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«Aggregated Summary of Reports Provided by ABA-PTL and ACTEC-Prac List serves 2015 Heckerling Estate Planning INSTITUTE Edited, Aggregation of On-Site ...»

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Ms. Bucher then moved on to Directed Trust matters. She noted that Florida’s statute on directed trusts has been in place since 2007. Fla. Stat. §736.0808 is modeled after the Uniform Trust Code. She also discussed the subsequent amendment of Fla. Stat. §736.0703 to satisfy corporate trustee concerns. Ms. Bucher then noted a major development in the trust arena has been regarding trust protectors. In December, Minassian v. Rachins, (4th DCA 2014), it was decided that a surviving spouse was found to have violated her fiduciary duties to her husband’s children by continuing her high spending and gambling lifestyle as trustee of the family trust. After the court determined she breached her duties, she exercised the trust protector provision to revise the trust so she would not be in breach. The Trust Protector did this in sole and absolute discretion. The children sued, but the 4th DCA confirmed it was a valid change by the trust protector. This ruling essentially allows a settlor to privatize dispute resolution.

Ms. Bucher then discussed how Florida trusts have two methods to defeat creditors: spendthrift clauses and discretionary trusts. The seminal case is Bacardi, 463 So. 2d 218 (Fla. 1985), were an ex-spouse got continuing writ of garnishment against a spendthrift trust. In 2007, Florida codified Bacardi in Fla. Stat. §736.0502, which provides spendthrift trusts are protected, but §736.0503 addresses exemption creditors which include a child, spouse, or former spouse with a court order for support or maintenance may reach a spendthrift trust as a last resort. Fla.

Stat. §736.0504 addresses discretionary trusts and says whether or not if a trust has a spendthrift clause a creditor may not compel a distribution. She then discussed Berlinger v. Casselberry where the Florida Second District Court of Appeal allowed a former spouse to obtain a writ of garnishment over the trust distribution for her ex-husband because of Florida’s strong public policy favoring enforcement of alimony and support orders.

Mr. Hennessey then discussed the rules regarding bequests to an attorney in a client’s estate planning documents.

He noted that the Florida bar rules made these gifts voidable. However, Florida added Fla. Stat. §732.806, so that after October 1, 2013, it makes any gift to a lawyer, or certain people related to, or affiliated with, the lawyer, void if the lawyer prepares the instrument making the gift, or solicits the gift, unless the lawyer or recipient of the gift is related to the client. This law changed gifts to the drafting or supervising lawyer from voidable to void. He also noted that you cannot prepare a document and have another lawyer supervise the execution. However, a lawyer naming themselves as fiduciary is not considered a gift under this provision.

Mr. Hennessey then discussed pending legislation for 2105. The new changes require a lawyer to make basic disclosures to a client before a will or trust is signed with the lawyer serving as a fiduciary. A client must acknowledge in writing who can serve as personal representative, and that the lawyer is entitled to a fiduciary fee in addition to an attorney fee. The new statute which is expected to pass this year would void any fiduciary fee if there was no disclosure and consent, but it would not void any attorney fees. The statute will not apply to documents executed prior to the enactment of the statue.

Next Mr. Hennessey moved on to lawyer-fiduciary privilege. He discussed the case of Jacobs v. Barton which applied the Riggs analysis (a Delaware case) to fiduciary privilege. The court looks to real clients to see who benefited from the advice. In Florida we passed Fla. Stat. §90.5021 in 2011, to recognize fiduciary-lawyer client privilege, but in December 2013, the Florida Supreme Court declined to adopt this new section of the Florida Evidence Code, rendering ineffective the procedural aspects, if any. Therefore it is arguable whether or not the statue applies. Ms. Bucher then discussed the same sex marriage issue which in Florida is disallowed by the Florida Constitution and statute. However, the US District Court for the Northern District of Florida found these provisions to be unconstitutional. The case is currently on appeal to 11th Circuit Ct. of appeals and it is rumored that the Supreme Court may take jurisdiction soon. The panel noted that the only probate case in Florida dealing with the same sex marriage issue involved a ruling that a non-resident same sex married partner who was appointed executor in their home state was not qualified to serve as personal representative of the Florida ancillary probate.

A judge in Palm Beach County determined that this portion of the probate law was unconstitutional as it was applied and allowed him to serve.

Session IV-E Grandma, Here’s Your Deposition Subpoena: Contested Guardianship Issues (Litigation Series) Robert N. Sacks, Peter J. Forman, Crystal M. Patterson This program will cover a host of issues in contested guardianships/conservatorships, ranging from “normal” battles to multi-jurisdictional disputes, as well as contested substituted judgment proceedings.

Reporter: Joanne Hindel Esq.

A normal guardianship or conservatorship proceeding could be one in which a client comes to you and wants to obtain guardianship over her aunt’s affairs. Facts provide that the client cannot easily access her aunt because the aunt is living with another family member who appears to have taken over the aunt’s affairs but is not handling her affairs to the aunt’s benefit.

First advice that lawyer should give is the impact a guardianship might have on the family relationship. Will the aunt resent the attempt to establish a guardianship?

Nomenclature regarding matters affecting incapacitated individuals can vary from state to state (control over assets versus over the person). Some states use the term guardianships, others conservatorships and others use both. You need to be familiar with your state’s laws and terminology.

The lawyer must also determine the domicile or residence of the potential ward – where is it best to file for the guardianship?

The petition should address three issues:

1. Is a substitute decision-maker needed?

2. If one is needed, what is the scope of the powers that should be granted?

3. Who is the best person to serve in that role?

Standard to determine whether a substitute decision-maker is needed Disoriented as to place and time, impaired to the extent of lacking sufficient understanding or capacity to make or communicate responsible personal decisions and who has demonstrated deficits in behavior which evidence an inability to meet personal needs.

