Florida Probate & Trust Litigation Blog : Florida Probate Litigation, Will Contest Lawyer & Attorney : Juan C. Antúnez : Serving Miami, Jacksonville, Tampa Saint Petersburg, Orlando, Fort Lauderdale

The law governing undue influence claims in Florida is a frequent topic of discussion on this blog [click here, here, here, here]. But for those of us in the trenches, we know clever legal arguments rarely carry the day; these cases are won and lost on the strength of your evidence.

So here's the problem: there aren't many tools out there designed to help probate litigators and their clients organize their thinking and zero in on the key facts they'll need to build a winning case. One such tool I recently discovered is the Undue Influence Worksheet developed by forensic psychiatrist Bennett Blum, M.D. In this short article Dr. Blum explains the thinking underlying his worksheet:

The “Worksheet” is based upon the IDEAL protocol, which combines knowledge from the fields of psychiatry, psychology, and sociology regarding the mechanisms of human manipulation, with extensive review of statutes, case law, and legal theory. IDEAL describes those psychological and social factors that commonly co-exist in undue influence situations. These factors are: Isolation; Dependency; Emotional manipulation and/or Exploitation of a vulnerability; Acquiescence; and Loss. 

Case Study:

When I'm teaching I find nothing beats a good case study for explaining new ideas. So I was happy to see Dr. Blum included the following case study in his article applying his Worksheet:

The following is a true case, although extreme in its clarity. The issue of undue influence is obvious, but the case is presented to help show how a fact pattern is considered within the IDEAL protocol:

Mr. Jones is an affluent, 88 year-old retired professor. His beloved wife of 60 years died two years ago, and since then he has been very lonely. Mr. Jones has a good and loving relationship with his three adult children, and though they live in other States he speaks with each every week. Mr. Jones moved to a retirement community four years earlier, and because of his wife’s illness and subsequent death, he has no significant social contacts in his current community. His long-time friends live several hundred miles away. Mr. Jones has multiple medical problems – diabetes, heart disease, high blood pressure, and difficulty walking due to arthritis – but has no apparent cognitive impairment.

Mr. Jones meets Ms. Smith, a 62 year-old divorced woman. She moves into his home six months later. She provides physical care in the form of preparing meals, cleaning the house, taking him to physician appointments, and ensuring he takes his medications properly. During the next six months, Ms. Smith begins asking for “tokens of appreciation” and purchases a new car, wardrobe, and jewelry with Mr. Jones’ money. She also demands that he give her his late wife’s jewelry, which he had intended to give to his grandchildren. At the same time, Mr. Jones stops telephoning his children, and they in turn find it more and more difficult to speak with him. Ms. Smith is now the only person to answer the telephone, and when the children call they often are told their father is unavailable or does not feel well enough to talk. Eventually, they are not allowed to speak to him at all. Two months later, after repeated angry exchanges with Ms. Smith, the eldest child receives a telephone message from Mr. Jones. In the message, Mr. Jones says, “She says I cannot call any of you anymore. If I do she will leave me and she says that at my age no one else will care for me, and that I will be alone. The same thing will happen if I stop giving her money. I know what she is doing, but I was so lonely after your mother died. I couldn’t bear to be that lonely again. I just hope that I can hold back enough money so she will stay until I die.” These were Mr. Jones’ last words to his children. He subsequently changed his estate plan – bequeathing everything to Ms. Smith.

Applying IDEAL to these facts:

Isolation – Mr. Jones’ children and friends live far away, he has no significant social contacts in his current living environment, his mobility is limited due to illness, Ms. Smith intercepts his telephone calls, and he is not allowed to talk to his children.

Dependency – Mr. Jones is emotionally dependent upon Ms. Smith, and she provides for his physical needs (food, cleaning, appointments, medicine). 

Emotional manipulation/Exploiting a weakness – Ms. Smith threatens to abandon Mr. Jones using his fear of loneliness.

Acquiescence – Mr. Jones agrees to Ms. Smith’s demands because he is frightened of being lonely, dependent upon her, and isolated from other social contacts and family. As a result, he gives her money and property, and makes her the sole beneficiary of his estate.

Loss – Mr. Jones suffers financial losses because of Ms. Smith’s threats and coercion. In this case, although criminal charges might have been pursued in some jurisdictions (ex. for elder abuse), the issue of “loss” was used only to support civil litigation.

Caveats and Suggestions:

Although it may seem obvious – do not rely only upon the litigants for information. The “Undue Influence Worksheet” and IDEAL are more effective if there are corroborating statements and observations by 3rd-parties, circumstantial evidence, and/or self-incriminating statements by the litigants. A case may be argued without such corroboration, but the use of IDEAL would be quite limited.

If more sophisticated analysis is needed, an expert should be contacted for advice regarding the development of both general and specific manipulation tactics, their relative impact, and assessment of pertinent cognitive issues (note: impaired cognition is common, but is not essential). These topics require extensive individual attention, and will not be presented in this introductory article.

Also, be cautious when retaining an expert on the issues of manipulation or undue influence. These are specialized fields and very few people are actual experts. Unfortunately, many well-intentioned mental health professionals claim this expertise without knowing how much training and knowledge is necessary.

Some attorneys report successful use of IDEAL without employing associated experts. In these cases, the attorney uses the information obtained through IDEAL and the “Worksheet” to craft a powerful and compelling argument – for either settlement or trial.

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Levine v. Levine, --- So.2d ----, 2009 WL 482260 (Fla. 5th DCA Feb 27, 2009)

Whether or not an adult is in fact legally "incapacitated" is often the crux of the case in contested guardianship proceedings. The fact finders that are supposed to answer that question are the members of the examining committee appointed by the probate judge pursuant to F.S. § 744.331.

If your client disagrees with the committee's findings, you won't get your day in court by simply demanding an evidentiary hearing. Under the peculiar procedural rules governing guardianship proceedings, you first have to file a motion to strike the committee's report then have your evidentiary hearing. Make sense? I don't think so, but according to the 5th DCA, that's the law. Here's why:

Evidentiary Hearing? Wrong Answer:

Dr. Levine contends that the language of [F.S. § 744.331(4)] notwithstanding, he should have the right to an evidentiary hearing to challenge the opinions of the examining committee members, either individually or collectively. We disagree, as the language of the statute is clear and unambiguous. Once a majority of the examining committee concluded that Mr. Levine was not incapacitated, the trial court was correct in dismissing the petition to determine incapacity and the petition for the appointment of a guardian. See Mathes v. Huelsman, 743 So.2d 626, 627 (Fla. 2d DCA 1999) (holding once examining committee concluded that alleged incapacitated person had full capacity, trial court was required to dismiss petition to determine incapacity); see also In re Keene, 343 So.2d 916 (Fla. 4th DCA 1977).

Motion to Strike? Right Answer:

FN1. Ms. Stimmel contends that if the examining committee concludes that the alleged incapacitated person is not incapacitated, there is no remedy available to the other interested parties involved in the proceeding even if the report is materially deficient. We disagree. We do not believe that the court must rely on a report from the examining committee which is materially deficient. However, rather than conducting an evidentiary hearing to test the examining committee's report, an action that would violate [F.S. § 744.331(4)], a more appropriate remedy would be for the court, or any interested party, to move to strike the report. If such a motion is granted, the court could then order a re-examination by the existing committee (or committee member) or appoint a new committee (or committee member) and order a re-examination.

Bonus Point: Who Pays the Committee's Fees?

If the examining committee says the person being examined is OK, that may be good news for the potential ward, but bad news for the examining committee. Why? Because now there's no guardianship "estate" from which to pay their fees. So who pays? The statute doesn't cover that contingency (oops!), a "gap" in the law I first wrote about here. In this case the probate judge ordered the petitioner to pay: "wrong answer" says the 5th DCA:

The trial court also ordered Dr. Levine to pay the examining committee's fees. Ms. Stimmel concedes error. While section 744.331(7)(a) allows the trial court to award members of the examining committee reasonable fees, subparagraph (c) of that section provides that the cost and attorney's fees of a dismissed petition are to be assessed against the petitioner only if the court finds the petition to have been filed in bad faith. The court made no such finding here. We recognize that the statute has a gap in determining responsibility for payment of the examining committee fees when a good faith petition is denied or dismissed. See Ehrlich v. Severson, 985 So.2d 639, 640 n. 1 (Fla. 4th DCA 2008). As did the Ehrlich court, we urge the Legislature to specify who pays the examining committee fees in this circumstance.

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The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA) addresses a problem that needs fixing in Florida: interstate jurisdiction controversies involving adult guardianship proceedings. As I've written before, due to our highly mobile popluation (especially with respect to retiring seniors) inter-state forum shopping in contested guardianship proceedings is a growing problem [click here]. So it's not surprising these cases are already bubbling up through our appellate court system [click here].

The UAGPPJA addresses the forum shopping problem by creating a reliable process for determining with certainty which state will have jurisdiction to appoint a guardian or conservator if there is a conflict among one or more states. The UAGPPJA's legislative status in Florida is unclear, although it is getting some attention in Tallahassee. Legislation adopting the uniform act in Florida was introduced in January 2009 -  then withdrawn the next month (HB 305). Stay tuned for more.

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Morris v. Knight, --- So.2d ----, 2009 WL 321586 (Fla. 4th DCA Feb 11, 2009)

Trial Judge's Power in Guardianship Proceedings:

Florida probate judges get a huge amount of deference when deciding whom to appoint as guardian. So if your client is on the losing end of an order appointing someone else guardian, an appeal is probably a waste of money. Here's how this point was made in the linked-to opinion:

 The standard of review here is abuse of discretion. In re Guardianship of Sitter, 779 So.2d 346 (Fla. 2d DCA 2000). The appointment of guardian is a discretionary act of the trial court, which must be supported by logic and justification and founded on substantial competent evidence. Id. at 348. The trial court's decision should be reviewed for reasonableness. Id. And the appellate court should not find an abuse of discretion unless “no reasonable person would take the view adopted by the trial court.” Wilson v. Robinson, 917 So.2d 312 (Fla. 5th DCA 2005).

Bottom line, figure your client has only one real shot in this type of case. Don't count on an appellate court second guessing your judge.

Family Preference in Guardianship Proceedings:

Once your client realizes that yes, what your probate judge thinks really matters, and no, an appeal is probably not a good idea, then hopefully everyone will focus on what's most important: the ward's best interests. It doesn't matter if your client is related to the ward [click here] or if the ward executed a pre-need guardian declaration naming your client his or her guardian [click here], if the judge decides it's in the ward's best interests to appoint someone else as guardian, that's probably the end of the story. Here's how the 4th DCA made this point:

Under [F.S. § 744.312], “a person who is related by blood or marriage to the ward” does receive preference in appointment; however, the inquiry does not end there. The court also has the discretion to give preference to a non-relative who possesses particular experience or ability to serve as guardian. See, e.g., Treloar v. Smith, 791 So.2d 1195 (Fla. 5th DCA 2001) (finding that while next of kin are given first consideration, statute does not mandatorily require that such an appointment be made; rather, statute specifically provides that court may appoint any person who is qualified, whether related to the ward or not). Moreover, it is the best interest of the ward that trumps other considerations in the appointment of a guardian. See, e.g., In re Guardianship of Stephens, 965 So.2d at 852 (“The best interests of the Ward-which include choosing a qualified guardian for the Ward-come first. Family member preference in and of itself is secondary, regardless of how well qualified the family members are.”).

In this case, Morris and Glinton argue that they are better fit than Knight to serve Barker's interests because they plan to move her to a better nursing home. Even setting aside the trial court's finding that both Morris and Glinton are unfit to become Barker's guardian, they have not demonstrated how simply moving Barker from one facility to another would best serve her interests. Morris and Glinton have maintained minimal involvement in Barker's care, whether family or not, and they are not now in the position to serve Barker's best interests, whether family or not. It is thus our view that the trial court was reasonable in concluding that Barker's care and interests would be best left up to Knight. See In re Guardianship of Stephens, 965 So.2d 847, 849 (Fla. 2d DCA 2007) (finding that as long as the record contained competent evidence to support the trial court's decision to appoint a non-relative as guardian, there is no abuse of discretion).

