Florida Probate & Trust Litigation Blog

Florida Probate & Trust Litigation Blog

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

Text Size: A A A

Category Archives: Contested Guardianship Proceedings

Subscribe to Contested Guardianship Proceedings RSS Feed

3d DCA: Does judge’s independent investigation of facts in guardianship proceeding = disqualification?

Posted in Contested Guardianship Proceedings, Ethics & Malpractice Claims
In re Guardianship of O.A.M., — So.3d —-, 2013 WL 5927613 (Fla. 3d DCA November 06, 2013) Guardianship proceedings involving minors can be especially challenging for all involved . . . including your judge. Here’s the main problem: unlike most civil cases, in guardianship proceedings the judge plays a dual role: he or she serves … Continue Reading

1st DCA: What’s the test for “competency” when it comes to executing a preneed guardianship designation; and when’s a probate judge authorized to disregard an otherwise valid designation?

Posted in Contested Guardianship Proceedings
Koshenina v. Buvens, — So.3d —-, 2014 WL 304889 (1st DCA January 29, 2014) As the Baby Boomer generation passes age 65, the number of people living with cognitive impairment is expected to jump dramatically. Based on US Census data, researchers estimate that in 2000, 4.5 million Americans aged 65 years or older had some … Continue Reading

3d DCA: Can arguing for the appointment of a court-appointed guardian to handle litigation for an incapacitated adult if she previously executed a valid DPOA get you (and your lawyer) sanctioned?

Posted in Contested Guardianship Proceedings, Power of Attorney Litigation
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 . . . … Continue Reading

4th DCA: Jasser v. Saadeh and the “prisoner’s dilemma” as metaphor for settlement “agreements” in guardianship litigation

Posted in Contested Guardianship Proceedings
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 … Continue Reading

1st DCA: Who pays the examining committee’s fees when a petition to determine incapacity, filed in good faith, is ultimately dismissed?

Posted in Contested Guardianship Proceedings
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. … Continue Reading

5th DCA: Can a guardian for a minor ward create an annuity that restricts the ward’s access to her assets even after turning 18?

Posted in Contested Guardianship Proceedings
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 … Continue Reading

2d DCA: When are guardians and attorneys entitled to fees in contested guardianship proceedings?

Posted in Contested Guardianship Proceedings
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 … Continue Reading

2d DCA: Is a court-appointed guardian of the property necessary to exercise a minor’s vote in the appointment of a PR?

Posted in Contested Guardianship Proceedings, Removal of Personal Representatives and Surcharge
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 … Continue Reading

3d DCA: When can a judge ignore your Declaration Naming Preneed Guardian?

Posted in Contested Guardianship Proceedings
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 … Continue Reading

3d DCA on when questioning from the bench goes too far in guardianship trials

Posted in Contested Guardianship Proceedings
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 … Continue Reading

Florida needs to adopt the Adult Guardianship and Protective Proceedings Jurisdiction Act

Posted in Contested Guardianship Proceedings
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 … Continue Reading

Can guardianship litigation preempt a will contest?

Posted in Contested Guardianship Proceedings
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 … Continue Reading

4th DCA: Procedural statute for determining incapacity does NOT make the potential ward responsible for examining committee fees where the guardianship petition is dismissed or denied

Posted in Contested Guardianship Proceedings
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 … Continue Reading

2d DCA: Your own testimony can be the sole basis for reducing your fees

Posted in Contested Guardianship Proceedings
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 … Continue Reading

2d DCA: What to do when competing guardianship petitions are filed in different states

Posted in Contested Guardianship Proceedings
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 … Continue Reading

N.Y. Court Suspends Lawyer Accused of Taking Money From Judge’s Guardianship Estate Funds

Posted in Contested Guardianship Proceedings
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 … Continue Reading

2d DCA: Incompetency adjudication based upon 6-month old examination report is reversible error

Posted in Contested Guardianship Proceedings
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 … Continue Reading

4th DCA: Fatally flawed procedural/evidentiary record leads to stunning reversal of all trial-court wins in contested guardianship proceeding

Posted in Contested Guardianship Proceedings
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.  … Continue Reading

How much due process is a mentally ill patient entitled to in an involuntary commitment proceeding?

Posted in Contested Guardianship Proceedings
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 … Continue Reading