Articles Posted in Guardianship

Estate planning has many benefits, with one of the best being that it allows our clients to have peace of mind.  This peace of mind comes from knowing that your family members can be taken care of if something happens to you.  This type of estate planning is especially important if you have minor children.

Parents are often so busy that they don’t have time to think about planning for their death or incapacity.  A parent’s time is often spent thinking about getting kids to school, helping with homework, and providing a good lifestyle for their children.  Unfortunately, tragedy can strike without warning, from an unexpected illness, on a highway, or as a result another catastrophe.

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Warning Signs of Financial Abuse of the Elderly

Studies show that financial abuse of the elderly is a growing problem throughout the United States and especially here in Florida.  The overall population is aging, and persons over 65 years old control about one-third of the wealth in the United States.   This creates a big problem when you consider this group is much more susceptible to abuse due to health problems like dementia.

Estimates show that Americans loose nearly $3 billion a year due to financial abuse of the elderly from friends, loved ones, or even strangers.  This abuse comes in the form of financial abuse, scams, and other types of exploitation. The worst part is this type of financial abuse of the elderly is that it usually goes undiscovered until all an elder’s money is gone.

How To Protect Against Elder Abuse

A Senate Special Committee on Aging had a hearing in November of 2016, which allowed experts to testify that elder abuse is still a growing problem in the United States.  The experts testified that over 5 million elders, or one in ten seniors, that live at home experience some elder abuse, neglect, or exploitation.

Jaye Martin, the executive director of Maine Legal Services for the Elderly, testified that not only is financial abuse (elder abuse) running rampant, but that the elder abuse is most often perpetrated by family members who are guardians.  This information regarding financial elder abuse was further supported by a report issued by the Government Accountability Office.
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According to recent censuses and polls, experts project Americans that are 65-and-older will double over the next three decades due to a large number of baby boomers.  This means the current population of 65 and older persons should explode from the current rate of 48 million to almost 90 million by 2050.  This is an impressive statistic, but also a worrying statistic because as the population of elders increases, so does the potential for elder abuse.

Florida has one of the highest percentages of elderly residents in the United States, which also means there are more older people that can be abused.

So how does fraud against the elderly occur in Florida?

Many Jacksonville Special Needs Trust Lawyers and estate planning lawyers are rejoicing at the fact that the law concerning special needs trusts is about to change for the better.  In Jacksonville, a special needs trust can be of the best tools available for many clients of Jacksonville Special Need Trust Lawyers because it gives a great number of benefits to those that suffer from a disability.

Congress and the president are on the verge of passing The Special Needs Trust Fairness Act.  This act will allow a disabled person to create a special needs trust for himself (a First Person Special Needs Trust).  Previously, the law did not permit a disabled person to form their own special needs trust.

Under the old law, the only way a person could receive a benefit of special needs trust was if he or she had a parent or grandparent, or court order to create the special needs trust.  In Jacksonville, special needs trust lawyers had to jump through costly hoops for those clients without living parents or grandparents.  The only way for these disabled persons to receive this trust is by giving another person guardianship rights or petitioning the court to create the trust.

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As of today, the answer is no you may not create your own Special Needs Trust, but the SNT Fairness Act may change that soon.  Under the current law you must have a guardian or court order to create a SNT for yourself.

Congress gave the estate planning community a great gift today when the Senate approved H.R. 34, the 21st Century Cures Act, which includes the Special Needs Trust Fairness Act by a vote of 94 to 5.  The bill is now seeking final approval from the current sitting President Barack Obama, and political experts predict the president will sign the bill before he exits office.

The U.S. House of Representatives passed the Special Needs Trust Fairness Act on November 30 since time is running out with the current session of Congress.  Senator Glenn Thompson from Pennsylvania, who is the Fairness Act’s sponsor, hurried to find a legal avenue for the getting the act passed before lame-duck session of Congress ended.  Innovatively, he used the Cures Act, which is a lengthy $6.3 billion medical bill that bundles a wide variety of health care related.

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Can a Marriage be Prevented in Florida? We often get questions about whether the Fundamental Right to Marry Extends beyond Incapacity?

The state constitution of Florida offers every citizen basic fundamental rights.  One of the most important of these rights is a Florida resident’s fundamental right to marry.  The right to marry in Florida is strong and has grown ever stronger recently due to the U.S. Supreme Court’s holding that same-sex marriage is a right.

However, this right to marry in Florida is not without its limits.  Under the current state laws, an incapacitated person cannot marry without court approval.  When a person is deemed incapacitated by a court, he or she loses the ability to contract with others.  As unromantic as it sounds, marriage is a contract between two people.  Two people cannot get married if one of the persons to the marriage no longer has the ability to enter into a contract.

If an incapacitated person marries then the marriage may not be valid.  So what is a valid marriage?  According to the court in Goldman v. Dithrich, 179 So. 715 (Fla. 1938), “To constitute a valid marriage, the marital contract must be voluntarily entered into in good faith for the purposes actuating such contracts, the parties must be legally eligible to make the contract, and their status must be such that the union will not be contrary to public policy or obnoxious to the prevailing social mores.”
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Petitioning a Court to become the guardian of an adult is, unfortunately, not a cheap process. Many clients are very shocked to find out just how expensive becoming the guardian of a loved one can be. Not only are their court costs that have to be paid, but there are attorney and doctor fees as well.

First of all, you must file two separate petitions with the court. Each of these petitions has its own filing fee, which is not small. For example, in Duval County, Florida, each filing fee can be $400.00. And the fees do not stop there. A 3 person examining committee is appointed by the court as well as an attorney to present the potential ward. Each examining committee member has their own individual fee, which can range anywhere from $175.00 to $250.00 each. The court appointed attorney must also get paid for their time.

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Florida Statute 744.331 outlines the legal process that must be followed in order to have an adult deemed incapacitated in Florida. Per the Florida Statute, the process begins when a concerned family member, friend, or other interested party files two separate petitions with a Florida Court. One petition is the Petition to Determine Incapacity and the second is the Petition for Appointment of Guardianship. Both of these petitions are then served upon the alleged incapacitated person as well as read to the alleged incapacitated person by a court appointed attorney appointed to look after the best interests of the alleged incapacitated person. The court appointed attorney must be part of the court’s attorney registry or belong to the office of criminal conflict and civil regional counsel. However, the alleged incapacitated person can always substitute their own personal attorney if they choose. The alleged incapacity person’s next of kin must also be notified of the Petition to Determine Incapacity and the Petition for Appointment of a Guardian.

After an attorney has been appointed to represent the alleged incapacitated person, a three (3) person examining committee is also appointed. The examining committee is comprised of 3 persons from multiple different backgrounds including but not limited to psychologists, physicians, nurse practitioners and social workers. Their role is to examine the alleged incapacitated person and prepare and file a report with the court that complies with Florida Statute 744.331(f). Per this statute, the report must include a mental health and physical examination as well as a functional assessment. More specifically, Florida Statute 744.331(f) requires each report to contain the following:

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