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Brundage v. Bank of America, Trustee, --- So.2d ----, 2008 WL 4722970 (Fla. 4th DCA Oct 29, 2008)

Incapacitated Settlor of Revocable Trust:

Florida's Trust Code is clear, while a trust is revocable, the duties of the trustee are owed exclusively to the settlor [F.S. 736.0603]. Equally important, a trustee will not be held responsible for actions consented to by the settlor of a revocable trust [736.1012]. But what happens if the revocable trust's settlor becomes mentally incapacitated? That's the most interesting issue addressed in the linked-to opinion.

In this case the successor co-trustees of a revocable trust were sued by the trust's remainder beneficiaries following the settlor's death.  Prior to her death, a doctor had examined the settlor and concluded that she was not competent to manage her affairs.  The trial court dismissed the complaint against the successor trustees on the grounds that they didn't owe the remainder beneficiaries any duties during the settlor's life (which is when the alleged wrongful conduct took place). Wrong answer said the 4th DCA, for the following reason:

As settlor of her own revocable trust of which she was the sole beneficiary until her death, Dorothy reserved to herself the sole power to change beneficiaries or revoke her trust at any time. “[T]he beneficiaries of [the] trust other than [the settler] ... do not come into possession of any of the trust property until the event of [the settlor's] death, and even this interest is contingent upon her not exercising her power to revoke. Since she is the sole beneficiary of the trust during her lifetime, she has the absolute right to call the trust to an end and distribute the trust property in any way she wishes.” Fla. Nat'l Bank of Palm Beach County v. Genova, 460 So.2d 895, 897 (Fla.1984) (emphasis omitted). The interest of the Brundages did not vest until Dorothy's death. See In re Johnson's Estate, 397 So.2d 970 (Fla. 4th DCA 1981). It follows that during the settlor/beneficiary's lifetime, a trustee owes a fiduciary duty to the settlor/beneficiary and not the remainder beneficiaries, who not only have no vested interest but whose contingent interest may be divested by the settlor prior to her death.

We have found no case which enforces on a trustee a duty owed to a contingent beneficiary of a revocable trust. However, once the interest of the contingent beneficiary vests upon the death of the settlor, the beneficiary may sue for breach of a duty that the trustee owed to the settlor/beneficiary which was breached during the lifetime of the settlor and subsequently affects the interest of the vested beneficiary. Smith v. Bank of Clearwater, 479 So.2d 755 (Fla. 2d DCA 1985), illustrates this principle. In Smith the court held that a contingent remainderman of a trust, whose interest vested with the death of the lifetime beneficiary, had standing to sue for mismanagement of trust assets during the lifetime of the income beneficiary, because such mismanagement diminished the value of the trust assets to which the remainderman was entitled. The trustee owed the lifetime beneficiary the duty to properly manage the assets of the trust, and a breach of that duty could be enforced by the remainderman. Cf. Siegel v. Novak, 920 So.2d 89 (Fla. 4th DCA 2006) (applying New York law and reaching a similar result). 

How could the successor trustees have avoided this trap?

My idea: focus on obtaining informed consent for the trustee's actions in spite of the settlor's apparent mental incapacity. One way to do that in this context is through the appointment of a guardian of the property for the settlor. Once you have a court-appointed guardian, you've put in place the foundation for informed consent. Building on that foundation, any trust accounting you send the guardian will then bind the settlor/ward, and if the trustees want to be extra safe, they can demand that the guardian sign consents on behalf of the settlor/ward for any out-of-the-ordinary estate planning actions involving the revocable trust [F.S. 736.0303(1), F.S. 736.0813(3)]. If the defendant trustees in this case had coupled these protective measures with a trust-accounting "limitations notice" triggering the shortened 6-month statute of limitations period [F.S. 736.1008(2)], my guess is that we wouldn't be reading about them in the linked-to opinion.

How does a stock split affect a specific bequest of stock?

Stock splits, mergers, consolidations, etc. have been causing trusts-and-estates lawyers and their clients headaches for generations, certainly more than enough time to develop a body of law dealing with that issue. Here's how the 4th DCA summarized Florida common law on this point, which has been codified in F.S. 736.1107:

Florida follows the general rule that where a will bequeaths stock to a beneficiary and the stock splits, because the split is a mere change in form and not in substance, a beneficiary is entitled to the shares generated by stock splits that occur between the date of execution and demise. See In re Vail's Estate, 67 So.2d 665, 667 (Fla.1953). Where the stock devise made in the will is no longer in the estate at the time of the testators death, the gift is considered adeemed. In re Estate of Walters, 700 So.2d 434, 436 (Fla. 4th DCA 1997). For securities, however, this issue is controlled by [F.S. 736.1107]. That statute codifies the rule of ademption and provides that gifts of securities are limited to the securities owned by the trust at the time of death:

Change in securities; accessions; non-ademption

A gift of specific securities, rather than their equivalent value, shall entitle the beneficiary only to:

(1) As much of the gift securities of the same issuer held by the trust estate at the time of the occurrence of the event entitling the beneficiary to distribution.

§ 736.1107, Fla. Stat. As the trust did not hold any more than 54,000 shares of AHP stock on the date of Dorothy's death, the event entitling the beneficiaries to the distribution, the Brundages cannot claim a greater share. They argue that the court should have considered Dorothy's intent with respect to the distribution of the stock before ruling on the legal effect of the transfer. The statute, however, does not require or allow for an inquiry into the intent of the testator. It creates a clear rule of ademption where the trust does not hold the securities at the date of death.

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In Florida the law is clear: you can't contest a will until after the testator dies. F.S. 732.518. But that doesn't necessarily mean you can't preempt a will contest before the testator dies.

For example, suppose you're working with an older client with diminishing capacity whose will is sure to be contested.  What if you initiated a voluntary guardianship proceeding and obtained a final judgment specifically approving the ward's will and specifically finding that the ward's will is NOT the product of undue influence, fraud, etc?  Unlike in a will contest, you'd have the actual testator in front of the judge testifying as to the validity of his will.  This judgment should collaterally estopp re-litigation of these same issues in a will contest after the testator/ward dies if all interested persons in this estate were given notice of the guardianship proceeding and an opportunity to be heard.  Presto! Will contest has been preempted.

That's basically what happened in a recent California case that received some national attention in a short piece by Pamela A. MacLean of the The National Law Journal entitled In Appellate First, Attacks on Wills Barred After Estate Owner Dies. Here's an excerpt:

For the first time, a California appellate court has said that when a conservator seeks court approval of an estate plan, while the subject is living, any challenge to the will must be raised at that hearing -- not when the person dies. [Murphy v. Murphy, No. A115177.]

The appellate decision is the first in the country to say attacks on wills would be barred after the estate owner dies, if there has been a court-approved substituted judgment, according to David Baer, attorney at Hanson Bridgett Marcus Vlahos & Rudy in San Francisco. Baer represented the daughter of William J. Murphy in an estate battle with her brother.

The opinion essentially bulletproofs the will of a person found incompetent and placed under the protection of a conservator, if the court OKs a revised estate plan, according to Baer. He added that the court made clear that notice to potential objectors is required to protect due process.

"You essentially can't contest an estate plan that has been approved in by a substituted judgment order," Baer said. "A substituted judgment is an opportunity to get a court order for the conservator to sign various instruments," he said.

The 1st District Court of Appeal in San Francisco held in the June 26 decision that an attack on such a court order, after the conservatee dies, is barred by collateral estoppel rules. Murphy v. Murphy, No. A115177.

Lesson learned?

One of the most challenging attorney-client scenarios is the older client with diminishing capacity. There are lots of solid articles/resources out there addressing this scenario from an estate-planning perspective [click here for Older Clients With Diminishing Capacity And Their Advance Directives (by A. Frank Johns)], but I haven't seen any that points to guardianship proceedings as a tool for heading off future will contests. The linked-to California case could provide a template for that strategy.

Blog Post Update:

As an update to this post, in this post the Pennsylvania Fiduciary Litigation Blog pointed me to an article published in "Trusts and Estate Fiduciary Litigation Update," August 20, 2008, by Samantha E. Weissbluth, senior counsel, and John P. Mounce, summer associate, Foley & Lardner LLP, Chicago, entitled Barred by Lunatics Law.  The article discusses the implications of the California case linked-to above and concludes with the following observations:

The lesson here is that court approval of an individual’s estate plan when that individual is under a conservatorship will protect the plan against any posthumous contest to it (assuming, of course, that interested parties receive notice of the conservator’s petition to approve the plan).

Those of you with clients in dicey family situations in which you worry about a posthumous contest might want to weigh the risks, costs and public nature of a conservatorship proceeding (or some kind of declaratory judgment action if permitted in your state) to try and bulletproof your client’s plan.

And, attorneys representing clients disgruntled by a now incapacitated relative’s estate plan should certainly come armed and ready for battle upon receiving notice of an action for court approval of that plan.

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Ehrlich v. Severson, --- So.2d ----, 2008 WL 2512375 (Fla. 4th DCA Jun 25, 2008)

Although the 4th DCA reversed the probate judge's ruling in this case, it did recognize that there's a glitch in the statute governing the payment of examining committees.  If a large part of your practice focuses on guardianship matters (mine doesn't) and you're a member of the Florida Bar's Elder Law Section or RPPTL Section, responding to the 4th DCA's request for a legislative fix sounds like a great project to run with.

Gladys Ehrlich was the subject of a guardianship petition which was denied. She appeals an order which requires her to pay the fees of the examining committee.

Although we acknowledge that payment of the examining committee's fees should not be contingent on the outcome of the competency determination, we agree with appellant that the procedural statute for determining incapacity does not make the potential ward responsible for examining committee fees where the guardianship petition is dismissed or denied. See § 744.331(7), Fla. Stat. (2007).[FN1]

[FN1.] We note that the subject statute formerly provided for examining committee fees to be paid from “the general fund of the county in which the petition was filed.” § 744.331(7)(a), Fla. Stat. (1995). However, the 1996 amendment to the statute appears to have eliminated the county's liability except in cases where the ward is indigent. This leaves a gap in responsibility for payment of the fees where a good faith petition is denied or dismissed. The Legislature needs to specify who pays the examining committees fees in this circumstance.

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In re Guardianship of Shell, --- So.2d ----, 2008 WL 1757211 (Fla. 2d DCA Apr 18, 2008)

When it comes to guardianship cases the court is not simply adjudicating a dispute, it is the party with ultimate/primary authority to determine, in its discretion, what is in the "best interests" of the ward. I think this perspective is crucial to understanding the level of scrutiny courts give to guardianship fee petitions. It is this special role of the court in guardianship matters that was also the basis of the 2d DCA's grandparent-visitation-rights opinion in 2005 [click here].

Competent Substantial Evidence: Litigation of Guardian's and attorney's fees and expenses.

The statute governing contested guardian fee petitions is F.S. 744.108. In this case the court-appointed guardian was Lutheran Services Florida, Inc. In a contested hearing on its fees the only evidence was the testimony of Lutheran Services' representative, Sharon Van Wart. She, of course, testified that the fee was appropriate. The trial court disagreed and Lutheran Services appealed. The issue on appeal was whether your own witness's testimony can constitute "competent, substantial evidence" to rule against you. The answer: of course! For me, the big lesson from this case is that fee disputes are always bad news.

Here are the key excerpts from the linked-to opinion:

    In this appeal, Lutheran Services relies on Sitter for the proposition that a probate court's decision to reduce a guardian's fee must be based on competent, substantial evidence. 779 So.2d at 348. We do not disagree with this general statement. However, we note that no presumption of reasonableness attaches to a guardian's petition for fees, and no statute or case law requires the probate court to simply accept the guardian's fee petition at face value and rubberstamp it. Nor is the probate court required to accept a guardian's personal assertion of the time he or she spent performing a common task as dispositive of the issue of reasonableness. Indeed, such would be an abdication of the probate court's responsibilities to the ward. Instead, the probate court may question the guardian concerning the tasks performed and the time spent performing those tasks, and the guardian's responses to those questions constitute competent evidence upon which the probate court may rely when determining whether the fee requested is reasonable. Moreover, when the probate court accepts such testimony from the guardian, it may assess the credibility of that testimony in light of the court's experience and common sense, and this court must defer to the probate court's credibility assessment.

