Florida Estate Planning Lawyer Blog

David A. Atraus, a Nevada Estate Planning Lawyer, has published a book titled Faith-Based Estate Planning: Our Values and Valuables. The book was written after contacting hundreds of religious clergy throughout the nation, and took him several years to write.

Upon a first glance, I was very impressed. The book covers Estate Planning issues like living trusts, wills, medical directives, long-term care insurance and life insurance on many religions including Baha'i, Buddhism, Christianity (10 denominations and branches), and 12 more religions from Roman Catholic to Judaism to Zoroastrianism.

It looks very comprehensive and I expect to write more on the book in the future.

SB 1718 & HB 5117 dealing with funding the court would create new filing fees in probate and Guardianship cases that would range from $1,000 to $5,000, depending on the value of the estate of the person being protected.

The increase in filing fees is linked to probate cases but includes all guardianship proceedings. In addition to the current fee of $280, the additional fees will be tied to the person’s estate. Depending on the value of the estate and whether the House or Senate version of the legislation prevails, the additional cost could range from $1,000, to as high as $5,000 if the person being cared for has a large estate.

If you have been waiting to start a Florida Probate or Guardianship proceeding, now may be the time start before the fees increase.

Having a Florida Guardian appointed involves two separate court determinations. The first court proceeding is the Incapacity proceeding where the Florida court determines whether the person is incapacitated as defined by Florida law. The second Guardianship proceeding is where the Florida court actually determines who will serve a guardian. All Guardians are required to be represented by a Florida Lawyer (See Florida Probate Rule 5.030(a) ), submit to a criminal background check, and take an 8 hour course in Guardianship duties within 9 months of being appointed.

Step 1: (Determine Capacity). See Florida Statute

Florida's Guardianship Statutes have been written to protect our freedom and independence. Therefore, the courts presume a person has capacity and is able to make decisions on their own until adjudicated by the courts to not have capacity. (See Florida Probate Rules 5.550 and Florida Probate Rule 5.030(a)" target=new>Florida Statute 744.3201 for what must be contained in the Petition to Determine Capacity).

Petition filed: A Petition to Determine the Persons Capacity is filed with the County where the person resides. The petition can be filed by a family member, concerned third party, or the Counties Adult protective Services. The petitioner has the burden to prove that the person being alleged incapacitated is incapacitated in the court's eyes. Witnesses may very well be required to prove the incapacity.

Court Appoints Attorney: Within five days of filing the petition, the County court will appoint an attorney ad litem to represent the alleged incapacitated person (or the person can choose their own attorney to represent them) in the Incapacity proceeding and the Guardianship proceedings. Also within 5 days of filing the Petition to Determine Capacity, the courts will appoint a three (3) person panel to review the persons level of capacity and need for appointing a Guardian. This examining committee is typically includes a psychiatrist, a psychologist, and a social worker. The committee members will individually meet with the person whose capacity is being determined, talk with family members, neighbors, and health care providers.

A Mental exam, physical exam, and functional assessment are included in this determination process.
The examining committee members will submit to the courts a recommendation. Under Florida Statute 744.3215, the reports of examining committee are due to the courts within 15 days of being appointed.

The Incapacity Hearing: is considered adversarial (meaning contested) and must be set within fourteen (14) days from filing the examining committee reports. (Florida Statute 744.331(5)(a)). Depending on the county in which the proceeding is filed, the incapacity hearing will be before the Judge or a General Master. The person is entitled to be at the hearing, the examining committee reports are reviewed by the Judge or General Master. Evidence and testimony is allowed to be presented at the proceeding. The Judge then decides on whether to adjudicate the person incapacitated or not. If a General Master presides over the hearing, his/her recommendation of capacity is sent to the Judge who then enters an order after review, as he/she deems appropriate given the General master’s recommendation and findings.

All Incapacity Hearing proceedings are closed to the public and considered confidential in order to preserve the dignity and privacy of the alleged incapacitated person.

STEP 2: THE GUARDIANSHIP PROCEEDING

This portion of the proceedings only happens if the person has been adjudicated incapable of handling his/her own affairs.

