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Florida Powers of Attorney: Demand for Guardianship May be Frivolous

Uncategorized Jun 23, 2013

A valid Florida power of attorney must be recognized, or accepted, by third parties.  Chapter 709 of Florida’s statutes deals  with powers of attorney and tells us what third parties should do when presented with a valid Florida power of attorney.  Failure to recognize a valid power of attorney may be frivolous and fees may be awarded against a third party that fails to honor the POA without contesting the validity of it.  See the (not final) case of Maximiliana Albelo v. Southern Oak Ins. Co from the January term of Florida’s 3rd District Court of Appeal, opinion filed February 6, 2013.


Florida Trusts and the Merger Doctrine

Uncategorized Jun 18, 2013

If the trustee of a Florida trust is also the sole, only, beneficiary, does the Florida trust come to an end?  Does the legal title, which the trustee holds to trust property, merge with the equitable interest of the beneficiary?  Has the settlor’s (or trust creator’s) intent been satisfied?  See Hansen v Bothe 10 So.3d 213 (Florida, 2nd DCA, 2009).


Attacking and Over-turning a Florida Will: What About the Prior Wills ?

Uncategorized Jun 17, 2013

If one seeks to over-turn a will, such as if the maker of the will lacked testamentary capacity, or if the will was the product of undue influence, one must consider other (prior) wills.  If one is successful in attacking and also over-turning a will, the question becomes:  what about prior wills?  Are there valid prior wills, and, if so, are they “revived” or given effect?  This depends on who has standing, what has been alleged and the doctrine of dependent relative revocation.


Having Transcripts of Court Hearings and Reviewing Court Orders

Uncategorized Jun 16, 2013

Most litigators insist on having a court reporter present at all court hearings, even the “simple” hearings.   This makes sense since the cost is relatively small and it provides a record of what was said by whom, and what transpired. Seasoned litigators will tell you that some hearings end up dealing with issues not even set for that particular hearing: all the more reason to have a transcript.   It is not uncommon for court’s orders to be reviewed months or even a year or more later, when memories can fade and issues have been “resolved.”  Reviewing court orders, or the interpreting one, may be aided by a hearing transcript which dealt with that order.  If a court wishes to read beyond the plain language of its order, they are probably going to start at pertinent hearing transcripts.  Have a court reporter with you in court: even for the “agreed” matters and “simple” issues.


Florida Law on Durable Power of Attorney : Update and Recent Changes

Uncategorized Jun 14, 2013

At the end of May, 2013, Florida Governor Rick Scott signed a new law which makes certain changes to Florida’s power of attorney statutes, which is contained in Chapter 709  of the Florida Statutes.  Among other things, the changes for Florida powers of attorney expand on how third parties (e.g. brokers) may deal with POAs and how attorneys fees may be awarded in disputes involving POAs.


Florida Supreme Court Alters Economic Loss Rule

Uncategorized Jun 7, 2013

The Florida Supreme Court has recently held that the economic loss rule is limited to cases of products liability. This is a very “big” change from recent and prior law.   Determining whether or  not a tort  claim is permissible when contractual privity exists in situations other than products liability is now  a thing of the past.  Determining whether a professional services  exception is applicable or not is now a thing of the past.  For a copy of the Tiara Condo opinion, please email  michelle@pankauskilawfirm.com.


Wrongful Death Actions: Estate is the Real Party In Interest

Uncategorized Jun 6, 2013

When one files a wrongful death case, but is not  the personal representative of the estate, courts may permit the duly appointed personal representative to, later, be “substituted in” for the one who  filed the suit (the “nominal plaintiff.”) The estate of the decedent  is the “real party in interest.”  Put another way, the beneficiaries of the estate are also considered the real parties in interest.   A recent 3rd District Court of Appeal case discusses this. For a copy of the Eisen case, please email michelle@pankauskilawfirm.com.


May Anyone File a Lawsuit on Behalf of An Estate ?

Uncategorized Jun 6, 2013

May someone other than the  duly appointed personal representative of a  Florida decedent’s estate file a lawsuit on behalf of the estate or the estate’s beneficiaries?  Generally, no.  However, if a lawsuit needed to be filed (e.g. to preserve rights  or to file before the statute  of limitations has  “run”) or if one was filed by one without  authority,  it may be possible to permit  the suit to go  forward.  A recent 3rd  District Court of Appeal case suggests that the case may proceed if the duly  appointed personal representative is properly substituted for the person who filed the complaint.  For a copy of this Eisen  opinion, please  email  michelle@pankauskilawfirm.com


Discovery and privilege : litigation in wills, trusts, estates and guardianships

Uncategorized May 31, 2013

Discovery can be voluminous when litigating matters involving wills, trusts, estates and guardianships. Often, the other side may seek documents which they want you to produce, but which may not be required to be produced. As an example of this is when you have documents which are protected by the attorney-client or work product privilege. Knowing when to file a so called “privilege log” is important . A recent case from the 4th District Court of Appeals in West Palm Beach, Florida spoke to this issue, although it is not a matter involving wills, trusts, estates and guardianships. If you would like a copy of the DLJ Mortgage Capital, Inc. v. Fox opinion, email michelle@pankauskilawfirm.com


Should an attorney serve as personal representative of a Florida estate if he or she has a conflict of interest?

Uncategorized May 30, 2013

A personal representative may have great integrity, and be capable of administering an estate competently and efficiently, and may even be “an excellent attorney”…… but nonetheless should not serve if he or she has a conflict of interest and cannot administer the estate in the interest of all the beneficiaries.  For more  on this,  email michelle@pankauskilawfirm.com.