is permitted to exercise, if any, pending the outcome of the petition to determine the principal’s incapacity.

Attorney fees and costs may be awarded to a relative agent who successfully challenges the suspension of the power of attorney if the petitioner’s motion was made in bad faith.

[6] Persons Qualified to Serve as Guardian:

HB5 amends F.S. 744.309 to provide that a for profit corporate guardian existing under the laws of this state is qualified to act as guardian of a ward if the entity:

  • Is qualified to do business in the state;
  • Is wholly owned by the person who is the circuit’s public guardian in the circuit where the corporate guardian is appointed;
  • Has met the registration requirements of F.S. 744.1083; and
  • Posts and maintains a blanket fiduciary bond or a liability insurance policy.

If the corporate public guardian posts a fiduciary bond, the bond must:

  • Be at least $250,000 and posted with the clerk of the circuit court in the county in which the corporate guardian has its principal place of business. The corporate guardian must provide proof of the bond to the clerks of each additional circuit court in which the corporate entity is serving as guardian.
  • Cover all wards for whom the corporate entity is serving as guardian at any given time.
  • Have terms that cover the acts or omissions of each agent or employee of the corporation who has direct contact with the ward or the ward’s assets.
  • Be payable to the Governor and his or her successors.
  • Be conditioned upon the faithful performance of all duties of the guardian.

The liability of the provider of the bond is limited to the face value of the bond. The bond is in lieu of and not in addition to the bond required under F.S. 744.1085 for professional guardians, but is in addition to any bonds required under F.S. 744.351 to exercise the authority of a guardian. The expenses incurred to satisfy the bonding requirements may not be paid from the assets of the ward.

If a corporate guardian maintains a liability insurance policy, the policy must cover any losses sustained by the guardianship caused by acts, errors, omissions, or any intentional misconduct committed by the corporation’s officers or agents and each agent or employee who has direct contact with the principal or the principal’s assets up to $250,000. The corporate entity must provide proof of the insurance policy to the clerks of each additional circuit court in which the entity is serving as guardian. A for-profit corporation that has been appointed as guardian prior to the effective date of the bill is deemed qualified to serve in those guardianships in which the corporation has already been appointed.

[7] Appointing a Guardian:

HB5 amends F.S. 744.312 to require that a court consider the wishes of the next of kin of the alleged incapacitated person if he or she cannot express a preference concerning who should be appointed permanent guardian. A court is also prohibited from giving the emergency temporary guardian preference in the appointment of a permanent guardian.

Further, except where designated and appointed as the standby or preneed guardian, the bill places restrictions on the appointment of professional guardians as permanent guardian of a ward. A court that does not utilize a rotation system for the appointment of a professional guardian in a particular matter must make specific findings of fact regarding why the guardian was selected by the court. The order must reference each factor a court is required to consider in the appointment of a permanent guardian. The bill also prohibits a professional guardian from being appointed as the permanent guardian of a ward if the professional guardian served as the emergency temporary guardian of the ward unless the ward or the ward’s next of kin requests the appointment. The court may waive the restriction, by specific written findings of fact, if the special requirements of the guardianship demand that the court appoint a guardian because he or she has special skills, talent, or experience.

The bill also amends F.S. 744.3115 and F.S. 744.345 to provide that the court must specify in any order appointing a guardian of the person and in all letters of guardianship what authority the guardian may exercise with regard to the ward’s health care decisions versus what authority, if any, a health care surrogate previously designated by the ward may continue to exercise.

Additionally, the bill amends F.S. 744.331(6) to require that a court consider the incapacitated person’s unique needs and abilities when determining what rights should be removed in a guardianship proceeding. It further requires that the court only remove such rights which the alleged incapacitated person does not have the legal capacity to exercise.

[8] Costs and Fees Associated with Guardianship Administration:

HB5 adds new subsection (9) to F.S. 744.108 dispensing with any requirement for expert testimony to support an award of fees unless requested. Expert testimony may be offered at the option of either party after giving notice to interested persons. If expert testimony is offered, a reasonable expert witness fee must be awarded by the court and paid from the assets of the ward. The bill also amends F.S. 744.108(8) to provide that the court may award attorneys’ fees and costs associated with proceedings to determine the fees of a guardian or an attorney who has rendered services to a guardian or ward, including court-appointed counsel.