Type/Extent of Guardianship: The next step is for the court to determine whether to limit the Guardianship to defined responsibilities or make the Guardianship a full/Plenary Guardianship (Authority of Guardian over all decisions for the person).

Who can serve as Guardian: Florida resident eighteen (18) or older, a Non-Florida resident over age 18 can be appointed provided proposed Guardian is over eighteen (18) so long as he/she is a lineal descendant of the proposed incapacitated. No person who has been convicted of a felony, abuse, or is incapacitated may serve as a Guardian. See Florida Statute 744.309

Guardians Ability Reviewed: The courts also review the Guardians ability to serve in a fiduciary capacity. This means the Guardian should appear to be able to be trusted in a position of responsibility over another persons health care and financial management and decisions.

Competing Guardians Petition to be appointed: In some cases, two or more parties may want to be appointed as the Guardian. This is typical in family situations and also when the State files a petition. The immediate family can also file what is termed a “Competing Petition for Guardianship”. The proceedings are then considered adversarial. The courts then will listen to evidence from both parties and based upon the testimony and evidence presented will enter an order appointing the Guardian it believes best suited to serve in such a trusted/Fiduciary capacity.

If there are competing Guardianship petitions filed, it is recommended an attorney well versed in Incapacity, Guardianship law, Florida Estate Planning law, and Florida Elder Law be retained to assist in the proceedings.

Guardian Appointed: If the courts feel the Guardian is trustworthy and qualifies to serve as a Guardian, the court will issue Letters of Administration and an Order Appointing the Guardian outlining what powers the Guardian will have over the incapacitated person’s affairs.

Bond Required: The Court will then determine what amount of Bond will be required of the Guardian of the Property. A Bond is best described as a hybrid insurance policy protecting the incapacitated persons financial matters from misappropriation or misuse by the Guardian.

Costs of Guardianship: The cost of establishing a Guardianship can be between of $3,500 and $6,000 depending on the level that the guardianship is contested and if there are conflicting opinions on who should manage the ward's affairs. In addition, the court costs and examining committee fees are approximately $1,000.00.

When is a Guardian Appointed: a Guardian is ordered appointed by the courts where a person either does not have advanced directives in place or when those in place will not serve the interests of the incapacitated person. Generally these documents include a valid Durable Power of Attorney, Healthcare Surrogate Designation, HIPAA release, and Living Will. Often there is also a preneed guardian document which helps determine who will be appointed or not appointed as a guardian in the event one is needed.

Courts Discretion to Appoint Guardian Limited: Courts must order the least restrictive means to ensure a persons affairs are managed properly. Cost to draft the Durable Power of Attorney, Healthcare Surrogate Designation and Living Will is approximately $400-600 total. However in order to execute the documents a person must have mental capacity to do so, understand what he/she is signing and be able to make an informed decision at the time of signing as to who he/she wants to appoint.

This court appointed Guardian’s actions and responsibilities are monitored by the court. The Florida Guardian's responsibilities are outlined in the Florida Statutes and the Florida Guardian must must file accountings and reports with the court periodically. The Guardian has a legal duty and responsibility to protect the a person he/she is appointed to help.

If you are involved in a Florida Guardianship or would like to find how a Florida Guardianship can protect your family please Contact a Florida Guardianship Lawyer

Guardianship is a relationship created by state law in which a court gives one person or entity (the guardian) the duty and power to make personal and/or property decisions for another (the ward).

An article written by Brenda K. Uekert and Thomas Dibble. The article, "Guardianship of the Elderly" will appear in the next issue of Court Manager magazine where the author discusses the:

purpose of guardianships;
Abusive guardianships that often exploit the elderly;
Major issues with guardianships;
Capacity;
Financial Costs;
Training and Education;
Court Monitoring;
Recent Developments;
Technological innovations;
New Resources; and
and Recommendations.

For more information on Florida Guardianships Contact a Florida Guardianship Lawyer.

