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the trial court had failed to properly determine and indicate the specific grounds upon which the advance directive was revoked by the court.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, andThe 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.
2) the court erred by not complying with the ward’s preneed guardianship declaration that named the sister as guardian.
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;4. Has never been convicted of a felony.
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
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, advise 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 possible to make these decisions for an individual, but only when someone has been appointed as their Florida Guardianship. Even if someone is the Florida Guardian they may not have these rights.
If you have a loved one and you are being prevented from seeing them because of a Power of Attorney you should Contact a Florida Estate Planning Lawyer to discuss your situation.
Britney’s dad had was appointed as conservator of her person and co-conservator of her estate, which means her dad is now in control of what Britney can do, who she can see, and he’s controlling all access to her bank accounts and credit cards.
Over the weekend, Britney attempted to hire her own lawyer to fight her dad’s attempt to take over her personal and financial affairs.
But, the Court refused to recognize Andrew Streisand as Britney’s lawyer because the court-appointed lawyer assigned to evaluate Britney said that Brit doesn’t have capacity right now to hire her own lawyer.
You’d think that someone with her wealth would have a Will , a Revocable Trust , Health Care Directives, Powers of Attorney, Guardian Nominations … basically a comprehensive estate plan.
It’s too late now for Britney, but it’s not too late for you … today having a personal lawyer is both accessible and affordable and if you own your home, care about your family, and want a trusted advisor to call when you are in crisis, you should have your own. To create of review your Florida Estate Planning Contact a Florida Estate Planning Lawyer.
One of the Lawyers in my office, David Wolf, has followed my lead and started to create a legal blog dealing with Florida Child Injury issues. David's blog is the Florida Child Injury Lawyer Blog. David covers everything from Florida Automobile Accidents, Florida Child Safety, Florida Crimes Against Children, Florida Dog Bites, Florida Homeowner Claims, Florida Home injuries, Florida Playground injuries, Florida wrongful death ....
Often when there are injuries to children I am involved in setting up Florida Guardianships. In Florida when a child receives more than $15,000 in settlement of a claim, most courts will require the creation of a Florida Guardianship.
Florida residents who have minor children should consider executing a power of attorney which allows another to take care of their minor children medically if they are unable to do so or unavailable at the time.
A medical power of attorney for a minor child is just another piece in the estate planning jigsaw puzzle. Like many estate planning documents, it isn't for everyone. However, if you are like my family and your children spend a lot of time in the care of another loved one, a MPOAMC is an important piece.
Contact a Florida Estate Planning Lawyer to create a medical power of attorney for your minor children.
Over the last weekend I tried to keep up with various websites. While Visiting Universal in Orlando with my family I say a posting by Michale with The Ohio Trust & Estate Blog and thought you might enjoy it also.
Kimberly Palmer of U.S. News & World Report wrote an article on the Alpha Consumer Blog where she discussed these issues. Her reader wrote:My husband, who is retired, has dementia. He responds to credit card offers in the mail and charges things to them, even though he shouldn't, because he is on limited Social Security disability income. He knows better, but his mind is weak. He always says he won't use the cards, but he still does. Even if I cut the cards in half, more come in the mail. We are now in $15,000 of debt, and it continues to rise. How can I get him to stop making charges? Will I be responsible for the debt, even if he passes away before I do?
She offers several solutions including
1- using http://www.optoutprescreen.com/
2- using a credit monitoring service.
3- using a durable power of attorney or guardianship if the person is incapacitated
4- Notifing the credit card companies directly
She also discusses the liability for the wife in the event of the husbands death.
If you need help with a Florida Durable Power of Attorney, Florida Guardianship contact a Florida Estate Planning Lawyer, or Florida Guardianship Attorney.
One of the most common questions I get is "What is the difference between a Durable Power of Attorney and a Guardianship?"
Richard Shea an attorney in Connecticut who publishes the Connecticut Estate Planning & Elder Law Blog has a good description of each and the differences in an article titled Power of Attorney v Conservatorship.
He summarizes the differences by stating:
A power of attorney is a relatively low cost and private way to decide which family member or trusted friend will have the legal authority to carry out your wishes if you can no longer speak or act for yourself. If you do not have a power or attorney or if your power of attorney is not drafted properly, and something happens that results in your inability to make decisions, your family/friends may later face court proceedings and court supervised Conservatorship. A court proceeding is not only costly, but the person appointed as your Conservator may not be the person whom you would have chosen yourself. And, as stated above, not having a properly drafted power of attorney could significantly limit financial and/or Medicaid planning that could be done on behalf of the principal.
Another significant difference that I often emphasize with my clients is that although a Durable Power of Attorney allows you to act when and if you want to, a Guardianship makes you legally responsible to act.
You should discuss your specific plans for a Florida Durable Power of Attorney or a Florida Guardianship with your Florida Estate Planning Lawyer to determine which is the right vehicle for your needs.
Whenever a Florida estate planning lawyer represents two or more individuals, there is always at least the potential of a conflict of interest, even when the clients agree about everything.
The same is true when a married couple needs a Florida attorney’s help with an estate plan. Depending on the circumstances, the Florida estate plan may well result in one spouse being deprived of a legal right. Whenever a person in a joint representation may be deprived of a legal right, the attorney must advise that person that he or she is entitled to seek the opinion of an independent attorney and, in fact, we are required to recommend a second attorney be consulted.
However, when both spouses are adamant that they wish to be represented by the same lawyer, the lawyer should incorporate both spouses' desires in what is called a "joint" or "dual" representation letter that is signed by both spouses. This type of letter is important because both spouses have acknowledged that each was advised of the potential or actual conflict and waived the right to seek independent counsel.
There are some situations in which each spouse should be represented by an independent lawyer -- such as a premarital or separation agreement and, depending on the circumstances, some second-marriage estate planning situations may also require the need for two lawyers. In addition, where assets are transferred from one spouse to another, extra protection may be warranted.
Our representation in estate-planning situations generally includes
1) review of existing wills, powers of attorney, trusts, etc.;
2) recommendations about how each of you wants to dispose of your property at disability or death;
3) preparation of documents necessary to accomplish your goals, including Florida wills, Florida powers of attorney, Florida health-care powers of attorney and the like.
While in most circumstances one Florida lawyer couldn't represent both of you, your knowledgeable waiver of having independent counsel represent each of you is the reason a Florida Estate Planning Lawyer is able to proceed in representing both of you. The Florida Estate Planning Lawyer should make sure each of you will provide open and complete disclosures and exchanges of information, and if a conflict does arise in the future, the Florida Estate Planning Lawyer must withdraw from any further joint representation and cannot represent either of you in the current matter or in another matter where the information disclosed is used against the other.