    .   .   .   .   .

    Here, the probate court elicited, or attempted to elicit, evidence from Van Wart to support the disputed fee entries. Had Van Wart provided a reasonable explanation for why the claimed time was necessary to accomplish the disputed tasks in this case, we might have had some basis to find that the probate court abused its discretion in rejecting that testimony and reducing the fee. However, when Van Wart failed to provide any testimony, reasonable or not, to support the time claimed for the specific tasks at issue, the probate court was within its authority to reduce the fees accordingly. Therefore, we hold that the probate court did not abuse its discretion in reducing the fees claimed by Lutheran Services in this case and in denying the objections raised by Lutheran Services to the reduced fee.

SOAPBOX SOUND OFF:

Are courts really helping wards by forcing top-tier providers, like Lutheran Services, out of the guardianship business?

In the linked-to opinion the court alludes to its special role in contested guardianship proceedings - especially when the guardian is litigating its own fees - in the following footnote:

[FN1.]    At the start of the hearing, the probate court expressed its concerns that no one at the hearing was representing the ward, whose interests on the fee reduction issue might well conflict with the guardian's interests since the guardian's fees were being paid from the ward's assets. We share the probate court's concern that no one is truly representing the ward's interests when objections to fee reductions are filed and brought to hearing by the guardian. We also note that section 744.391, Florida Statutes (2005), requires the probate court to appoint a guardian ad litem to represent the interests of the ward “if the interest of the guardian is adverse to that of his or her ward.” However, we recognize that appointing a guardian ad litem for the ward each time the guardian petitions for an award of fees is impractical. Therefore, we must rely on the probate court to exercise its authority responsibly to protect the interests of the ward in these situations.

Based on their role in guardianship cases and the perceived conflict of interest noted above, courts feel authorized - perhaps even compelled - to micromanage guardians to an extent other fiduciaries commonly before probate courts - personal representatives/ trustees - are never subjected to. However, enforcing a "managed care" pricing structure on fees in guardianship proceedings could ultimately hurt, rather than help, wards because well-meaning, well-managed, professional organizations such as Lutheran Services will inevitably get priced out of the market. Here's a revealing quote from the linked-to opinion:

Lutheran Services' counsel responded that Lutheran Services was feeling “micromanaged” and that this type of micromanagement would force it out of business.

Managed-care pricing only works if service providers are guaranteed a sufficient volume of patients/wards to produce the economies of scale that make managed care economically viable. Insurance companies make this model work because they have the power to steer patients to their network of doctors in sufficient numbers to make it economically feasible for those doctors to stay in business billing at very low per-patient rates. Probate courts have the authority to steer wards to particular service providers/guardians in only very limited circumstances. Probate courts simply cannot create the economies of scale that are needed to sustain guardians providing top-quality service at the very low fees some courts demand. Bottom line, managed-care pricing without managed care economies of scale will inevitably lead to lower quality care for wards. I don't think this outcome is in the "best interest" of wards.

Having diagnosed the problem, I don't think a courtroom is the cure for the public policy problem I've described above. Courts are good at adjudicating discreet disputes, they're institutionally incapable of collecting and analyzing the data needed to craft broadly applicable public policy solutions of the type needed to deliver top quality care to minors and incapacitated adult wards subject to guardianship proceedings. An organization like Lutheran Services is ideally positioned to play a role in crafting good public policy, and perhaps the organization would have been better off going that route vs. the litigation route? The 2d DCA made this point at the conclusion of its opinion:

Lutheran Services is a renowned nonprofit organization with impeccable credentials for providing guardianship services. Certainly it would be in Lutheran Services' best interest to work with the court system to improve this system rather than seeking to end it.

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In re Guardianship of Morrison, --- So.2d ----, 2007 WL 4180873 (Fla. 2d DCA Nov 28, 2007)

Inter-state forum shopping in contested guardianship proceedings is a growing problem [click here].  So knowing what to do in a case involving parallel guardianship proceedings in different states with concurrent jurisdiction is useful for Florida probate litigators.

He who hesitates is lost!

In the linked-to case a guardianship proceeding was first commenced in New Jersey by the ward's girlfriend, then a parallel guardianship proceeding was commenced in Florida by his daughter.  Both courts had jurisdiction.  So the question became: which court should adjudicate the matter, and which should stay its proceeding?

Under Florida law the test is pretty simple: the court that first "exercises its jurisdiction" over the matter gets priority unless there are "special circumstances" justifying a denial of the stay.  So when in doubt, file first, ask questions later.  This approach is the exact opposite of how I generally do anything as a lawyer, but in this context the side who wins the race to a courthouse with jurisdiction definitely gains an advantage. 

In this case the New Jersey action was filed first, that court thus first "exercised" its jurisdiction over the matter, and thus the Florida court should have stayed its proceeding. Here's how the 2d DCA explained the basic rule in Florida, as enunciated by the Florida Supreme Court in Siegel v. Siegel, 575 So.2d 1267 (Fla.1991):

If courts in different states have concurrent jurisdiction over a matter, then the proper court is determined by either legislation or the principle of comity. Philip J. Padovano, Civil Practice § 1.7 (2007). In this case, there is no legislation governing the subject of concurrent jurisdiction over guardianship proceedings, so the principle of priority governs as a matter of comity.


In general, where courts within one sovereignty have concurrent jurisdiction, the court which first exercises its jurisdiction acquires exclusive jurisdiction to proceed with that case. This is called the “principle of priority.” Admittedly, this principle is not applicable between sovereign jurisdictions as a matter of duty. As a matter of comity, however, a court of one state may, in its discretion, stay a proceeding pending before it on the grounds that a case involving the same subject matter and parties is pending in the court of another state.

Siegel v. Siegel, 575 So.2d 1267, 1272 (Fla.1991) (quoting Bedingfield v. Bedingfield, 417 So.2d 1047, 1050 (Fla. 4th DCA 1982)). The purpose of applying the principle of priority as a matter of comity is to prevent “unnecessary and duplicitous lawsuits” that “would be oppressive to both parties.” Siegel, 575 So.2d at 1272 (quoting Bedingfield, 417 So.2d at 1050).

In a concurring opinion, Judge Altenbernd nailed the race-to-the-courthouse aspect of this rule (which is a bad thing), and offered an alternative test that focuses on domicile instead of timing. If you ever lose the courthouse race, this domicile argument may come in handy (especially if you frame it within the context of the "special circumstances" exception discussed below).  Here's an excerpt from Judge Altenbernd's concurrence:

I concur in this opinion, but write to explain that I would reverse this case even if the petition for guardianship in Florida had been filed first. The principle of priority can sometimes unreasonably reward the person who wins the race to a courthouse with jurisdiction.

*     *     *     *     *
In a state like Florida that has a large population of older people who are actually domiciled in other states, it would seem prudent to me to encourage trial courts to defer to the state of a ward's domicile even when petitions for guardianship are first filed in Florida.

Exception to the Rule: "Special Circumstances Justifying Denial of the Stay":

There is (of course) an exception to the general principal-of-priority rule.  Court's may deny a motion to stay - even if another court first exercised jurisdiction - if they enter an order containing findings of "special circumstances" justifying a denial of the stay.  Here's how the 2d DCA made this point:

The most common example of such special circumstances is undue delay by the court with priority. See Siegel, 575 So.2d at 1272; Parker v. Estate of Bealer, 890 So.2d 508, 512 (Fla. 4th DCA 2005); Norris, 573 So.2d at 1086. At least one court has found special circumstances in a dissolution action when primary residences, property, business interests, and most of the parties' children were in Florida. See Maraj v. Maraj, 642 So.2d 1103, 1104 (Fla. 4th DCA 1994).


In this case, the Florida court did not make any findings of special circumstances to explain its decision not to apply the principle of priority as a matter of comity. Instead, the court found that the New Jersey judgment on jurisdiction has no impact on the Florida court's jurisdiction over the matter. However, the parties do not dispute that the Florida and New Jersey courts have concurrent jurisdiction. Instead, the question is whether the Florida court abused its discretion in refusing to stay the Florida guardianship proceedings while the New Jersey guardianship proceedings went forward.

Although the Florida court had the discretion to decline to stay the Florida proceedings as a matter of comity, it abused its discretion in doing so absent a finding of special circumstances.

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An article written by Anthony Lin of the New York Law Journal entitled N.Y. Court Suspends Lawyer Accused of Taking Money From Judge's Estate underscores the wisdom of building systemic, structural safeguards against malfeasance into ALL guardianship proceedings.  In Miami-Dade and Broward counties probate judges require the liquid funds of ALL probate or guardianship estates to be immediately deposited into a "restricted depository account" governed by F.S. 69.031.

Although some grouse about the minor expense and delay caused by a blanket policy requiring restricted depository accounts for ALL estates, those "costs" are far outweighed by the obvious advantage of eliminating the "moral hazards" inherent to attorneys (often solo practitioners) holding estate funds in their own firms' escrow accounts and paying themselves from these funds without having to justify such payments to any third party in advance.

The following excerpts from the linked-to New York Law Journal article prove - again - why systemic, structural safeguards, such as Florida's restricted depository account regime, are a good idea.

Emani P. Taylor has been the subject of disciplinary proceeding over her alleged withdrawal without authorization of $327,100 from accounts of John L. Phillips, a onetime Civil Court judge who was ruled mentally incompetent in 2002. Taylor, who served as Phillips' guardian from 2003 to 2006, has acknowledged withdrawing some money but claims she did so properly to pay both herself and others for services rendered.

*     *     *     *     *
Citing Taylor's lack of cooperation, the court said it would accept as uncontested an accounting prepared by a court-appointed examiner of the period during which Taylor acted as Phillips' guardian. According to this accounting, Taylor wrote $200,000 in checks to herself from guardianship accounts for supposed retainers and legal fees. Another $69,000 was paid to herself or to "cash" for supposed expenses, and another $57,000 was withdrawn in cash.

*     *     *     *     *
"While [Taylor] was entitled to be compensated for the work she performed for three years, self-help to guardianship funds is not the way to proceed," the court said.

The court also said it was "very disturbing" that Taylor had applied to the court for $853,100 in legal fees relating to her guardianship but did not disclose that she had already withdrawn from the guardianship account more than $327,000 for her own use.

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In re Commitment of Reilly, --- So.2d ----, 2007 WL 4270584 (Fla. 2d DCA Dec 07, 2007)

As I've written about before [click here], an adjudication of incompetency must be based upon current evidence.  Evidence that is months old by the time a judge gets around to ruling is of little value - and will probably end up getting you reversed on appeal.  In this case the defendant was adjudicated incompetent under the following criminal-procedure rule:

On March 5, 2007, counsel for Reilly and counsel for the State stipulated to the “findings and the treatment recommendations of the October 25, 2006[sic] forensic competency evaluation provided to the Court by Dr. Paul S. Kling.” This stipulation was entered pursuant to section 916.12(2), Florida Statutes (2006), which permits the trial court to adjudicate a person incompetent if the parties stipulate to a finding of incompetence by one mental health expert. Subsequently, on May 4, 2007, the trial court held a hearing at which it accepted the parties' stipulation, adjudicated Reilly incompetent, and committed him for treatment. Reilly was present at the hearing and objected to the stipulation and the finding of incompetence. Reilly now seeks review of this adjudication and commitment by petition for writ of certiorari.

6-Month Old Report = Reversal on Appeal:

For probate practitioners, the interesting point in this case is the role played by a stale, 6-month old report in the incompetency adjudication.  This report was the basis of both the trial court's ruling and the 2d DCA's reversal.

