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Archive for July, 2010

Family Feud: Costly in Guardianship Court

Thursday, July 29th, 2010 by

          Families that have not done proper Estate Planning often end up in Guardianship Court.  Without proper documents, when a loved one is no longer able to care for himself or herself, someone else must use the court system to become his or her legal Guardian in order to make medical and financial decisions for that incapacitated person.  The Guardianship process itself is public, time-consuming, and expensive, even if matters are uncontested.  However, if the court becomes a stage for a “family feud,” both the emotional and financial costs can skyrocket. 

           Typically, there are at least two attorneys involved in the Guardianship proceeding.  The person petitioning to become the guardian is required to have an attorney.  Additionally, the person who is alleged to be incapacitated (the “ward”) is appointed an attorney by the court, to protect his or her interests.  If several family members vie to become the guardian (such as siblings fighting over a parent), the number of attorneys involved and resulting expense is multiplied.   Such family in-fighting also takes an emotional toll on the participants. 

          The upshot of many guardianship family feuds is that the Judge will decide not to appoint any family member as guardian, but instead will appoint a neutral, “Professional Guardian.”  The costs of providing that neutral perspective will be $85 – $100 per hour (in the Jacksonville, FL area), for each hour of the Professional Guardian’s services.  Of course, the Professional Guardian also will need to hire her own attorney, to be paid for out of the guardianship estate.  Unfortunately, we have seen horrible results from family feuds.  No one wins when families quarrel in open court. 

          Don’t let this to happen to your family!

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MOVING TO FLORIDA? Reasons Why New Florida Residents Should Have Their Wills Reviewed

Thursday, July 8th, 2010 by

          We often talk to people who have moved to Florida and have “heard” that their Will, which was drafted and signed in another state, is no longer valid.  The myth that an out of state Will is automatically invalid once you move to Florida simply is not true.  A Will signed by a non-resident of Florida is valid in Florida if: (1) it complies with the Florida statutory formalities for executing a Will or (2) the Will is valid under the laws of the state where the Will was signed:  UNLESS the out of state Will was either verbal or hand written. A verbal Will (like “deathbed” wishes) is not valid in Florida.  In Florida a Will must be in writing to be valid.  A Will in the person’s own handwriting is not valid unless it meets the formal document signing requirements of either Florida or the state in which it was signed.  (If you fully understand this, you may pass “go” and collect your $200.)

          BUT there is a big difference between a Will being VALID and being EFFECTIVE.  Some provisions of your out of state Will may not be valid under Florida law.  For example, if you named a friend or neighbor from your old home town as guardian for your minor children, that person may not be qualified to serve as guardian under Florida law.  Only a Florida resident or close blood relation who resides out of state may serve as a Florida guardian.  Some states recognize “common law” marriages.  Florida does not.  Some states have “community property” rights. Florida does not.  A Will provision based on such laws may not be effective in Florida.  

          Additionally, even though a Will signed out of state may be procedurally sufficient, it still can be attacked on substantive grounds, such as lack of testamentary capacity or undue influence.  Having to defend the validity of an out of state Will, involving out of state witnesses, can increase costs significantly.  

          It is not only your Will (or Trust) which might be invalid, but Florida laws concerning your other planning documents may be different from the state where those documents were signed.  For example, a Power of Attorney drafted in some states loses its validity when the person who signed it becomes incapacitated.  In Florida, it does not – if properly drafted.  A “Living Will” drafted in another state may not comply with the particularities of Florida law.  Florida law provides that you may designate a “health care surrogate” to make health care decisions for you in the event that you are unable to make those decisions for yourself. 

          These are just a few examples highlighting how an out of state Will might be VALID, but not EFFECTIVE.  We believe that when someone moves to Florida they should consult with a Florida estate planning attorney to ensure that their estate planning documents are up to date and conform with Florida law.  

          If you have family, friends, or neighbors who recently have moved to Florida, please feel free to share this newsletter with them.

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