Search Results: power of attorney

A Florida breach of fiduciary duty is serious stuff. It can bring damages to beneficiaries or an estate or a trust. And a whole lot of trouble to a bad trustee or personal representative or POA. We have previously written about excessive compensation and removing or suspending a trustee. We have also written about this topic of FIDUCIARY DUTY before. Now, let’s lay it all out there in plain English. And from a standpoint that other Florida Legal Blogs may not take . What is a Fiduciary? Before we define Florida Breach of Fiduciary Duty, let’s make sure you have the background. First, a trustee owes DUTIES to her beneficiaries. Same for a PERSONAL REPRESENTATIVE. Trustees and personal representatives are fiduciaries. Fiduciaries are those who volunteer to perform certain tasks for others. I say “volunteer” because no one can be forced to serve others or be a fiduciary. Even if you are nominated or named in a will or trust. If you don’t want to serve, decline. Fiduciaries, most of the time, are entitled to reasonable compensation. A Power of Attorney, also called an attorney-in-fact, is also a fiduciary. Don’t be confused. Even though the Power of Attorney Law uses the word “agent”, a POA is a fiduciary. Standards of a Fiduciary There are certain “rules of the game.” Standards. If a personal representative or trustee acts badly or steals money or takes secret fees, they can be SURCHARGED. But civil theft is not necessary for a fiduciary to be […]

Regrettably, there are a lot of “contested” guardianships. Every day, it seems, Florida Probate Judges must make difficult decisions. Guardianships have a couple of purposes. First, they determine whether someone needs assistance and protection if they are incapacitated. An aging or afflicted Florida resident may seem fine on the outside. But they may not be able, in the eyes of a judge, to exercise all their rights. They, and their property, money, may need management + protection. Second, guardianships often confirm or appoint someone to take care of that person who is vulnerable. A guardian or a Power of Attorney, or maybe a trustee for just the property. Many times, family members “fight” over who will control mom or dad. And their money. We have previously provided commentary on FLORIDA GUARDIANSHIPS. Now, let’s focus on how to fight guardianship Florida. Understanding Guardianship Law There are 4 really important things that you can read for free to understand Florida guardianship law. And learn how to fight Florida Guardianship. First, read the Guardianship Code. Chapter 744 of the Florida Statutes sets forth the law of Florida Guardianship. It can explain the TYPES of guardianships. Many times, people will file a motion or petition for EMERGENCY TEMPORARY GUARDIAN. This often upsets family members who are not given “notice” of this until a judge enters an order. There are also “plenary” guardianships. Or guardianships over just the property. Or, just the person. One of the most important rules is to file an appearance in […]

Undue influence is a serious topic for estate litigators. And, perhaps more so, for family members and heirs. Have you been dis-inherited by a last minute will? This Florida probate commentary will explain what undue influence is and point you to an important Florida Estate Law. If you want to see a FREE UNDUE INFLUENCE VIDEO by estate and trust litigation attorney John Pankauski, CLICK HERE. Voiding a Florida Will Based Upon Undue Influence A will that is caused by undue influence is void. Florida Probate Law makes that very clear. Read Fla. Stat. 732.5165. Likewise, a Florida Trust that is caused by it is also VOID. If you want to read more about Florida probate and trust law, you can read the Florida Probate Code and also the Florida Trust Code for free. Here, also, is a free link to the Florida Probate Rules. The Florida Probate Rules are different than Florida statutes. There is a special procedure to follow to have a will or trust declared void . “You have to file papers in the Probate Court to contest the will” says veteran estate litigation attorney John Pankauski. “For trusts, you have to file a separate civil lawsuit.” In some instances, like with a Pour Over Will, you have to do both. How Do You Define It? Undue influence is defined as a form of coercion, over-persuasion and force. It is not always the same. It can vary from perpetrator to perpetrator. Undue influence can also have different […]

