Thursday, March 26, 2015

Martinez v. Guardianship of Smith

Martinez v. Guardianship of Smith, --- So.3d --- (Fla. 4th DCA 2015), 2015 WL 1238445

In this case, a wife appealed the order appointing a professional guardian for her husband, since the trial court failed to apply the statutory presumption of F.S. 744.3045 where her husband had given her power of attorney and appointed her as his preneed guardian and health care surrogate.  The Court held that because the trial court failed to make a specific finding that the appointment of the wife was contrary to the best interests of the ward, the order appointing professional guardian was reversed.

In its decision, the Court detailed the various ways the professional guardian and the wife were at odds about the ward's care.  Particularly, their disputes centered around the ward's residence and the fact that he had been moved from institution to institution.  The Court ultimately held that the wife's conflicts with the institutions and her difficultly communicating with the staff was not enough to overcome the statutory presumption of F.S. 744.3045 nor her appointment as her husband's health care surrogate pursuant to chapter 765.

F.S. 744.3045 allows an individual to make a written declaration naming a guardian to serve in the event of that person's incapacity.  A court is not bound to appoint the preneed guardian if the guardian is found to be unqualified to serve as guardian (F.S. 744.3045(4)), or if the court determines that appointing that person is contrary to the best interests of the ward (F.S.744.312(4)).  Since here, the wife was qualified to serve, the only way for the court to ignore the designation of preneed guardian would be for the court to make a specific finding that the specific actions/inactions of the designee were sufficiently egregious as to be contrary to the best interests of the ward.  Citing the Koshenina v. Buvens decision, the Court explained that the fact that another relative might be a better caregiver is not enough, nor is a finding that a designated preneed guardian is lacking in interpersonal and social skills enough to justify a trial court's failure to appoint that person.  The Court held that the mere existence of the wife's conflict with the staff of the nursing facility was not enough to show that her appointment would be contrary to the best interests of the ward.

Similarly, the Court held that the trial court failed to make sufficient findings of facts to overcome the ward's designation of health care surrogate pursuant to chapter 765.  The court may revoke the authority of the surrogate if the surrogate or proxy has abused its powers.  F.S. 765.105(5).  The Court acknowledged that Florida law provides us with little guidance about what constitutes a proxy's abuse of power, but looked at the designation document itself, which granted the wife the authority to determine her husband's residence, and found that the fact that she had moved her husband several times and does not communicate well with the present facility's staff was not enough to show that she "abused powers" nor that she acted contrary to the ward's best interest. 

Wednesday, March 25, 2015

Ciungu v. Bulea

Ciungu v. Bulea, 162 So.3d 290 (Fla. 1st DCA 2015), 40 Fla.L.Weekly D.689c

The decedent's here, a husband and wife, died intestate owning property in both Florida and Romania. One of their children filed Petitions for Administration in both estates and was appointed as personal representative.  He filed probate inventories and served them on his sister and no objections were filed.

The trial court entered an order requiring the personal representative to hold his sister's share of the Estate assets in a restricted account until the sister had fulfilled her obligation to ensure legal title to the Romanian properties was properly vested in the persons entitled to receive those properties under Romanian law. The sister filed a motion to vacate that order, asserting that the probate court lacked subject matter jurisdiction over the Romanian property.  At the hearing on the Motion to Vacate, the trial court heard several other issues and ultimately made the following decisions: 

(1) The plain meaning of quit claim deeds conveying two parcels of real property to the decedents was given effect, and since the conveying quit claim deeds provided that the personal representative quit claimed the property to his parents with rights of survivorship between them and a life estate to the personal representative, the personal representative should issue deeds conveying the property to himself and his sister as tenants in common with a life estate reserved to him.

(2) The trial court does not have jurisdiction over the estate in Romania, so the order requiring the personal representative to hold his sister's share of the Estate assets in a restricted account until the sister fulfilled her obligation to ensure legal title of the Romanian properties was properly vested in the persons entitled to receive those properties under Romanian law, was vacated.

The Court held that the Motion to Vacate the trial court order under FRCP 1.540 was not untimely because a motion to void an order for lack of subject matter jurisdiction may be filed "within a reasonable time."  It disagreed that the the trial court order was void for lack of jurisdiction, since the probate court had personal jurisdiction over the sister, and thus had the authority to direct her to effect the distribution of the Romanian property, even though the property itself lay outside the probate court's geographic jurisdiction.

The Court saw no error in the inclusion of the parcels of real property on the inventories and found nothing in the Florida Probate Code, Probate Rules or case law precluding the addition of property to the inventory of an open estate.  It also agreed with the trial court's interpretation of the quit claim deeds, since those deeds were unambiguous in that the personal representative was the grantor and conveyed the property to his parents, as grantees, with the right of survivorship between the grantees and reserving unto himself a life estate in the property.  The personal representative attempted to argue that by reserving the life estate he himself became a grantor (and thus subject to the right of survivorship provision) but the court disagreed and held that when the father died, his interest passed to his wife by virtue of the right of survivorship, and when the mother died, her undivided remainder interest passed by intestacy to her children as tenants in common.

