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Florida Guardianship Litigation in Light of Florida Revocable Trusts or Living Trusts

Uncategorized • Jul 5, 2016
post about Florida Guardianship Litigation in Light of Florida Revocable Trusts or Living Trusts

Probate lawyers West Palm Beach know that nearly everyone is using revocable trusts or living trusts as part of their estate plans. Florida revocable trusts and living trusts are used not only to manage wealth and distribute inheritance when a person passes away, but also to manage a person’s funds and protect his or her assets while they are still alive.

Revocable Trusts, Living Trusts, Guardianships

  • Why would a trust need to manage my funds or protect my assets if I am still living?
  • Perhaps, you become incapacitated.
  • You may be able to avoid guardianship under certain circumstances if there are less restrictive alternatives to a guardianship, which properly address the needs of the ward.
  • For example, a guardianship can sometimes be avoided in Florida if the person deemed incompetent has a durable power of attorney, a revocable trust with a trustee, and/or someone to make healthcare decisions for them.
  • Many times, adult children of someone who may have diminished capacity are filingguardianship petitions,with the probate court Delray Beach, regarding who should make decisions for an alleged incapacitated person.
  • Sometimes, the family files a petition because they question whether the person even needs a guardianship.
  • In a Second DCA case, which issued an opinion on February 26, 2016, the issue was regarding a guardianship appeal and had to do with the ward’s revocable trust.

In re Guardianship of Mount

  • Here, the co-trustees of the Ward’s trust appealed an order compelling the trustees to ” return trust funds held in the escrow account of the Stern & Kilcullen law firm to the Trust’s primary bank account.”
  • The Second DCA reversed this order saying that the Ward’s “beneficial interest” in the trust did not allow the guardianship court, “in the absence of an action properly commenced by the guardianship against the co-trustees”, to “override the decisions of the co-trustees in the management of the trust.”
  • It’s interesting here as to why the trustee was even before the court.
  • Florida trust and estates lawyers Boca Raton know that  a trustee of a revocable trust may be an interested person in a guardianship proceeding and may be a proper person to participate in the guardianship administration.
  • However, here, the court seems to say that a guardianship court is not going to second guess a trustee.
  • Therefore, a civil action can be filed against the trustees outside of the guardianship court to determine whether the trustees acted properly, but the guardianship court here isn’t going to make that decision.
  • What do probate litigators need to remember from this case?
  • If you are involved in a guardianship matter in Florida, and want the court to exercise jurisdiction over a trustee, you must consider 1) whether  the trustee is appearingvoluntarily,  2) whether the trustee consented to jurisdiction and 3) whether the court has the authority or subject matter jurisdiction to compel a trustee to do something.
  • If these three things are not there, you may have to file a separate civil action.
  • Read the entire case by clicking here.

User’s Guide for Florida Probate Litigation & Administration of Estates, Wils & Probates

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