In Florida, guardianship business is booming — for good or for ill. Every week, perhaps every day, family members are asking a Florida Probate Court to declare an adult “incapacitated” or “incompetent“, remove or limit their rights and powers to act alone, and appoint a Guardian. Many times, a guardianship means that you limit access to one’s money !! We have written about “contested” Florida guardianships before, where family members duel over controlling a parent or their purse. Now, Netflix has a popular and new 2021 comedy, crime thriller called “I Care a Lot.” Will this popular streaming movie shed light on financial exploitation and financial abuse? Although it’s fiction, I Care a Lot is getting a lot of attention from people involved in Florida guardianships. I Care a Lot + Guardianships Florida guardianship law is found in Florida Statutes Chapter 744. This explains the entire Florida guardianship process. How do you start a guardianship? (file a petition). What if there is a Power of Attorney (consider lesser restrictive alternatives to a guardianship). “There’s actually two cases you need to start a Florida guardianship” says guardianship litigator John Pankauski. “You file a mental health case which suggests that a Florida resident is not competent and needs some protection and assistance” says Pankauski. “Then, who is going to provide that protection and assistance? You need a guardianship matter.” Pankauski should know. He leads a boutique law firm in Palm Beach which restricts its practice to so-called “probate litigation” which typically means […]

Are you considering filing for guardianship over a loved one? It may be difficult to do when your mom or dad are slowing down. Or faltering. But advanced age and decreased mental acuity can make loved ones susceptible to financial abuse. Adult Florida Guardianship is one way to ask a Probate Court for help. And to protect your parents’ property and their health. To read a host of FLORIDA GUARDIANSHIP topics and commentaries on the law, CLICK THIS LINK. Guardianships in Florida At Pankauski Lazarus, we frequently encounter family members who are concerned about elderly relatives and wish to file guardianships. However, it is important to consider all of the facts prior to petitioning. Is the person you are concerned about incapacitated? Does he or she suffer from dementia or Alzheimer’s? Does the person go to the grocery store and bank on his or her own or require assistance? Is the person taking care of him or herself? Also, it is important to consider the costs of filing a guardianship. Guardianship litigation can become pricy, especially if the guardianship is contested. Will your brother or sister fight you for guardianship of your mom? Chapter 744– Florida’s Guardianship Laws There are a lot of rules to help you along in the Adult Florida Guardianship process. Miami guardianship lawyers know that guardianship law is governed by Chapter 744 of the Florida Statutes. If you are involved in guardianship litigation in Miami, or anywhere in Florida, you should refer to this chapter. An experienced Florida […]

What does a power of attorney (POA) document have to do with arbitration? When is arbitration correctly compelled by a trial court? How do you interpret the scope of a POA document? How can a health care surrogate become involved in litigation regarding arbitration? POA and Health Care Documents in Florida Florida Guardianship lawyers know that, even if a person is deemed incapacitated by a probate court judge in Florida, the court may choose not to appoint a guardian if there’s a lesser restrictive alternative that adequately addresses the incapacitated person’s needs. Therefore, POA and health care documents can prove to be very valuable. If you meet with aFlorida estate planning attorney to execute a POA, trust and/or health care documents, you will be able to choose who will take care of you if you are to become unable to care for yourself. If a proper estate plan is in place, and you get Alzheimer’s or dementia, you may not have to worry about strangers, or greedy relatives that you dislike, taking over you and your finances. The Scope of a POA Sometimes, it can become confusing to a trustee or POA as to what the estate documents allow them to do exactly. For example, certain POA documents specify or limit the authority that it delegates. How do courts determine what authority a POA grants? A recent Fourth DCA opinion, Manor Oaks, Inc. v. Campbell discusses whether or not a particular POA document gives a health care surrogate the ability […]

What is an adult guardianship? What are the duties of a guardian in Florida? Does a guardian have to file annual accountings with the Florida guardianship court? What happens if a guardian fails to provide a timely annual report? Florida Adult Guardianships At Pankauski Lazarus, we handle many guardianship cases throughout Florida. When we refer to “guardianships”, we are talking about guardianships over adults, not minors. Commonly, children of the elderly file a guardianship to protect their mom or dad who is suffering from dementia or Alzheimer’s. Furthermore, certain disabled or injured adults may benefit from a guardianship if they are incompetent and unable to take care of themselves. Florida guardianship courts take guardianship proceedings very seriously because these proceedings can result in a ward’s rights being taken away. The “ward” is the person subject to the guardianship who has been determined to be incompetent or incapacitated. It is important to remember that, even if somebody is deemed incapacitated by a probate court judge in Florida, the court may not appoint a guardian if there’s a lesser restrictive alternative that adequately addresses the incapacitated person’s needs. For example, a power of attorney and a revocable trust may prove to be sufficient. West Palm Beach guardianship lawyers know that guardianship law is governed by Chapter 744 of the Florida Statutes. If you are involved in guardianship litigation in Palm Beach or anywhere in Florida, you should refer to this chapter. You should also consider interviewing an experienced guardianship lawyer who can answer your […]

