Search Results: guardianships

Ask any estate planning attorney in Florida, and they will tell you all about the very basic estate documents which you need in your estate plan. Generally, you need a will, a revocable trust, a power of attorney (durable power of attorney) and health care documents. These estate plan documents, we are told, will help organize and manage your money, and your person, if you can’t do it yourself, such as if you are incapacitated from Dementia. These estate documents can serve to pass your money and property on to your chosen beneficiaries, like your family and loved ones. Now, ask a Florida probate litigation attorney about an estate plan, or a guardianship lawyer in Florida, and they are most likely to speak to you about a growing trend in the law: guardianship litigation, what probate attorneys refer to as “contested guardianships.” More specifically, guardianship litigation law firms in Florida will probably talk to you about the Guardianship Code, Chapter 744, and whether you can avoid, legally, a guardianship with a durable power of attorney and a living trust. To read Florida’s laws on guardianship, please click here. So, let’s say someone files for guardianship. Is a Florida guardianship necessary if you already have a reputable estate planning attorney, a solid estate plan ? The answer is “no”. As long as your estate plan adequately addresses your needs. That’s right, even if you are found to be incapacitated or incompetent. Even if a probate court rules that you are not […]

Dealing with a Parent’s 2nd or 3rd Spouse in Florida Guardianships Second and third marriages have become commonplace in our society, and this is especially true in Florida. When a parent dies without providing for that last spouse in their will, this can puts the decedent’s adult children at odds with their parent’s second or third spouse. Why? Because spouses, or widows, in Florida get a guaranteed inheritance unless they waived their right to an inheritance voluntarily and knowingly, such as whey they might sign a Florida prenuptial agreement. Not only has prenuptial agreement litigation exploded in Florida, but so has probate lawsuits between and among adult children and their step-mother or step-father. Adult children of a decedent are often surprised to learn that despite a last will and testament, executed prior to a parent’s final marriage (and thus not mentioning a future spouse), a surviving spouse of a decedent still has rights under Florida law— despite not being named a beneficiary in the decedent’s will. This is what is known in Florida probate litigation lawsuits as a pretermitted spouse. Yes, even if you , a spouse, are NOT named in a Florida will, or, perhaps “worse”, if you are a spouse and you are specifically dis-inherited in a Florida will, you still can inherit. Spouses, wives, husbands, and widows have very valuable property & inheritance rights in Florida probate. And there is no ceiling or dollar limit. So, you could inherit millions and millions of dollars if you survive […]

In Florida, once a Guardian is appointed, they have a duty to administer the guardianship. A Guardian may be appointed for a ward’s person, property, or plenary (both). The guardian is a fiduciary and may exercise only those rights that have been removed from the ward and delegated to the guardian. While not meant to be exhaustive, below is a summary the responsibilities to the court that a guardian must undertake in that role. Once letters of guardianship are entered, an initial report of the guardian is required to be filed pursuant to F.S. 744.362. This plan shall include the following: The provision of medical, mental, or personal care services for the welfare of the ward; The provision of social and personal services for the welfare of the ward; The place and kind of residential setting best suited for the needs of the ward; The application of health and accident insurance and any other private or governmental benefits to which the ward may be entitled to meet any part of the costs of medical, mental health, or related services provided to the ward; and any physical and mental examinations necessary to determine the ward’s medical and mental health treatment needs. F.S. 744.363(1)(a)-(e). The guardian of a person must file an annual plan within ninety (90) days after the last day of the anniversary month the letters of guardianship were signed under F.S. § 744.367(1). The guardian of the property must include an annual accounting. F.S. § 744.367(3). Failure to timely […]

What happens when a person is unable to manage their affairs? Who is given the power to make their decisions? And what happens if family members can’t agree on who should be in charge? So called “contested” Florida guardianships are on the rise. Ask any Florida probate litigator, and they will tell you that their guardianship practice has exploded over the last 10 years. More and more family members seek the assistance of probate courts when a mother, father, or elderly adult family member becomes frail or vulnerable and unable to manage their affairs. Sadly, financial exploitation of the elderly in Florida appears to be on the rise, too. Florida guardianship litigation law firms now help families recover money, bank accounts, and property, which may have been taken improperly by someone who exploited a frail, elderly senior citizen by means of elder abuse or financial exploitation. Florida courts have the ability to delegate a citizen’s rights in favor of another. This is known as guardianship. The procedure begins with a verified petition to determine incapacity and petition for appointment of guardian. The guardianship can be over a person, their property, or both (plenary). In a guardianship, if an alleged incapacitated person needs assistance, the probate court will end up taking away some or all of that person’s rights. The petition for incapacity should specify which rights enumerated in F.S. § 744.3215 the alleged incapacitated person is incapable of exercising, to the best of the petitioner’s knowledge (or if the petitioner […]

Guardianship wars Planning for incapacity and the money grab. Mistake: not believing that you will need assistance one day, or that your kids will want to have you declared incompetent, or fight with your spouse over who controls you and your money It used to be that your family only fought over your money when you died. Often this was in the limo, on the way to bury you. And then they would continue to fight, through direct – and perhaps nasty – letters from lawyers. And, finally – they’d battle it out in trial and appellate courts. That’s all changed. Guardianship litigation is a growth field. Your kids, or others, are no longer waiting until you to die before trying to stake a claim to your money and property. In the process, they’re trying to control you and your money, and may be fighting your spouse over control as well. It goes something like this… Your basic estate plan – a will, a revocable trust – has been in place for some time now and you named your latest spouse as your POA and guardian. You have two adult children from a first marriage, which ended years ago. They don’t live near you. They also don’t call often…except to ask for money. And they don’t really remember your birthday or spend holidays with you often, either. You have a falling out with one of your children. You cut that child out of an inheritance by changing your estate plan. […]

