Protecting the Fundamental Rights of the Elderly and Their Families

Without question there is considerable discrimination and bias against the elderly in our society. Such bias ranges from the most blatant to the ever so subtle. There is a pervasive attitude that “others” know what is best for an elderly individual, and often times little deference is given to the personal wishes of that elderly individual. Considerably more is needed in the implementation and interpretation of our laws in favor of protecting these fundamental rights.

Our firm has made significant strides in advocating for the rights of the elderly in our state:

Martinez v. Smith, 159 So. 3d 394 (Fla. 4th DCA 2015)

Trial court’s appointment of professional guardian reversed.

HELD: The trial court erred in failing to honor a ward’s choice of guardian without finding that the appointment of his designated preneed guardian was contrary to the ward’s best interests as required by § 744.312(4), Fla. Stat. (2012).

The trial court’s finding that appellant had moved the ward several times and did not communicate well with a care facility’s staff did not show that appellant “abused powers” granted to her by her designation as the ward’s health care surrogate such that those powers could be modified or revoked in accord with § 744.3115, Fla. Stat. (2012).

As stated by the appellate court:

In the present case, [the professional guardian] stipulated that the ward had appointed appellant his preneed guardian. This appointment was in the designation of health care surrogate document . . .

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However, [the professional guardian] argued against appellant’s appointment on the grounds that “[s]he could not communicate rationally or calmly” with him as the guardian of the ward’s property, the ward’s court-appointed attorney, or the staff at the facility. The record in this case appears similar to Koshenina, in that appellant had a “bull-in-the-china-closet” approach to the ward’s healthcare, which caused conflicts with [the professional guardian] and the facility’s staff. The mere existence of conflict with the staff of the nursing facility, however, does not show that her appointment would be contrary to the best interests of the ward. Indeed, she may need to advocate forcefully to get the ward the care he needs. From this record it is apparent that several of the facilities in which the ward was placed were not providing adequate care. There is also a question in the evidence as to whether the present facility is adequately attending to the ward’s needs. For instance, despite the testimony from the staff and the ward’s counsel that the staff was properly treating the ward’s pneumonia and that appellant wrongfully admitted him to the hospital, [the professional guardian] himself testified that the ward was in the hospital for nine days. That hardly is evidence that the staff was properly caring for the ward.

It is not surprising that someone strongly advocating for excellent care for their loved one would be at odds with a staff which may be less than diligent in delivering such care. Even where a nursing facility’s staff is caring, staffing levels may be such that patients wait a long time for a member of the staff to attend to even the most basic of needs. While we do not know that is the case in this institution, the conflict revealed by the evidence is simply that appellant and the staff have poor interaction, not that appellant has done anything to harm the ward.

In revoking appellant’s powers as health care surrogate, the court found appellant “has moved the Ward multiple times and does not communicate properly with the Ward’s caregivers and other interested persons.” The only language in the order regarding the preneed guardian designation is: “The Court has considered the wishes expressed by the Ward and appoints [the professional guardian] despite those wishes pursuant to the reasons stated above.”

Thus, the trial court failed to make an explicit finding that appellant was unqualified or that her appointment would be contrary to the ward’s best interests. Instead, the court appointed [the professional guardian], the professional guardian who visits with the ward only fifteen minutes twice a month, to care for the ward. The trial court abused its discretion by failing to honor the ward’s choice of a guardian without finding that appointment of his designated preneed guardian was contrary to his best interests.

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The trial court’s finding that appellant has moved the ward several times and does not communicate well with the present facility’s staff does not show that appellant “abused powers” granted to her by the designation. The appellant had the authority to transfer the ward, and the trial court made no findings that the various transfers were contrary to the ward’s best interest. Nor would this record support such a finding. There were adequate reasons for each transfer, which were largely uncontested by [the professional guardian].

Nor would conflict and difficulty communicating with the staff at the facility be an abuse of power. Although [the professional guardian] contended that appellant was interfering with the ward’s care, the testimony shows that appellant was demanding more care for the ward than the staff thought was required. Since the ward left decisions regarding his care to the appellant, and not the staff of the facility, this cannot be treated as an abuse of power, unless her decisions are contrary to his wishes, as expressed in the designation. No one has shown that they are. For these reasons, we conclude that the trial court erred in revoking the designation for appellant’s abuse of power.

