Estate planning, probate, trust, guardianship, litigation and associates tax consequences FAQs.
If you have questions regarding a trust or if you are trying to deal with the Florida probate process, visit this page of our website to find the answers to frequently asked questions. Contact a Fort Myers probate lawyer today at the Cody & Linde, PLLC to get your questions answered.
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As a court appointed guardian, how do I know what I can or cannot do?
The simple answer is talk to your attorney. Guaridans are required to be represented by an attorney. The reason for this is that a guardianship is a court supervised procedure, and non-attorneys generally do not understand the process. Further, even if you are a guardian who has an attorney, you need to ask your attorney questions. The time to ask whether a guardian can borrow money from the Ward is not 8 months after the guardian has borrowed the money. Further, Fla. Stat. 744.441 specifically lists the authority of a guardian to act AFTER the guardian has petitioned the court for approval to act. Thus, as a guardian when you have any doubt get something in writing from your attorney. For more information contact an attorney at Linde Law Group today.
In Fort Myers, Cape Coral or Naples, what is an emergency temporary guardianship?
If you have decided that it is necessary to petition the circuit court to have someone, usually a close family member, declared incapacitated so that you can establish a guardianship, a common question is how long will this take?
The length to time depends on the judge that the case is assigned to. For example, in Lee County, there are five different civil judges. The time it takes: (1) to appoint an attorney for the alleged incapacitated person, (2) to appoint three examining committee members to examine the alleged incapacitated person, (3) for the examining committee to examine the alleged incapacitated person and file a report with the court, and (4) schedule the hearing at a future date after the examining committee reports are filed varies from four to eight weeks depending on the specific judge's work load.
However, what happens if you need something done right now?
Florida Statute §744.3031 describes the situations that a judge may appoint an emergency temporary guardian for an alleged incapacitated person. The court will hear a petition to appoint an emergency temporary guardian anywhere from two days to several weeks. The advantages of an emergency temporary guardianship are: (1) if a greedy family member is exploiting the alleged incapacitated person, greedy person does not have to be notified of the emergency hearing, (2) you do not have to wait for the examining committee to evaluate the alleged incapacitated person, and (3) the emergency guardian can be appointed much quicker.
However, you must file a petition to determine incapacity and a petition to appoint plenary or limited guardian before you can file a petition to appoint an emergency temporary guardian. The emergency temporary guardian can be for the person or property of the alleged incapacitated person. However, under §744.3031(1): “The court must specifically find that there appears to be imminent danger that the physical or mental health or safety of the person will be seriously impaired or that the person's property is in danger of being wasted, misappropriated, or lost unless immediate action is taken.” Thus, your attorney needs to collect admissible evidence that can be presented at a hearing to appoint an emergency temporary guardian. The hearing on an emergency temporary guardian can last anywhere from a few minutes to several hours. However, sometimes it is absolutely necessary to have an emergency temporary guardian appointed. For more information contact Linde Law Group today!
We have a minor child in Fort Myers who is going to receive $50,000.00. What do we do?
Under Florida Chapter 710 (cited as the Florida Uniform Transfers to Minors Act), a person having the right to designate the recipient of property transferable upon the occurrence of a future event may nominate a custodian to receive the property for a minor. See Florida Statute 710.104(1). In the absence of a will or under a will or trust that does not authorize transfer to a custodian, the personal representative, trustee, or other conservator may nevertheless make a transfer to a custodian without court approval unless the property exceeds $ 10,000. See Florida Statute 710.107. Any other obligor who holds property of a minor not having a guardian of the property may transfer the asset to an adult member of the minor's family or to a trust company unless the property exceeds $ 15,000 in value. See Florida Statute 710.108. A transfer under Chapter 710 saves the expense of establishing a guardianship of the property under Florida Chapter 744. However, there are disadvantages. First sometimes a guardianship of the property is necessary such as when the minor is to receive proceeds from the settlement of a claim under the Florida Wrongful Death Act. Further, under 710,116, a custodian can spend money in a custodial account without the court knowing about it if the custodian considers it advisable for the use and benefit of the minor.
Thus, you could find yourself in a situation where a divorced father of your child is a custodian of property belonging to your child, and when the child turns 18, the property is gone because the divorced father of your child spent the money (from an actual case). That would not happen with a guardianship of the property of a minor. Thus, careful consideration is necessary before setting up an account under the Florida Uniform Transfers to Minors Act; contact Linde Law Group for more information.
My dad in Cape Coral needs help. What does a guardianship cost and who pays for it?
The person who initially pays for the proceeding is generally the person seeking to establish the guardianship. There are exceptions to this. When a professional guardian is involved, the fees and costs for the guardianship proceeding generally come directly from the alleged incapacitated person’s assets after an emergency or plenary guardian is appointed. The type of guardianship referenced in this question is a guardianship for an individual 18 or older when there has been a finding of incapacity. Once the court has made a finding of incapacity, there can be a guardian of the person or the guardian of the property or both (generally referred to as plenary guardianship). The cost of a guardianship proceeding will vary greatly. Generally, if no one contests incapacity, no one contests who the guardian should be, no one contests the inventory or the initial guardianship report and there are no complications with the examining committee, then a guardianship proceeding will cost approximately $3,500.00, which includes the filing fees and the fees for the three examining committee members. This is an estimate and the actual cost could be more or less than this.
Generally, the documents necessary to start a guardianship are (1) a petition to determine incapacity, (2) a petition to appoint a plenary or limited guardian, (3) an oath, (4) an application for appointment as guardian and (5) the filing fee. The process, depending on which civil judge the petition is assigned to, will take anywhere from four to eight weeks if there are no complications. Many times assistance is needed sooner than that. One option is to petition the court to appoint an emergency temporary guardian. If the court finds that there is imminent danger to the person or their property is in danger of being wasted or misappropriated, then the court can appoint an emergency temporary guardian. This process generally adds another $1,500.00 to the overall cost, and this assumes no complications.
Under Florida law, a guardian or an attorney who has rendered services to the ward or to the guardian on the ward’s behalf is entitled to a reasonable fee for services rendered. Thus, if a family member is successful in establishing a guardianship for a loved one, that family member will be reimbursed for money spent. However, this assumes that person who is deemed incapacitated has money to reimburse the family member establishing the guardianship. Further, if there are objections to a fee petition, then the courts will hold an evidentiary hearing to rule on any fee dispute. Contact Linde Law Group for additional information.
My dad in Fort Myers is giving money away, but his doctor says he has capacity. Help!
Get ready to be shocked; many medical doctors have very little understanding whether your loved one has legal capacity or is incapacitated. Further, understand that capacity is a legal not a medical term. I have had several cases where the children or grandchildren were convinced that dad/grandpa et cetera was not the same person, but the doctor said dad/grandpa was fine. In one case I distinctly remember, the general practitioner was convinced that grandpa had capacity, but after the grandson filed a petition to determine incapacity, it became very obvious that grandpa lacked capacity and had impaired functioning. The court found grandpa lacked capacity and the court prevented a wealthy 92 year old man from marrying a 56 year old caretaker earning $12.00 per hour. If you have questions it pays to talk to a qualified guardianship attorney to understand your options. Contact Linde Law Group today.