In this case, the trial court based its May 4, 2007, determination that Reilly was incompetent on a report dated October 31, 2006. However, this six-month-old report did not, and could not, speak to Reilly's present ability to consult with his lawyer with a reasonable degree of rational understanding or his present rational and factual understanding of the proceedings against him. Accordingly, it did not provide competent, substantial evidence to support the trial court's finding that Reilly was presently incompetent to proceed. While we recognize that section 916.12(2) permits the trial court to adjudicate a defendant incompetent based on the stipulation of the parties to one mental health expert's findings, we do not believe that section 916.12(2) permits the court to rely on a stipulation to an expert's report that is so stale that it no longer speaks to the defendant's present competence.


Because Dr. Kling's report in this case was too stale to be relevant to Reilly's present competence, the trial court departed from the essential requirements of the law in relying upon it despite the parties' stipulation. Accordingly, we grant the petition and remand for further proceedings.

Lesson learned?

When it comes to incompetency adjudications, where is the dividing line between "too stale to be relevant" and non-contemporaneous, but still valid evidence?  Who knows, but based on this case, 6 months is definitely on the WRONG side of that line.

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Graham v. Florida Dept. of Children and Families, --- So.2d ----, 2007 WL 4245627 (Fla. 4th DCA Dec 05, 2007)

The linked-to case is the second appellate decision involving a family feud between two brothers, "Luke" and "Larry" Graham, both of which were vying to be appointed their mother's guardian with authority over her $850,000+ in assets.  When I first wrote about this case [click here], brother-Larry seemed to be on the losing end of this litigation. After Larry initially lost his bid to be appointed guardian, he apparently took matters into his own hands.  Here's how the 4th DCA summed up the operative facts at that time:

After the trial court appointed the guardian, Larry surreptitiously took Betty from the residence where she had been placed by the guardian and moved her to California without giving notice to the court or any of the parties. The trial court held Larry in indirect criminal contempt for removing Betty from Florida and otherwise defying the guardianship orders. Larry has refused to reveal his exact whereabouts as well as the whereabouts of his mother.

Based on these facts, in the last opinion the 4th DCA hammered Larry.

Fatally flawed procedural/evidentiary record leads to stunning reversal of all trial-court wins:

The most important person in any contested guardianship proceeding is the judge.  He is both law giver and fact finder.  Convincing the trial judge of the justness of your cause is a precondition to winning this type of case, but it's not enough.  To protect your trial-court wins you need to make sure you've built a procedural and evidentiary record that can survive appellate challenge - even if your trial judge is wiling to give you a pass on these issues.  On the flip side, if you've lost at the trial-court level, every procedural and evidentiary mistake made by the other side is an opportunity to be exploited on appeal.

The following appellate rulings from the linked-to opinion - all of which combined together to give brother-Larry a stunning victory on appeal - demonstrate how a fatally flawed procedural and evidentiary record can undo even the most sweeping trail-court wins.

1.  Improper service leads to reversal of criminal contempt order:

When Larry took his mother from Florida to California in defiance of the trial court's orders, you know the judge must have been fuming. This judge was almost guaranteed to find Larry in contempt.  All the moving side had to do was make sure it complied with the minimum procedural and evidentiary requirements of Florida Rule of Criminal Procedure 3.840, governing indirect criminal contempt, and the judge would do the rest.  This wasn't done, leading to the following appellate victory for Larry.

Failure to strictly follow the dictates of Rule 3.840, governing indirect criminal contempt, constitutes fundamental, reversible error. Hagan v. State, 853 So.2d 595, 597 (Fla. 5th DCA 2003).

Laurence Graham argues that the trial court's order is based upon a statement from Catholic Charities, which is not in affidavit form and was not issued upon personal knowledge, that he did not receive notice of the contempt proceedings, and that he was not properly served.

We reject without comment Laurence's arguments concerning an insufficient affidavit and lack of notice, but agree with his contention that he was not properly served.

It is undisputed here that Laurence was not personally served with the order to show cause and thus, reversal is warranted. See Van Hare v. Van Hare, 870 So.2d 125, 127 (Fla. 4th DCA 2003) (reversing order of criminal contempt for lack of compliance with Rule 3.840).

2.  Guardianship appointment effectively revoked ward's advanced health care directive without necessary proof, notice and hearing.

Rather than challenge the order appointing his brother as guardian directly, Larry focused instead on the fact that he was the named surrogate under an advanced health care directive executed by his mother. The evidentiary and procedural record was fatally flawed with respect to revoking an advanced health care directive, resulting in a reversal - on procedural grounds - of the order appointing Larry's brother as guardian.

Laurence Graham contends next that, in appointing Luke Graham as Betty's temporary plenary guardian, the trial court effectively revoked Betty's valid Directive, and did so without the necessary proof under section 765.105, Florida Statutes (2007), and without notice and a hearing, in violation of section 744.3115, Florida Statutes (2007). We agree in part.

*     *     *     *     *
In appointing Luke Graham as Betty's temporary plenary guardian, an act which effectively revoked her Directive, the trial court failed to comply with the requirements of section 744.3115. The court failed to determine whether the Directive was valid before appointing a guardian.

*     *     *     *     *
Therefore, we reverse and remand on this issue for a determination by the trial court of whether Betty's Directive is valid, and if so, what grounds under section 765.105 require its revocation.

3.  Flawed evidentiary record leads to dismissal of entire guardianship proceeding

Larry's biggest win on appeal was the ruling by the 4th DCA reversing the trial court's incapacity finding and remanding the case "with directions to dismiss the guardianship proceeding."  What could have lead to such a drastic change of fortune for Larry?  Evidence, plain and simple.  The evidence relied upon by the winning side at the trial-court level was outdated by the time of the incapacity hearing, and Larry's trial counsel did a good job of building a record for a successful appeal by introducing rock solid evidence countering the incapacity finding.  Here's how the 4th DCA summarized this final leg of the case:

After finding Laurence in contempt, the trial court found that Betty's incapacity was established and appointed Luke Graham as her temporary plenary guardian. Laurence claims the trial court erred in doing so without sufficient evidence of Betty's incapacity pursuant to section 744.331, Florida Statutes. We agree.

A trial court's ruling on mental capacity cannot be disturbed “unless the evidence shows it is clearly erroneous.” Fleming v. Fleming, 352 So.2d 895, 898 (Fla. 1st DCA 1977) (citing Waterman v. Higgins, 28 Fla. 660, 10 So. 97 (1891)). “In the adjudicatory hearing on a petition alleging incapacity, the partial or total incapacity of the person must be established by clear and convincing evidence.” § 744.331(5)(c), Fla. Stat. (2007). Further, section 744.331(5)(a), Florida Statutes (2007), states:

Upon appointment of the examining committee, the court shall set the date upon which the petition will be heard. The date for the adjudicatory hearing must be set no more than 14 days after the filing of the reports of the examining committee members, unless good cause is shown. The adjudicatory hearing must be conducted at the time and place specified in the notice of hearing and in a manner consistent with due process.

Laurence Graham relies on LeWinter v. Guardianship of LeWinter, 606 So.2d 387 (Fla. 3d DCA 1992), which is analogous to the instant case. In LeWinter, the Second District reversed a finding of incapacity and the appointment of a guardian, concluding that there was no competent evidence to support the order. The court found that although the report of the examining committee established under section 744.331(3)(a) contained findings that the ward lacked the capacity to perform the functions that served the basis for the guardianship, it was filed over six weeks before the hearing, and there was evidence that the ward's condition had improved in the meantime. LeWinter, 606 So.2d at 388.

Similarly, in the instant case, two of the three examining committee reports were filed two months or more before the hearing. The hearing took place on February 8, 2007. One report was filed on November 21, 2006, and another on December 8, 2006. Further, Laurence Graham submitted a sworn affidavit dated January 20, 2007, from Dr. Clyde Rouse Jr., who was Betty's previous psychiatrist for 2 years, and again evaluated her in January 2007, stating that Betty's condition had improved. Dr. Rouse claimed, inter alia: “She looks very well and shows no evidence of any psychiatric symptoms. She reviewed her health care advance directive with me and verbally acknowledged that she had named her son Larry as her surrogate in that document.” He also stated that her condition improved due to medication and in his opinion she “is perfectly competent to make financial decisions, to execute any legal documents such as power of attorney, health care advance directives, etc.” Notably, a report by Dr. David Trader, board certified in general psychiatry and geriatric psychiatry, dated February 14, 2007, a few days after the hearing in question, indicated that “[t]he present examination suggests that Betty Graham has sufficient mental capacity to make financial, medical, testamentary and general personal decisions at this time.”

Because Dr. Rouse's report indicated an improvement in Betty's condition and the committee member reports were filed two months prior to the hearing, the record evidence failed to establish Betty's incapacity by clear and convincing evidence. Thus, we reverse and remand with directions to dismiss the guardianship proceeding. See LeWinter, 606 So.2d at 388.

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In re Guardianship of Stephens, --- So.2d ----, 2007 WL 2811591 (Fla. 2d DCA Sep 28, 2007)

Who gets appointed to be mom's guardian isn't decided by family members, and it isn't even decided by mom . . . it's decided by a judge.  This fact of life under Florida law usually doesn't sit well with family members, which I've written about before [click here].

The facts:

From a practitioner's perspective, however, the real question is: "What does it take to convince a trial court that family members should NOT be appointed as guardian?"  To answer that question you need appellate decisions with lots of facts, the more detailed the better.  The linked-to case delivers on this front in spades.  Here's why the judge in this case appointed Lutheran Services Florida as guardian of mom's property and person - and NOT any of her 9! adult children:

The Magistrate was presented with evidence that the family was “dysfunctional,” that the siblings were unable to get along and cooperate with each other to care for their mother, and that there were serious conflicts about how the family business should be run, inclusive of the Ward's assets and money in general. Some of the siblings had made choices which could be in conflict with and affect the Ward's financial stability, such as, for example, setting up an irrevocable trust containing questionable terms. Some of the siblings had created “alliances” to the exclusion of other siblings. They were unable to come together on simple issues, including the core issue concerning their mother's care. As evidenced by this appeal, they could not even agree on the designation of a guardian. In view of family dynamics, appointing one of the siblings as a guardian for any purpose would clearly not be in the Ward's best interests.

The law:

The linked-to case also provides a solid summary of Florida law governing the appointment of a guardian in contested proceedings:

Section 744.312(1), Florida Statutes (2006), styled “Considerations in appointment of guardian,” provides that “the court may appoint any person [FN3] who is fit and proper and qualified to act as guardian, whether related to the ward or not.” (Emphasis added.) Section 744.312(2) adds:

The court shall give preference to the appointment of a person who:

(a) Is related by blood or marriage to the ward;

(b) Has educational, professional, or business experience relevant to the nature of the services sought to be provided;

(c) Has the capacity to manage the financial resources involved; or

(d) Has the ability to meet the requirements of the law and the unique needs of the individual case.

(Emphasis added.) While the wishes of the ward shall be considered in appointing a guardian, they are not controlling. § 744.312(3)(a); Ahlman v. Wolf, 413 So.2d 787, 788 (Fla. 3d DCA 1982).

[FN3.] The reference to “person” in this context includes individuals or corporate entities that typically represent wards when no qualified family members are available or willing to serve as guardian. See §1.01(3), Fla. Stat. (2006).

*     *     *     *     *

We  .  .  .  realize that family members would naturally believe they should be “entitled” to appointment. However, in the guardianship arena, the legislature has rightly determined that such expectations are not binding on the court. Thus any “preference” for family applies only within certain discretionary bounds. The guardianship statute does not confer upon certain family members an absolute and automatic right to be appointed guardians. See In re Guardianship of R.N.B., 429 So.2d 796, 797 (Fla. 4th DCA 1983) (“Indeed, the statute provides that the court may appoint any person ‘who is qualified to act as guardian, whether related to the ward or not.’ “ (quoting section 744.312(1), Fla. Stat. (1981))). The best interests of the Ward-which include choosing a qualified guardian for the Ward-come first. Family member preference in and of itself is secondary, regardless of how well qualified the family members are.

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Ripoll v. Comprehensive Personal Care Services, Inc., --- So.2d ----, 2007 WL 2043483 (Fla. 3d DCA Jul 18, 2007)

If the estate assets disappear while the parties litigate their claims against each other it doesn't really matter who wins or loses, the assets are gone.  The way to address this risk is to ask the court for a temporary injunction freezing the assets.  In general commercial litigation these types of orders should be rarely granted. In contested guardianship and probate proceedings they should be freely granted.  The trick is to make sure you, your opponent, and your trial judge all understand this dramatically different standard.

