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a guardian advocate, the authority granted under the power of attorney is suspended until the petition is dismissed or withdrawn or the court enters an order authorizing the agent to exercise one or more powers granted under the power of attorney.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.

Florida Laws for Elder Abuse

Attorney Jay Fleece of BaskinFleece

Historically, Florida has a large retirement population most of whom are over the age of 65. As many retirees grow older, they suffer from diminished capacity and become susceptible to being taken advantage of. This PDF article is written to help you and your loved ones: Laws Regarding Elder Abuse.

Estate Planning: These 4 Documents Should Accompany Your Will

Include these 4 items in your will: Living Will, Durable Power of Attorney, Health Care Surrogate & Pre-Need Guardian Designation.

1. Living Will: Florida Statutes now provide for a written declaration by an individual specifying directions as to use of life-prolonging procedures.

2. Durable Power of Attorney: This document can assist in handling the property of a person who has become incapacitated without having to open a guardianship proceeding in court. This is especially valuable for paying the bills and protecting the assets of an incapacitated person.

Health Care Surrogate: Florida law now allows individuals to designate a person to make health care decisions for them when the individual may not be able to do so.3. Health Care Surrogate: Florida law now allows individuals to designate a person to make health care decisions for them when the individual may not be able to do so. Included in this important appointment is the power to decide when to withdraw medical procedures.

4. Pre-Need Guardian Designation: Florida law allows you to designate a person who could be appointed guardian over you should you become incapacitated and/or over your children should you become incapacitated or upon your death. If you fail to designate a guardian, the Court will do so for you if and when it becomes necessary.

AARPAARP Bulletin: Contesting a will and what you should know when estate planning.

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

 

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.

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.

Contested Guardianships in Clearwater, Tampa and St. Petersburg

ProbateBaskinFleece handles all aspects of contested guardianship litigation in Clearwater, St. Petersburg, Tampa, 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. Many cases are filed to prevent the exploitation or further exploitation of an individual, often a loved one, by someone who has taken over the financial, medical and social affairs of an individual who is incapacitated and unable to resist the undue influence of others. The Order Determining Incapacity may result in the loss of substantial Civil Rights, including the BaskinFleece handles all aspects of contested guardianship litigation.right to vote; to determine one’s own medical treatment; to handle one’s own financial affairs; to make a will, change a will, gift or disposition of property; to determine one’s own residence; and to travel unsupervised, to name but a few. The filing of a guardianship, while unfortunate, is often the only means to stop the financial exploitation and wrest control away from the exploiter, who can be a stranger, but may also be a neighbor, caregiver, friend, or even a family member.

Wills, Trusts, Estate, Probate and Guardianship: Good Communication is Paramount.

Video-Communication2

A short video on the topic of wills, trusts, estates, probate and guardianship.

Estate planning: The vast experience in dealing with and resolving these specific issues gives law firms a wealth of knowledge. Good communication between a client and their lawyer can keep costs and stress to a minimum – as wills, trusts, estate and guardianship issues can be very complex. Make sure an attorney or law firm that you engage to handle these matters is experienced and knowledgable in estate planning. A one minute video from Hamden Baskin provides a few tips on what to expect from law firms and attorneys practicing in wills, trust, guardianship and probate litigation and estate related areas of law.

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