The new Florida Estate Planning Lawyer Web site for the Apple Law Firm PLLC has gone live. This site will act as a hub for the Florida Estate Planning Lawyer Blog and the NFA Gun Trust Lawyer Blog.

Its been a long month setting up the new website and more pages will be added as time permits. For now the Jacksonville, Florida based Apple Law Firm deals with:

Florida Asset Protection
Business Formation
Florida Estate Planning
Firearms Trust
Florida Guardianship
Florida Probate Litigation
Florida Trust Litigation and
Florida Trusts

For families living in Florida, choosing a guardian for their minor children is a primary reason why a Florida Will is such an important document to create and keep updated.

Often choosing who will care for your children is a difficult decision. Many families find it the hardest decision that they make in terms of estate planning. This is one area where it is common for the husband and wife to have completely different views of who should raise their children in the event that both the husband and wife die prior to the children reaching the age of 18.

First it is important to know that the planning is more important than agreeing with your spouse. Although it can create some tension between spouses, it is important to know that should one of you predecease the other, and then the surviving spouse gets to make their own decision anyway. Also, as long as one of you lives until the children reach the age of 18, it will not matter who you choose.

It is more important to discuss the reasons with each other and if possible come to a decision as to what is important to each of you than to try to come to a decision that one of you does not agree with.

The Georgia Wills, Trust, and Estate Planning Blog has an article on choosing the right guardian for your children where the break down the process into three steps. This three-step approach should make the process easier to accomplish without damaging the marriage.

Step 1 Make a list of people - make it long and include everyone that would make a better home for your children than the foster care system.

Step 2 Decide What Matters the Most - choose factors that are important and rank them in an order of priority. Some examples are maturity and patience, parenting style, religious beliefs, values, ability to care for additional children, and do not forget their willingness to serve (don't forget to ask them)...

Step 3 Match People to the Priorities - rank and evaluate your choices. Listen to each other and try to come up with a coherent reason for the choices you will make as a couple, or individually. Remember you may not be exactly happy with your spouses’ choice, but if you live longer you get to change your mind anyway. Perhaps its better to come up with someone you can both agree upon in case you both die simultaneously.

To choose a guardian properly, you should make a valid Florida will. Please contact a Florida Will Attorney or Florida Estate Planning Lawyer to help you prepare valid documents that accomplish your goals.

Once an Agent (Attorney in fact) receives written notice which requires a signature, their powers under the Durable Power of Attorney are suspended until the court determines incapacity. The court may reinstate the Durable Power of Attorney for an emergency, when a petition if file upon the court showing the nature of the emergency, the property or matter involved, and the power to be exercised by the attorney in fact.

Notwithstanding the provisions above, a proceeding to determine incapacity must not affect any authority of the attorney in fact to make health care decisions for the principal, including, but not limited to, those defined in chapter 765, unless otherwise ordered by the court. If the principal has executed a health care advance directive designating a health care surrogate pursuant to chapter 765, the terms of the directive will control if the two documents are in conflict unless the durable power of attorney is later executed and expressly states otherwise.

If the person has not received written notice of the proceeding for which they were required to sign for, any third party may rely upon the authority granted in a durable power of attorney that is not conditioned on the principal's lack of capacity to manage property until the third party has received the required notice. A third party may, but need not, require the attorney in fact to execute an affidavit.

If the Durable Power of Attorney is deployment contingent, any third party may rely upon the authority granted in a durable power of attorney to manage property as defined in Florida Statute 744.102(11)(a) only after receiving the affidavits provided in paragraphs (c) and (d), and such reliance shall end when the third party has received notice.

Continue reading "Guardianship and Durable Power of Attorney in Florida" »

There are many places to get advice on the Internet. Be sure when you are looking for legal advice, you are working with a licensed lawyer. Below is the finding of the Ohio State Bar in regards to one such service.

We the People is a franchise that provides forms and help in legal matters including wills, trusts, divorces, bankruptcy and other areas of law.

