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

In re Guardianship of Ansley, 94 So.3d 711 (Fla. 2d DCA August 17, 2012)

As I recently wrote here, a judge's attorney's fee order is automatically subject to reversal if it doesn't contain detailed findings of fact explaining why and how the judge arrived at his or her final fee-award conclusions.

Transparency in this context is not a luxury; it's the bare minimum we have a right to expect of our judiciary. Here's how our supreme court articulated this crucially important point in Fla. Patient's Comp. Fund v. Rowe, 472 So.2d 1145 (Fla.1985):

[G]reat concern has been focused on a perceived lack of objectivity and uniformity in court-determined reasonable attorney fees. Some time ago, this Court recognized the impact of attorneys' fees on the credibility of the court system and the legal profession when we stated:

There is but little analogy between the elements that control the determination of a lawyer's fee and those which determine the compensation of skilled craftsmen in other fields. Lawyers are officers of the court. The court is an instrument of society for the administration of justice. Justice should be administered economically, efficiently, and expeditiously. The attorney's fee is, therefore, a very important factor in the administration of justice, and if it is not determined with proper relation to that fact it results in a species of social malpractice that undermines the confidence of the public in the bench and bar. It does more than that. It brings the court into disrepute and destroys its power to perform adequately the function of its creation.

Baruch v. Giblin, 122 Fla. 59, 63, 164 So. 831, 833 (1935).

Can a judge cut your attorney's fees in a contested guardianship proceeding without explaining why? NO

Turning now to the linked-to case above. In this contested guardianship proceeding the former guardian's attorney's fees were contested. As explained by the 2d DCA, at the end of the fee hearing the petitioning attorney submitted a proposed fee order containing the kind of detailed findings of fact necessary for a properly drafted fee order. In other words, the petitioning attorney did his job. The trial judge then simply crossed out the $21,694.52 figure reflected at the end of the proposed fee order and wrote the amount of $16,520 above it. The trial judge gave no explanation for why he reduced the fee request by almost 1/4 or $5,174. In other words, as explained by the 2d DCA, the trial judge did not do his job.

The amount that the circuit court authorized the guardian to pay Mr. Martin is obviously less than the sum supported by the findings in the order concerning the reasonable hourly rates, the time expended, and the expenses incurred. Undeniably, there is an internal inconsistency in the order; the amount of fees and expenses awarded does not equal the amount of fees and expenses that the circuit court found were reasonable. 

. . .

A comparison of the amount of the actual award in the order under review and the amount requested by Mr. Martin indicates that the circuit court intended to award less than the full amount sought in the petition. However, we do not know what led to the circuit court's ruling. The above-noted internal inconsistency in the order results in the lack of any meaningful findings concerning the reasonable hourly rates and the number of hours compensated. The order also omits any statement of other factors that the circuit court considered in reducing the amount requested. These deficiencies make it impossible for this court to engage in meaningful appellate review of the order on appeal.  . . . 

In short, we are unable to determine the basis for the circuit court's award. It follows that we also cannot determine whether there is competent, substantial evidence in the record to support the award. Accordingly, we reverse the order under review. . . . We remand for the circuit court to enter a new order that sets forth the basis for the award, including the hours determined to be compensable, the hourly rate, and the other factors considered in arriving at the award. . . . The order must also itemize the costs allowed.

The 2d DCA obviously reached the right conclusion; all they're doing is telling the trial judge to explain his ruling. Which is why it was disappointing to read Judge Villanti's special concurrence in which he makes clear he doesn't really understand why it's so important for judge's to explain their fee rulings.

While Mr. Martin is entitled to ask the court to specify exactly why it chose the amount it did, what is really to be gained in so asking? In my view, a request for an order that identifies how Mr. Martin overcharged the ward's estate in the hopes that the trial court will suddenly agree that it abused its discretion in not awarding the full amount requested in the first instance is simply fodder for further litigation and a second appeal.

Respectfully, does Judge Villanti not understand that the amount of the fee ruling isn't the point of the majority's opinion (if properly drafted, the amount of a fee order is almost untouchable on appeal); what really matters in terms of this appellate decision is the message it sends to trial judges: how you explain your fee rulings is just as important as what your final rulings are. In fact, as stated by our supreme court, not explaining yourself in a fee order is "a species of social malpractice" that "brings the court into disrepute and destroys its power to perform adequately the function of its creation." So yes, there is much to be gained by sending this case back to the trial judge and ordering him to please explain the basis of his ruling.

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Albelo v. Southern Oak Ins. Co., --- So.3d ----, 2013 WL 440199 (Fla. 3d DCA February 06, 2013)

Durable powers of attorney (DPOA's) empower disabled or incapacitated adults to manage their business and personal affairs privately and without court supervision. This includes handling litigation. That's the law. If you don't like it, get the law changed . . . but don't try to wish the issue away by making frivolous arguments in court.

In In re Estate of Schiver, 441 So. 2d 1105 (Fla. 5th DCA 1983), the 5th DCA held that an attorney-in-fact acting pursuant to a properly drafted DPOA could elect the principal's right to an elective share. According to the 5th DCA:

[DPOA's have] the beneficial effect of avoiding the time, expense and embarrassment involved in having to establish guardianships for incompetent persons. . . . The holder of a [DPOA] is appointed by the donor of the power, and essentially performs the same functions as would a court appointed guardian. While not a “guardian” in the legal sense, the attorney in fact has fiduciary duties similar in nature.

In Smith v. Lynch, 821 So. 2d 1197 (Fla. 4th DCA 2002), the 4th DCA upheld a probate judge's refusal to appoint a guardian for a legally incapacitated adult who had previously executed a valid DPOA. According to the 4th DCA "the appointment of a guardian would serve no useful purpose and would unnecessarily interfere with the family.” In support of its decision, the 4th DCA cited F.S. 744.344, which provides that an “order appointing a guardian must be consistent with the incapacitated person's welfare and safety, must be the least restrictive appropriate alternative, and must reserve to the incapacitated person the right to make decisions in matters commensurate with the person's ability to do so.”

Bottom line, our legislature intended DPOA's to be private, non-court supervised, less restrictive alternatives to guardianships. This is basic stuff for Florida probate lawyers. But is it so basic it's frivolous to even argue otherwise? YES.

3d DCA: 57.105 sanctions triggered by arguing against DPOA and for guardianship:

In the linked-to case above a 78-year old woman executed a valid DPOA in favor of her son. Acting under the authority of this DPOA, son sued mom's property-insurance company (Southern Oak Insurance Company) seeking to recover damages to mom's home caused by a burglary. By the time son filed suit on mom's behalf it was undisputed she was suffering from age-related cognitive disabilities. According to Southern Oak this meant mom's claim could only be prosecuted by a court-appointed guardian. For reasons unexplained in the 3d DCA's opinion, Southern Oak somehow convinced the trial judge to buy into its argument, resulting in a dismissal of mom's lawsuit. This is the kind of ruling that drives probate lawyers nuts. On appeal, it apparently  struck a nerve with the 3d DCA as well (in a bad way!).

This is an appeal by an octogenarian, Maximiliana Albelo, from a trial court order dismissing her premises liability complaint with prejudice, for failure to file a petition in probate to determine her own incapacity. We summarily reverse the order on appeal and grant Albelo's motion for an award of appellate attorney fees pursuant to section 57.105(1), Florida Statutes (2011). We write only to explain the reasons for our award of sanctions against Southern Oak Insurance Company and its counsel.

