Guardianships and Guardianship Administration

probate trusts advantages of each

 

BaskinFleece handles all aspects of guardianships, including uncontested guardianships and guardianship administration.

Guardianship in general involves the appointment of a Court-supervised guardian, who is sometimes a professional guardian and sometimes a family guardian. A professional guardian must pass a rigorous testing process to become a registered guardian, and all guardians are bonded for 100% of the value of the ward’s liquid assets. A family guardian must pass an eight-hour course. The guardian is a true fiduciary who is delegated the rights over an individual. This delegation may be subsequent to entry of the Order Determining Incapacity and issuance of Letters of Guardianship. A guardianship may be a plenary guardianship, where the court removes all of the enumerated statutory rights of an individual, or a limited guardianship, where only some of the rights are removed.

OldMan-Son12BaskinFleece handles all aspects of contested guardianship litigation in St. Petersburg, Tampa, Clearwater,  Pinellas County and throughout the state of Florida. Contested guardianships are those which involve either the establishment of a guardianship or situations where the alleged incapacitated person may not in fact be incapacitated, or reasonable alternatives to a guardianship exist.

For help with a elder law and guardianship related questions, you can contact BaskinFleece at 727.572.4545.

This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Because the law is continually changing, some provisions in this blog may be out of date. It is always best to consult an attorney about your legal rights and responsibilities in your particular case.

 

 

Digital Assets Part 3: Estates – What can the Power of Attorney, Trustee and Guardian Can and Cannot Do

In Part 3 of Digital Assets, the content of electronic communication is only authorized if the Power of Attorney specifically says you can disclose the information or a court enters an order saying it is ok to do so. What is thPayPale power of a Trustee regarding a PayPal account moving from an individual into a trust? Can the Power of Attorney or a Guardian get access to the content of emails, PayPal and other digital accounts?

This short video from BaskinFleece attorney Colleen Carson helps clarify who can do what:

For additional information please contact BaskinFleece at 727.572.4545.

Terri Schiavo, Karen Quinlan and Estelle Browning: Historical Cases that Led to Development of the POLST Form

Quinlin Terry SchiavoAttorney Hamden Baskin discusses the historical end-of-life cases of Terri Schiavo, Karen Quinlan and Estelle Browning and how they influenced the creation of the POLST (Physicians Orders for Life-Sustaining Treatment) form.

 

 

Implications of the Recent Update to the Guardianship Statute

BaskinFleece is proud to announce that attorney Jeffrey A. Eisel has been made a partner, effective January 1, 2016.By Jeffrey A. Eisel, Esq.

As of July 1, 2015, significant changes were made to Florida Statute Chapter 744 regarding guardianships. Many of the changes to the previous statute focus on professional guardians. One major change that will affect many, if not most, guardianship proceedings is the change to 709.2109, Florida Statute. This statute concerns the efficacy of a Power of Attorney during the pendency of the guardianship proceedings. Prior to the changes to the statute, a Power of Attorney was deemed suspended during the pendency of the guardianship proceedings.

GuardianshipThe statute now reads as follows (emphasis added):

If any person initiates judicial proceedings to determine the principal’s incapacity or for the appointment of a guardian advocate, the authority granted under the power of attorney is suspended until the petition is dismissed or withdrawn or the court enters an order authorizing the agent to exercise one or more powers granted under the power of attorney. However, if the agent named in the power of attorney is the principal’s parent, spouse, child, or grandchild, the authority under the power of attorney is not suspended unless a verified motion in accordance with 744.3203, Fla. Stat. is also filed.

744.3203 states as follows:

1) At any time during proceedings to determine incapacity but before the entry of an order determining incapacity, the authority granted under an alleged incapacitated person’s power of attorney to a parent, spouse, child, or grandchild is suspended when the petitioner files a motion stating that a specific power of attorney should be suspended for any of the following grounds:

(a) The agent’s decisions are not in accord with the alleged incapacitated person’s known desires.

(b) The power of attorney is invalid.

(c) The agent has failed to discharge his or her duties or incapacity or illness renders the agent incapable of discharging duties.

(d) The agent has abused powers.

(e) There is a danger that the property of the alleged incapacitated person may be wasted, misappropriated, or lost unless the authority under the power of attorney is suspended.

Grounds for suspending a power of attorney do not include the existence of a dispute between the agent and the petitioner which is more appropriate for resolution in some other forum or a legal proceeding other than a guardianship proceeding.

This is an added step which now must be addressed in many contested guardianship actions where family members are the ones who may be abusing powers purportedly granted to them by the alleged incapacitated person.

The statute further addresses the requirements for such a pleading.

2) The motion must:

(a) Identify one or more of the grounds in subsection (1);

(b) Include specific statements of fact showing that grounds exist to justify the relief sought; and

Elder law, elder care(c) Include the following statement: “Under penalties of perjury, I declare that I have read the foregoing motion and that the facts stated in it are true to the best of my knowledge and belief,” followed by the signature of the petitioner.