The Ohio State Bar found that they were practicing law without a license because they were owned and operated by attorneys not licenced in Ohio and advised individuals with respect to the completion of forms for filing a personal bankruptcy, application of probate, advising individuals on how to complete the forms and what answers to put down, directing individuals to execute documents and charging them for services, instructing completion of forms in disregard for proper procedures and determination by the Bankruptcy Court that the filing was incomplete, preparation of unnecessary and incorrect form for administration of an estate, preparing improperly completed forms for a bankruptcy, issuing advertisements, and advertising the preparation of services for living trusts, wills, powers of attorney, and incorporation's.

They were enjoined form further engaging in the unauthorized practice of law and from damaging members of the public and fined $10,00 per occurrence as a civil penalty as well as court costs.

To read more download the case Ohio State Bar Association v. Martin et al., No. 2007-1939, 2008 Ohio 1809; 2008 Ohio Lexis 1024 (April 23, 2008)

It is important to note that in Florida Judges will want to see proof that a child is in the United States legally prior to issuing a guardianship over the minor person. With the recent changes in security and immigration, there is concern about creating a legitimate reason for the minor to stay in the country with the guardianship.

I am currently in Shanghai China for the next 5 days and then heading to Osaka and Tokyo for 3 nights each. I am planning to keep posting new issues to my blog while I am gone. In addition, I will be responding to emails and will be available over my VOIP number for calls or issues that need immediate attention. Feel free to continue to send in your questions. I wanted to apologize upfront for any additional delay in responses. Please be conscientious that it is 12 hours ahead of EST and this along with being on vacation means I will typically respond to any issues between 8AM - 12 PM EST or 8PM to -12AM my time.

Graham v. Florida Dept of Children and Families (Graham II), 970 So.2d 438 (Fla. 4th DCA December 5, 2007)

This is the continuing saga of the battle between Luke and Laurence over their mother Betty, who DCF had determined was in need of guardianship after determining "Luke is the son who most has Betty’s interests in mind." After Laurence failed to comply with the guardianship court order to disclose the out-of-state location to which he had moved his mother, the court held him in civil contempt. The Court also appointed Luke as temporary plenary guardian of Betty’s person and property, electing to disregard an advance directive Betty had executed over 8 months after the guardianship proceedings had been initiated.

On appeal, the finding of contempt was reversed for failure to properly serve the order to show cause. The appellate court also reversed the order appointing temporary guardian, holding the trial court had failed to properly determine and indicate the specific grounds upon which the advance directive was revoked by the court. The court further noted that the surrogate under an advance directive is not under any duty to prove the validity of the advance directive. Finally, the court noted two of the examining committee reports were filed over two months before the final hearing and, relying upon two physicians’ affidavits filed before and after the hearing to determine incapacity use the wrong burden of proof - the correct burden of proof in a hearing to determine incapacity of a alleged incapacitated person (AIG) is by clear and convincing evidence. Thus the Court ordered the proceedings be dismissed.

Weissenbom v. Graham (Graham 1), 963 So. 2d 275 (Fla. 4th DCA August 1, 2007)
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During the course of a Florida Guardianship Dispute between the wards two sons, one of the sons moved the ward from Florida to a "secret location" in another state.

That son then arranged for an attorney to appear on behalf of the ward. Although the attorney never was authorized to represent the ward, he argued the guardianship must be terminated because the emergency temporary guardian was unaware of the location of the ward. The attorney also argued that the Florida court no longer had jurisdiction over the ward and that, therefore, the guardianship must be dismissed.

The appellate court, in reviewing an appeal from the trial court’s refusal to allow the attorney to represent the ward, rejected all of the arguments and found that, notwithstanding the unauthorized relocation of the ward to another state, the Florida court still had jurisdiction over the ward and any interested persons involved in the guardianship.

Ripoll v. Comprehensive Personal Care Services Inc., 963 So.2d 789 (Fla. 3rd DCA July 18, 2007)

The Florida guardianship 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, including 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.

Miller v. Goodall, 958 So. 2d 952 (Fla. 4th DCA April 25, 2007)

A daughter filed a petition to determine her mother’s incapacity and be appointed as guardian.

