Probate, trust, guardianship and inheritance litigation
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Challenged Trust and Power of Attorney Do Not Offer Less Restrictive Alternative to Guardianship

By:  Jeffrey Skatoff, Esq.

In Searle v. Bent (2nd DCA 2013), Anne Bent initiated a Florida guardianship proceeding to determine the capacity of her mother, Dain Searle.  Bent provided a verified statement alleging that Searle’s durable power of attorney and various estate planning documents executed after December 3, 2006 were invalid because of Searle’s lack of mental capacity or because the documents were the product of undue influence

The Florida guardianship court found that the allegations in Bent’s verified statement called the documents into question, and that as a result the court could not rely on the estate planning documents as an alternative to guardianship. The Florida trial court ultimately determined that Searle was incapacitated and appointed a guardian.  Searle appealed the ruling, arguing that the Florida trial court erred by not considering less restrictive alternatives to a guardianship in accordance with Florida guardianship law.

Section 744.331, Florida Statutes, 2010 governs the procedure for determining incapacity and appointment of a guardian and states:

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.
(f) Upon the filing of a verified statement by an interested person stating:
1. That he or she has a good faith belief that the alleged incapacitated person’s trust, trust amendment, or durable power of attorney is invalid; and
2. A reasonable factual basis for that belief, the trust, trust amendment, or durable power of attorney shall not be deemed to be an alternative to the appointment of a guardian.  The appointment of a guardian does not limit the court’s power to determine that certain authority granted by a durable power of attorney is to remain exercisable by the attorney in fact.

The Florida appellate court affirmed the Florida trial court’s ruling, relying on the plain words of the statute.  Because the verified statement called the validity of the estate planning documents into question, the Florida trial court was prohibited from considering the documents as an alternative to guardianship.  This does not mean that Searle’s estate plan was invalidated, just that it could not be relied on as providing an alternative to the appointment of a guardian.

Jeffrey Skatoff is a Florida probate attorney.  To have Mr. Skatoff review your case free of charge, please go to his website.

Probate attorney Jeffrey Skatoff handles probate, trust, guardianship and inheritance litigation.

Jeffrey H. Skatoff, Esq.

Probate, Trust & Guardianship Litigation

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