This is a garden-variety premises liability claim brought by Albelo for damages to her home caused by a burglary. The burglary and the existence of a loss are conceded. It is equally undisputed Albelo suffers from age-related cognitive disabilities. Although Southern Oak did not receive notice of the claim until more than a year after the burglary, the company paid $1690 on her claim. A few months later, Albelo filed a sworn proof of loss, supported by a public adjuster's estimate in the amount of $57,760.66. Southern Oak is of the view the sworn claim is fraudulent and instigated not by Albelo, but rather by her son. Southern Oak also is concerned about the binding effect a judgment obtained by Albelo might have against it in the future.

Albelo responds that in April 2007—one month before the burglary, when she was seventy-eight years old—she duly executed a Durable Power of Attorney (DPA) in favor of her son. Section 709.2119, Florida Statutes (2012), regulating powers of attorneys and similar instruments, provides explicit protection to Southern Oak in the circumstances of this case. It states:

(1)(a) A third person who in good faith accepts a power of attorney that appears to be executed in the manner required by law at the time of its execution may rely upon the power of attorney and the actions of the agent which are reasonably within the scope of the agent's authority and may enforce any obligation created by the actions of the agent as if:

1. The power of attorney were genuine, valid, and still in effect;

2. The agent's authority were genuine, valid, and still in effect; and

3. The authority of the officer executing for or on behalf of a financial institution that has trust powers and acting as agent is genuine, valid, and still in effect.

§ 709.2119. Southern Oak does not contest the formalities of execution and has not sought to rescind the power of attorney on the ground Albelo was incompetent at the time she executed the document. Southern Oak's and its counsel's persistence in arguing Albelo was required to seek a guardian for herself as a condition of continuing this action was frivolous.

Added Bonus:

For those of you caught up in a similar case, you may find the research reflected in the Appellant's winning Initial Brief on appeal helpful.

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Jasser v. Saadeh, 97 So.3d 241 (Fla. 4th DCA July 18, 2012)

Karim Saadeh, now in his eighties, emigrated from Jordan with his wife and lived the American dream: he raised a family of three children and became a very successful businessman. Saadeh and his wife were wealthy at the time of his wife's death in 2007. After his wife's death, Saadeh met a younger woman through one of his wife's relatives. Apparently, his children weren't happy about the new girlfriend. When they found out he was loaning her money, they took matters into their own hands, admittedly transferring "over a million dollars" from his bank accounts (they had co-signing authority) to accounts they controlled alone. And according to their father, that's not all they did:

Saadeh was upset when he discovered that his children had drained his accounts. Around the same time, he discovered that substantial money and jewelry located in a safe were missing. Because his children had the combination to his safe, he suspected that they had likewise taken these assets. He called the police, who then made a report of the theft. In the report, the children denied taking the money and jewelry from the safe; however, they admitted transferring the monies from the bank accounts. The police report states that the officer found that Saadeh appeared in control of his faculties. Still angry about what he considered his children's deceit, Saadeh removed his remaining funds from the bank to prevent his children from acquiring more of his money.

If you're wealthy, old, your memory is failing (whose isn't?), and your children are worried about your new girlfriend getting her hands on "their" inheritance, here are the facts of life:

1. At some point one or all of your children will probably sue to have you adjudicated mentally incapacitated (which means you lose control of your money); and
2. No matter what you've heard about how totally screwed up a guardianship proceeding can get if there's enough money at stake . . . real life can be far worse. This dog's breakfast of a case is a prime example.

When Saadeh's lawyer sent his children a letter demanding they return their father's money and presumably also threatening an "or else" (and yes, there is an "or else," click here, here), they fought back by (surprise!) filing a petition to have dad adjudicated incapacitated.

For reasons not important to the ultimate outcome of this case, the judge authorized two separate rounds of examining committee evaluations. That's six separate examiners. One died before he could submit his report (again, how/why is not important to the case). Here's the important part: the other five examining committee members were unanimous . . . Saadeh was legally competent. Unfortunately, dad was put through the ringer before exiting a free man at the other end of this case.

The "prisoner's dilemma" as metaphor for settlement agreements in guardianship litigation:

In trusts and estates litigation parties are eventually confronted with the following stark reality: it doesn’t matter how “right” you are, the costs, heartache, and uncertainties inherent to actually litigating your case through to trial can be worse than simply paying the other side to make it all go away. That’s the choice Saadeh was presented with by his children: agree to our terms and get your life back. The way the deal was structured was that Saadeh would sign a trust agreement and other documents transferring all of his earthly belongings to an irrevocable trust controlled by a third party trustee. Under the trust agreement Saadeh was the sole lifetime beneficiary and his children were the remainder beneficiaries. In other words, to get his life back, dad had to agree to an immediate irrevocable gift of a remainder interest in all he owned to his children and he had to agree to give up control of his own money for the rest of his life.

Here’s how the standard settlement logic breaks down in guardianship litigation. As a matter of law, while dad is subject to a guardianship he lacks the legal right to contract (the guardianship strips him of that right). Because dad can’t sign a contract, his children have no legal certainty he’ll live up to his side of the bargain until after they’ve agreed to terminate the guardianship. In other words, all sides have to trust each other. The “dilemma” faced by the parties is that, whatever the other does, each is theoretically better off reneging on its side of their non-legally-binding bargain (dad can take 100% of his property back once the case is dropped; children can be 100% sure dad can never take his property back by keeping the guardianship in place indefinitely after dad signs trust). However, assuming a fair deal, the outcome obtained if both sides renege is worse for everyone (no one’s guaranteed to get what they want; litigation continues) than the outcome obtained if both sides honor their bargain (both sides guaranteed to get some of what they want; end of litigation). This is a classic example of the “prisoner's dilemma.” This kind of deal is based on trust (not a binding contract), so it won’t work if one side believes it wasn’t treated fairly or was pressured into something it never really wanted. Unfortunately, that’s what happened in this case.

According to the 4th DCA, when the trial court entered an order authorizing the trust "it was not informed of catastrophic gift tax consequences if the trust was created, nor was it informed that the trust could not be revoked by Saadeh himself." Also, although the facts surrounding creation of the trust were "disputed," Saadeh: 

. . . continually testified that he was misled as to the terms of the trust and that his execution was not voluntary. He was told that the execution of the trust was the only way he could end the guardianship proceedings and get his life back to normal. . . .

[Saadeh's] court-appointed attorney . . . admitted that he told him that if he signed the trust, the proceedings would be over.

After Saadeh's legal rights were reinstated he, not surprisingly, attacked the trust he'd signed prior to termination of the guardianship proceeding. Again not surprisingly, the trial court ruled in his favor. According to the trial judge the trust was void because at the time Saadeh signed the trust agreement he lacked the legal right to pretty much do anything . . . including signing a contract. Here's how the 4th DCA connected the legal dots:

We agree with the trial court that when the court conferred the ward's rights on the ETG, it removed them from the ward; both cannot simultaneously exercise those rights. Section 744.3031(1) provides that the court shall specify the rights to be exercised by the ETG. In this case, the order delegated to the ETG all legal rights, reserving only the right to vote to the ward. Thus, the court removed the ward's right to contract. The fact that the court removed his right to contract was specifically discussed not only in the original hearing appointing the ETG but in almost every other hearing thereafter.

. . .

As found by the trial court in granting summary judgment, at the time of the execution of the trust, the right to contract had been removed from Saadeh, as the parties acknowledged to the court the day that the trust was signed. Section 736.0402(1), Florida Statute (2008), provides that “[a]trust is created only if: (a) the settler has capacity to create a trust.” § 736.0402(1)(a), Fla. Stat. (2008) (emphasis added). Thus, because Saadeh had no legal right to execute the trust, the trust was invalid and void. The trial court's ruling was correct. 