There's loads of case law out there saying temporary injunctions should be rarely granted.  All of that precedent comes from commercial litigation cases.  Don't get caught in that trap.  In probate and guardianship proceedings the key temporary-injunction case to focus on is In re: Estate of Barsanti, 773 So.2d 1206 (Fla. 3d DCA 2000), in which the probate court was reversed for failing to apply the different and much more liberal standard for granting temporary injunctions in contested probate proceedings:

Based on the record before us, we find that the probate court abused its discretion in failing to grant the temporary injunction and in finding that the P.R. failed to establish either a clear legal right or an inadequate remedy at law. In addition, we agree with the Estate that the probate judge failed to adhere to established law that the traditional standards controlling the issuance of temporary injunctions in other civil actions do not constrain the probate court in the exercise of its inherent jurisdiction over a decedent's estate.

The linked-to case is important because it explicitly extends the Barsanti rule to guardianship proceedings as follows:

A circuit court has the inherent authority to monitor a guardianship and to take action it deems necessary to preserve the assets for the benefit of the beneficiaries. See In re: Estate of Barsanti, 773 So.2d 1206 (Fla. 3d DCA 2000). To that end, the court:

has the authority to issue temporary injunctions freezing assets claimed to belong to [a guardianship], even though ultimate ownership of those assets may be in dispute. See Wise v. Schmidek, 649 So.2d 336, 337 (Fla. 3d DCA 1995); Sanchez v. Solomon, 508 So.2d 1264 (Fla. 3d DCA 1987).

Barsanti, 773 So.2d at 1208.

Lesson learned:

Niche practitioners distinguish themselves by delivering better results for their clients, at less cost, in a shorter time period, and with greater certainty of success.  One of the reasons why niche practitioners can distinguish themselves this way is that their expertise and experience in a particular area of the law makes it infinitely more likely that they will spot the key issues of a particular case early on and know how to effectively proceed.  If your niche is probate or guardianship law, make sure you know the cases cited above.  One day the key issue you spot will be the need for a temporary injunction freezing the estate assets, and when you do, these cases will make you look good.

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Register v. State, 946 So.2d 50 (Fla. 1st DCA Dec 15, 2006)

The Florida law covering both voluntary and involuntary treatment for mentally ill persons is Chapter 394 of Florida Statutes: known as the Florida Mental Health Act or the Baker Act.  As with contested guardianship proceedings, the due process issues in these cases are thorny to say the least.    In the linked-to case the 1st DCA reversed a trial court's involuntary inpatient placement of a mentally ill person because the trial court had failed to "certify through proper inquiry" that counsel's waiver of the patient's presence at the commitment hearing "was knowing, intelligent, and voluntary."

Here's how the 1st DCA explained its ruling:

A patient has a fundamental right to be present at a commitment proceeding. Joehnk v. State, 689 So.2d 1179, 1180 (Fla. 1st DCA 1997). While a patient may waive his or her right to be personally present and be constructively present through counsel, a court must certify through proper inquiry that the waiver is knowing, intelligent, and voluntary. Id. Furthermore, a denial of the due process right to be present at an involuntary commitment hearing is fundamental error which may be raised on appeal even if not preserved below. See Ibur v. State, 765 So.2d 275, 276 (Fla. 1st DCA 2000) (holding that a denial of the due process right to be heard prior to the deprivation of one's liberty is fundamental error).


Because the court below did not certify through proper inquiry that the waiver was knowing, intelligent, and voluntary, we reverse and remand for a new commitment hearing.

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In re Guardianship of Graham, --- So.2d ----, 2007 WL 2189111 (Fla. 4th DCA Aug 01, 2007)

In the linked-to case two brothers were feuding over whom would be appointed mom's guardian.  The brother that lost, 'Larry," decided to take matters into his own hands after the trial court ruled against him.
 

After the trial court appointed the guardian, Larry surreptitiously took Betty from the residence where she had been placed by the guardian and moved her to California without giving notice to the court or any of the parties. The trial court held Larry in indirect criminal contempt for removing Betty from Florida and otherwise defying the guardianship orders. Larry has refused to reveal his exact whereabouts as well as the whereabouts of his mother.

Adding insult to injury, Larry managed to find a lawyer who was audacious enough to argue that since Larry had essentially kidnapped his mom and taken her out of Florida . . . the Florida court system no longer had any authority over her.

The attorney .  .  .  argued that the court was required to dismiss the guardianship proceedings because the ward could not be located after diligent search. See Fla. Prob. R. 5.680(a). When the court asked, “But we have the ability to know where the ward is; don't we?” The attorney responded, “But she's not-she's not-they didn't until I divulged that.” That same attorney has continued to argue in this proceeding that the guardianship proceedings must be dismissed because Betty is no longer in Florida.

The trial court of course rejected Larry's ludicrous argument, and the 4th DCA affirmed.

Lesson learned:

First, in contested guardianship proceedings, always expect the unexpected.  Second, if the other side goes completely crazy, remember the trial court's contempt powers.  Finally, if you're involved in a legitimate proceeding where there are legitimate reasons for moving a ward to another state, make sure you remember that Florida Statutes section 744.2025(1) requires a guardian to obtain prior court approval before removing the ward from the state.  Here's how the procedural steps involved in a change of domicile were summarized in the linked-to case:
 

The statutes provide for termination of a guardianship upon a change in domicile of the ward where another state has appointed a guardian, but the statute requires that the change in domicile be accomplished by the legal guardian with prior approval of the court. § 744.524, Fla. Stat. (2006) (providing for termination of guardianship when the domicile of a ward has changed as provided in section 744.2025). The petition does not suggest that California has appointed a guardian for Betty and clearly the circuit court has not approved Betty's change in domicile. See also Fla. Prob. R. 5.670 (setting forth the procedure for terminating a guardianship on change of domicile of a ward and requiring the Florida guardian to file a petition for discharge); cf. In re Guardianship of Gechtman, 719 So.2d 960 (Fla. 4th DCA 1998).

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Thanks to the Wills, Trusts & Estates Prof Blog for reporting here on a Florida trial involving a nursing home's failure to honor a patient's living will.  Of course, it is now impossible to mention any sort of dispute involving living wills without considering the implications of the Terry Schiavo case (the definitive historical record of this case was compiled here by Florida blogger Matt Conigliaro).  As the following excerpt from Jury: Home violated living will reveals, Ms. Schiavo's tragedy continues to reverberate through Flroida's courts.

In Florida's first prolongation-of-life trial, jurors found that the Joseph L. Morse Geriatric Center in West Palm Beach failed to honor the living will and advance directive of Madeline Neumann, a 92-year-old Alzheimer's patient who stipulated that she did not want to be kept alive by artificial means.

The jury found that Morse Geriatric should pay $150,000 in damages. But the panel declined to find Morse's former medical director, Dr. Jaimy Bensimon, negligent for his role in Neumann's prolonged death.

*     *     *     *     *
Awareness of advance directives and self-determination has improved since the time of Neumann's death, said Jim Nosich, Bensimon's attorney.

"I think Terri Schiavo beat this case to the punch in terms of education," he said, referring to the Pinellas County woman whose case sparked a national debate on end-of-life issues.

Education and awareness -- not money -- was at the heart of Neumann's case, according to attorneys Jack Scarola and Marnie Poncy, who represented Scheible, Neumann's granddaughter and health-care surrogate.

"We undertook this case because of the importance of those legal issues," Scarola said. "The verdict confirmed the accuracy of this message."

The Schiavo case became a game of political football, according to Scarola, overshadowing the rights of health-care self-determination.

"Madeline Neumann is everybody's grandparent, everybody's parent," Scarola said. "This is what we can expect to happen to every single one of us. Nursing homes are now on notice that there are economic consequences to their neglect of these responsibilities."

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Miller v. Goodell, --- So.2d ----, 2007 WL 1201892 (Fla. 4th DCA Apr 25, 2007)

One of the standard documents included in most estate plans is a "designation of preneed guardian."  The purpose of this document is to tell the world whom you would like appointed as your guardian if ever needed.  I always make a point of reminding clients that the ultimate authority to determine whom your guardian will be rests with the courts - NOT the client.

This case provides a good example of how the statutory scheme governing these documents actually works in real life.  The key statutes are:

• 744.3045 - Creates statutory presumption in favor of appointing client's designated preneed guardian.
  
• 744.309 - Provides list of who is automatically disqualified as a matter of law from being appointed guardian (e.g., a felony conviction will automatically disqualify you).
  
• 744.312 - Gives court authority to appoint someone other than the designated preneed guardian if it's in the ward's best interest.
  

Court says NO to designated preneed guardian:

The linked-to case is instructive because it provides an example of when a court will NOT abide by the client's wishes, as expressed in his or her designation of preneed guardian:

[A]ppellants contend the trial court erred in refusing to appoint Fanning as Audrey's plenary guardian because Audrey had executed a preneed guardian declaration naming Fanning as Audrey's alternate preneed guardian. This argument fails for the following reasons: (1) Audrey and her attorneys agreed to the appointment of a neutral professional guardian; and (2) the trial judge determined that the rebuttable presumption that Fanning is entitled to serve as guardian had been overcome, and that it is not in Audrey's best interests for Fanning to be appointed plenary guardian.

*     *     *     *     *
In this case appellants have failed to establish the trial court abused its discretion. Section 744.3045(4), Florida Statutes (2005), provides in pertinent part: “Production of the declaration in a proceeding for incapacity shall constitute a rebuttable presumption that the preneed guardian is entitled to serve as guardian.” The trial judge considered the evidence presented but found the rebuttable presumption of the appointment of the designated preneed guardian had been overcome. In conjunction with finding the rebuttable presumption had been overcome, the trial court also considered the application of section 744.312(4), Florida Statutes (2005), which provides:

If the person designated is qualified to serve pursuant to s. 744.309, the court shall appoint any standby guardian or preneed guardian, unless the court determines that appointing such person is contrary to the best interests of the ward.

The trial court specifically found that it was contrary to Audrey's best interests to appoint Fanning as plenary guardian of the person and property.

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Hayes v. Guardianship of Thompson, 2006 WL 3228916 (Fla. Nov 09, 2006)

This case is important for two reasons.

Conflict Resolved:

First, the Florida Supreme Court resolved a conflict among the DCAs regarding who has standing to litigate fees (both attorney's and guardian's) in guardianship proceedings.  Here's how the Court summarized its holding, which has the effect of expanding the class of potential litigants (i.e., more people have standing to litigate, thus expect more litigation to follow in guardianship proceedings):

Although we cannot provide specific criteria, we reject the bright-line rule adopted by the Third District in [McGinnis v. Kanevsky, 564 So.2d 1141 (Fla. 3d DCA 1990)] that precludes an heir from participating in a proceeding for guardian's or attorney's fees. Implicit in the Third District's reasoning is that heirs of a ward should never be afforded standing to participate in proceedings for guardian's or attorney's fees because there are sufficient built-in procedural safeguards to protect the interests of the ward:

[J]ust as it is obviously for the competent person to spend or misspend his assets as he pleases, so it is up to the guardianship estate, regulated by the guardian and the court, to do the same without the interference or concern with the totally non-altruistic wishes of the ward's relatives or legatees.

564 So.2d at 1144 n. 9 (emphasis supplied).

We disagree. As the Fourth and Fifth Districts recognized in [Bachinger v. Sunbank/South Florida, N.A., 675 So.2d 186 (Fla. 4th DCA 1996)] and [Sun Bank & Trust Co. v. Jones, 645 So.2d 1008, 1017 (Fla. 5th DCA 1994)], “[c]ourts must scrupulously oversee the handling of the affairs of incompetent persons under their jurisdiction and err on the side of over-supervising rather than indifference.” Bachinger, 675 So.2d at 188 (quoting Jones, 645 So.2d at 1017). Moreover, although courts must approve petitions for guardian's and attorney's fees, “it is highly unrealistic to assume that such an ex parte procedure would involve any high level of scrutiny.” Bachinger, 675 So.2d at 187. Thus, depending on the circumstances of the case and the specific issues involved, heirs of a ward may be considered “interested persons” for the purpose of participating in a guardianship proceeding, including a proceeding for guardian's or attorney's fees. See, e.g., Bachinger, 675 So.2d at 188 (beneficiaries under the ward's will, who cared for her before she became incompetent, were interested persons for the purpose of filing objections to guardian's petition for final discharge).

