Rubin on Probate Litigation

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...

Kosheniva v.  Buvens , --- So.3d --- (Fla. 1st DCA 2014), 2014 WL 304889 At issue in this case was the proper standard for reviewing (and possibly overriding) a ward's designation of a pre-need guardian.  Here, the ward named her husband as her preneed guardian at a time when her capacity to do so was questionable.  The trial court initially named her sibligns as her emergency temporary guardians, and ultimately appointed them as her plenary co-guardians instead of her husband.  The Appellate Court had two distinct problems with the trial court's analysis: (1) Validity of Declaration of Preneed Guardian After hearing evidence from her lawyer, who said the ward was competent when she executed the Designation naming her husband as her preneed guardian, and conflicting evidence from doctors regarding her ability to execute such a document, the court held that it "seriously questioned" her ability to know what she was doing when she executed the Designat...