Monday, March 23, 2015

Blinn v. Clarman

Blinn v. Carmen, --- So.2d --- (Fla. 4th DCA 2015), 40 Fla. L. Weekly, D678b

In this decision, the Court affirmed a trial court's decision invalidating a will based on undue influence because substantial competent evidence supported the finding.  The facts of this case are familiar to anyone who has practiced in this area.  In 2007, the decedent married his fourth wife at age 82, at a time when his mental health had already begun to deteriorate and he already suffered from progressive dementia.  He ultimately changed his estate plan to leave everything to the wife.

While I always enjoy seeing an undue influence decision, this one falls squarely in line with the undue influence cases we are familiar with.  The wife's behavior was egregious-- not only did she successfully persuade her husband to abandon his prior estate plan (which left everything to his daughter) and instead leave everything to her, but she alienated him from his family, she aggressively convinced him that his daughter was destroying their family business, she herself changed the beneficiary on the decedent's life insurance policy from the daughter to herself, and while the decedent was hospitalized and diagnosed with severe dementia, attempted to have him execute a durable power of attorney in her favor.  The trial court found that if the wife were "so bold as to openly display such influence over [the decedent]," then the court could "reasonably infer that similar or greater influence was occurring in the dark during their marriage."

Wednesday, March 11, 2015

Faulkner v. Woodruff

Faulkner v. Woodruff, 159 So.3d 319 (Fla. 2d DCA 2015), 2015 WL 968723

In this fee dispute, the Court held that Section 733.6175, which provides the circuit court with the authority to determine the reasonableness of compensation paid to personal representative or any person employed by the personal representative, does not require the personal representative to interplead himself as a respondent in an action to review fees.  The personal representative, like a beneficiary of an estate, has the right to have the court review the fees, and the party seeking to be paid has the burden of proof to establish that their fees were reasonable.

Thursday, March 5, 2015

Steiner v. Guardianship of Steiner

Steiner and Steiner v. Guardianships of Steiner, --- So.2d --- (Fla. 2d DCA 2015), 40 Fla. L. Weekly D559a

The Second District has now weighed in with the First, Fourth and Fifth Districts about the "statutory gap" in the Guardianship Code dealing with the payment of the court-appointed attorney's fees in situations where a petition to determine guardianship and incapacity is brought in good faith, but incapacity is not found and guardianship is not established.  As the Fourth District held in the Klatthaar decision, F.S. 744.331 fails to address these situations leaving court-appointed attorneys with a right without a remedy.  The Court urged the legislature to remedy this situation.

Snider v. Metcalfe

Snider v. Metcalfe, 157 So.3d 422 (Fla. 4th DCA 2015), 2015 WL 444497

While part of a trust dispute, this case involved the procedural question of when one must raise a defense of lack of personal jurisdiction in a proceeding.  Here, the Court held that even though the trustee of the trust at issue did not assert her defense of lack of personal jurisdiction in her original motion to dismiss a beneficiary's complaint for breach of trust, because she raised it in a subsequent amended motion to dismiss, she did not waive the defense.  Interestingly, the Court held that neither filing a notice of intent to use trust funds to pay the trustee's attorney's fees nor the filing of two responses to discovery requests amounted to "submission to the court's jurisdiction" or requests for affirmative relief sufficient to waive the defense of lack of personal jurisdiction  The Court distinguished these facts from situations where the party asserting the defense obtained a ruling on their motions before asserting the defense, or where they sought affirmative relief through filing their own pleadings and actively litigating, both of which constituted a waiver of the defense.

Tuesday, March 3, 2015

Whiting v. Whiting

Whiting v. Whiting, 160 So.3d 921 (Fla. 3d DCA 2015)

In this guardianship, the guardianship court entered into an order appointing a guardian for an alleged incapacitated person based upon a Stipulation for Limited Guardianship entered into by the parties.  That Order restricted the ward's ability to manage her personal financial affairs beyond a $1,500 limit for any single transaction and also limited her ability to give gifts to $1,500 per person per year.  Following the entry of the Order, the Ward amended her estate plan to leave all of her assets to one of her sons, leaving out her other two sons who had previously been included as equal beneficiaries.  

Following the Ward's death, one of the excluded sons sought to set aside the trust amendment based upon the plain language of the Order.  The trial court concluded that the Order was clear and unambiguous, refused to consider parol evidence, and construed the provisions limiting the Ward's ability to make gifts or enter into financial transactions as an unambiguous restriction on her ability to alter her trust.

The Court disagreed and found that the Order contained ambiguities which presented genuine issues of material fact precluding summary judgment.  The Order was not clear whether it was a voluntary or involuntary guardianship, since the court did not affirmative find the ward mentally competent and include a physician's certificate attesting to same, as is required for a voluntary guardianship, nor did it adjudicate the ward to be incapacitated, as is required for an involuntary guardianship.  The Order also did not clearly address whether the Ward had the ability to amend her trust.