In this section from his book, “Pankauski’s Probate Litigation: Top 10 Estate Mistakes Revealed”, John Pankauski explains what is included in a “simple” estate plan. Estate Planning 101: So – what do you need in your “simple” estate plan? A Will Often referred to as a “Last Will,” a will disposes of any property, which doesn’t “go” by way of trust or beneficiary designation, or other “will substitutes,” such as joint bank accounts. A will also appoints the person you choose to “run” your estate, or who should be in charge of the probate process when you pass – a so-called “executor” of the estate, sometimes referred to as a “personal representative” or even the “executor of the will.” When you change your will, you can revoke prior wills and create – or write and sign – a new will, or you can simply amend your will by a codicil. Today, with the now widely-accepted use of a revocable trust, most wills are “simple” or “pour over wills.” They don’t typically leave any inheritances other than to give everything to, or pour over any estate assets into, one’s revocable trust. Revocable Trust (AKA: “Living Trust” or “Revocable Living Trust”) Also called a living trust or a revocable living trust, this can manage your property during your life – such as when you are incapacitated, or if you didn’t want to manage your property any more – as well as at your death. The revocable trust is “change-able.” It may be amended […]

Who pays for guardianship litigation? The truth is is that when you have contested guardianships, when you have family members or others fighting about who’s going to be in charge of mom or dad, who’s going to be the guardian of the person or the property, it can get expensive. Hearings, motions, court filed documents, it can be avoided if the parties come together and try to get a resolution. The truth is if you’re fighting in a guardianship action you should expect to pay your own way. Judges these days are very hesitant to have family members who are fighting have them paid from mom or dad’s money. Most judges now will say you guys pay your own way. But there’s a caveat. Under certain circumstances, if you’ve hired a lawyer or spent legal fees in a contested guardianship, you may be able to seek reimbursement of those fees or costs.

First of all, consider your family relationship. It is going to change when you sue a stepmother, a brother, a mother or a dad, a sister, or another relative. Two, try to salvage any relationship that you have with these people, because once you initiate this estate lawsuit, it’s probably going to be changed forever. Three, seek if you can, the intervention of some third party, a family member, clergy or a mediator to try to resolve the dispute that you’re engaged in. Four, if all that fails and you’re going to initiate estate litigation, get a tough trial attorney who limits his or her practice to litigation involving wills, trusts and estates or guardianships, and not someone who just prepares wills or trusts. There’s a lot of probate lawyers or will and trust lawyers who do a very good job, but they don’t try cases.

Do you want to administer the Florida State as a personal representative? Florida probate rule 5.200 tells you exactly what you need to write in your “petition for administration.” Involved in probate litigation? Florida probate rule 5.275 tells you about the burden of proof in will contests. Wondering where the estate assets are? Florida probate rule 5.340 deals with an estate inventory, while Florida probate rule 5.341 tells you about your rights to information about the estate and its administration. Wondering what was in the safe deposit box? See Florida probate rules 5.342 and 5.3425. The Florida probate rules are an important part of Florida law for wills, estates, and guardianships. There are approximately 108 Florida probate rules in total. The Florida probate rules work hand-in-hand with the Florida statutes about wills, probate and guardianship— what is referred to as the Florida probate code. The Florida probate rules tell us how Florida probate proceedings, including guardianships, shall be conducted. While there are some rules which you may find silly or boring, such as those that tell us how to provide service of court filed documents, all are vital and important. These probate rules tell us how we will conduct discovery in will contests and challenges to a Florida will, how estates will be administered, and how guardianships for minors and incapacitated adults will be conducted. The probate rules give great authority to probate court judges to appoint a personal representative of an estate or, when needed, an estate curator or […]

Guardianship of Property Litigation Attorneys Who is going to control your loved ones’ decisions and wealth when they are vulnerable? Guardianship of property, assets, income, investments and estate is a serious matter. As the population of Florida continues to age, there is an increased risk that a loved one will be exploited due to advanced age. Thankfully, there exists a legal tool – the guardianship – that allows those at risk of elder abuse to be protected by the efforts of their friends or family. A guardianship grants a person control over the personal decisions or property of a mentally or physically incapacitated loved one, allowing the person to keep the loved one and their wealth safe. Experienced Advocates To Help You Protect Your Loved Ones And Their Assets At Pankauski Lazarus PLLC, we understand that the decision to seek or contest a guardianship is not made lightly. We can guide you as you make the tough, but correct, decision to protect your loved one, and we do everything we can to make the legal process move as smoothly as possible. We do this by drawing on our extensive litigation experience. We are focused solely on litigation, so we are in the courtroom on a regular basis. Our lawyers use their time-tested trial skills to serve as strong advocates for you and your family and to help you protect your loved ones. Florida Guardianship and Estate Litigation Lawyers A guardian is a court-appointed fiduciary who must act solely in the […]