In Florida, guardianship cases have exploded.  Increasingly, more and more probate attorneys and trust and estate attorneys are dealing with guardianship matters.  Will a court “take away” important civil and human rights of a person who is alleged to be incapacitated?  Will a court appoint someone to manage the property of the person?  Or is there a valid power of attorney, health care directive or surrogate, or revocable trust (living trust) to manage the person’s finances?

South Florida probate litigator John Pankauski will speak today in Ft. Lauderdale, Florida and address Broward County probate attorneys who prepare wills and trusts and who administer estates.  Pankauski, and Boston attorney Joe Bierwirth of Hemenway & Barnes, will present the following Florida law topic:  Ethics & Estate Planners, 10 Things to Preserve & Protect Your Practice.   The topic will include Florida probate matters, ethical challenges involved in wills, trusts, estates and guardianships, and how Massachusetts law differs. 

West Palm Beach, FL probate litigator John Pankauski and Joseph Bierwirth will speak today at 12:00 noon at the South County Courthouse, Delray Beach, Palm Beach County, Florida.  Their topic is:  10 Things Estate Planners & Probate Attorneys Need to do to Improve & Protect Their Practice. 

In Florida, all you ever wanted to know, just about, of powers of attorney is contained in Chapter 709 of Florida Statutes.   Florida probate attorneys know that this chapter was “re-created” last year and that this past legislative session saw some slight changes to the POA statute.   Now, there are so-called “super powers” which a client may, or may not, grant to his or her attorney in fact.  Since a power of attorney in Florida is a fiduciary relationship, estate and trust attorneys, and guardianship attorneys, know that a fiduciary is prohibited from “self dealing.” 

Are you the beneficiary of a trust that has lost money over the past 24 months?  The US stock market has been on a tear, especially since November lows of 2012.  It’s been on a march to new highs.  What to do if your trustee in Florida is breaking even or losing money in this market?   You may be entitled to “market adjusted damages”.  Market adjusted damages are those gains or earnings which your Florida trust should have made had it been invested properly.   What would a reasonable, prudently invested Florida trust portfolio have looked like had the Florida trust been invested properly?  If the answer is that the trust would be “up”, that “up” is market adjusted damages.  For Florida trust litigation and Florida trust disputes, add on interest.  Know your damages.  And know how to prove them.  Advocate hard.  Litigate smart.

Many Florida estate planning attorneys prepare revocable or living trusts for clients.  Often, there are “formula”clauses in these trust documents. These formula clauses tell the trustee how to divide the trust when the grantor, or creator, of the trust passes.  Typically, you split the revocable trust into two shares or two other trusts: a Family Trust and a Marital Trust. The Marital Trust is intended to qualify for the estate tax benefit of the unlimited federal marital deduction.  This means that the Marital Trust is not, in reality, subject to estate tax until the death of the surviving spouse. 

In Florida, divorce attorneys and probate attorneys are faced with dealing with not only the law and financial matters of the parties involved, but also the personal matters of the parties.   For Florida probate attorneys who handle litigation, they know that while family members may “fight” over money and property, often times, there are very strong personal feelings involved among brothers and sisters.  How you deal with those feelings, and weather your attorney knows how to deal with those emotions is/are important.  Yes, non legal issues, non financial issues, such as disdain for family members, are prevalent and often major “influencers” to litigation.   Sibling rivalries are common. 

What do you do if you know, or if you believe, that someone who just passed away had a will, but you can’t find it?  What do you do if you can’t find someone’s will, but you know he or she had one?  In Florida, probate lawyers know that you may be able to admit to probate a lost or destroyed will.  This process, or proceeding, is a creature unto its own, with unique rules and procedures, as well as interesting legal presumptions.  If the decedent (who just died), passed away with the will in his or her possession, there may be a presumption that he or she destroyed the will.  

Florida attorneys have a duty of candor to the court.  We are required to tell the truth, and to reveal facts which we believe the court may want to know.  This is an important part of our obligation as Florida attorneys to judges, to our opposing parties and their counsel, and to our judicial process. When an attorney mis-states facts, that attorney, and that attorney’s client, may be subject to sanctions by the court.   A recent case where an order from a trial court was mis-stated to an appellate court, and where sanctions were imposed, was before Florida’s 3rd District Court of Appeals.  The opinion was handed down on September 11, 2013.

When someone files a guardianship action, they are asking a court to intervene –in a substantial way — in a person’s life.  That person is often referred to as the “alleged incapacitated person”, who later is referred to as the “ward” if that person is found to be incapacitated by a judge. Florida probate litigators and Florida probate lawyers know that everyone’s role is to protect and look out for the best interests of the ward.   Guardianships are an attempt to restrict the ward’s basic human and personal rights:  such as the right to marry, to contract, to vote, to manage one’s finances, to choose where to live, etc.