May 2005

Blankfeld v. Richmond Health Care, Inc., 2005 WL 1226070 (Fla. 4th…
Continue Reading Court says AHLA nursing home arbitration clause is “void as contrary to public policy”; and even if enforceable, a health care proxy lacks authority to bind an incapacitated nursing home patient to arbitrate claims

Foust v. Maldonado, 30 Fla. L. Weekly D895 (Fla. 5 DCA April 1, 2005) (Trial Court Reversed) Proceedings for removal of guardians are initiated pursuant to F.S. § 2004->Ch0744->Section%20477#0744.477″>744.477 and Probate Rule 5.660. In this one-paragraph opinion, the Fifth DCA reversed Osceola County Circuit Court Judge Jeffords D. Miller for apparently failing to comply with the requisite notice requirements in a removal proceeding, but provides zero guidance for anyone other than the parties to this litigation for where the trial court went wrong.
Continue Reading If you’re going to remove a guardian, you have to give reasonable notice . . . unfortunately this one-paragraph opinion fails to provide any guidance regarding what reasonable notice may be

McJunkin v. McJunkin, 30 Fla. L. Weekly D840 (Fla. 2 DCA March 30, 2005) (Trial Court Reversed) In March 2001 the ward’s two sons had him declared incapacitated at age 79 because he apparently wasn’t managing his money as prudently as he could have. Two years later, in October 2003, the ward filed a “Suggestion of Capacity” seeking to have his rights restored. Even though the medical evidence presented in 2003 clearly showed that the ward was not incapacitated, and it was doubtful that he was ever incapacitated, Highlands County Circuit Court Judge J. David Langford ruled against him, declining to restore his rights. In reversing the trial court, the Second DCA makes clear that attorneys representing wards need to be advocates . . . not social workers, protecting individuals from, among other dangers, well intentioned relatives and courts guided by misplaced paternalism.
Continue Reading Just because a person makes bad decisions, doesn’t mean he should be declared incapacitated and have all his rights stripped away

Estate of Morales v. Iasis Healthcare Corporation, 2005 WL 1107067 (Fla. 2 DCA May 11, 2005) (Trial Court Reversed)

Normally, Florida Rule of Civil Procedure 1.260 requires that a plaintiff be substituted in a pending lawsuit within 90 days after the original plaintiff’s death is “suggested on the record.” Failure to comply with this deadline results in dismissal of the pending lawsuit. In this case, the personal representative of the estate died while a medical malpractice lawsuit was pending. Pinellas County Circuit Court Judge James R. Case dismissed the pending malpractice lawsuit under Civil Procedure Rule 1.260 because the estate’s successor personal representative did not file a motion for substitution within 90 days of the suggestion of death.
Continue Reading The 90-day time limit for moving to substitute parties under Florida Rule of Civil Procedure 1.260 does not apply when the personal representative of an estate dies