In Florida, any adult can file a petition in state court to determine if another person is incapacitated. If a person is determined to be incapacitated, a guardian will be appointed by the court. People often ask us how the court determines that a person is incapacitated. The process is explained in Florida Statute Section 744.331. 744.331(3)(a) states the following, in pertinent part:
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Our last newsletter highlighted a guardianship horror story: https://cramerlawcenter.com/areas-of-practice/estate-planning/more-guardianship-abuses/. So, how do you avoid Kise’s fate?
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AARP Magazine recently published a lengthy article on a contentious guardianship. If you would like to read the entire article, it can be found here: https://www.aarp.org/caregiving/financial-legal/info-2018/court-ordered-guardianship-separates-family.html. This newsletter will hit some highlights.
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If this isn’t a fundamental human right, I propose to make it one – the right to muddle through. This has been bothering me. America is supposed to be the land of the free, but that freedom becomes precarious when you reach “old age”. Florida’s Guardianship Law permits a Circuit Court Judge to strip you of all of your civil and personal rights. I’ve seen it happen in a 5 minute hearing. 5 minutes! That is all it takes to become a “ward of the state.” Unfortunately, unless we can start a massive human rights campaign right now, “the right to muddle through” is being lost here in Florida.
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Change is underway at Cramer Law Center. First, we are moving in 2 weeks to new offices at 4655 Salisbury Road, Suite 100A. (The move will take place the week of June 25). If you enter from Salisbury, we will be in the third of 3 buildings in the “Quadrant at Southpoint” office complex. You also can enter from Belfort Road. If you turn in at the entrance to the Borland-Groover Clinic and keep going past the clinic, we will be the first of the Quadrant buildings. I believe the official designation is “Quadrant II.” This location near I-95 and JTB is more centrally located than our present offices. Although traffic during rush hour is bad everywhere in Jacksonville, at least there is more than one way in and out of the new offices—as contrasted to our present location. We will have a map up on our website as soon as we relocate.
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We recently have been involved in a case which highlights the distinction between exploitation and guardianship. An elderly gentleman was being systematically robbed by a younger woman he was infatuated with. She obtained power of attorney and withdrew over $100,000 from his accounts in less than 4 months, before the banks froze those accounts, reported suspicious activity to DCF (Florida Department of Children and Families), and a third party intervened to file a guardianship. Had she continued at that pace, he would have been flat broke in a little over a year.
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Not all estate planning “packages” of documents contain a Designation of Preneed Guardian. But, this oft overlooked document can make a big difference if someone challenges your advance directives or Power of Attorney in court. Who would challenge your documents? You might be surprised.
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In the recent case of Smith v. Smith, our Florida Supreme Court addressed the question of what happens to a person found to be legally incapacitated, who had a guardian appointed for them, and had the right to contract removed. Can that person marry?
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The recent Zelman case involved all-too-familiar fighting between a second wife and first kids. The children of 85-year-old Martin Zelman instituted guardianship proceedings alleging that Martin’s wife was taking advantage of him and isolating him from his children, in part to take control of his substantial assets. The children alleged that Martin had “accidentally” deposited $3 million in the couple’s joint bank account, and that the money should be returned to Martin’s sole ownership.
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