Watch for the distinction between legal incapacity and medical incapacity and be careful when physicians testify that the distinction is understood.

Generally, a psychologist is better able to address capacity for purposes of a guardianship proceeding.

When analyzing the ability of a potential ward, there may be different standards regarding the person’s ability to handle various activities. For instance, the ability to make a will may require a lower level of capacity than the ability to enter into contracts.

Scope of powers to be granted Most courts will tend to be as restrictive as possible with respect to the scope of powers. Often, jurisdictions may provide a “check the box” list of powers that should be listed in the petition for guardianship.

The powers may include the ability to determine where the ward will live, medical and psychological treatment, and ability to provide for the ward’s care, comfort and maintenance needs.

In addition, is it necessary to control people whom the ward will be able to see? This can be identified as the power and duty to exercise “supervisory authority over the ward”.

Conservatorship powers might include the ability to pay reasonable charges for the support maintenance and education of the protected person. Ability to pay the person’s debts, possess and manage the person’s assets, manage and/or sell real estate, enter into contracts and apply for governmental assistance and benefits.

A review of prior transactions – going back for a period of years may also be authorized since it is not clear at what point in time the protected person lost capacity.

Who should be appointed as substitute decision-maker?

Many states have priority statutes that lay out the order of priority given to various individuals. Generally, priority is given to an individual who has been appointed as guardian in another jurisdiction, an agent nominated under a health care directive, an agent nominated under a power of attorney document; the spouse of the person, an adult child or a parent.

Courts may not choose priority individuals if there has been a history of family disputes. Then, the court may choose a third party who is disinterested.

The lawyer should review with the client issues such as:

1. Time and cost involved in serving as a guardian

2. Do they really want to be involved in the family drama?

3. Are they physically close to the ward?

4. What is the history and depth of their relationship with the ward?

5. What is their ability to pass a background check?

The procedural requirements include the following:

1. Service of the petition to the ward and other interested persons

2. The court will send a representative to visit with the ward

3. The court will consider appointment of counsel for the ward if the ward has not chosen counsel

4. Determination of any fee to be paid to the attorney representing the ward (consider that it might be risky to accept payments from someone who eventually is determined to be incapacitated) After the petition is filed, objections may be filed by any individual who is the subject of the proceeding or any interested person (typically those who were entitled to notice). The objections may be with respect to the establishment of the guardianship at all or with respect to the proposed guardian.

If the guardianship is contested, then full discovery is available. One discovery tactic may be a request for inspection at a designated physical location that has relevance to the proceeding and a request for physical/medical inspection of the ward.

You can also depose the ward as well as all critical witnesses and send third-party subpoenas which are written requests to a non-party to produce records or appear and give deposition testimony.

It is possible that before trial, the parties will go to mediation. In some jurisdictions, courts will not allow the parties to determine whether a person is incapacitated but will insist that the matter be tried by the court.

The panel discussed the Uniform Adult Guardianship and Adult Protective Proceedings Jurisdiction Act which is focused on questions of jurisdiction and related issues in adult proceedings. The purpose of the Act is to provide an effective mechanism for resolving multi-jurisdictional disputes.

It creates a three-tier system of priority for determining the proper jurisdiction in guardianship proceedings:

1. the home state (where was the ward physically present for at least six months prior to the filing of the petition)

2. the significant-connection state (a state other than the home state with which the ward has a significant connection other than mere physical presence)

3. Other jurisdictions Granting jurisdiction or venue to the state where the ward is found has created a phenomenon known as “granny snatching.” Once the home court is determined, it has the main jurisdiction over the ward but should keep the other jurisdictions informed.

The panel then turned to the topic of substituted judgment proceedings. While a person is alive but has been placed under a guardianship, there is a way to create or change that person’s estate plan to increase, reduce, or eliminate gifts in that plan. Generally this is done through a substituted judgment proceeding filed in the guardianship action.

Sometimes, these actions are contested. The court will look at past donative practices of the ward and what are the assets at issue? What are possible tax ramifications of the changes? The court considers what a reasonably prudent person would do under the circumstances.

The panel discussed the Murphy case in which a court held that collateral estoppel applied in an action brought after a contested substituted judgment proceeding had been finalized. The reasoning in that decision suggests that the collateral estoppel effect of a substituted judgment proceeding could be binding in both directions. If the substituted judgment is granted, future challenges to the new estate plan can be barred and if the substituted judgment is denied, future attempts to enforce the rejected estate plan can be barred.

FRIDAY, JANUARY 16 9:00 - 9:50 The New Normal: Planning for the “Modern Family” Lauren J. Wolven As popular media reflects, families today come in all shapes and sizes. Contemplating the modern family to reduce conflicts through thoughtful drafting has become a significant aspect of estate planning. This session will focus on crafting estate plans to deal with second (or subsequent) marriages, long-term non-marriage relationships, samesex couples and twilight relationships. Consideration also will be given to defining terms such as “spouse” and “descendant”.

Reporter: Carol A. Sobczak Esq.

The speaker started the presentation by noting that fewer clients these days have federal estate tax issues. The issues today concern this brave new world we are living in.

The general theme of this presentation was defining terms. The first term to define is “spouse.” Do you define “spouse” in your documents? If not, courts may determine that a legally separated spouse is still a spouse entitled to benefits, or that a former spouse who reconciled with the decedent and lived with him as a married couple was not a surviving spouse. We are not even speaking about same-sex couples or civil unions yet.

Our documents need to be reviewed and updated. Most clients do not even understand the substantive provisions of their documents, much less the boilerplate, which includes the definitions, which can result in unintended consequences.

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