Monday, January 23, 2017

MonarchCare, Inc. v. Guardianship of Block

MonarchCare, Inc. v. Guardianship of Block, 204 So.3d 508 (Fla. 4th DCA 2016)

In what seems to be a growing trend of appellate decisions involving guardianship fees, this decision involves a trial court's decision to reduce a professional guardian's hourly rate. Here, a professional guardian and an individual served as co-guardians of a ward.  The professional guardian billed at its standard hourly rate of $95 per hour, while the individual co-guardian billed at a rate of about $45-$50 per hour.  At an earlier hearing, the trial court granted a pending fee request for $95 per hour for the professional guardian, but prospectively capped both guardians fees at $45 per hour.

Subsequent to the entry of that order, a new judge took over the case, and the professional guardian made another request for its fees at $95 per hour.  Following an evidentiary hearing, the new judge reduced the professional guardian's rate to $45 per hour.  The professional guardian appealed.

The Court held that the court properly considered the factors laid out in F.S. 744.108(2) at the evidentiary hearing.  It noted that a previous approval of a guardian's fees would create a presumption that the rate is reasonable.  However, the Court felt that in this case, the presumption was a weak one since the prior judge did not hold any hearings to establish the reasonableness of the hourly rate.  It also noted that many of the hours billed could have been performed at a lesser rate.

Despite agreeing with the trial court's analysis of the guardianship fees, the Court reversed because it felt that the trial court simply accepted the prior judge's reduction of the fees to $45 per hour when there was no evidence in the record to support such a reduction.  It concluded that the court did not abuse its discretion in finding a valid justification for a different rate, but that the reduction of the rate to $45 per hour was not supported by the record.

Wednesday, January 11, 2017

In re Guardianship of Beck

In re Guardianship of Beck, 204 So.3d 143 (Fla. 2d DCA 2016)

In this decision, the Court considered whether F.S. 744.108(1) authorizes an award of fees and costs incurred by counsel for an emergency temporary guardian and counsel for a ward who was the subject of an emergency temporary guardianship when there was no later determination that the ward was actually incapacitated, and no guardian was appointed.  In this instance, an emergency temporary guardian was appointed, but the ward passed away before any determination of incapacity was made.  

Counsel for the petitioner, the emergency temporary guardian and the alleged incapacitated person all sought reimbursement of their fees and costs.  The trial court held that F.S. 744.108(1) did not permit an award of fees and costs before a guardian over the ward is appointed.  The Appellate Court reversed.

(1) Fees and costs of attorney for emergency temporary guardian.  The Court first held that the attorney for the emergency temporary guardian was entitled to fees under the plain language of F.S. 744.108(1) and Chapter 744, since an emergency temporary guardian is a "guardian."  It found the holding in Klatthaar inapplicable - Klatthaar dealt with whether counsel appointed by the court pursuant to F.S. 744.331 to represent an alleged incapacitated person in a proceeding to determine capacity was entitled to fees under F.S. 744.108.  There, the Court held that since the alleged incapacitated person died before a guardianship was established, F.S. 744.108 was not triggered.  Here, an emergency temporary guardian was appointed and therefore the Court found that the fees and costs of her attorney were compensable.

(2) Fees and costs of attorney for petitioner.  The trial court denied the fees and costs of the attorney for the petitioner since the petitioner was neither a guardian nor a ward, and thus was not entitled to fees under F.S. 744.108(1).  The Court found that the trial court should have considered whether the petitioner's request for a determination of incapacity and appointment of guardian redounded to the benefit of the ward pursuant to Thorpe v. Myers, 67 So.3d 338, 345 (Fla. 2d DCA 2011), and thus reversed and remanded for such a determination.

(3) Fees and costs of attorney for the ward.  This part of the decision was remanded for technical reasons (the death of the attorney representing the ward, among other things).  However, the Court did note that under F.S. 744.108(1), an attorney rendering services to a ward is entitled to an award of fees and costs, and the decedent became a ward as soon as the emergency temporary guardian was appointed.

Wednesday, January 4, 2017

Rose v. Sonson

Rose v. Sonson, --- So.3d --- (Fla. 3d DCA 2016)

This decision deals with the ability of a child born out of wedlock to establish paternity in his putative father's intestate estate.  The result turned on an analysis of the history of paternity proceedings within the probate context. 

Between the petitioner's birth in 1964 and 1986, only the mother of a child born out of wedlock could bring suit to establish paternity.  In 1986, F.S. 742.11 was changed to allow both putative children and fathers to bring suit to establish paternity and at the same time, F.S. 95.11(3)(b) was amended to impose a four year limit, running from the date the child reached the age of majority, to bring such an action.  In 2009, the four year statute of limitations was removed from F.S. 742.11 by way of an amendment to F.S. 732.108(2)(b), expressly eliminating the application of F.S.95.11(3)(b) to paternity adjudications when determining intestate succession in a probate proceeding.