Jasser v. Saadeh, --- So.3d ----, 2012 WL 6601383 (Fla. 4th DCA December 19, 2012)

I’m guessing Saadeh's children were caught flat footed by their father’s success in unwinding a “deal” they probably believed was final. If dad were a regular litigant, they’d be right: settling parties are bound by the deals they agree to. But dad wasn’t a regular litigant; he was the “ward” of the court-appointed ETG. You can’t have it both ways in guardianship litigation. Either the ward is incapacitated or he’s not. He can’t be incapacitated for purposes of the threat of ongoing litigation, but NOT incapacitated for purpose of your settlement agreement. Anyway, not willing to leave well enough alone, the children filed a separate declaratory judgment action seeking to force dad to live by the trust agreement the judge had just set aside in the guardianship proceeding. Again the trial judge ruled against them, this time on res judicata grounds. In a separate opinion linked-to above, the 4th DCA again sided with the trial judge. Here’s why:

This Court has explained that “[f]our identities are required for res judicata to be applicable to a case: ‘(1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of the persons and parties to the actions; and (4) identity of the quality or capacity of the persons for or against whom the claim is made.”’ Tyson v. Viacom, Inc., 890 So.2d 1205, 1209 (Fla. 4th DCA 2005) (quoting Freehling v. MGIC Fin. Corp., 437 So.2d 191, 193 (Fla. 4th DCA 1983)).

In this action all four identities are present. As to identity of the thing sued for, the children sued to establish the validity of a trust over the assets of their father in both the prior proceeding and this proceeding. As to identity of the cause of action, they sought a declaratory judgment to determine the validity of the trust executed by Saadeh and the management of the trust assets. At the least, the claims they raise in the second suit could have been brought in the first suit and could have been properly litigated in that suit.

As to the identity of the persons and parties to the action, in the first case, they sued individually, and in this case they sued in their capacity as trustees. “The term ‘parties' has frequently been given a much broader coverage than merely embracing parties to the record of an action[.]” Seaboard Coast Line R.R. Co. v. Indus. Contracting Co., 260 So.2d 860, 863 (Fla. 4th DCA 1972). As the supreme court explained later, “[f]or one to be in privity with one who is a party to a lawsuit or for one to have been virtually represented by one who is party to a lawsuit, one must have an interest in the action such that she will be bound by the final judgment as if she were a party.” Stogniew v. McQueen, 656 So.2d 917, 920 (Fla.1995) (citing Se. Fid. Ins. Co. v. Rice, 515 So.2d 240 (Fla. 4th DCA 1987)). The children, as trustees, fit within that broad definition. While the children also added their father's corporation as a defendant because it was an asset of the void trust, it too can be considered a party for res judicata purposes.

Finally, the quality and capacity of the persons for and against whom the claim is made remain the same. In this case, the “real party in interest” on each side remained the same. We conclude that the court did not err in dismissing on the ground of res judicata.

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Faulkner v. Faulkner, --- So.3d ----, 2011 WL 2937302 (Fla. 1st DCA Jul 22, 2011)

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 this blog has covered in two prior cases [click here, here]. The judiciary's consistent call has been for statutory reform to fill this "gap"; unfortunately we're still waiting.

Case Study:

In this case a woman's children filed a petition to determine her incapacity. The trial court ultimately dismissed the petition, but found that the children had filed it in good faith, and ordered their mother to pay the examining committee fees, among other costs. Mother appealed.

F.S. 744.331(7)(b) provides that the examining committee’s fees “shall be paid by the guardian from the property of the ward or, if the ward is indigent, by the state.” The 1st DCA noted, “this seems to presume that the petition for incapacity is granted and a guardian is appointed.” F.S. 744.331(7)(c) allows the court to charge the petitioner to assume the committee’s fees “if the court finds the petition to have been filed in bad faith.”

As we all know by now, and the 1st DCA pointed out again, there’s quite a gap between the two subsections: who pays the examining committee’s fees when the petition was found to have been filed in good faith (or there is no finding of bad faith), but ends up dismissed?

Rather than trying to stitch the two sections together, the 1st DCA focused on the fact that the trial court had appointed an emergency temporary guardian for the mother; this indicated that she “was a ward during the pendency of the incapacity proceeding.” This was sufficient, in the 1st DCA’s view, to justify holding her responsible for the examining committee’s fees (hint to guardianship litigators: when in doubt, get a temporary guardian appointed). All's well that ends well, but what we really need is a statutory fix. Here's how the 1st DCA summarized the current -- unsatisfactory -- state of the law, and how it ultimately justified the trial court's fee ruling:

In Ehrlich v. Severson, the Fourth District reversed an order requiring the alleged incapacitated person to pay the examining committee's fees because “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.” 985 So.2d 639, 640 (Fla. 4th DCA 2008) (citing section 744.331(7), Fla. Stat.). The court noted that there was a “gap” in section 744.331(7) where a good faith petition is denied or dismissed, and it urged the Legislature to amend the statute to specify who pays the examining committee's fees in these circumstances. Id. at 640 n. 1. Although the court did not specify the party responsible for paying the examining committee fees, the court, in a subsequent decision involving the same appellant, determined under the same statute that “any award of fees incurred by counsel appointed to represent the subject must come, if at all, from the petitioner.” Ehrlich v. Allen, 10 So.3d 1210, 1211 (Fla. 4th DCA 2009) (emphasis supplied).

In [Levine v. Levine, 4 So.3d 730, 731 (Fla. 5th DCA 2009)], the Fifth District reversed an order requiring the petitioner to pay the examining committee fees where the petition to determine incapacity was dismissed and there was no finding that the petition was filed in bad faith. See 4 So.3d at 731. The court noted that “the statute [section 744.331(7)] has a gap in determining responsibility for payment of the examining committee fees when a good faith petition is denied or dismissed.” Id. (citing Ehrlich). And like the court in Ehrlich, the court in Levine urged the Legislature to address the issue. Id.

We do not disagree with Ehrlich or Levine; indeed, we agree with our sister courts that there is a “gap” in section 744.331(7) that the Legislature should address. Section 744.331(7)(b) provides that the examining committee fees are to be paid from the property of the ward, but this seems to presume that the petition for incapacity is granted and a guardian is appointed. And section 744.331(7)(c) provides that the costs of the proceeding—which, presumably, include the examining committee fees—are to be paid by the petitioner only if the court finds that the petition was filed in bad faith. The “gap” in the statute is that it does not specify who pays the examining committee fees when the petition is dismissed or denied and there is no finding that the petition was filed in bad faith or, as here, there is an express finding that the petition was filed in good faith. Requiring the petitioner to pay the fees in these circumstances would be inconsistent with section 744.331(7)(c) and requiring the guardian to pay the fee from the ward's property under section 744.331(7)(b) would not be possible if a guardian is never appointed; however, someone has to pay the fees because section 744.331(7)(a) states that the committee are “ entitled to reasonable fees” and, moreover, it is unlikely that the professionals required for the examining committee would serve if there was a risk of non-payment or if the payment was dependent upon the outcome of the proceeding. Cf. Ehrlich, 985 So.2d at 640 (acknowledging that “payment of the examining committee's fees should not be contingent on the outcome of the competency determination”).

We need not resolve the issue in this case, however, because an emergency temporary guardian was appointed for Appellant. Thus, unlike Ehrlich, where a guardianship was apparently never established for appellant because she was characterized only as a “potential ward” ( see 985 So.2d at 640) or “alleged ward” (see 10 So.3d at 1211), here, Appellant was a ward during the pendency of the incapacity proceeding because an emergency temporary guardian was appointed for her. See § 744.102(22), Fla. Stat. (defining “ward” as “a person for whom a guardian has been appointed”). The examining committee fees were incurred, and ordered, while the emergency temporary guardian had legal control over Appellant's property and, therefore, the fees were properly assessed against her under section 744.331(7)(b). For these reasons, we affirm the trial court's order requiring Appellant to pay the examining committee fees.

