Rubin on Probate Litigation

Manor Oaks, Inc. v. Campbell , 276 So.3d 830 (Fla. 4th DCA 2019) It is not uncommon for a health care surrogate or an agent under a power of attorney to sign a nursing home admission form for an elderly family member who is unable to do so for himself. These admission forms may contain more than just health care related or financial related provisions, so it is important to consider the nature and the scope of the family member's authority in determining whether they can bind someone to all of the terms of the agreement. In this instance, the nursing home admission form contained a binding arbitration provision. The nursing home argued that because the form was signed by the decedent's sons as surrogates under a document entitled "Durable Power of Attorney Containing Health Care Surrogate Decisions," the decedent was bound by the arbitration clause. The Court found that an arbitration provision can be enforced if either: (1) the power of attorney makes a spec...

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...

Estate of Jenner v. Manor Pines Convalescent Center, LLC , 11 So.3d 648 (Fla. 4th DCA 2013) We do not often see cases litigated regarding health care surrogates, so I was pleased to see this decision this morning.  This case involved a husband, who as his wife's health care surrogate, signed an agreement with a nursing home that contained a mandatory arbitration clause.  Years later, the wife's estate sued the nursing home for negligence and intentional conduct resulting in injuries to the wife.  The trial court found that the husband, as his wife's properly designated health care surrogate, had the authority to enter into the agreement with the nursing home containing the arbitration clause. I was disappointed that the more interesting legal question of whether the husband could bind his wife to the arbitration provision in the Agreement as her health care surrogate was not answered by the Appellate Court, because unfortunately, the health care surrogate form th...