Ripoll v. Comprehensive Personal Care Services Inc., 963 So.2d 789 (Fla. 3rd DCA July 18, 2007)
The Florida guardianship court has the inherent authority to monitor a guardianship and to take action it deems necessary to preserve the assets for the benefit of the beneficiaries, including the authority to issue temporary injunctions freezing assets claimed to belong to a guardianship even though ultimate ownership of those assets may be in dispute.
Miller v. Goodall, 958 So. 2d 952 (Fla. 4th DCA April 25, 2007)
A daughter filed a petition to determine her mother’s incapacity and be appointed as guardian.
The ward’s sister (daughter’s aunt) also filed a petition seeking to be appointed as plenary guardian.
A person is qualified under Florida Law to serve as a guardian if he or she:
1. Is over the age of 18 years of age;
2. Is a Florida resident; or a non resident who is:
In Florida, the powers granted by a Florida Guardianship expire when the ward dies. Often people try to use their powers granted by a Florida Guardianship to control aspects of the after death process. The guardian is without any powers granted by the guardianship once the ward dies.
If you are having problems with a Florida Guardianship or Florida Guardian Contact a Florida Estate Planning Lawyer.
Recently we have notice that Hospice organizations are refusing to allow people to visit relatives or friends while under the care of Hospice.
In these cases, the people were turned away because someone with a Power of Attorney was able to state that the person was not wanted.
It is important to remember that a Power of Attorney or Durable Power of Attorney give an agent the right to act in certain circumstances. In Florida, a Power of Attorney does not give someone the right to make decisions regarding where they are located, who they can visit, or who they can talk to.
Britney’s dad had was appointed as conservator of her person and co-conservator of her estate, which means her dad is now in control of what Britney can do, who she can see, and he’s controlling all access to her bank accounts and credit cards.
Over the weekend, Britney attempted to hire her own lawyer to fight her dad’s attempt to take over her personal and financial affairs.
But, the Court refused to recognize Andrew Streisand as Britney’s lawyer because the court-appointed lawyer assigned to evaluate Britney said that Brit doesn’t have capacity right now to hire her own lawyer.
Florida residents who have minor children should consider executing a power of attorney which allows another to take care of their minor children medically if they are unable to do so or unavailable at the time.
A medical power of attorney for a minor child is just another piece in the estate planning jigsaw puzzle. Like many estate planning documents, it isn’t for everyone. However, if you are like my family and your children spend a lot of time in the care of another loved one, a MPOAMC is an important piece.
Contact a Florida Estate Planning Lawyer to create a medical power of attorney for your minor children.
Kimberly Palmer of U.S. News & World Report wrote an article on the Alpha Consumer Blog where she discussed these issues. Her reader wrote:
My husband, who is retired, has dementia. He responds to credit card offers in the mail and charges things to them, even though he shouldn’t, because he is on limited Social Security disability income. He knows better, but his mind is weak. He always says he won’t use the cards, but he still does. Even if I cut the cards in half, more come in the mail. We are now in $15,000 of debt, and it continues to rise. How can I get him to stop making charges? Will I be responsible for the debt, even if he passes away before I do?
She offers several solutions including 1- using http://www.optoutprescreen.com/
2- using a credit monitoring service.
One of the most common questions I get is “What is the difference between a Durable Power of Attorney and a Guardianship?”
Richard Shea an attorney in Connecticut who publishes the Connecticut Estate Planning & Elder Law Blog has a good description of each and the differences in an article titled Power of Attorney v Conservatorship.
He summarizes the differences by stating:
A power of attorney is a relatively low cost and private way to decide which family member or trusted friend will have the legal authority to carry out your wishes if you can no longer speak or act for yourself. If you do not have a power or attorney or if your power of attorney is not drafted properly, and something happens that results in your inability to make decisions, your family/friends may later face court proceedings and court supervised Conservatorship. A court proceeding is not only costly, but the person appointed as your Conservator may not be the person whom you would have chosen yourself. And, as stated above, not having a properly drafted power of attorney could significantly limit financial and/or Medicaid planning that could be done on behalf of the principal.
Whenever a Florida estate planning lawyer represents two or more individuals, there is always at least the potential of a conflict of interest, even when the clients agree about everything.
The same is true when a married couple needs a Florida attorney’s help with an estate plan. Depending on the circumstances, the Florida estate plan may well result in one spouse being deprived of a legal right. Whenever a person in a joint representation may be deprived of a legal right, the attorney must advise that person that he or she is entitled to seek the opinion of an independent attorney and, in fact, we are required to recommend a second attorney be consulted.
However, when both spouses are adamant that they wish to be represented by the same lawyer, the lawyer should incorporate both spouses’ desires in what is called a “joint” or “dual” representation letter that is signed by both spouses. This type of letter is important because both spouses have acknowledged that each was advised of the potential or actual conflict and waived the right to seek independent counsel.
Florida Estate Planning Lawyer Blog