I recently reported on the Erlandsson v. Erlandsson decision and how the 4th DCA’s opinion highlighted the sometimes gut wrenching ethical challenges attorneys face when representing an adult client who’s cognitively impaired in a way that is clearly affecting his …
What’s the right way and the wrong way to litigate a revocable trust while the settlor’s alive?
Attorneys faced with elderly clients sliding into incapacity grapple with daunting ethical challenges. For family members helplessly watching from the sidelines as an elderly parent’s financially exploited, the emotional toll is way worse. And these are not isolated incidents.…
How to ethically represent disabled adults in contested guardianship proceedings
One of the most confoundingly difficult challenges we all face as trusts and estates attorneys is what to do if a client’s cognitively declining or otherwise impaired in a way that is clearly affecting his or her decision making. The …
A civil dispute over guardianship
First filed in 2014, this contested guardianship proceeding has dragged on in one form or another for six years (which is a really long time, even by guardianship standards).
By now the three elderly friends at the center of this …
What’s it take to prove criminal “intent” in exploitation of the elderly cases?
The bread and butter work of most probate litigators includes breach of fiduciary duty claims by guardians, trustees, and agents acting under powers of attorney (POAs). These are all civil cases. What many probate litigators may not be aware of …
2018 Legislative Update: Elder Law and Guardianship (+ Backstories)
Here’s my summary of what happened legislatively in 2018 on the elder law and guardianship front. The legislative focus this year is on preventing and/or responding to instances of elderly and vulnerable adult financial exploitation.
This is part two of …
When do you have to give notice if you’re trying to get your attorney’s fees paid from a trust under F.S. 736.1005?
If you’re the trustee of a trust, F.S. 736.0816(20) tells us you’re presumptively entitled to hire attorneys to help you do your job and to pay them a reasonable fee for their services.
On the other hand, if you’re not …
Marriage, Guardianships . . . and the Power of Framing
Smith v. Smith, — So.3d —-, 2017 WL 3774702 (Fla. August 31, 2017)
How do we protect the elderly from exploitation and abuse, without sacrificing our fundamental rights as we enter old age, like the constitutionally protected right to …
4th DCA: Love and marriage in contested Florida guardianships
Smith v. Smith, — So.3d —-, 2016 WL 803625 (Fla. 4th DCA March 2, 2016) (reversed on appeal)
As Bette Davis once said, getting old ain’t for sissies. But it’s a whole lot easier if you’re …
Interview with a Probate Lawyer: Shannon M. Miller
One of the pleasures of publishing this blog over the years has been the opportunity to meet and interact with some truly impressive lawyers.
I recently had one of those moments when I was introduced to Shannon M. Miller of …