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Hancock v. Share, --- So.3d ----, 2011 WL 2650887 (Fla. 5th DCA July 8, 2011)

A guardian appointed by the court to take care of a minor child may act on behalf of the ward’s person or property, within certain statutorily defined limits. An important limitation is found in F.S. § 744.361(6)(c), which requires that the guardian, “[a]t the termination of the guardianship, deliver the property of the ward to the person lawfully entitled to it.” In other words, the guardian must hand over the property when the ward turns 18.

However, it's not always so simple. As estate planners know, management of assets may involve long term effects, and actions that a guardian takes during the period of minority may affect the ward’s ability to access the assets after turning 18. For instance, does putting cash into an annuity, which can't be accessed immediately upon the ward turning 18, violate F.S. § 744.361(6)(c)? 

Case Study:

In this case, after a settlement of a personal injury lawsuit, the ward’s mother, acting as guardian for her daughter, petitioned the trial court to put the proceeds of the settlement into an annuity that was payable over the next 27 years. The trial court denied the petition because the ward would not be able to access her money immediately upon turning 18:

After hearing a summary of the terms of the proposed settlement agreement, the trial court asked counsel whether the minor would be able to “get her cash out of the annuity when she turns 18”. Counsel replied, “no”.

The trial court entered an order approving the settlement of the minor's personal injury lawsuit, but refusing to authorize the purchase of a structured settlement annuity. The order reads:

The Court denies the guardian's request for authority to purchase an annuity contract for the benefit of the minor child payable beyond the age of majority. The Guardian of the property has no authority to bind the assets of the ward beyond the age of majority pursuant to Florida Statute 744.441(19); Guardianship of Bernstein v. Miller, 777 So.2d 1125 (Fla. 4th DCA 2001).

Because the trial court's order turned on F.S. § 744.441(19), it's worth stopping to read what the statute actually says. (Hint: focus on the statute's limited application to trusts.)

After obtaining approval of the court pursuant to a petition for authorization to act, a plenary guardian of the property... may... create or amend revocable trusts or create irrevocable trusts of property of the ward’s estate which may extend beyond the disability or life of the ward in connection with estate, gift, income, or other tax planning or in connection with estate planning. The court shall retain oversight of the assets transferred to a trust, unless otherwise ordered by the court.

The 5th DCA held that the annuity should have been approved because F.S. § 744.441(21) allows guardians to “[e]nter into contracts that are appropriate for, and in the best interest of, the ward.” The trial court’s reliance on F.S. § 744.441(19) was in error, because that statue applies only to trusts, not annuities. Thus, there is no requirement that the annuity be created in connection with tax planning:

Here, there were no trust documents at issue and, thus, the limitation set forth in section 744.441(19) was not at issue. Instead, the parties in this case submitted a proposed annuity contract which, pursuant to section 744.441(21) of the Florida Statutes, a trial court is authorized to approve, provided that the contract is ‘appropriate for, and in the best interest of, the ward.’ All parties and the trial court agreed that the annuity contract proposed by the parties in this case was in the minor's best interest. In addition, section 744.361(c) does not prohibit the entering into an annuity contract as long as the annuity contract is delivered to the ward at the termination of the guardianship. See § 774.102, Fla. Stat. (2009) (defining property as meaning ‘both real and personal property or any interest in it and anything that may be the subject of ownership.’). Accordingly, the trial court erred in refusing to approve the structured portion of the proposed settlement agreement.

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Thorpe v. Myers, --- So.3d ----, 2011 WL 2731937 (Fla. 2d DCA Jul 15, 2011)

In this case a 93-year-old ward had nine children who seemingly couldn’t agree that the sky was blue. After lengthy litigation, the trial court appointed a plenary guardian for the ward, who suffered from dementia. In separate appeals, the emergency temporary guardian and attorneys for two of the children appealed the court’s denial of their respective fee requests.

Guardian's Fees:

The 2d DCA held that the trial court’s complete denial of fees to the guardian was based on a misreading of F.S. 744.108(1), which requires that attorneys, but not guardians, demonstrate the “beneficial nature of services rendered” to the ward. Unlike those of attorneys, guardians’ services are presumed to benefit the ward. However, a circuit court may reduce the requested compensation to the extent that the guardian’s services were “unnecessary or unproductive.”

There are some exceptions to the general rule entitling a guardian to payment for services rendered, but these exceptions are limited. We briefly mention three such exceptions. First, a guardian cannot expect to be compensated for services rendered outside the scope of his or her appointment. In re Guardianship of Jansen, 405 So.2d 1074, 1077 (Fla. 2d DCA 1981); Poling v. City Bank & Trust Co. of St. Petersburg, 189 So.2d 176, 182–83 (Fla. 2d DCA 1966). Second, a guardian guilty of theft or other breach of duty may forfeit the right to compensation. See Am. Surety Co. of N.Y. v. Hayden, 112 Fla. 17, 150 So. 114, 121 (1933). Third, on occasion, usually when a family member is appointed, a guardian may agree to serve without compensation. Here, there is no exception to the statutory requirement that guardians be compensated for their services.

In order for an attorney to be awarded fees from the ward's estate under section 744.108(1), the attorney's services must benefit the ward or the ward's estate. See Butler, 898 So.2d at 1141. The clause in section 744.108(1) requiring the demonstration of the beneficial nature of the services rendered applies to attorneys, not guardians. Thus, under the statutory language, a guardian is not required to demonstrate that his or her services conferred a benefit on the ward or the ward's estate as a prerequisite for obtaining a compensation award. The statute appears to presuppose that a guardian's services benefit the ward or the ward's estate. Cf. Essenson v. Lutheran Servs. Fla., Inc. (In re Guardianship of King), 862 So.2d 869, 870 (Fla. 2d DCA 2003) (“Florida cases in which fees have been denied to court-appointed representatives appear to be only those in which he or she was found to have exceeded the scope of appointment.” (citing Jansen, 405 So.2d at 1077)).

It follows that the circuit court reached an incorrect legal conclusion in ruling that Ms. Thorpe was required to demonstrate that her services as emergency temporary guardian were beneficial to the Ward or the Ward's estate as a condition of receiving court-awarded compensation. The statutory scheme presumes that the services of guardians provide a benefit. To the extent that the services of a guardian are unnecessary or unproductive, the circuit court may reduce the requested compensation based on the factors listed in section 744.108(2) but may not deny compensation altogether.

Not only was the legal basis for denying the guardian any compensation flawed, but so too was the factual basis, the 2d DCA found. It disagreed with the circuit court’s finding that the guardian’s services “were of minimal, if any[,] benefit to the Ward, and were intended to benefit [two of the Ward’s children] in the Petition for Emergency Temporary Guardianship.” Instead, there was “nothing in the record suggesting that [the guardian] was working for [the two children] in disregard of her obligation to act in the best interests of the Ward. . . . The guardian works in the interest of the ward under the supervision and control of the court, not at the behest of the person or persons who sought the appointment.”

As evidence to support that claim, the 2d DCA pointed out that the “circuit court actually extended [the guardian’s] tenure as emergency temporary guardian for another four months.” It would make little sense, the 2d DCA implied, for a guardian providing “minimal, if any, benefit” to be asked to continue her responsibilities.

