Verified Statements in Guardianship Proceedings

John J. Pankauski is a partner with Pankauski Hauser PLLC in West Palm Beach, Florida. Mr. Pankauski has spent over 20 years of his career handling matters involving wills, trusts, estates, probates, and guardianships. His practice is limited to disputes, trials and appeals of such matters. He is AV Preeminent rated by Martindale Hubel.

1. Verified Statements in Guardianship Proceedings – what Florida probate and elder law attorneys need to know about § 744.331 & Searle v. Bent with John Pankauski, Esq . (561) 514 – 0900 www.phflorida.com

2. Discussion Topics Introduction Lesser Restrictive Alternatives to a Guardianship Legal Duties & Obligations to our Clients Rules Regulating the Florida Bar Verified Statements in Guardianship Proceedings Searle v. Bent Conclusion

3. I. Introduction

4. Here, we are talking about incapacitated adults, not minors…

5. A guardianship is a legal proceeding in the circuit courts of Florida in which a guardian is appointed to exercise the legal rights of an incapacitated person. - The Florida Bar

6. A 2 Components : Incapacity determination: see 744. 3201 Is guardian needed? If so, whom?

7. $56 TRILLION

8. Legal trends………………….

9. Guardianship litigation is exploding!

10. Legal “Fights” 2 nd & 3 rd Spouses v. Adult Children of a prior relationship Sibling rivalry over control of the person & purse

11. II. Lesser Restrictive Alternatives to a Guardianship

12. Florida Statute 744.331 is probably the single most important guardianship law or statute regarding incapacity. Why? 744.331 is your legal roadmap , telling the parties, and the court, just about everything they need to know, and do, surrounding a finding of incapacity.

13. Florida Statute 744.331 (6) (b) When an order determines that a person is incapable of exercising delegable rights, the court must consider and find whether there is an alternative to guardianship that will sufficiently address the problems of the incapacitated person. A guardian may not be appointed if the court finds there is an alternative to guardianship which will sufficiently address the problems of the incapacitated person. If the court finds there is not an alternative to guardianship that sufficiently addresses the problems of the incapacitated person, a guardian must be appointed to exercise the incapacitated person’s delegable rights.

14. What is an alternative to a guardianship which sufficiently addresses the problems of the ward?

15. Florida Power of Attorney Act: Chapter 709 (2011) DPA: see 709.2104

16. Suspension of Power of Attorney -- 744.3203

17. Healthcare Documents

18. III. Legal Duties & Obligations

19. Duty of Court

20. Court must appoint a guardian to protect a Ward See Jasser v. Saadeh , 97 So. 3d 241 (Fla. 4 th DCA, 2012) See Cason v. Ross , 2017 WL 90483, __ So. 3d __, (Fla., 1 st DCA, January 10, 2017)

21. Duty of Attorneys

22. Rules Regulating the Florida Bar 4-1 Client-Lawyer Relationship 4-1.1 Competence 4-1.2 Objectives And Scope Of Representation 4-1.3 Diligence 4-1.4 Communication 4-1.5 Fees And Costs For Legal Services 4-1.6 Confidentiality Of Information 4-1.7 Conflict Of Interest; Current Clients 4-1.8 Conflict Of Interest; Prohibited And Other Transactions 4-1.9 Conflict Of Interest; Former Client 4-1.10 Imputation Of Conflicts Of Interest; General Rule

23. Saadeh v. Connors , 166 So. 3d 959 (Fla., 4 th DCA, 2015) The attorney for an emergency temporary guardian owes a duty to the ward !

24. Duty of Guardians

25. Florida Statute §744.334

26. Florida Statute 744.361- Powers and duties of guardian .

27. IV. Rules Regulating the Florida Bar

28. RULE 4-1.1 COMPETENCE A lawyer must provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

29. RULE 4-1.4 COMMUNICATION ( a) Informing Client of Status of Representation. A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in terminology, is required by these rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows or reasonably should know that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) Duty to Explain Matters to Client. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

30. RULE 4-1.6 CONFIDENTIALITY OF INFORMATION (a) Consent Required to Reveal Information. A lawyer must not reveal information relating to representation of a client except as stated in subdivisions (b), (c), and (d), unless the client gives informed consent.

31. RULE 4-1.8 CONFLICT OF INTEREST; PROHIBITED AND OTHER TRANSACTIONS (e) Financial Assistance to Client . A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that : ( 1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and (2 ) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client. (f) Compensation by Third Party . A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by rule 4-1.6.

32. V. Verified Statements in Guardianship Proceedings

33. Can a person who files a verified statement bring the wheels of a Florida guardianship to a halt?

34. Subsection (6)(f) of 744.331 Subsection (6)(f) of 744.331 reveals two important things. First, it permits an “interested person” to file a verified statement that (1) he or she has a good faith belief that the AIP’s trust or power of attorney is invalid— AND —  (2) a reasonable factual basis for that belief. (2 part test)

35. Hayes v. Guardianship of Thompson , 952 So. 2d 498 (Fla. 2006, rehear. den Mach 14, 2007) Here, the Florida Supreme Court discusses legal standing and how we define an “interested person” for guardianship

36. Bivins v. Rogers , 147 So. 3d 549 (Fla. 4 th DCA, 2014) – does a son hav e standing to challenge a guardian’s refusal to do something re: the ward?

37. Call your first witness : an important point to remember about Guardianship hearings… …they are trials! …you need evidence !!

38. Zelman v. Zelman,  170 So. 3d 838 (Fla. 4th DCA, 2015).

39. Fernandez v. Fernandez,   36 So. 3d 175 ( Fla. 3rd DCA, 2010).

40. VI. Searle v. Bent

41. 5 Take- A ways From Searle v. Bent 1. Reasonable factual basis ? 2. Prepare evidence a) testimony b) medical records (maybe) c) eyewitness accounts d) documents 3. Ask yourself : competent substantial evidence? 4. Good faith belief : how was the developed? When? By what means? 5. Prepare for an appeal (2 years?)

42. Legal Aid Society of Palm Beach County, Inc., Public Guardianship Program v. Ferd and Gladys Alpert Jewish Family & Children’s Service , No. 15-357 (Fla. 4 th DCA Nov. 4, 2015).   Pankauski Hauser PLLC Attorney Robert Hauser Receives Pro Bono Appellate Law Award

43. Robert Hauser, Esq. [email protected]

44. VII. Conclusion

45. In Conclusion, remember that It is Important to Consider the Following : What is a guardianship? How do you file a guardianship? Who can get involved? What happens when you file for guardianship? Who pays the attorneys fees? What happens if there is a POA?

46. CLE Reference #: 1609637N 1 CLE Credit

47. John Pankauski, Esq. Phone: [phone] Ext.105 Email: [email protected] Robert Hauser, Esq . Phone: [phone] Ext.102 Email: [email protected]