Is your mom or dad getting along in years in Florida? Is mom or dad a widow maybe living alone in Boca Raton with a few Million Dollars in their revocable living trust? Worried about your Florida probate inheritance when they pass away? Should you be concerned if mom or dad has a new caretaker and that caretaker is named in their estate planning documents? Did mom or dad just take on a full time companion or personal assistant? How about this…. is that personal assistant or live-in-friend now in their Florida estate plan? You may want toread this court of appeals case from Washington issued August 11, 2015. This case involves allegations of screaming, yelling, withdrawing money from an ATM by a caretaker who is also accused of failing to provide a sanitary and safe living environment for a guy named Larry who was suffering from Parkinson’s. The caretaker and full time companion also travelled with Larry to Scandinavia and was named as successor trustee of his revocable living trust and as power of attorney if he became incapacitated. Family members, heirs at law, andbeneficiaries of your dad’s or mom’s Florida estate plan and others may be wondering howdid this caretaker get so close to a man suffering from Parkinson’s, and how did the caretakerget named in his estate plan? This is a case of a power of attorney and successor trustee filing a petition for protection of a vulnerable adult. In Palm Beach probate litigation, we might refer to such as a case as a case of financial exploitation or financial abuse involving atemporary restraining order. One question you may be asking which this case deals with is can you get a restraining order against a parent’s caretaker if she is committing financial exploitation?
Estate Plan & Power of Attorney & Revocable Living Trust in Place: money & control
- There was this guy named Larry who set up an estate plan
- He had a friend or acquaintance named Jennifer. I don’t know much more, and the legal opinion on this caretaker lawsuit does not tell us much more about their relationship. Anyway, Jennifer was his caretaker and companion. You figure out what that means.
- 1996 Larry signs a durable power of attorney naming Richard as his attorney in factshould he later become incompetent or disabled
- This sounds like a so called “springing power of attorney”, which we do not have any more in Florida. In fact, in Florida, we just changed our Florida power of attorney laws recently.
- Want to read the Florida POA law? Here is the free link:http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0709/0709PARTIIContentsIndex.html
Revocable Living Trust lets Trustee Sue Caretaker
- April 2012: Larry signs a living trust naming himself as original trustee and Richard assuccessor trustee in case he becomes incapacitated or dies
- In other words, under his revocable living trust, if he can’t manage the trust, Richardis in charge of all that trust money
- Who determines if you are incapacitated and should not longer be the trustee of your living revocable trust?
- In this case, Larry named 3 people to make that decision
- In Florida, estate planning lawyers Delray Beach use a treating physician or the client’s attending physician to authorize a medical doctor to state if you can’t be the trustee of your living trust Florida anymore
- Under Larry’s revocable trust, he kept all rights to income and property and contro as long as he had capacity
- So, where does Larry’s revocable trust go at his death?
- At his death, Larry’s living trust goes to members of his family
- Hmm…… might there be tension between Jennifer, the companion, and the family members who are evidently remainder trust beneficiaries or what trust lawyers Florida call remainder beneficiaries?
- Well, evidently Larry’s chosen trustee Richard, who is also Larry’s POA, is a good guy who was watching out for Larry. It was Richard who filed the petition with the probate court to keep Jennifer away from Larry, who was described as, or believed to be, a vulnerable adult.
Larry Shows Signs of Parkinson’s– Jennifer uses Larry’s ATM Card While He’s in the Hospital
- 2009: Larry shows signs of Parkinson’s
- Jennifer’s relationship with Larry appears to grow closer although we don’t know all the facts from this appellate opinion
- Jennifer began working for Larry near the end of that year, cleaning and organizing the home for $100 a day
- Jennifer becomes a personal assistant
- She moves in to Larry’s house to become his full time companion
- Larry takes her to Scandinavia in the summer of 2012
- September 24, 2012: Larry trips over a box and goes to the hospital
- While Larry is in the hospital, Jennifer used his ATM card to take $2500
- At least three people heard Jennifer yell at Larry
- Jennifer is contronted by Larry’s family members about the large ATM withdrawals she made from Larry’s accounts
- You should read the rest of the opinion to hear about the yelling and screaming
Can you get a restraining order against mom’s companion if the companion is taking mom’s money?
- So, many family members, like adult children who do not live near their mom or dad who may reside in Delray Beach wonder:
- Can I get a restraining order against my mom’s caretaker if the caretaker Florida is yelling at mom?
- Or, some children ask Florida elder law lawyers: can a Florida guardianship help me get a restraining order against my dad’s live in companion or personal assistant orcaretaker if the caretaker or live in companion is using dad’s ATM card and withdrawing this money?
- November 2, 2012: a petition is filed for the protection of a vulnerable adult, to attempt to protect Larry and to restrain Jennifer from interacting with Larry
- I’ll let you read the facts of the case on your own, but know that in Florida probate litigators West Palm Beach may indeed seek a restraining order against someone. Atemporary restraining order or Florida TRO may be obtained under very special circumstances. Yes, you can seek a restraining order against someone who isfinancially abusing an elderly person and you can seek a restraining order against someone who is the cause of financial exploitation.
- WHO files the restraining order lawsuit Florida is a matter of standing and whether filing for a guardianship Palm Beach is a good decision will depend on a number of facts and circumstances of one’s particular case
Want to read this opinion on restraining orders against a trustee and a power of attorney and personal assitant and full time companion? Here is the free link:http://www.courts.wa.gov/opinions/pdf/D2%2044340-6-II%20Unpublished%20Opinion.pdf
Florida Law to Protect Family Money & Inheritances from Caretakers and Live in Companions Who May Be Financial Predators
- In short, Florida probate laws and property laws have legal remedies to protect familymembers and living trusts.
- Florida lawsuits are designed for family members to recover money that was taken by a caretaker or live in companion or personal assistant.
- There are civil remedies which you can bring in a Florida probate court or estate proceeding, or even a Chapter 744 Florida Guardianship proceeding to protect your parent’s money and to try to get back any money improperly taken.
- You may also be able to sue a caretaker or personal assistant who mis-used money or a power of attorney, or a Palm Beach joint bank account by suing for tortuous interference with an inheritance or expectancy.