[9] Restoration to Capacity:

HB5 amends F.S. 744.464 to establish a “preponderance of the evidence” burden of proof for the restoration of an incapacitated person’s rights. The bill also requires that a court make specific findings of fact regarding competency and that a court to give priority to any suggestion of capacity and advance such cause on the judicial calendar.

[10] Settling Claims of Minors:

Although almost all of the legislative changes focused on the elderly, there were a few changes having to do with minors.

Court approval is required to settle any claim of a ward arising before or after the appointment of a guardian or any claim of a minor valued in excess of $15,000. The court approval process requires a petition setting forth the terms of the settlement, which may also be reflected in a subsequent order approving the settlement. HB5 amends F.S. 744.3025(1)(a) to provide that the court may appoint a guardian ad litem only “if the court believes that a guardian ad litem is necessary to protect the minor’s interest.”

The petition and the order are part of a court file, and therefore, are a matter of public record and open for inspection under current law even if the settlement agreement contains a confidentiality provision. House Bill 7 (a companion bill to HB5), creates a public records exemption for these proceedings. As explained in HB7’s Legislative Staff Analysis, the bill amends F.S. 744.3701 to provide that any court record relating to the settlement of a ward’s or minor’s claim, including a petition for approval of a settlement on behalf of a ward or minor, a report of a guardian ad litem relating to a pending settlement, or an order approving a settlement on behalf of a ward or minor, is confidential and exempt from the provisions of F.S. 119.07(1) and section 24(a), Art. I of the State Constitution, and may not be disclosed except as specifically authorized.

Because the record is made confidential and exempt, it may not be disclosed except as provided in law. HB7 amends F.S. 744.3701 to authorize inspection of such records by parties that may be involved in a proceeding to approve a minor’s settlement agreement “upon a showing of good cause.” The list of parties authorized to inspect these records now includes all of the following:

  • The court;
  • The clerk or the clerk’s representative;
  • The guardian;
  • The guardian’s attorney;
  • The guardian ad litem related to the settlement (if any);
  • The ward if he or she is at least 14 years of age and has not been declared totally incapacitated;
  • The attorney for the ward;
  • The minor if he or she is at least 14 years of age;
  • The attorney representing the minor with regard to the minor’s claim; and
  • As “otherwise provided” by Ch. 744.

4th DCA: When does a court lack “procedural jurisdiction” to appoint a guardian?

Posted in Contested Guardianship Proceedings, Practice & Procedure

Adelman v. Elfenbein, — So.3d —-, 2015 WL 5026178 (Fla. 4th DCA August 26, 2015)


BONUS MATERIAL: You can access the 4th DCA’s video of oral argument for this case. Just click here, then enter case number 13-2446 in the search box, then press the search button. When you see this case listed, click the link to download the file to your computer.

Florida’s elder guardianship system has gotten a lot of bad press lately (see here). Some of this criticism is unfair, but not all of it. To the extent we do have a “systemic” problem, in my opinion the root cause is an underfunded and overworked court system where judges are routinely expected to juggle thousands of cases at a time. Bottom line, you get what you pay for.

So what’s to be done? Simple: stay out of court. And how do the elderly do that? By relying on the same tools estate planners have been using for decades: durable powers of attorney, health care surrogate designations, and revocable trusts. These are all “less-restrictive alternatives to guardianship,” which means a court shouldn’t appoint a guardian for you if you’ve signed one (or all) of them, which is what keeps you out of court. The statutory authority for this stay-out-court card is found in F.S. 744.331(6)(b), which provides in relevant part as follows:

A guardian may not be appointed if the court finds there is an alternative to guardianship which will sufficiently address the problems of the incapacitated person.

But none of this works if our trial court judges allow themselves to get pulled into family disputes in a way that exceeds their jurisdictional authority. That’s what happened in this case.

Case Study:

At the heart of this case is an elderly man who all agree is incapacitated. There’s also no dispute over the fact that he had previously executed “advance directive documents” that: (a) provided a less-restrictive alternative to guardianship, and (b) appointed his ex-wife his surrogate and fiduciary, making a court-appointed guardian unnecessary.