Attorneys' Fees:

The 2d DCA also addressed the circuit’s order denial of attorney’s fees and costs requested by the attorneys of the two children of the Ward who submitted the original petition for guardianship. As alluded to above, attorneys are entitled to “reasonable compensation” only to the extent that their services demonstrably benefit the ward. Here's how the 2d DCA summarized the law on this point:

Under section 744.108(1), “an attorney is entitled to receive a reasonable attorney's fee for professional services rendered and reimbursement of costs incurred for the benefit of the ward; payment of reasonable compensation is mandatory.” Price v. Austin, 43 So.3d 789, 790 (Fla. 1st DCA 2010). Under the statute, “the probate court is not ‘at liberty to award anything more or less than fair and reasonable compensation for the services rendered or monies expended in each individual case.’” Lutheran Servs., 978 So.2d at 890 (quoting Lewis v. Gramil Corp., 94 So.2d 174, 176 (Fla.1957)). However, the attorney's entitlement to payment of reasonable fees and costs is subject to the limitation that his or her services must benefit the ward. King v. Fergeson, Skipper, Shaw, Keyser, Baron, & Tirabassi, P.A., 862 So.2d 873, 874 (Fla. 2d DCA 2003) (Villanti, J., concurring specially); Butler, 898 So.2d at 1141.

The circuit court found that the two children’s attorneys did not provide any services for the ward. By an abuse of discretion standard, the 2d DCA acknowledged that some of the attorneys’ services amounted to “unproductive litigation over who would be appointed as guardian or other goals that did not benefit the Ward or her estate.”

But some work did make the ward better off. Were it not for the guardianship proceedings initiated by the attorneys, there would have been no determination of incapacity, and no appointment of a plenary guardian, each of which seemed to have been in the ward’s best interest. Accordingly, the 2d DCA remanded to the circuit court with instructions to “make an appropriate award of fees and costs.”

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Long v. Willis, --- So.3d ----, 2011 WL 3587411 (Fla. 2d DCA Aug 17, 2011) 

Most people (including most lawyers) assume that a minor's parents, i.e., a minor's "natural guardians" under F.S. 744.301, can make all decisions on behalf of their children, and that this authority extends to voting on behalf of their children under F.S. 733.301 with respect to who gets appointed personal representative (PR) of an estate when applying the "majority in interest of the heirs" test. WRONG answer: under subsection (2) of F.S. 733.301, a minor's parent/natural guardian is NOT authorized to vote on behalf of his or her child with respect to who gets appointed PR; you need a court-appointed guardian of the property to vote on behalf of the minor.

This all makes sense if you remember two points: [1] any time a minor (i.e., someone under 18) inherits $15,000+, a court-appointed guardian of the property is mandatory; and [2] a PR is only required for estates having a value of at least $75,000 (i.e., estates too large to qualify for summary administration). In other words, if the estate is too small to trigger the $15,000-guardian requirement, it's probably too small to need a PR, and vice versa.

Case Study:

In this case the parent/natural guardian of one of the decedent's heirs sought to vote on behalf of her three minor children for the appointment of PR of their father's estate. The decedent, who died intestate, had married and divorced twice prior to his death, so his only heirs were his two adult children from his first marriage and his three minor children from his second marriage. The appellant in this case was the decedent's second ex-wife and the mother of his three minor children.

The 2d DCA does an excellent job of dissecting the interrelated probate statutes and rules at play in this type of situation while also delivering solid practical advice for how the different (and apparently conflicting) timing requirements can all be made to work together in a reasonable manner. This kind of appellate-court-sanctioned statutory road map is gold for practicing probate lawyers.

[1.]  Is a court-appointed guardian of the property necessary to exercise a minor's vote in the appointment of a PR? YES

Ms. Long argues that as the natural guardian of Mr. Long's three minor children, she represents the majority in interest of the heirs and, therefore, has the right to select the personal representative. Significantly, the statute does not entitle a natural guardian to such a right. Rather, section 733.301(2) provides that “[a] guardian of the property of a ward who if competent would be entitled to appointment as, or to select, the personal representative may exercise the right to select the personal representative.” (Emphasis added.)

Ms. Long admits that the court never appointed her as the guardian of the property of her children, but she nevertheless claims that as their parent and natural guardian, under In re Estate of Phillips, 190 So.2d 15, 17 (Fla. 4th DCA 1966), she should have this power. In Phillips, which involved a dispute over the domicile of the decedent at the time of his death, the Fourth District affirmed that the decedent's five-year-old son, acting through his mother and natural guardian, the decedent's former spouse, was entitled to preference in selecting the administrator under section 732.44, Florida Statutes (1965), because he was the decedent's sole heir and next of kin. Id.

After the Phillips decision, the legislature replaced section 732.44, which gave appointment preference to the decedent's “next of kin” but provided no guidance for circumstances in which the next of kin was legally incompetent. The replacement statute, section 733.301, addresses the issue of legally incompetent heirs by clearly and unambiguously limiting the right to select a personal representative to the guardian of the property of such heirs, not to their natural parents. The legislature appears to have the right to create this limitation.

Thus, the probate court correctly ruled that Ms. Long could not vote for her children. 

[2.]  If a parent is served with a 20-day formal notice of someone else's petition for appointment as PR, does this parent have only 20 days to petition for and obtain an order appointing a guardian of the property and for that guardian to vote/object on behalf of the minor? NO

We conclude the probate court erred in ruling that Mr. Long's children were time-barred from challenging the right of their aunt to appointment and that it was without authority to allow these children to seek the appointment of a guardian of the property. First, although Florida Probate Rule 5.040(a)(2) provides that where an interested person on whom formal notice is served does not serve written defenses within twenty days, the probate court may consider the pleading ex parte, Florida courts treat this rule as merely procedural; it is “‘in no sense’ a statute of limitations or a mandatory non-claim provision.” Tanner v. Estate of Tanner, 476 So.2d 793, 794 (Fla. 1st DCA 1985). Applying this reasoning in Tanner, the First District held that where the decedent's beneficiaries filed a joint answer to the petition for administration asserting defenses five days after the time for answers had expired but before the hearing on the petition for administration and the order granting letters, the answer was timely filed. Id. Here, as in Tanner, Ms. Long, on behalf of Mr. Long's minor children, filed the objection to the appointment of Ms. Willis as personal representative just four days after the twenty-day answer period expired and well before the probate court issued the order granting letters. Accordingly, we conclude that the trial court had the authority to consider and should have considered the minor children's objection before the issuance of letters.

Second, we are convinced that the probate court had authority to allow Mr. Long's minor children the opportunity to participate in the vote of the heirs. See § 733.301(1)(b)(2). By requiring a guardian of the property, section 733.301(2) creates significant procedural impediments for minor children who wish to participate in the selection of a personal representative in a contested proceeding. When there is no conflict within a family, such children may well have time to obtain a guardian of the property before the petition for administration is filed. But in a case like this, even if the mother had understood the law, she could not realistically have obtained a guardian of the property for the children and allowed that guardian to vote for the children within the twenty-day response time. We conclude that the probate court had authority and should have allowed Ms. Long a reasonable time to obtain a guardian of the property to vote for the children.

 

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A central issue driving almost every will or trust contest is whether the person signing the document knew what he was doing. In other words, did he have testamentary capacity? Any probate judge who has been on the job for more than 6 months will know the law governing these cases cold. What they need from us are the facts.

But which facts matter?

One way to answer that question is to work backwards from the legal definition for testamentary capacity. The problem with this approach is that legal definitions are by necessity general in nature, which means they are pretty useless when you're trying to figure out which facts really matter to your case. 

