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Articles Posted in Guardianships

Guardianship: Don’t Believe Everything You Watch on Netflix

Netflix’s new sensationalist movie “I Care a Lot,” released this past February 19, 2021, might have you thinking that being a guardian may be the path to wealth and easy money. Although a scammer making a living by successfully requesting the courts to appoint her as the guardian of elderly people she falsely claims cannot take care of themselves makes for a captivating story, fortunately this is far from the reality of guardianship practice.

Guardians are appointed by the court to care for and manage the property of people who cannot do it for themselves, such as individuals with a chronic mental illness, dementia, traumatic brain injury, or orphaned children. But the first thing to keep in mind is that, before a guardian is appointed, the allegedly incapacitated person has to be declared incapacitated by a court of law. This process involves the evaluation by one or more mental health professionals and/or physicians. Thus, unlike the movie, simply alleging a person cannot care for him or herself will not be sufficient. Once the person is deemed incapacitated, some or all of his or her legal rights are removed, and the guardian is charged with the responsibility to exercise those rights on behalf of the incapacitated person, who is legally referred to as “the ward.”

Contracts to Create a Will

A last will and testament must be the consequence of a person’s free will (which is why they are aptly referred to as “wills”). Nevertheless, a person may execute a contract during life to include certain terms and/or beneficiaries in their will in exchange for goods or services.

Enforcing a contract to create a will is more complex than enforcing a normal contract. With these types of agreements, it may be impossible to tell whether the testator lived up to his or her side of the bargain until their estate plan is revealed after their death. Additionally, the terms of a will do not come into effect until death, so there may not technically be a breach of the contract until the decedent’s death. Further, if you were supposed to be a part of the decedent’s estate plan, but were not included, it’s possible you may never even receive notice regarding the administration of the decedent’s estate.

Over the past few weeks, the internet has rediscovered that Brittney Spears has not had legal control over her extensive assets for 12 years. Given Brittney Spears’ celebrity status, this news made considerable waves throughout popular culture, and the hashtag #FreeBritney started to trend. People began investigating social media posts from Ms. Spears where she allegedly has hidden cryptic messages about her desire to get out of this arrangement. So, how did it get to this point, and what legal mechanism locks Britney Spears out of controlling her own assets?

What Happened?

First, Ms. Spears has had an extremely public battle with mental health. In 2007, Ms. Spears suffered a breakdown in which she shaved her head and attacked a photographer’s car with an umbrella. She had several stays in rehab and was committed to a psychiatric hospital twice. After her stays at psychiatric hospitals, her father, Jamie Spears, petitioned the court for an emergency “temporary conservatorship,” which granted him and an attorney control over Spears’ financial and personal decisions. The temporary agreement was later made permanent.

Social Distancing and Signing Documents: Can a Beneficiary Act as a Witness?

During COVID-19, we have had to adapt the way we sign estate planning documents while maintaining safe social distancing. Although businesses are slowly reopening and things appear to be getting back to a sense of normal, it is still important to be cautious and keep our exposures to a minimum. One of the strategies Chepenik Trushin LLP has adjusted is to make the estate planning process entirely remote, with phone and video conferences, email communications, and sending estate planning documents through regular or electronic mail with detailed instructions for clients to sign on their own. For some clients, this has worked well, but for others, it has been a challenge to find two witnesses and a notary, which are required for many estate planning documents. A frequent question that has arisen is whether a relative or a beneficiary may serve as the witness to a will or other estate planning documents, such as a trust.

For a number of years, Florida law disfavored beneficiaries under a will from also being witnesses to the will. Under current Florida law, a will or codicil is not invalid simply because the will or codicil is signed by an interested witness. Fla. Stat. § 732.504(2). Based on the Florida statute, a beneficiary can serve as a witness to a will.

COVID 19 Pandemic: If I can’t make medical decisions for myself, who can?

On January 19, 2020, a man in his mid-thirties reported to an urgent care clinic in Snohomish County, Washington, with a persistent cough and fever. The next day, testing by the Center for Disease Control confirmed that the man had COVID 19 marking the first positive test in the United States. Since then, positive cases in the United States have ballooned to over 1,000,000 even as social distancing and quarantine measures have become the new normal.

These unprecedented circumstances raise critical questions about medical care. If you become too sick to make your own medical decisions, who gets to make them? And, to what extent can you control those decisions? In Florida, there are two basic ways you can direct medical decision-making before you become physically or mentally unable to make those decisions for yourself: (1) through the designation of a Healthcare surrogate and (2) by recording your treatment preferences in a living will.

How to Safely get Documents Notarized During a Pandemic



Fiduciary Exception for Attorney-Client Privilege is Extinct in Florida

If you are an attorney hired by a fiduciary, whether it be a trustee, a guardian, or a personal representative, you not only are working for the fiduciary, but you are also working for the best interests of the third party ward or beneficiary. However, can the beneficiary come forward and demand access to privileged communications between the fiduciary and the fiduciary’s attorneys? The “fiduciary exception” to the attorney-client privilege would allow beneficiaries to demand access, as long as the information is related to the normal administration issues of the trust or estate. Because the beneficiary is the intended third party beneficiary of the trust or estate, they are entitled to the information related to the trust or estate.

The original rule created confusion and uncertainty for fiduciaries and their attorneys, so Florida legislatively abolished the “fiduciary-exception” rule by adopting Fla. Stat. § 90.5021. Specifically § 90.5021(2) states that any communication between a lawyer and client acting as a fiduciary is privileged and protected to the same extent as if the client was not a fiduciary. However, there was still much litigation over this issue, and the Supreme Court of Florida on more than one occasion expressed concerns over its constitutionality. However, the Supreme Court of Florida finality resolved the issue in In re Amends. to Fla. Evidence Code, No. SC17-1005 (Fla .Jan. 25, 2018), in which it upheld the constitutionality of the statute.

Guardianship – What is it?

Answer: A court intervention to safeguard the property and personal care of an individual unable to make such decisions themselves.

A person under guardianship becomes a ward of the court.  State law establishes the process for determining an adult’s need for guardianship, which involves a finding of incapacity.

What is Elder financial Exploitation?


What is a Power of Attorney (“POA”)?

Elder abuse: the farmer population as the next potential target

Florida is a state well-known for its agriculture. In fact, within the United States, it is safe to presume that most people think that the best oranges come from Florida (we certainly think they do). Agriculture is the second most important economic activity in Florida, preceded only by tourism. Agriculture contributes $104 billion in revenue to the state and employs two million people.

According to a 2016 study by Oregon State University and Portland State University, the average age of farmers is 60 years old. Additionally, it is believed that in the next twenty years, 10 million acres of farmland are going to change ownership. Like all other people, we can expect health issues to arise as our farmers age. Studies suggest that 38% of people who are over 85 years old have dementia or some impairment in their mental faculties.

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