[T]he general magistrate found that, while plenary incapacity was established, Mr. Adelman’s advance directive documents provided a less-restrictive alternative to guardianship. Mr. Adelman’s former spouse, Ruby Adelman, was a party to the proceeding and was named in his advance directive documents as attorney-in-fact, health care surrogate, plenary guardian, and trustee. The trial court adopted and ratified the general magistrate’s report and thereafter dismissed the grandniece’s petition for appointment of a plenary guardian. No appeal was taken from those orders.

As so often happens in these cases, the family conflict that initially brought the case before the court didn’t go away once the case was dismissed. About six months later the original petitioner accused ex-wife of not doing a good job as caretaker, so she filed a “petition to reopen the guardianship.” According to the 4th DCA:

She sought appointment of a professional plenary guardian, alleging that Mr. Adelman’s former spouse was not providing “consistent adequate care.” Over continuing and vigorous objection by both Mr. Adelman and his former spouse, the trial court entertained the petition, conducted a trial, and issued an order appointing Lori Shuman–Auspitz as the professional plenary guardian for Mr. Adelman.

Here’s the problem. Once the trial court dismissed the original guardianship petition without ever appointing a guardian, it lacked jurisdictional authority to get involved in the case again. No jurisdiction = reversal, so saith the 4th DCA:

We find that . . . ongoing jurisdiction of the circuit court in an incapacity proceeding does not exist unless a guardian is appointed. . . . Because the trial court lacked jurisdiction to enter the order, we reverse.

If anyone wants to bring these parties back before this court, he or she needs to file a new complaint and comply with all of the procedural rules we have in place to make sure we get the best work-product possible from our courts. In other words, there’s a right way to tackle this problem. Here’s how the 4th DCA made this point:

Mr. Adelman’s advance directive documents entrust his affairs to his former spouse. Her role is fiduciary, and the laws of this state are more than adequate to protect him from future exploitation or abuse. See, e.g.,§§ 709.2101–.2402, Fla. Stat. (2015) (“Florida Power of Attorney Act”); §§ 415.101–.113, Fla. Stat. (2015) (Florida “Adult Protective Services Act”).

Procedural jurisdiction = red light/green light:

The trial court judge in this case exceeded the scope of his “procedural jurisdiction” by entering an order once the original case had been dismissed — the jurisdictional light was red. This court doesn’t have a green light to proceed until someone triggers its jurisdictional authority by filing a new legally authorized complaint/petition. Until then, the light stays red and any litigation that goes on during that time is a big waste of time and money for all concerned.

You won’t really understand what’s going on in this case if you don’t zero in on the “procedural jurisdiction” concept lurking under the surface. Tampa trial court judge Scott Stephens defined this kind of jurisdiction in his excellent Florida Bar Journal article entitled Florida’s Third Species of Jurisdiction:

Procedural jurisdiction has nothing to do with the scope of the court’s constitutional or statutory power, or the status of the parties. Instead, it is a matter of compliance with applicable procedural principles, some codified in rules, but more often products of case law. These principles can correctly be characterized as “jurisdictional,” in that they address a particular court’s authority to proceed in a specific direction at a defined time. Even when a court has subject matter jurisdiction and personal jurisdiction — hence the power to proceed — the procedural equivalents of traffic signals regulate when it is permissible to proceed. For example, a case must be commenced by pleadings before a court can enter an order. Until that occurs, the court is like a motorist facing a red light: Proceeding is physically possible but is deterred by the prospect of undesirable consequences. The light turns green once proper pleadings are filed, but directional signals (rules confining actions to the scope of the pleadings) still limit where the court may permissibly go. When a final judgment is entered, the court faces another red signal.

By the way, defining our “jurisdictional” terms matters because it tells us when we need to first raise this objection — or risk waiver. According to judge Stephens, you need to assert this objection immediately:

As a practical matter, counsel should be careful to raise all forms of jurisdictional objection at the first opportunity, since most jurisdictional objections are procedural, and waived if not timely asserted.

You’ve been warned!