Another approach is to come at the problem from the clinician's viewpoint: what are the indicia of incapacity doctors and other therapists look for when diagnosing and treating adults with diminished capacity? In my opinion, this is the way to go; and the first place you'll want to look for guidance on how to bridge the gap between legal theory and clinical reality is a handbook published jointly by the the American Bar Association and the American Psychological Association: Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers. Here's an excerpt:

With the coming demographic avalanche of Boomers reaching their 60s and the over-80 population swelling, lawyers face a growing challenge: older clients with problems in decision-making capacity. While most older adults will not have impaired capacity, some will. Clear and relatively obvious dementias will impair capacity, and the prevalence of such dementias increases with age. But what about older adults with an early stage of dementia or with mild central nervous system damage? Such clients may have subtle decisional problems and questionable judgments troubling to a lawyer. This handbook offers a conceptual framework and practice tips for addressing problems of client capacity, in some cases with help from a clinician.

Some might argue that without training in mental disorders of aging and methods of formal capacity evaluation, lawyers should not be making determinations about capacity. Yet lawyers necessarily are faced with an assessment or at least a screening of capacity in a rising number of cases involving specific legal transactions and, in some instances, guardianship. Even the belief that “something about a client has changed” or a decision to refer a client for a formal professional capacity evaluation represents a preliminary assessment of capacity.

The 2002 revision of the ABA’s Model Rules of Professional Conduct, Rule 1.14, concerning the client with diminished capacity, recognizes the bind in which this places the attorney, and provides some guidance. The rule triggers protective action when an attorney reasonably believes that a client has diminished capacity, that there is a potential for harm to the client, and that the client cannot act in his or her own interest. However, the critical question is: how does the lawyer reach a reasonable belief that the client has diminished capacity? This handbook seeks to respond.

The handbook represents a unique collaboration of lawyers and psychologists. While it is a joint project of the ABA Commission on Law and Aging and the APA, its applicability is broad. It can be of use to elder law attorneys, trusts and estates lawyers, family lawyers, and general practitioners. It introduces lawyers to a wide spectrum of mental health professionals, including, but extending beyond, licensed psychologists. Interdisciplinary partnerships between lawyers and clinicians promise more informed approaches for helping older clients meet their legal needs.

And for those "visual" learners out there, the handbook is full of easy-to-follow charts and checklists to help organize your thinking. Here's one of my favorites:

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Covenant Trust Co. v. Guardianship of Ihrman, --- So.3d ----, 2010 WL 3564731 (Fla. 4th DCA Sept. 15, 2010)

Clients and lawyers alike must contend with an underfunded court system where procedural due process is often viewed as an unnecessary luxury. So what can you do? First, make sure you do your part to help your judge do his part (see Persuading a Cold Judge). Second, insist on evidentiary hearings (not just argument of counsel) to decide contested issues of fact. Sounds like pretty basic stuff; you'd be surprised how often it doesn't happen: click here, here, here, here.

Evidence, Evidence, Evidence . . .

In this case a probate judge entered multiple orders -- all on issues clearly requiring evidentiary hearings -- based on nothing other than argument of counsel. Not surprisingly the 4th DCA reversed all of these orders. The obvious take-away from this case is that evidentiary hearings matter. The less obvious point -- but really the more important one -- is that it's up to counsel to make sure they anticipate the tendency in probate proceedings to bypass evidentiary hearings and compensate accordingly. Your worst enemy is the rushed 15-minute hearing where the judge ends up entering an order that takes you the next 12 months to get reversed on appeal.

In this case Covenant Trust Company, an Illinois corporate trustee, got sucked into a contested Florida guardianship proceeding when it received a petition in the mail (i.e., no legal service of process) from the Florida guardian accusing it of breaching its fiduciary duties and asking the Florida probate judge to immediately take control of the trust by, among other things, ordering the trustee to pay guardianship-related expenses in Florida and ordering the trustee to no longer use trust funds to pay its lawyers.

Here's how the 4th DCA deconstructed each of the probate court's rulings: all of which were reversed for lack of evidence.

[1] Can a court haul a foreign trustee into a Florida court without evidence? NO

The Illinois trustee argued it shouldn't be subject to the Florida court's jurisdiction because it didn't have enough contacts with Florida to fall under F.S. 48.193, our long-arm statute. Both sides filed conflicting affidavits on this issue, as required under Florida law. Once you have conflicting affidavits, the trial court is required to conduct an evidentiary hearing to sort it all out. That didn't happen.

Here, Guardian's and Covenant's affidavits cannot be reconciled, as Guardian attested Covenant conducted business in Florida, and Covenant denied this. The trial court only held hearings and decided the issue based on the attorneys' arguments. See Ralph v. McLaughlin, 756 So.2d 240, 241 (Fla. 2d DCA 2000) (where trial court only heard the arguments of counsel before deciding the motions to dismiss based on lack of personal jurisdiction, the Second District, pursuant to Venetian Salami, reversed and remanded the case so the trial court could hold a limited evidentiary hearing on the minimum contacts issue to resolve the conflicting affidavits); Sonson v. Hearn, 17 So.3d 745, 747 n. 1 (Fla. 4th DCA 2009) (citing Leon Shaffer Golnick Adver., Inc. v. Cedar, 423 So.2d 1015, 1017 (Fla. 4th DCA 1982)) (unsworn statements by an attorney at a hearing do not establish facts upon which the trial court can rely). Therefore, the trial court erred by not conducting a limited evidentiary hearing to determine if Covenant had the required minimum contacts to expect to be haled into court in Florida. See Golant v. German Shepherd Dog Club of Am., Inc., 26 So.3d 60, 62-63 (Fla. 4th DCA 2010) (with regard to minimum contacts, due process is met if a non-resident defendant would reasonably anticipate being haled into a Florida court).

Even assuming the Florida court had jurisdiction over the Illinois trustee, it still had to contend with Florida's special venue statute for trust litigation: F.S. 736.0205. Under this statute the presumption is that you have to sue foreign trustees in their home states (click here, here, here). According to the 4th DCA, the trial court seems to have skipped this point too.

Assuming the trial court has the requisite in personam jurisdiction, Covenant argues section 736.0205 requires this action be brought in Illinois, unless all parties could not be bound by litigation in the courts where the trust is registered. . . . It is not clear from the record if “all interested parties could not be bound by litigation in the courts of the state where the trust is registered or has its principal place of administration.” Thus, if the trial court determines it has in personam jurisdiction, it will next need to determine if the interested parties could be bound by litigation in Illinois. . . . We reverse and remand the case to the trial court with directions to hold an evidentiary hearing on the issue of jurisdiction over Covenant.

[2] Can a court bar a trustee from using trust funds to pay its legal fees without evidence? NO

In trust litigation one of the biggest advantages a trustee-defendant has is its ability to pay for its legal defense with trust funds, while the plaintiff is left to pay for its side of the litigation out of its own pocket. Plaintiffs can level the playing field by getting the court to enter an order cutting the trustee off from trust funds to pay legal fees. This tactic was so troubling to Florida's trustee community that in 2008 it resulted in a brand new stand-alone statute intended to make sure trustees weren't unfairly treated in these proceedings: F.S. 736.0802(10). I wrote about the lead-up to this statute and its eventual passage here.

A key procedural protection built into F.S. 736.0802(10) is the trustee's entitlement to an evidentiary hearing. Again, that didn't happen. Again, the 4th DCA reversed. Here's why:

To obtain an order prohibiting Covenant from paying any more attorney's fees from the trust assets, section 736.0802(10)(b) states that the “party must make a reasonable showing by evidence in the record or by proffering evidence that provides a reasonable basis for a court to conclude that there has been a breach of trust.” No evidence was provided or proffered showing a breach of trust.  . . . Accordingly, the trial court erred in entering this order without making any such finding of breach of trust.