Probate v. Guardianship: Different Priorities = Different Outcomes

This opinion is also important because it highlights how different public-policy priorities in probate and guardianship proceedings can result in courts erring on the side of less litigation when possible (probate) and erring on the side of more litigation if needed (guardianship).

This is how the Florida Supreme Court described the public-policy priority underlying all guardianship proceedings:

In guardianship proceedings, the overwhelming public policy is the protection of the ward. See § 744.1012, Fla. Stat. (2006) (declaring that the purpose of the Florida Guardianship Law is “to promote the public welfare by establishing a system that permits incapacitated persons to participate as fully as possible in all decisions affecting them; that assists such persons in meeting the essential requirements for their physical health and safety, in protecting their rights, in managing their financial resources, and in developing or regaining their abilities to the maximum extent possible; and that accomplishes these objectives through providing, in each case, the form of assistance that least interferes with the legal capacity of a person to act in her or his own behalf”).

Viewed from this perspective, it's almost inevitable that the Florida Supreme Court would construe Florida law in a way that errs on the side of making sure all "interested persons" are given the opportunity to participate in contested guardianship proceedings -- as long as the goal is to better the ward's welfare.  The litigant that understands and incorporates this perspective into his or her case has a clear advantage.

By contrast, in probate proceedings the public-policy priority is efficiency: when in doubt, err on the side of less litigation not more.  Here's how the Florida Supreme Court encapsulated this public policy directive in 2000:

There is a “strong public policy” in this state “in favor of settling and closing estates in a speedy manner.” May v. Illinois Nat'l Ins. Co., 771 So.2d 1143, 1151 (Fla.2000).

As I've noted over and over again on this blog, this public-policy priority plays itself out most clearly in probate litigation involving creditor claims.  Again, the litigant that understands and incorporates this perspective into his or her case has a clear advantage.

Briefs:

• Initial Brief of Appellants
• Amended Appellee's Answer Brief
• Reply Brief of Appellant

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I recently wrote here about some of the tools available to Florida probate attorneys involved in cases where the decedent is alleged to have been the victim of financial elder abuse/exploitation.  The Wall Street Journal recently published an article entitled Intimate Betrayal: When the Elderly Are Robbed by Their Family Members, that underscores the comments I made regarding how prevalent this problem is.  Here is an excerpt from the linked-to story:

Note to retirees: Beware the family.

Financial swindles are one of the fastest-growing forms of elder abuse. By some estimates, as many as five million senior citizens are victimized each year, says Sara Aravanis, director of the nonprofit National Center on Elder Abuse, which provides information to federal and state policy makers. Because of the problem's spread, "many states have laws authorizing financial institutions to report suspicions of elderly abuse," says Bruce Jay Baker, general counsel for the Illinois Bankers Association. Earlier this summer, the Securities and Exchange Commission hosted a Seniors Summit to highlight the issue, with SEC Chairman Christopher Cox noting that protecting seniors' pocketbooks "is one of the most important issues of our time."

Yet it's not dodgy financial experts or crooked caregivers who are the biggest threat. It's family. Children, siblings, grandchildren, nieces and nephews, and even spouses are the people most likely to rob the elderly, according to elder-law advocates and attorneys. The data that exist -- albeit in a spotty manner -- suggest that financial crimes rank as the third-most prevalent abuse of the elderly.

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Conseco Ins. Co. v. Clark, 2006 WL 2024401 (M.D.Fla. Jul 17, 2006) (NO. 8:06CV462 T30EAJ)

Exploitation of the elderly is endemic.  This case provides a good road map for probate litigators involved in cases where the decedent was victimized by his or her power-of-attorney holder, with the facts coming to light in the context of probate proceedings.

If someone has taken the time to prepare estate planning documents, a power of attorney is usually part of the package.  But my sense is that the POA usually doesn't receive the level of scrutiny is should -- especially when it comes to retirees who move to Florida and detach themselves from the web of family and friends that looked after and supported them "back home."

The victim in this case was Anthony Jeski, who was 89 years old when he died in 2005 the resident of a Florida nursing home.  Myra Clark acted as Mr. Jeski's power of attorney from 1997 to 2005.  Originally, the sole remainder beneficiary of Mr. Jeski's seven annuity contracts (paying $342,177.58 at his death), revocable trust, which contained $40,000 at his death,  a Prudential insurance contract whose value was unreported, and the heir who would receive title to his $158,000 condominium, was Mr. Jeski's nephew Joseph Dal Campo.  This all changed in 2002, when Ms. Clark used the power of attorney to write Mr. Campo out, and write herself in, as sole beneficiary of all of the annuity contracts, the revocable trust, the insurance policy, and last but not least, quit claim the condo to herself for $11.00.  Oh, and guess who was the agent that sold Mr. Jeski his annuity contracts?  Ms. Clark's husband.

Confronted with this set of facts, litigation counsel for Mr. Campo could pursue a number of different strategies.  In this case, Mr. Campo pursued the following claims, all of which were essentially "blessed" by the trial court.

• Breach of Fiduciary Duty.  Key point here was that the trial court held that Mr. Campo was an "interested person" with respect to his uncle's power of attorney, and thus Ms. Clark owed him the same fiduciary duties applicable to trustees in Florida.
• Fraud.  The trial court dismissed this claim, but hinted strongly that if the plaintiff could allege facts showing he had himself relied upon fraudulent statements made by Ms. Clark, then the claim could proceed.
• Civil Conspiracy.  The trial court let this claim proceed.  Key point being that Ms. Clark's husband was thus brought into the case as a named defendant.
• Exploitation of an Elderly Person.  The trial court dismissed this claim with instructions to the plaintiff on how to replead the claim, hinting again that the judge was predisposed to let this count proceed.  This can be a very powerful weapon, because by statute the successful plaintiff is entitled to treble damages and his attorney's fees.  See Counsel Beware: Considerations Before Implementing Florida’s Civil Theft Statute for a good summary of what trial counsel needs to know with respect to asserting these types of claims.
• Tortious Interference with Expectancy.  The trial court let this count proceed with respect to all non-probate assets (i.e., everything except the condo).  This is an important weapon to keep handy when most if not all of the key assets in dispute fall outside of the probate court's jurisdiction.

For an interesting non-Florida case dealing with legal and ethical issues surrounding the drafting of a power of attorney see In re Winthrop, 848 N.E.2d 961 (Ill. 2006), and a related discussion of the case in Helen Gunnarson's article, POA Perils, 94 Ill. B.J. 403 (2006), in which she concludes as follows:

The complexity of the proceeding does . . . suggest that reinventing the wheel when it comes to drafting powers of attorney may be unwise. Even more important, an attorney would be well advised to exercise extra caution when a third party initiates a request for the attorney to draft an instrument for an elderly person.

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In this article CNN.COM first reported on the guardianship litigation involving Brooke Astor, one of America's most storied and prominent socialites, her only son and guardian, Anthony Marshall, and her grandson Philip Marshall, who is suing his 81 year old father for neglecting his 104 year old grandmother.  In a subsequent article reported here on CNN.COM, Anthony Marshall denies any wrongdoing.  Here is an excerpt from the first CNN.COM articles:

NEW YORK (AP) -- She wears torn nightgowns and sleeps on a couch that smells of urine. Her bland diet includes pureed peas and oatmeal. Her dogs, once a source of comfort, are kept locked in a pantry.

A court filing alleges that this is the life of 104-year-old Brooke Astor, the multimillionaire Manhattan socialite who dedicated much of her vast fortune to promoting culture and alleviating human misery.

In addition to be very sad, this story is instructive: guardianship disputes can erupt in any case, no matter how wealthy the ward may be.  This point was underscored in  this New York Times editorial reporting on proposed federal legislation intended to address this issue.  Here is an excerpt from the NY Times piece:

The scandal over Brooke Astor’s care has had the healthy side effect of getting people talking about the needs of the elderly. The 104-year-old former socialite and philanthropist now appears to be getting the attention she needs. But it has inspired people to ask what is being done for old and “older old” people who have no Rockefellers or Kissingers to come to their defense.

Last week the Senate Finance Committee unanimously approved a bill that would expand the federal system for protecting the elderly from physical, psychological and financial abuse. A second crucial measure, the reauthorization of the Older Americans Act, is also being considered by Congress. Important aspects of both bills — like the people they seek to protect — are in danger of sinking beneath the radar as other matters move ahead on the priority list. We’re hoping all the publicity over the alleged mistreatment of Mrs. Astor by her son will change that.

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Tripp v. Salkovitz, __ So.2d __ (Fla. 2d DCA Feb 08, 2006)

Adult Comprehensive Protection Services ("ACPS") was appointed the decedent's plenary guardian prior to his death. Following his death, the decedent's estate sued ACPS for negligence and breach of fiduciary duty. During the discovery process the estate filed a motion seeking an order from Pinellas County Judge Kelly N. Khouzam addressing the following:

• requiring the production of documents regarding confidential communications between ACPS and its lawyer during the pendency of the guardianship, and
• ruling on whether ACPS could raise the attorney-client privilege at deposition in response to questions related to confidential communications between ACPS and its lawyer during the pendency of the guardianship.

The probate court ruled in favor of the ward's estate on both issues, determining that the attorney-client privilege now belonged to the estate. The problem with this ruling is that it failed to recognize that some of the confidential communications between ACPS and its lawyer had to do with protecting ACPS' self interests: not its ward. The Second DCA reversed the trial court with instructions to parse its ruling so that communications between ACPS and its lawyer having to do with protecting ACPS' self interests remained privileged. The Second DCA based its ruling on the same logic it applied when addressing the same issue in a trust context:

In Jacob, this court explained who holds the attorney-client privilege in trust situations:

Usually, a lawyer retained by a trust represents the trustee, not the beneficiary, even though the fees are paid with trust funds that would otherwise go to the beneficiary. If the attorney represents the trustee, the trustee holds the lawyer-client privilege. In some circumstances, however, the beneficiary may be the person who will ultimately benefit from the legal work the trustee has instructed the attorney to perform. See, e.g., Riggs Nat'l Bank of Washington, D.C. v. Zimmer, 355 A.2d 709, 711 (Del.Ch.Ct.1976) (noting that legal memorandum concerning trust tax issues, written before beneficiaries' litigation against trustee began, was prepared for the benefit of the trust beneficiaries) (cited in [ Barnett Banks Trust Co., N.A. v.] Compson, 629 So.2d [849, 850 (Fla. 2d DCA 1993)] ). In that situation, the beneficiary may be considered the attorney's "real client" and would be the holder of the lawyer-client privilege. But if the "real client" is the trustee, the beneficiary would have to prove the existence of some exception to overcome the privilege.

Jacob, 877 So.2d at 937 (some citations omitted). (Emphasis added.)

New legislation should make these types of disputes a thing of the past. As I reported here, the Florida Bar's Probate & Trust Litigation Committee is proposing the following new blanket-privilege legislation:

(Passed by Committee at meeting in Palm Beach, August, 2005 and passed by the Executive Council of RPPTL in November 2005)

90.5021 Fiduciary Lawyer- Client Privilege

(1) A communication between a lawyer and client acting as a fiduciary described in subsection (2) shall be privileged and protected from disclosure under section 90.502 to the same extent as if the client were not acting as fiduciary. For the purpose of applying section 90.502 to such a communication, the person or entity acting as fiduciary is the lawyer's only, real and true client.

(2) For the purpose of this section, a client acts as a fiduciary when serving as personal representative as defined in section 731.201, an administrator ad litem as used in section 733.308, a curator as used in section 733.501, a guardian or guardian ad litem as defined in section 744.102, a conservator as defined in section 710.102, a trustee as used in section 731.201 (35), and an attorney-in-fact as used in Chapter 709.