(3) Upon the filing of a response to the motion by the agent under the power of attorney, the court shall schedule the motion for an expedited hearing. Unless an emergency arises and the agent’s response sets forth the nature of the emergency, the property or matter involved, and the power to be exercised by the agent, notice must be given to all interested persons, the alleged incapacitated person, and the alleged incapacitated person’s attorney. The court order following the hearing must set forth what powers the agent is permitted to exercise, if any, pending the outcome of the petition to determine incapacity.

(4) In addition to any other remedy authorized by law, a court may award reasonable attorney fees and costs to an agent who successfully challenges the suspension of the power of attorney if the petitioner’s motion was made in bad faith.

These changes to the Guardianship Code make it imperative to address the issues of Powers of Attorney naming family members, as contemplated in 709.2109, Florida Statute, to ensure the protection of the alleged incapacitated person and their possessions.

For more information about guardianships, call Baskin Fleece at (727) 572-4545.

This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

Can a Guardian Be Removed?

Lawyer for estate planningA guardian who is given authority over property of the ward is required to inventory the property, invest it prudently, use it for the ward’s support, and account for it by filing detailed annual reports with the court. In addition, the guardian must obtain court approval for certain financial transactions.
 
The guardian of the ward’s person may exercise those rights that have been removed from the ward and delegated to the guardian, such as providing medical, mental and personal care services and determining the place and kind of residential setting best suited for the ward. The guardian of the person must also present to the court every year a detailed plan for the ward’s care along with a physician’s report.

The clerk of the court reviews all annual reports of guardians of the person and property and presents them to the court for approval. A guardian who does not properly carry out his or her responsibilities may be removed by the court. Guardians may also be held accountable and removed as guardian if they fail to carry out their duties – because they become ineligible to act as guardian. At their choosing, a guardian may resign by providing notice to the court.

Note: Guardians are usually required to furnish a bond and may be required to complete a court-approved training program. A guardian must also be represented by an attorney who will serve as “attorney of record.”

For help or answers to estate-related questions, you can contact BaskinFleece at 727.572.4545.

This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Some of the content of this information is courtesy of The Florida Bar and represents general legal advice. Because the law is continually changing, some provisions in this blog may be out of date. It is always best to consult an attorney about your legal rights and responsibilities in your particular case.

Estate Planning and Creating Joint Bank Accounts

BaskinFleece lawyer Jay FleecePitfalls of Joint Accounts – by Joseph W. Fleece, III

A common problem today in estate planning is the unintended consequences of joint bank accounts. Recently, a client called and told me that while he was at his bank, the account representative suggested that he should put his niece on his account so that she could pay his bills if something happened to him.

Luckily, this client was smart enough to call his attorney to find out if that was a good idea. I told him that he had already signed a durable power of attorney and that document would give his niece full power and authority to deal with his bank account, plus much more, if something happened to him. I then went on to explain what would have happened had he followed the advice of the young account representative.

Estate planning and joint accounts

I told him, based upon my experiences, the account representative would have had him sign a new signature card for his bank account. His niece would have been listed as a joint tenant with right of survivorship. Upon his death all the funds in that account would have passed directly to his niece totally bypassing the estate plan he had set up under his will.

Many times the account representative is only trained to follow the bank’s procedures without being instructed on the consequences of his or her actions. The account representative is trained to prepare new account signature forms, which represent the contract with the bank, and then sets up the new account as being with the “right of survivorship.” Most bank forms only have two choices, individual or joint with right of survivorship.

Even though the bank customer believes that the niece, or whomever they designate, will only have signing privileges and no ownership in the account, the account contract specifies otherwise. Unbelievably, most bank contract forms do not have an option for the account to be a “convenience” account where the second name on the account has no ownership interest and is merely on the account for the convenience.

This problem becomes worse when unscrupulous “helpers” have figured out that it is much easier to take advantage of an unsuspecting elderly person with the help of a bank rather than trying to unduly influence the elderly person into making a new will. A savvy fraudster merely has to convince the elderly person that it might be helpful if they went down to the bank branch and have the “helper’s” name added as a “signer” to the bank account under the guise that the “helper” would be authorized to sign checks for the elderly friend. The “helper” knows full well what the ultimate consequences will be with the creation of a new survivorship account.

 

 

Guardianships in Tampa, Clearwater and St. Petersburg Florida

 

BaskinFleece handles all aspects of guardianships, including uncontested guardianships and guardianship administration. 

Guardianship in general involves the appointment of a Court-supervised guardian, who is sometimes a professional guardian and sometimes a family guardian. In Clearwater, Tampa, St. Petersburg and throughout Florida, a professional guardian must pass a rigorous testing process to become a registered guardian, and all guardians are bonded for 100% of the value of the ward’s liquid assets.

To become a registered guardian, you must pass a rigorous testing process because all guardians need to be bonded for the value of the ward’s liquid assets.A family guardian must pass an eight-hour course.

The guardian is a true fiduciary who is delegated the rights over an individual. This delegation may be subsequent to entry of the Order Determining Incapacity and issuance of Letters of Guardianship. A guardianship may be a plenary guardianship, where the court removes all of the enumerated statutory rights of an individual, or a limited guardianship, where only some of the rights are removed.

BaskinFleece handles all aspects of guardianships, including uncontested guardianships and guardianship administration. For more information click here, or call us at 727.572.4545.