The putative father did not die until 2012.  His daughters filed a petition for administration of their father's intestate estate.  The putative son appeared and claimed to be a surviving son of the decedent and thus a beneficiary of the estate.  The daughters moved to dismiss his counter-petition.  The trial court held, and the Appellate Court affirmed, that that the 2009 amendment to F.S. 742.11 could not revive the petitioner's already extinguished claim, that the 2009 amendment did not apply retroactively, and if it did, that such retroactive application would be a violation of the decedent and the personal representatives' due process rights.  

Tuesday, January 3, 2017

Hilgendorf v. Estate of Coleman

Hilgendorf v. Estate of Coleman 201 So.3d 1262 (Fla. 4th DCA 2016)

Can an estate or a beneficiary of a revocable trust compel the trustee to render an accounting of receipts and disbursements made during the life of the decedent? The Court held that here, where the trust did not contain a provision requiring accountings during the decedent's life and the decedent did not request accountings during her life, the trustee had no duty to account while the trust was revocable.

Prior to the enactment of F.S. 736.0603, which provides that while a trust is revocable, the duties of the trustee are owed exclusively to the settlor, the law in Florida provided that a trustee owed duties to the settlor/beneficiary of a revocable trust and not to contingent beneficiaries.  Only once the trust becomes irrevocable at the death of the settlor may a beneficiary sue for breach of a duty that the trustee owed which was breached during the decedent's lifetime.  However, the Court found that beneficiary must sue for a violation of a specific provision of the trust, which was not applicable here.  Since the statutory duty to account pursuant to F.S. 736.0813 does not arise until the trust becomes irrevocable, the beneficiary here was not entitled to an accounting.

Wednesday, November 23, 2016

Inglis v. Casselberry

Inglis v. Casselberry, 200 So.3d 206 (Fla. 2d DCA 2016)

And the Berlinger versus Casselberry saga continues.  As you may remember, we first met Bruce Berlinger and Roberta Casselberry back in 2013, when Roberta, the former spouse, obtained an order from the court affirming writs of garnishment on discretionary distributions to Bruce, the former husband, from four family trusts.  

Roberta then filed supplemental proceedings against Bruce and trustees of several trusts of which Bruce and his children were beneficiaries.  She sought discovery against Bruce and the trustees, seeking information about distributions to Bruce and his adult children.  The trustees objected with regard to the distributions to the adult children, arguing that those distributions were not at issue, and that the children have a constitutional right to privacy with regard to their personal financial information.  The trial court overruled the objections, noting the litigation history between the parties and the lengths Bruce went to avoid paying Roberta.  The trial court concluded that the information was relevant and ordered the trustees to comply with the discovery requests.

On appeal, the Court disagreed.  It held that the trial court must generally make a determination of whether the information sought is relevant after an evidentiary hearing.  Since there was no evidence offered about why the information was relevant, nor was its relevancy clear from the pleadings, the Court quashed the trial court's order compelling the discovery.

Thursday, November 10, 2016

Linde v. Linde

Linde v. Linde, 199 So.3d 1102 (Fla. 3d DCA 2016)

While it is rare that a guardianship proceeding ends with a restoration of the ward's rights, F.S. 744.464 provides a process for doing so.  In this decision, the Court considered what evidence can be introduced at a hearing under F.S. 744.464, as compared to the evidenced used to make an initial determination of incapacity under F.S. 744.331.

At the hearing to restore the ward's capacity, the trial court (1) granted an injunction which prevented the court-appointed independent physician from having communications with the ward's temporary guardian and (2) granted the ward's motion in limine to prevent the temporary guardian from presenting evidence of the ward's prior medical history and background.  The temporary guardian appealed.

The Court held that F.S. 744.464 which governs restoration proceedings differs from initial proceedings of incapacity under F.S. 744.331.  F.S. 744.331 requires examining committee members to have access to previous examinations of the person when making their initial determination of a person's capacity.  F.S. 744.464 does not contain the same requirement.  It simply states that upon the filing of a suggestion of capacity, the trial court must immediately appoint a physician to conduct an examination of the ward.  The Court failed to read the requirements of F.S. 744.331 into F.S. 744.464, and held that it was appropriate for the trial court to prohibit communications with the temporary guardian, especially since the trial court also established a mechanism for the independent physician to get all of the information he needed.

The Court also held that the trial court's preclusion of evidence not directly related to the ward's current capacity was appropriate.  It found that even though historical evidence may have some probative value for a trial court determining a ward's current capacity, it was not an abuse of discretion for the trial court to preclude such evidence. 

Thursday, November 3, 2016

Vassallo v. Bean

Vassallo v. Bean, 2016 WL 3474981 (Fla. 3d DCA 2016)

This decision deals with the question of whether a drafting attorney can be compelled to answer questions about a testator's reasons for disinheriting his children at a deposition.  The attorney claimed that the statements were confidential pursuant to Florida Bar Rule 4-1.6.  The Court found that Rule 4-1.6 applies only in situations other than those where evidence is sought from the lawyer through compulsion of law, and that F.S. 90.502(4)(b) (which states that there is no attorney-client privilege when a communication is relevant to an issue between parties who claim through the same deceased client) required the lawyer to answer the questions.