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Vargas v. Acosta, 2006 WL 120182 (Fla. 3d DCA Jan 18, 2006)

In this case the ward's daughter from a prior marriage was his guardian. According to a spirited dissent in this case by Third DCA Justice Ramirez, the animus between these two was "obvious even from the sparse record" before the court. The explicit issue before the Third DCA in this case was whether Miami-Dade County Judge Arthur Rothenberg had complied with the requirements of F.S. § 744.2025 by entering an order sua sponte authorizing the change of the ward's residence from Miami to Cape Coral over his wife's objections and in spite of the fact that counsel for the wife, Candis Trusty, had served a motion to vacate such order.

The Third DCA upheld the trial court's decision. Justice Ramirez dissented by arguing that the ward's spouse had been denied any meaningful level of due process in the proceedings. Here are a few representative excerpt's from Justice Ramirez's dissent:

"The trial court did not hold a hearing. Thus, there is no judicial record to support the change in the ward's residence. The majority finds, without explanation, that the statutory requirements were met by "[considering] the reason [given] for ... relocation." Op. at ----. Does this mean that the court "considered" the reasons in private? Or does the majority mean that the court "considered" the reasons at the after-the-fact hearing on March 7th? When did the trial court "consider" placing the ward in any local facility?

The majority states that there was no dispute that the ward's needs would be best met by living in a facility close to the guardian's home. I find no record support for that statement. I also find no record support for the contrary, but that is the problem. The merits of the move from Miami to Cape Coral were never discussed at the trial level. The only hearing, on March 7, was not to discuss the merits of the move, but to allow the wife an opportunity to vent. Only the process, or lack thereof, was discussed."

"I can appreciate the exigencies of the situation where the medical facility was threatening to remove the ward, but it seems that the wife's counsel filed a hand-written motion before the ward was removed. There was nothing to prevent an emergency hearing taking place at that moment. The right to due process cannot be so casually ignored. Neither appellee's brief nor the majority opinion cite a single case to justify what happened at the trial level. (Emphasis added.)"

One way to rationalize the Third DCA's majority opinion with the points made by the dissent is to assume that under Florida law interested parties other than the ward have very little, if any, constitutionally protected rights. In a case I wrote about here the Second DCA reversed a trial court's decision denying a petition for visitation rights filed by a child-ward's grandmother. The Second DCA held that unlike a natural parent, a child-ward's guardian is simply an agent or "arm" of the court, and thus such guardian does not have the same constitutionally protected "privacy rights" that a natural parent has. The following are a few representative excerpts from that opinion:

"In Florida . . . the power and responsibility of a court exercising guardianship jurisdiction over minors is such that the court itself is considered to be the minor's guardian. See Brown v. Ripley, 119 So.2d 712, 717 (Fla. 1st DCA 1960). Thus "the legal guardian of a minor is regarded as the agent of the court and of the state in the discharge of his duty as such." Id."

"Considering the guardian's status as an arm of the court, the implications of our supreme court's decision in the Watland case, and the weight of authority from other jurisdictions, we conclude that the probate court has the power to direct a guardian to permit a grandparent or other person to visit a minor ward when the best interests of the minor will be promoted by such visitation."

Bottom Line:

Based on the Second DCA's analysis in the grandparent-visitation-rights context (i.e., guardians do not have the same privacy rights that natural parents enjoy) and the Third DCA's willingness above to approve orders entered in the absence of any meaningful due process for the ward's spouse, it appears that in Florida interested third parties should expect to take a back seat to the trial court's discretion in all material matters, and that such interested third parties have few (if any) constitutionally-mandated protections if they disagree with the trial court's decisions. This assumption, if accurate, has profound implications for how Florida attorneys should represent clients involved in contested guardianship proceedings.

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Tallahassee Memorial Regional Medical Center, Inc. v. Petersen, 2006 WL 88489 (Fla. 1st DCA Jan 17, 2006)

In this case the parents of a child apparently brain damaged during delivery filed a pre-suit petition to determine compensability under the Florida Birth-Related Neurological Compensation Act (the "Act," see F.S. §§ 766.301-766.316). At the conclusion of these administrative proceedings, the administrative law judge ("ALJ") awarded the parents lifetime medical expenses for their child, plus $100,000, plus reasonable expenses incurred in connection with the filing of their claim. The parents rejected this award and moved forward with filing their medical malpractice claims against the Tallahassee Memorial Regional Medical Center ("TMRMC").

When counsel for the TMRMC learned of the parents intent to reject the ALJ's award and sue instead, they immediately filed an emergency motion for appointment of a guardian ad litem. The trial judge said no and they petitioned the First DCA for writ of certiorari seeking review of the trial court's non-final order. The First DCA upheld the trial court's decision on two grounds. First, the defendants failed to demonstrate that the child's parents were not acting in the best interests of their child. Second, in the absence of clear evidence indicating a conflict of interest, imposing a guardian ad litem would be a violation of the parents' constitutional privacy rights.

The following are excerpts from the linked-to opinion addressing the two grounds put forward by the First DCA as underlying its decision:

Lack of Conflict of Interest:

"TMRMC fails to demonstrate that the interests of the Petersens are so adverse to that of Jennifer as to require the appointment of a guardian ad litem. The mere decision to proceed in an attempt to gain fuller recovery for the child is not, even in the face of some risk, tantamount to an adverse interest. By filing the complaint for medical malpractice in circuit court, the Petersens sought monetary damages for bodily injury including pain and suffering, and other general damages. These claims are not adverse to Jennifer's interests. Indeed, the facts as presented indicate that the interests of Jennifer coincide fully with the interests of the parents. Cf. Mistretta v. Mistretta, 566 So.2d 836 (Fla. 5th DCA 1990) (holding that child's interests were properly represented by mother where mother sought payment of child support from former husband who held himself out to others as the child's father)." (Emphasis added.)

Constitutional Privacy Rights:

"The Florida Supreme Court has repeatedly held that natural parents have a right to make decisions about their child's welfare without interference by third parties. See generally Von Eiff v. Azicri, 720 So.2d 510 (Fla.1998). In Von Eiff, the Florida Supreme Court held that "[n]either the legislature nor the courts may properly intervene in parental decision-making absent significant harm to the child threatened by or resulting from those decisions." 720 So.2d at 514. As discussed above, TMRMC does not show that any significant harm to the child will result from the Petersens' decision to waive the compensation award under the Act and seek further damages in the circuit court action. TMRMC has merely shown that the Petersens' election of a civil remedy has some risk and does not preserve the guaranteed return of the administrative compensation award. This is an insufficient basis upon which to invade the Petersens' fundamental parental privacy rights." (Emphasis added.)

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Smith v. Smith, 2005 WL 3555852 (Fla. 5th DCA Dec 30, 2005)

In this case counsel for the ward argued that as a matter of law where, as happened here, there is conflicting expert testimony regarding a person's mental competence, the trial court is precluded from finding that there is "clear and convincing evidence" to support a finding of incapacity, as required by F.S. § 744.331(6). Orange County Judge Lawrence R. Kirkwood didn't buy this argument, and neither did the Fifth DCA, holding as follows:

Although the two experts hired by the defense disagreed with the conclusions drawn by the examining committee, this conflict in the evidence does not preclude a finding that the evidence of incompetency was clear and convincing. Nor would conflicts in the evidence require the court to find a lack of clear and convincing evidence. A similar problem existed in Manassa v. Manassa, 738 So.2d 997, 997 (Fla. 1st DCA 1999). In rejecting the argument that conflicts in the evidence precluded a finding of incompetency, the court explained:

In the case at bar, the record is replete with conflicting medical reports and testimony regarding Manassa's competence. It is the purview of the trial court to determine the credibility and weight of the evidence. See LeWinter v. Guardianship of LeWinter, 606 So.2d 387, 388 (Fla. 3d DCA 1992). This court will not reweigh the testimony and evidence, or substitute its judgment for that of the trier of fact. See In re Adoption of Baby E.A.W., 658 So.2d 961, 966 (Fla.1995). The trial court noted that, with the exception of the examining committee which has seen hundreds of cases to determine incapacity, the medical reports were from physicians who are not professionals in mental health care proceedings. The examining committee opined that Mr. Manassa was incapacitated, and it recommended appointment of a plenary guardian. The trial court weighed the evidence and accepted the recommendation of the examining committee.

Id. at 997-998.

In Shaw v. Shaw, 334 So.2d 13 (Fla.1976), the court said that appellate courts have a right to reject "improbable testimony or evidence." Id. at 16. However, this case does not involve improbable testimony or evidence. It involves multiple experts with competing views, and the court found the evidence of the four experts appointed by the court to be "clear and convincing evidence," which the court properly could do.

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Any time an attorney writes himself or one of his relatives into a client's will, red flags should shoot up all over the place. If this same attorney is also cutting the testator's family out of the will, the ethical and legal issues become so thick the attorney is almost guaranteeing future litigation over the will. That's exactly what happened in a St. Petersburg, Florida, case, as reported in this newspaper story. Here are a few excerpts from that story:

The millionaire walked into the St. Petersburg law office.

Harry Lieffers Jr., 76, looked over a five-page document and, with a few strokes of a pen, cut his two daughters and stepson out of his will.

On that October day in 2003, Lieffers decided that his roughly $1.5-million estate would be divided equally among two people: His 43-year-old real estate agent and the agent's 22-year-old girlfriend.

"I wish to reward them for the kindness they have shown me," the will said.

The attorney who drafted the will was the girlfriend's uncle.

The document, filed after Lieffers' death last month, is the latest point of contention in a two-year battle over Lieffers' health and estate.

Lieffers' children say he was vulnerable because of dementia and Alzheimer's disease. They say his real estate agent, Gerard Growney, and the attorney, Alan Watson, took advantage of Lieffers.

The family has filed a complaint against Watson with the Florida Bar and plan to contest the will.

* * * *

Lieffers' children know a lengthy court battle may wipe out all of the funds, but they believe Lieffers would have wanted them to push forward.

"If we ever needed Dad, he was there for us," said daughter Reibel. "We will continue to be there for him, to preserve his last wishes now that he is gone." (Emphasis added.)

Did Drafting Attorney Violate Florida Bar Ethics Rule?

Based on the linked-to story, the answer appears to be NO. Rule Reg. Fla. Bar 4-1.8(c) prohibits an attorney from preparing an instrument giving the attorney or a person "related" to the attorney any substantial gift from a client, including a testamentary gift, unless the client is related to the proposed donee. An attorney's niece or nephew is not considered "related" for purposes of this rule. The Florida Bar will have to grapple with this case, but the overriding question for all concerned should be "why get caught up in this mess to begin with?"

Contested Guardianship Proceeding as Precursor to Probate Litigation

One final note, if you read the linked-to story you'll note this family drama started out as a contested guardianship proceeding, emphasizing once again the remarks I've made (see here and here) regarding how these types of proceedings usually end up being precursors to probate litigation. Perhaps if someone had sought discovery of Mr. Lieffers' will as part of the contested guardianship proceedings the parties would have found out about his will's controversial dispositive provisions before his death and worked out these issues while he was still around to comment.

Source: Thanks to Heraldblog@gmail.com for brining this item to my attention!

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When I wrote here about the brewing probate dispute involving Rosa Park's estate, I mentioned that contested guardianship proceedings are often simply precursors to the real battle: probate litigation. An on-going guardianship dispute that is now receiving national attention, as described in this New York Times article, also highlights a second issue driving many guardianship disputes: forum shopping. In this case, the family is split over whether a court in Texas or one in New Jersey should have jurisdiction over the dispute. The following are a few excerpts from the New York Times article:

Lillian Glasser, by all accounts, never intended to spend her twilight years in Texas. Or her $25 million fortune.

Beyond the personal drama, the case highlights the checkerboard practices of local probate courts, which govern the transfer of property from people who die or are declared incompetent. The courts are not federally regulated, but in response to a growing number of interstate disputes, the National Conference of Commissioners on Uniform State Laws is drafting nationwide probate standards similar to those in the field of child custody.