What is a health care surrogate? What is a power of attorney (POA)? How is a health care surrogate different than a guardian? When may Florida litigation regarding a health care surrogate occur? What decisions can a health care surrogate make? Florida Adult Guardianships At Pankauski Lazarus, we handle many guardianship cases throughout Florida. When we refer to “guardianships”, we are talking about guardianships over adults, not minors. Commonly, children or friends of the elderly file a guardianship to protect someone who is suffering from dementia or Alzheimer’s. Furthermore, certain disabled or injured adults may benefit from a guardianship if they are incompetent and unable to take care of themselves. In Florida, guardianship law is governed by Chapter 744 of the Florida Statutes. If you are involved in guardianship litigation in West Palm Beach, or anywhere in Florida, you should refer to this chapter. You should also consider interviewing an experienced guardianship litigation lawyer who can answer your questions and properly file petitions on your behalf. Guardianships and Lesser Restrictive Alternatives Florida guardianship courts take guardianship proceedings very seriously because these proceedings can result in a ward’s rights being taken away. The “ward” is the person subject to the guardianship who has been determined to be incompetent or incapacitated. Guardianship lawyers know that, even if somebody is deemed incapacitated by a probate court judge in Florida, the court may not appoint a guardian if there’s a lesser restrictive alternative that adequately addresses the incapacitated person’s needs. Therefore, you may be able to […]

What is a Florida guardianship? What is ward? What happens when a ward dies in Florida? Is the Florida guardian able to pay the ward’s debt? Does the guardian have to provide notice of proceedings regarding payment of ward’s debt to the beneficiaries of the ward’s estate? Why would the beneficiary of a Florida estate sue the decedent’s guardian? Adult Guardianships in Florida At Pankauski Lazarus, we handle many guardianship cases throughout Florida. When we refer to “guardianships”, we are talking about guardianships over adults, not minors. Commonly, children of the elderly file a guardianship to protect their mom or dad who is suffering from dementia or Alzheimer’s. Furthermore, certain disabled or injured adults may benefit from a guardianship if they are incompetent and unable to take care of themselves. West Palm Beach guardianship courts take guardianship proceedings very seriously because these proceedings can result in a ward’s rights being taken away. The “ward” is the person subject to the guardianship who has been determined to be incompetent or incapacitated. It is important to remember that, even if somebody is deemed incapacitated by a probate court judge in Florida, the court may not appoint a guardian if there’s a lesser restrictive alternative that adequately addresses the incapacitated person’s needs. For example, a power of attorney and a revocable trust may prove to be sufficient. In Florida, guardianship law is governed by Chapter 744 of the Florida Statutes. If you are involved in guardianship litigation in West Palm Beach, or anywhere […]

When is a stalking injunction necessary in Florida? According to Florida Statute 784.048(2), stalking occurs when a person “willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person. You may wonder what the definition of “harass” is according to the Florida Statutes. To harass means to “engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.” §784.048(1)(a), Fla. Stat. Is someone stalking you in Florida? Are you involved in Florida litigation where the person you are suing has started harassing you? Do you need a West Palm Beach lawyer to petition for injunction for protection against stalking? What Does a Stalking Injunction have to do with Florida Inheritances? West Palm Beach probate attorneys, like those at Pankauski Hauser, know that disputes over inheritances can become messy. What do we mean by “messy”? Frequently, probate lawyers who handle litigation witness family members “fight” in the courts over money and property. As John Pankauski states in his book Probate Litigation: Top 10 Probate Mistakes Revealed, “your family is going to fight over your wealth: when you’re gone and- perhaps- while you’re still alive.”  Many heated Florida trust and estates battles involve sibling rivalries. For example, one sibling may sue another sibling for unduly influencing their mom, while mom had dementia or Alzheimer’s, to change her Florida will or trust. Another example would be a sister suing her brother, the brother was dad’s power of attorney (POA), for wrongly […]