Guardianship is a relationship created by state law in which a court gives one person or entity (the guardian) the duty and power to make personal and/or property decisions for another (the ward).
An article written by Brenda K. Uekert and Thomas Dibble. The article, “Guardianship of the Elderly” will appear in the next issue of Court Manager magazine where the author discusses the:
purpose of guardianships;
Abusive guardianships that often exploit the elderly;
The new Jacksonville Estate Planning Lawyer Web site for the Law Office of David M. Goldman PLLC has gone live. This site will act as a hub for the Florida Estate Planning Lawyer Blog and the NFA Gun Trust Lawyer Blog.
Its been a long month setting up the new website and more pages will be added as time permits. For now the Jacksonville, Florida based Law Office of David M. Goldman PLLC deals with:
For families living in Florida, choosing a guardian for their minor children is a primary reason why a Florida Will is such an important document to create and keep updated.
Often choosing who will care for your children is a difficult decision. Many families find it the hardest decision that they make in terms of estate planning. This is one area where it is common for the husband and wife to have completely different views of who should raise their children in the event that both the husband and wife die prior to the children reaching the age of 18.
First it is important to know that the planning is more important than agreeing with your spouse. Although it can create some tension between spouses, it is important to know that should one of you predecease the other, and then the surviving spouse gets to make their own decision anyway. Also, as long as one of you lives until the children reach the age of 18, it will not matter who you choose.
Once an Agent (Attorney in fact) receives written notice which requires a signature, their powers under the Durable Power of Attorney are suspended until the court determines incapacity. The court may reinstate the Durable Power of Attorney for an emergency, when a petition if file upon the court showing the nature of the emergency, the property or matter involved, and the power to be exercised by the attorney in fact.
Notwithstanding the provisions above, a proceeding to determine incapacity must not affect any authority of the attorney in fact to make health care decisions for the principal, including, but not limited to, those defined in chapter 765, unless otherwise ordered by the court. If the principal has executed a health care advance directive designating a health care surrogate pursuant to chapter 765, the terms of the directive will control if the two documents are in conflict unless the durable power of attorney is later executed and expressly states otherwise.
If the person has not received written notice of the proceeding for which they were required to sign for, any third party may rely upon the authority granted in a durable power of attorney that is not conditioned on the principal’s lack of capacity to manage property until the third party has received the required notice. A third party may, but need not, require the attorney in fact to execute an affidavit.
If the Durable Power of Attorney is deployment contingent, any third party may rely upon the authority granted in a durable power of attorney to manage property as defined in Florida Statute 744.102(11)(a) only after receiving the affidavits provided in paragraphs (c) and (d), and such reliance shall end when the third party has received notice.
Continue reading
There are many places to get advice on the Internet. Be sure when you are looking for legal advice, you are working with a licensed lawyer. Below is the finding of the Ohio State Bar in regards to one such service.
We the People is a franchise that provides forms and help in legal matters including wills, trusts, divorces, bankruptcy and other areas of law.
The Ohio State Bar found that they were practicing law without a license because they were owned and operated by attorneys not licenced in Ohio and advised individuals with respect to the completion of forms for filing a personal bankruptcy, application of probate, advising individuals on how to complete the forms and what answers to put down, directing individuals to execute documents and charging them for services, instructing completion of forms in disregard for proper procedures and determination by the Bankruptcy Court that the filing was incomplete, preparation of unnecessary and incorrect form for administration of an estate, preparing improperly completed forms for a bankruptcy, issuing advertisements, and advertising the preparation of services for living trusts, wills, powers of attorney, and incorporation’s.
It is important to note that in Florida Judges will want to see proof that a child is in the United States legally prior to issuing a guardianship over the minor person. With the recent changes in security and immigration, there is concern about creating a legitimate reason for the minor to stay in the country with the guardianship.
I am currently in Shanghai China for the next 5 days and then heading to Osaka and Tokyo for 3 nights each. I am planning to keep posting new issues to my blog while I am gone. In addition, I will be responding to emails and will be available over my VOIP number for calls or issues that need immediate attention. Feel free to continue to send in your questions. I wanted to apologize upfront for any additional delay in responses. Please be conscientious that it is 12 hours ahead of EST and this along with being on vacation means I will typically respond to any issues between 8AM – 12 PM EST or 8PM to -12AM my time.
Major v. Rowe, 965 So. 2d 847 (Fla. 2nd DCA September 28, 2007)
Appointment of a professional non-family Florida Guardian is appropriate even though a family member is willing to serve as a Florida Guardian for the ward. The court noted that “family members, if otherwise qualified, are generally entitled to preference in appointment as guardian over strangers, [but] that preference can be overcome if they, intentionally or unintentionally, engage in conduct detrimental to a ward’s best interests. Moreover, even when a family member has acted with the best interests of the ward in mind, there may well be instances where it would not be an abuse of discretion for the Florida Probate court to nevertheless appoint a non-family member guardian.”
Graham v. Florida Dept of Children and Families (Graham II), 970 So.2d 438 (Fla. 4th DCA December 5, 2007)
This is the continuing saga of the battle between Luke and Laurence over their mother Betty, who DCF had determined was in need of guardianship after determining “Luke is the son who most has Betty’s interests in mind.” After Laurence failed to comply with the guardianship court order to disclose the out-of-state location to which he had moved his mother, the court held him in civil contempt. The Court also appointed Luke as temporary plenary guardian of Betty’s person and property, electing to disregard an advance directive Betty had executed over 8 months after the guardianship proceedings had been initiated.
On appeal, the finding of contempt was reversed for failure to properly serve the order to show cause. The appellate court also reversed the order appointing temporary guardian, holding the trial court had failed to properly determine and indicate the specific grounds upon which the advance directive was revoked by the court. The court further noted that the surrogate under an advance directive is not under any duty to prove the validity of the advance directive. Finally, the court noted two of the examining committee reports were filed over two months before the final hearing and, relying upon two physicians’ affidavits filed before and after the hearing to determine incapacity use the wrong burden of proof – the correct burden of proof in a hearing to determine incapacity of a alleged incapacitated person (AIG) is by clear and convincing evidence. Thus the Court ordered the proceedings be dismissed.
Weissenbom v. Graham (Graham 1), 963 So. 2d 275 (Fla. 4th DCA August 1, 2007)
–
During the course of a Florida Guardianship Dispute between the wards two sons, one of the sons moved the ward from Florida to a “secret location” in another state.
Florida Estate Planning Lawyer Blog