159 So.3d at 399-400; 402.

Smith v. Smith, 224 So. 3d 740 (Fla. 2017)

Trial court’s annulment of the marriage between the ward and his fiancé reversed.

In this case, the ward retained his right to marry with court approval. The professional guardian would not seek approval from the trial judge for the marriage. The ward and his fiancé got married, and the professional guardian petitioned to annul the marriage. The trial court annulled the marriage, believing the statute required the ward to get prior court approval. Without prior approval, the marriage was void. The intermediate district court of appeal agreed, but the Florida Supreme Court disagreed and reversed the annulment. The Florida Supreme Court held:

In the context of section 744.3215(2)(a), “the right to marry is subject to court approval” means that the ward’s right to marry is contingent on court approval, though that approval may come later in time, such as after the marriage ceremony. Although the validity of the marriage itself depends on court approval, nowhere in the statute does it provide that court approval must be obtained prior to marrying.

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[T]he Legislature likely did not intend for section 744.3215(2)(a) to render a ward’s unapproved marriage absolutely void, particularly in cases such as this, where the ward was not deemed incapacitated with respect to his right to marry, the parties were engaged prior to his incapacitation, the guardian was asked twice to obtain the court’s approval, and there is no evidence whatsoever of abuse or financial exploitation.

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The interpretation of section 744.3214(2)(a) the Legislature likely intended—that, absent court approval, a marriage entered into by a ward whose right to contract has been removed is invalid, but ratifiable—advances both objectives of the Florida Guardianship Laws. It protects the ward and the ward’s estate by allowing a court to assess the risk of abuse and exploitation before the alleged spouse acquires any rights as a result of the marriage. It also upholds the ward’s fundamental right to marry to the greatest extent possible by allowing for the possibility of ratification.

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[W]e answer the certified question by holding that a ward’s failure to obtain court approval prior to exercising the right to marry does not render the marriage void or voidable. Instead, we conclude that under section 744.3215(2)(a), court approval is required before a ward whose right to contract has been removed may enter a valid marriage. Any marriage entered into without court approval is invalid. However, the statute does not prevent the ward or the intended spouse from seeking court approval after marrying in order to ratify the marriage. Accordingly, we quash the decision of the Fourth District and remand to the district court for proceedings consistent with this opinion.

224 So. 3d at 747; 750-751.

Protecting Family Members and Beneficiaries

Our firm is also an advocate for the rights of family members and beneficiaries in the probate/trust/guardianship arena. The issues which involve family members and beneficiaries are delicate and complex. Our firm believes in handling these matters with extreme sensitivity, and we strive to make every effort to bring the case to a just resolution in as expeditious manner as possible.

Some of our cases include the following:

Levin v. Levin, 67 So. 3d 429 (Fla. 4th DCA 2011)

Judgment assessing attorneys’ fees against beneficiary’s share of the estate reversed. Trial court did not make the required finding of bad faith, wrongdoing, or frivolousness before awarding fees against the appellant’s share of the estate.

Levin v. Levin, 60 So. 3d 1116 (Fla. 4th DCA 2011)

HELD: Judgment that the decedent, the parties’ mother, had testamentary capacity was reversed and remanded because the trial court never decided whether a contradiction in evidence rose to the level of “insane delusion” and whether an incorrect statement repeated by the decedent was linked to reducing the bequest to her daughter from an earlier will. Reversed and remanded for trial court to decide whether the mother suffered from an insane delusion at the time she executed the will and trust that caused her to make a will that she “would not have made but for that delusion.”

Bonney v. Bonney, 94 So. 3d 702 (Fla. 4th DCA 2012)

Trial court’s award of brother’s fees against sister in probate reversed.

HELD: District court reversed trial court’s order awarding fees which relied on Sections 733.609 and 733.106(3), Florida Statutes (2010). Court held those statutes were not applicable.

In re Estate of R.F.: Protected beneficiary sister from claims of undue influence by other siblings.

For Probate/Trust/Guardianship Litigation and Appeals, contact The Law Offices of Jennifer S. Carroll, P.A. today, at (561) 478-2102, to schedule an initial consultation.

The Law Offices of Jennifer S. Carroll, P.A.

1001 North U.S. Highway 1, Suite 508
Jupiter, FL 33477
Phone: (561) 478-2102
Fax: (561) 478-2143