[3] Can a court force a trustee to pay guardianship fees without evidence of the payments being mandated or the trustee acting arbitrarily? NO 

It's not unusual for probate courts to force the trustees of an incapacitated grantor's revocable trust to pay for some or all of the grantor's guardianship costs. This case demonstrates that although that practice may be common, it's at odds with long-standing Florida law if done over the legitimate objections of the trustees. This is an important point all trustees involved in guardianship proceedings need to remember. Finally, when reading the 4th DCA's analysis of this issue note again how we come back to the "no-evidence" theme.

In Cohen v. Friedland, 450 So.2d 905, 906 (Fla. 3d DCA 1984) (citing White v. Bacardi, 446 So.2d 150, 155 n. 5 (Fla. 3d DCA 1984)), the Third District explained that “[a] trustee, in the strictest sense, holds legal title to property which he administers for the named beneficiary in accordance with the terms of the instrument creating the trust.” The trust agreement provided that the beneficiary would receive the trust income and the trustees had sole discretion to invade the trust principal for the beneficiary's maintenance, comfort, and welfare. Id. But “[i]n the absence of proof that the trustee has failed to perform, or has performed arbitrarily, a court is without authority to remove trust assets from control of the trustee to be administered by the court or other guardian.” Id.

In Giglio v. Perretta, 493 So.2d 470, 470 (Fla. 4th DCA 1986), we held the “trial court erred in requiring the trustee to use trust assets to reimburse the guardian of the trust beneficiary for guardianship administration expenses, attorneys fees, and other costs.” We explained that although paying some of these costs may have been allowed, in the trustee's discretion, these payments were “not legally mandated by the trust provisions,” so the court had “no authority to compel the trustee to make such payments,” nor any authority for the attorney's fees award. Id. (citing Cohen, 450 So.2d 905).

Further, in Johnson v. Guardianship of Singleton, 743 So.2d 1152, 1153 (Fla. 3d DCA 1999), the Third District, citing Cohen, held that there was “no statutory or other satisfactory legal justification for the award” of legal expenses, where the trial court ordered the trustee “to pay from trust assets the legal expenses incurred” by the guardian.

Here, Covenant, as trustee, was granted, within the trust provision, the discretion to make payments from the trust assets. There was no evidence that Covenant acted arbitrarily. Therefore, the court lacked the authority to order Covenant to remove trust assets. As explained in Giglio, these payments were not legally mandated in the trust terms. Further, as in Johnson, there was no statutory or other legal authority for the court to order the payments. Because the trust did not provide for the payment of attorney's fees, and Covenant could make payments in its discretion for Lillian's best interests, the court was without authority to order Covenant to pay Guardian's attorney $10,000 from the trust assets.

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Magill v. Dresner, --- So.3d ----, 2010 WL 3025111 (Fla. 3d DCA Aug 04, 2010)

Planning for incapacity - not just death - is a cornerstone of modern estate planning. And let's be clear, the type of incapacity most likely to affect any of us is dementia. According to the Alzheimer's Association's 2010 report: 5.3 million people in the US have Alzheimer's, it's the 7th leading cause of death, it's annual cost to our society is 172 billion dollars, and 10.9 million unpaid caregivers bear most of the burden.

What's scary about dementia is that you're vulnerable to the worst forms of abuse and exploitation by your own caregivers. The single most effective way to plan against this risk is choosing the right person - in advance - to be your legal guardian in the event of incapacity. The way you do that under Florida law is by executing a "Declaration Naming Preneed Guardian" in which you make known to the world the one person (or group of persons) you think is best suited to serve as your guardian if at some later date you become incapacitated.

Here's the statutory scheme controlling how these documents work in real life:

• F.S. 744.3045: This is the key statute. It creates a statutory presumption in favor of appointing your designated preneed guardian. This directive's been interpreted as requiring a probate judge to appoint your designated preneed guardian unless there's "substantial, competent evidence" establishing that:
• your designated preneed guardian is disqualified from serving as a matter of law under F.S. 744.309 (e.g., a felony conviction will automatically disqualify you); or
• the court determines under F.S. 744.312 that it's NOT in your best interest to appoint your designated preneed guardian (which is what happened in this case).

Preneed guardianship designations work fine most of the time. The linked-to case above is an example of when things go wrong. Rather than waiting to actually read the ward's Declaration Naming Preneed Guardian, the court simply relied upon a verbal summary of the document provided by counsel for one of the parties (which turned out to be wrong!) and then proceeded to rule on the merits of the case in the absence of "substantial, competent evidence."

The 3d DCA reversed this ruling, ultimately honoring the ward's preneed guardian designation. Nice to know, but not especially helpful to practicing lawyers called upon to actually litigate these cases. What lawyers need to know is what kind of evidence is outcome determinative. Once you know that, you can plan ahead for your next trial. Here's what the 3d DCA had to say about that:

We find that the probate court abused its discretion in appointing Dresner as Shirley's plenary guardian. First, the probate court failed to properly consider the Declaration prior to appointing Dresner. It is undisputed that the Declaration was not filed with the probate court until June 24, 2009, eight days after the hearing on the petition. Therefore, the probate court did not have the Declaration before it when it concluded that the Declaration required all three daughters to act in unison as guardian. Instead, the probate court based its conclusion on representations made by Tew concerning the Declaration as well as other testamentary documents Shirley executed. This was error.

Translation: Representations of counsel aren't evidence, if you don't have the actual Declaration in evidence, your judge shouldn't rule.

Second, contrary to the probate court's belief, the Declaration is clear that it is Shirley's wish that in the event of her incapacitation her three daughters are to serve as her guardian. The probate court did not make a factual finding that any of the daughters was unqualified, unwilling, or unable to serve as guardian. Rather, the probate court based its conclusion on a belief that the Declaration required them to act in unison, and that because one of the sisters, Maureen, was not in agreement with the appellants concerning their mother's living arrangement, she could not appoint all three to serve as guardian. Because the Declaration does not require unanimity among the daughters in order to be appointed or serve as guardian, this conclusion was also erroneous.

Translation: A court can't ignore a person's preneed guardian designation in the absence of a factual finding - based upon substantial, competent evidence - that the designated preneed guardian is "unqualified, unwilling, or unable to serve as guardian."

Finally, there was no evidence that the appointment of the daughters as guardian would not be in Shirley's best interest. The record reveals simply that the appellants and Maureen are in disagreement concerning one aspect of their mother's life-her living arrangement. As already explained, the Declaration does not require that they be in agreement on all aspects of their mother's life or care. Because Dresner and Nguyen agreed with Maureen's proposal for her mother's living arrangement and the probate court ultimately appointed Dresner as plenary guardian, the probate court's ruling has the effect of allowing the minority of the designated preneed guardians to control the majority. This result, however, is contrary to the plain language of the Declaration, which clearly allows for decisions concerning guardianship matters to be made by majority rule rather than minority. Additionally, the probate court's finding that Shirley's assets will “dissipate very quickly” because the appellants and Maureen cannot agree on this one aspect of their mother's life has no basis in fact in the record.

Translation: A court can't ignore a person's preneed guardian designation in the absence of a factual finding - based upon substantial, competent evidence - that appointing the designated preneed guardian would NOT be in the ward's "best interests."

For the above reasons, the record lacks substantial competent evidence to overcome the statutory presumption that the designated preneed guardians, as set forth in Shirley's Declaration, are entitled to serve as her plenary guardian. Accordingly, we reverse the order on appeal appointing Dresner the plenary guardian and reverse with directions to the probate court to appoint all three daughters, the appellants and Maureen, as the plenary guardian of their mother, Shirley.