The ward’s sister (daughter's aunt) also filed a petition seeking to be appointed as plenary guardian.

The court denied the sister’s petition and instead appointed a third party attorney as plenary guardian.
The sister appealed the case on two grounds, arguing:

1) the court lacked personal jurisdiction over the ward, and
2) the court erred by not complying with the ward’s preneed guardianship declaration that named the sister as guardian.

The appellate court affirmed, ruling the lower court had personal jurisdiction over the ward because the ward’s attorney had consulted with her and obtained her consent to jurisdiction. The trial judge found the presumption of appointment of the designated preneed guardian had been overcome.

The appellate court noted the trial judge had also considered section 744.3124, Florida Statutes which states the court shall appoint a preneed guardian "unless the court determines that appointing such person is contrary to the best interests of the ward" and had specifically found it was contrary to the ward’s best interests to appoint her sister.

A person is qualified under Florida Law to serve as a guardian if he or she:

1. Is over the age of 18 years of age;
2. Is a Florida resident; or a non resident who is:

1. Related by lineal consanguinity to the ward;
2. A legally adopted child or adoptive parent of the ward;
3. A spouse, brother, sister, uncle, aunt, niece, or nephew of the ward, or someone elated by lineal consanguinity to any such person; or
4. The spouse of a person otherwise qualified above; and

4. Has never been convicted of a felony.

Filed with the Court, along with the Petition to Determine Incapacity, is a Petition for Appointment of Guardian, and an Application for Appointment as Guardian.

In, Florida, unless the Alleged Incapacitated Person is indigent, the Petition must also be accompanied by a check to the Clerk of Court for the filing fees of around $288.50, and a check in the amount of $20.00 to the County Sheriff for service of process. (fees may vary slightly per county)

Upon the filing of a Petition to Determine Incapacity, the Court will appoint three individuals to serve as members of an examining committee.

One member must be a psychiatrist or another type of physician.
The other two members must be either a psychologist, gerontologist, physician, a registered nurse, nurse practitioner, a licensed social worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or other person who by knowledge, skill, experience, training, or education may, in the court's discretion, advice the court in the form of an expert opinion.

At least one of three members must have knowledge of the type of incapacity alleged in the petition. Generally without good cause, the family physician may not be appointed to the committee.

Next the examining committee members will each meet independently with the alleged incapacitated person to evaluate his or her abilities and file a written report with the Court.

The Court will also appoint an attorney to represent the alleged incapacitated person. The alleged incapacitated person may substitute their own attorney to represent them throughout the proceeding.

If a family member is appointed by the Court to serve as guardian, that family member will be required to attend an eight (8) hour educational course for guardians. They must also submit to criminal and credit background checks, proof of which must be filed with the Court. It is possible for non Florida residents to "attend" the educational course by listening to audio tapes.

The approximate cost to open a guardianship, which includes court costs, the examining committee fees, the court appointed attorney's fees, and your attorney's fees, range from approximately $5,000.00 to $7,500.00 or more if contested by other family members. After the guardianship is setup there will also be yearly fees associated with the requirements of the court. These fees and costs can range from $300.00 to over $2,500.00 per year.

For more information on Florida Guardianships Contact a Florida Estate Planning Lawyer who handles Florida Guardianships.

In Florida, the powers granted by a Florida Guardianship expire when the ward dies. Often people try to use their powers granted by a Florida Guardianship to control aspects of the after death process. The guardian is without any powers granted by the guardianship once the ward dies.

If you are having problems with a Florida Guardianship or Florida Guardian Contact a Florida Estate Planning Lawyer.

Recently we have notice that Hospice organizations are refusing to allow people to visit relatives or friends while under the care of Hospice.

In these cases, the people were turned away because someone with a Power of Attorney was able to state that the person was not wanted.

It is important to remember that a Power of Attorney or Durable Power of Attorney give an agent the right to act in certain circumstances. In Florida, a Power of Attorney does not give someone the right to make decisions regarding where they are located, who they can visit, or who they can talk to.

It is