"These cases are popping up all over the country," said Terry Hammond, executive director of the National Guardianship Association, a nonprofit group of lawyers, social workers and other professionals seeking uniform standards. "The combination of the mobile character of society plus the demographics of an aging population combine to create a potentially volatile situation," said Mr. Hammond, a lawyer in El Paso who briefly represented Mrs. Glasser's son in the Texas dispute.

To Russell Verney, an investigator with Judicial Watch, which has been studying probate courts, the issue boils down to "forum shopping."

"In my opinion," Mr. Verney said, "this is a case about a resident of New Jersey who amassed her fortune in New Jersey and never indicated any interest in subjecting herself or her estate to the probate laws of Texas. If anyone has jurisdiction, it should be the State of New Jersey."

Sharon B. Gardner, a Texas lawyer representing Ms. Glasser's daughter and former guardian, Suzanne Matthews, has responded publicly to the charges being made against her client (and the jurisdiction of the Texas courts) in an e-mail message published here on the Wills, Trusts and Estates Prof Blog.

As reported here, in the latest turn of events the case has wound up in Federal Court, where a judge ruled yesterday. Here are a few excerpt from the linked-to story describing the judge's ruling:

In a sharply worded order that spanks the squabbling children of Lillian Glasser, the 85-year-old New Jersey woman mired in a nasty Texas probate struggle, U.S. District Judge Fred Biery took over a chunk of the complex case Wednesday.

Calling the dispute a "legal fratricide" between sibling rivals that has consumed millions of dollars in attorneys' fees, Biery's order said "the end result ... is the creation of a Glasser chess game in which Mrs. Glasser has become a pawn."

His ruling sends parts of the case back to Bexar County Probate Court where a trial will be held over who should become the guardian of Glasser and her $25 million estate. But because the principal parties come from three states, Biery kept control over other issues.

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Wilson v. Robinson, 2005 WL 3499495 (Fla. 5th DCA Dec 23, 2005)

F.S. § 744.312 lays out the statutory preferences and factors applicable in Florida regarding the appointment of guardians. In this case Robert Wilson appealed an order entered by Seminole County Judge James E.C. Perry denying his petition to be appointed plenary guardian of his wife, Beverly Wilson (who was incapacitated due to Alzheimer's disease), and, instead, appointing their daughter, Bambi Robinson, to serve as Ms. Wilson's guardian.

Although unclear from the opinion, it appears Ms. Wilson expressed a preference for the appointment of her husband as her guardian. On appeal, the Fifth DCA upheld the trial court's appointment of Ms. Wilson's daughter as plenary guardian based on the following:

"[I]n guardianship cases, as in other cases, discretionary acts are subject to the test of reasonableness, i.e., they must be supported by logic and justification for the result and founded on substantial, competent evidence." In re Guardianship of Sapp, 868 So.2d 687, 693 (Fla. 2d DCA 2004) (citing In re Guardianship of Sitter, 779 So.2d 346, 348 (Fla. 2d DCA 2000)); see generally Canova v. Smith ex rel. S.G.S., 854 So.2d 852 (Fla. 5th DCA 2003) (upholding a guardianship decision because it was supported by substantial competent evidence). Discretion is abused when no reasonable person would take the view adopted by the trial court. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980).

The trial court's discretion in the selection of a guardian has been described as "limited discretion" in the sense that it must be exercised consistent with the Florida Statutes. See Poteat v. Guardianship of Poteat, 771 So.2d 569, 572 (Fla. 4th DCA 2000) (citing In re Castro, 344 So.2d 270, 271 (Fla. 4th DCA 1977)). (Emphasis added.)

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K.A.S. v. R.E.T., 2005 WL 3179763 (Fla. 2d DCA Nov 30, 2005)

In the latest round in the battle by grandparents to obtain legal visitation rights with their grandchildren, the Second DCA held that guardians do not enjoy the same constitutional privacy rights natural parents enjoy regarding the care and custody of their children. As such, the constitutional privacy rights that have been the undoing of various legislative efforts to establish grandparent visitation rights in Florida simply do not apply. Bottom line, a Florida probate court has the legal authority to mandate grandparent visitations if such family contact is in the best interest of the ward.

The Second DCA explained the rationale underpinning its decision as follows:

The probate court's reliance on Sullivan and similar cases that have invalidated grandparent visitation statutes assumed that the appointment of the Ward's maternal grandparents as the guardians of his person transferred to them the parents' fundamental liberty interest to raise their children free from state interference in the absence of a compelling state interest. But the appointment of the Ward's maternal grandparents as the guardians of his person did not bestow upon them the constitutional privacy interest that natural parents enjoy regarding the care and custody of their children. See M.G. v. R.V., 58 P.3d 1145, 1147 (Colo.Ct.App.2002); In re Joshua S., 260 Conn. 182, 796 A.2d 1141, 1155-57 (Conn.2002); Casper v. Bushman (In re Guardianship of Wemark), 525 N.W.2d 7, 9 (Iowa Ct.App.1994); Luby v. Da Silva (In re Brown), 153 Wash.2d 646, 105 P.3d 991, 994 (Wash.2005). Therefore, Sullivan and the other cases that address grandparent visitation statutes are not controlling here. Likewise, a stepparent, custodian, guardian, or other person standing in loco parentis to a child does not acquire all of the rights or assume all of the obligations of a natural parent. It follows that a guardian of the person of a minor does not have the exclusive right that a natural parent would have to determine what persons may visit the child. See Reynolds, 141 P.2d at 503; Casper, 525 N.W.2d at 9; Luby, 105 P.3d at 994. In this case, the Guardians of the Person enjoy the care and custody of the Ward not because of the natural bond between parent and child but, rather, by virtue of their appointment by the probate court. Because the Guardians of the Person function as an arm of the probate court, they are subject to its supervision and control in the best interests of the Ward concerning what persons may visit him. (Emphasis added)

As this 2003 AARP article makes clear, grandparent visitation rights have been hotly contested in various states. This opinion is sure to draw much attention from advocates on both sides of this debate.

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Snell v. Guardianship of Snell, 2005 WL 3159591 (Fla. 1st DCA Nov 29, 2005)

In the rush to "do the right thing" in guardianship proceedings, sometimes little niceties such as "due process" get overlooked. In this case Duval County Judge Jean M. Johnson ruled on a fee petition filed pursuant to F.S. § 744.108(1) by counsel for a former guardian. The former guardian did not attend the fee-petition hearing (although he received notice of the hearing, there was no indication that he might be surcharged), and during the course of the hearing there was absolutely no discussion regarding possibly surcharging the former guardian for overpayments.

The trial judge subsequently ruled that because the amount of fees and costs being awarded was less than the amount already paid to counsel, the overage could be recovered directly from the former guardian. The First DCA reversed noting that under Florida Probate Rule 5.025 proceedings to surcharge a guardian are treated as adversary proceedings requiring formal notice and an opportunity to be heard.

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A long-simmering feud between the family of civil-rights icon Rosa Parks and the people who cared for her at the end of her life has erupted into a court fight over her estate. The Wall Street Journal first ran a story on this unfortunate turn of events here, although a later story reported by the Detroit News here seems to indicate an amicable settlement may be within sight.

Most probate litigators also handle contested guardianship proceedings. This is not by coincidence. Unresolved guardianship disputes have a way of spilling over after a person's death. Ms. Park's story is all too common. The best way to manage these disputes is to work through them at the first available opportunity. Ignoring unresolved grievances while a person is under the care of a guardian wont make them go away. They simply come back around again as probate litigation.

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The LA Times recently reported here on the bitter and lengthy on-going litigation involving a $400 million testamentary trust between the decedent's third ex-wife (who also happens to be the guardian of the 13 year old boy who is the principal beneficiary of the trust) and the trustees. Battles over how an estate is administered, be it a probate estate being administered by a personal representative or a trust estate being administered by one or more trustees, are far and away the leading causes of probate litigation. These disputes are foreseeable, and can be mitigated (although not eliminated) with proper planning.

Source: Wills, Trusts and Estate Prof Blog

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Department Of Children And Families v. Coll, 2005 WL 1959190 (Fla. 4th DCA August 17, 2005) (Trial Court Reversed)

The Florida Department of Children and Families ("DCF") isn't always the easiest government agency to deal with. As one family learned in this case, they have their own ways of doing things, and not even a court order can change that.

In guardianship proceedings initiated by the mother of an adult son who is cognitively impaired and autistic, Palm Beach County Judge Gary L. Vonhof attempted to expedite DCF's evaluation process of the ward by entering an order compelling the DCF to determine if the ward was eligible for developmental services and to appear at a status conference to report on its findings. One problem though, DCF wasn't a party to these proceedings, which means the court didn't have the authority to order them to do anything. The DCF petitioned the Fourth DCA for a writ of prohibition challenging the circuit court's order, and the Fourth DCA agreed: it held that the circuit court had exceeded its authority under Ch. 744 (Florida's guardianship statutes), it thus quashed the order and provided the following guidance for families seeking DCF services in the future:

The statutes requires one seeking developmental services to submit a written application to DCF. See § 393.065(1), Fla. Stat. (2005). DCF is required to notify the applicant of its eligibility determination. See § 393.065(3), Fla. Stat. (2005). DCF's decision is subject to an administrative appeal. There is no requirement that DCF notify a court or any counsel in guardianship proceedings of its determination.

Nothing in the guardianship statutes authorizes the court to create its own procedure for assessment for developmental services, and there is no evidence that DCF has failed to comply with its obligations under section 393.065.

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Blankfeld v. Richmond Health Care, Inc., 2005 WL 1226070 (Fla. 4th DCA May 25, 2005) (Trial Court Reversed)

In what will surely be a disturbing decision to all Florida nursing home administrators, the Fourth DCA just made it a lot tougher to avoid trials in nursing home cases. First, the Fourth DCA held that an arbitration clause administered by the American Health Lawyers Association "substantially limits the remedies created by [F.S. § 400.023(2)] and is [thus] void as contrary to public policy." Second, the Fourth DCA held that even if the AHLA's arbitration clause were enforceable, which it's not, a person acting under the health care proxy authority granted by F.S. § 765.401 can only make "health care decisions," and agreeing to arbitration is not a health care decision. If a nursing home wants to bind an incapacitated patient to a valid arbitration clause, it will have to seek the appointment of a temporary guardian pursuant to F.S. § 744.3031(1) to sign the agreement. As the concurring opinion put it . . .

If a nursing home wants to deal with someone competent to make such decisions, it has the right to seek the appointment of a guardian. For only a court appointed guardian could waive or compromise property rights, such as civil remedies in negligence or the right to trial by jury.

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Thanks to the Legacy Matters blog for posting this link to an excellent article in the New York Review of Books by Joan Didion tracing the history of the Terry Shiavo case through all its twists and turns. Highly recommended.

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Thanks to Florida blog Abstract Appeal for identifying this Corporate Counsel article discussing how in-house hospital attorneys are bracing themselves for new legislation in the aftermath of the Terri Schiavo case that could make it tougher to remove someone from life support. For example, Louisiana and Alabama are considering laws that would prohibit doctors from removing feeding tubes or other means of nutrition and hydration, even with the consent of a guardian. Kansas is considering a change that would compel guardians to seek court permission before withholding food or water. Michigan is weighing a law that would bar anyone having an extramarital affair from making life support decisions for his or her spouse.

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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. § 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.

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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.

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In re Guardianship of J.D.S., 864 So.2d 534 (Fla. 5th DCA Jan. 9, 2004) (TRIAL COURT AFFIRMED)

Is a fetus a "person"? In the latest chapter of Florida's fetal rights debate, the 5th DCA held that in the context of Florida's guardianship law, the answer is no.

Orange County Circuit Court Judge Lawrence R. Kirkwood denied Jennifer Wixtrom's petition to be appointed guardian of the fetus of "J.D.S.," a 22-year old woman suffering from severe mental retardation that was pregnant as the result of a rape that occurred while she was in the care of the Department of Children and Families ("DCF"). Ms. Wixtrom's petition was denied and she appealed.

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