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Price v. Austin, --- So.3d ----, 2010 WL 3120212 (Fla. 1st DCA Aug 10, 2010)

Over the last few years probate lawyers have been scratching their heads wondering if, when and how Civ. Pro. Rule 1.525, the rule setting a 30-day post-judgment deadline for filing fee motions in civil litigation, applies to contested probate and trust proceedings. This is an important issue; the last thing any lawyer wants to do is blow a deadline for claiming fees on behalf of his client. Here's what the rule says:

Any party seeking a judgment taxing costs, attorneys' fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.

By now there's no question the rule applies in any "adversary" probate proceeding and in all trust litigation. In 2008 the 2d DCA held here that the rule applies in Trust litigation, then in 2009 the 5th DCA held here that the rule applies in adversary probate proceedings, and now in the linked-to opinion the 1st DCA has come to the same conclusion with respect to adversary guardianship proceedings:

[A] notice that the proceeding for incapacity was adversary was served on June 12, 2008. On July 7, 2008, the court entered an order determining total incapacity. Over a year later, on September 18, 2009, appellant served a verified petition to approve payment of fees. Florida Probate Rule 5.025(d)(2) provides that, once a proceeding under the probate rules has been declared to be adversarial, it “shall be conducted similar to suits of a civil nature and the Florida Rules of Civil Procedure shall govern, including entry of defaults.” Florida Rule of Civil Procedure 1.525 requires a motion for attorney's fees to be filed “no later than 30 days after filing the judgment....” In Hays v. Lawrence, 1 So.3d 1176, 1177 (Fla. 5th DCA 2009), the court held that, in a proceeding declared as adversarial, rule 1.525 governed a motion for attorney's fees filed pursuant to section 733.106(2) and affirmed a denial of a claim for attorney's fees as untimely under the rule. Although Hays involved a different fee statute than the case before us, section 733.106(2) and section 744.108, applicable here, are similar. Both statutes are legislative expressions of the desirability of the payment of attorney's fees for services rendered under the specified proceeding. Accordingly, because the petition for attorney's fees was untimely filed under rule 1.525, the trial court's order denying fees is AFFIRMED.

Must be an "adversary" proceeding:

An important point to keep in mind with respect to contested guardianship (and probate) proceedings is that Rule 1.525 only applies to "adversary" proceedings (assume the rule applies to all trust proceedings). So if someone tries to block your fee petition by citing to this rule, make sure your judge understands it simply does NOT apply to probate and guardianship proceedings that have NOT been declared adversarial in accordance with Florida Probate Rule 5.025.

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Fernandez v. Guardianship of Fernandez, --- So.3d ----, 2010 WL 2178831 (Fla. 3d DCA Jun 02, 2010)

Contested guardianship proceedings are bench trials, which means the same person is both your fact finder and lawgiver: the judge. As explained in When the Judge Is the Jury, there are real advantages to bench trials:

“And one of the biggest advantages over the traditional courtroom is that the lawyers get to ‘read the jury’ all through the case. And since the judge can—and often will—ask questions, you’re always aware of what’s on the jury’s mind,” said Standwell."

I think most practicing lawyers have mixed feelings about questions from the bench. When the questions make clear the judge is leaning your way, you love 'em! When the opposite is true, you know it's going to be a bad day. Love 'em or hate 'em, questions from the bench are a fact of life and explicitly authorized under F.S. 90.615.

But when does questioning from the bench go too far? The answer to that question depends in large part on the facts and circumstances of your particular case, so hard and fast rules are difficult to come by. But most of us know it when we see it . . . and so does the 3d DCA. Here are the facts the appellate court was confronted with in the linked-to contested guardianship case:

[The trial court] decided that the hearing would proceed more expeditiously if the trial court conducted the examination of witnesses instead of allowing counsel to do so. The trial court swore the witnesses and denied the daughter's request to invoke the rule of exclusion of witnesses. The court called and questioned the witnesses, affording almost no opportunity for examination or cross-examination by the parties. There were no opening or closing statements.

According to the 3d DCA, this was too much. Questioning from the bench is proper, but if it's done to the exclusion of everyone else in the room, the parties aren't getting their fair day in court. Here's how the 3d DCA put it:

Respectfully, this was not proper procedure. The Florida Probate Rules provide that in adversary proceedings, “the proceedings, as nearly as practicable, shall be conducted similar to suits of a civil nature and the Florida Rules of Civil Procedure shall govern....” Fla. Prob. R. 5.025(d)(2). See generally In re Guardianship of King, 862 So.2d 869, 870-71 (Fla. 2d DCA 2003); The Florida Bar, Litigation Under Florida Probate Code § 1.6 (7th ed.2009); 28 Fla. Jur.2d Guardian and Ward, § 35 (updated Feb. 2010). “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.” § 744.331(5)(a), Fla. Stat. (2008).

As this was an evidentiary hearing in a contested proceeding, the matter should have been tried as is customary in a bench trial. The parties should have been given an opportunity to make opening and closing statements. Each party should have been given an opportunity to present evidence, call and question witnesses, and cross-examine the other side's witnesses. When the guardian ad litem gave her report, cross-examination by the parties should have been allowed.

At the start of the hearing, the daughter invoked the rule of exclusion of witnesses [under F.S. 90.616]. The trial court denied that request. The request should have been granted.

Lessons learned?

First: contested guardianship proceedings are treated like any other kind of bench trial under Florida law, and need to be adjudicated accordingly. The parties are entitled to all of the due-process rights any litigant is entitled to in a Florida court room, including at a bare minimum:

1. The opportunity to make opening and closing statements.
2. The opportunity to present evidence, call and question witnesses, and cross-examine the other side's witnesses.
3. The opportunity to cross examine the guardian ad litem.
4. The exclusion of witnesses from the courtroom in accordance with F.S. 90.616.

Second: lawyers on the wrong end of an overactive judge have to object. To put it mildly, this kind of objection needs to be handled "delicately." So what's a lawyer to do? The Winter 2009 edition of the ABA's Litigation magazine has an excellent article by Houston, Texas litigator Martin J. Siegel that speaks directly to this question. Entitled When Judges Want to Get in the Game: Lessons from Another Court, Mr. Siegel's article is thoughtful, well written, and well researched. Here's an excerpt:

“[L]awyers on the wrong end of the overactive judge have to object. As with questions from opposing counsel, failure to object to improper examination from the bench will waive the error. Ditto with remarks to the jury. On appeal, if no objection was made, review will be for plain error, and only those errors resulting in an unfair trial will merit reversal. Courts recognize that objecting to the judge’s questions and comments can be touchy and difficult, but still require counsel to give it a go. If the judge wishes to examine witnesses at any length, there is precedent for seeking a sidebar out of the hearing of the jury or a recess and asking the court to inform counsel of the desired line of questioning so that the examination will come from the lawyers and not carry the imprimatur of the court.

To the extent possible, lawyers should also make sure the objectionable conduct is fully on the record, even the little things that will add flavor to the appeal but may not always come through on the cold page, like the judge’s demeanor, tone, or volume. For example, in one case, the judge’s repeated pointing to the defendant’s lawyer in an effort to prompt him to object made it into the record because the plaintiff’s lawyer, finally exasperated with the court’s unusual theatrics, said, ‘Your Honor, I haven’t even finished my question, and you’re pointing to the defense counsel to object to my question.’ Nationwide Mutual, 174 F.3d at 808.”

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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.

Continue Reading...

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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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