Health care surrogate

Help mom and dad with estate planning, but know your boundaries under the law

June 10, 2019 | by Chepenik Trushin LLP

Avoiding Undue Influence, as an Adult Child, Assisting Parent’s Estate Planning

Writing a will is a process most people view as a terrible chore, but it is one that is necessary. The process may get further complicated when one spouse has already passed away and the adult children of the surviving elderly parent assist in managing and dividing finances. This has become more of a reality as more and more middle-aged children are caring for elderly parents. Perhaps, not surprisingly, this phenomenon is more pronounced in Florida, which according to the U.S. Census Bureau, leads the nation in terms of greatest share of its population aged 65 and older in 2010.

This scenario can lead to issues in estate planning especially if the parent is experiencing diminished mental capacity where too much of an adult child’s influence over estate planning decisions of the parent may bring legal problems such as legal charges of “undue influence.” Every state has its own undue influence laws to address these types of issues not only in the context of children’s undue influence on parents but others outside the family, such as a girlfriend or caretaker. In Florida, in order to raise a presumption of undue influence, a petitioner must show “(1) the existence of a confidential or fiduciary relationship between the decedent and the procurer of a will; (2) the active participation of the procurer in the planning and drafting of the will; and (3) the realization by the procurer of a substantial benefit under the provisions of the will.” These elements in Florida are found in common law as opposed to codified statutes so the court’s decision will be based on how convincing the evidence is in a case.

How to identify elder exploitation or breach of fiduciary responsibilities of a Power of Attorney

October 29, 2018 | by Chepenik Trushin LLP

What is Elder financial Exploitation?

The Florida Department of Elder Affairs defines elder financial exploitation as “the illegal or improper use of another individual’s resources for personal profit or gain.” This exploitation takes on many forms involving deception and/or coercion, including the improper use of a power of attorney.

What is a Power of Attorney (“POA”)?

Proactive Wills

August 7, 2018 | by Chepenik Trushin LLP

Legal Capacity and Estate Planning – How to Safeguard a Will from Future Litigation or Contests

When a loved one grows older, ages and declines, their caretakers’ ever growing to-do list can become overwhelming. After dealing with the basic, everyday needs of an aging family member, it may sometimes be easy to overlook the fact that your loved one does not have a valid will. By not addressing this issue, the task of handling final affairs and estate distribution after their death becomes increasingly more difficult. If you are responsible for someone who is at risk for developing Alzheimer’s, dementia, or any other disease that can affect their mental capacity, it is important that you consult with an estate planning lawyer who can ensure that a proper will is drafted in accordance with the laws of the state of Florida.

Florida courts have held that a will can be properly admitted to probate if the testator was competent at the time the will was executed. Jervis v. Tucker, 82 So.3d 126 (FL 4th DCA 2002). A testator will be found to have been competent if they possessed the ability to “mentally understand in a general way the nature and extent of the property to be disposed of, and the testator’s relation to those who would naturally claim a substantial benefit from the will, as well as a general understanding of the practical effect of the will as executed.” American Red Cross v. Estate of Haynsworth, 708 So.2d 602, 605 (FL 3rd DCA 1998). Florida courts will apply these standards and also evaluate the facts specific to a particular case in order to determine if a testator was of “sound mind” when they created the will. Estate planning lawyers play an important role in this process and have the responsibility of ensuring that the testator is legally competent at the time the will is created.

Our farmers are at high risk

July 18, 2018 | by Chepenik Trushin LLP

Elder abuse: the farmer population as the next potential target

Florida is a state well-known for its agriculture. In fact, within the United States, it is safe to presume that most people think that the best oranges come from Florida (we certainly think they do). Agriculture is the second most important economic activity in Florida, preceded only by tourism. Agriculture contributes $104 billion in revenue to the state and employs two million people.

According to a 2016 study by Oregon State University and Portland State University, the average age of farmers is 60 years old. Additionally, it is believed that in the next twenty years, 10 million acres of farmland are going to change ownership. Like all other people, we can expect health issues to arise as our farmers age. Studies suggest that 38% of people who are over 85 years old have dementia or some impairment in their mental faculties.

Arbitration and Estate Planning – Decisions made final

June 15, 2018 | by Chepenik Trushin LLP

WILLS, TRUSTS, and ARBITRATION AGREEMENTS

In previous blog posts, we have shown how wills and trusts are favored vehicles when protecting someone’s assets. Perhaps one of the purposes of a well-drafted will or trust is to avoid hearing the judge’s gavel when knowing who gets what part of the inheritance. Unfortunately, contentions amongst the parties may well exist. The good news is that since 2007, parties have another alternative to resolve disputes that arise out of a will or a trust. Florida Law provides the option for parties to have a clause in their will or trust requiring arbitration. See Fla. Stat. § 731.401.

Arbitration, is a private (not state-sponsored) method of resolving disputes. Arbitration is not to be confused with mediation: While mediators help the parties in finding a solution, arbitrators decide a dispute.

Elder financial exploitation, Trust litigation and Undue influence

April 11, 2018 | by Chepenik Trushin LLP

What is elder financial exploitation?

The Florida Department of Elder Affairs defines elder financial exploitation as “the illegal or improper use of another individual’s resources for personal profit or gain.” This exploitation takes on many forms involving deception and/or coercion, including the improper use of a power of attorney.

What is a Power of Attorney (“POA”)?

Guardianship, FL law explanation

February 7, 2018 | by Chepenik Trushin LLP

Guardianship: When No Less Restrictive Alternative is Available

What is guardianship?

The simple answer: court intervention to safeguard the property and care of an individual unable to make such decisions themselves.

Legal Capacity

December 11, 2017 | by Chepenik Trushin LLP

Legal Capacity and Estate Planning- How to Help Safeguard a Will from Future Litigation

When a loved one grows older, their caretakers’ ever growing to-do list can be overwhelming. After dealing with the basic, everyday needs of an aging family member, it may sometimes be easy to overlook the fact that your loved one does not have a valid will. By not addressing this issue, the task of handling final affairs and estate distribution after their death becomes increasingly more difficult. If you are responsible for someone who is at risk for developing Alzheimer’s, dementia, or any other disease that can affect their mental capacity, it is important that you consult with an estate planning lawyer who can ensure that a proper will is drafted in accordance with the laws of the state of Florida.

Florida courts have held that a will can be properly admitted to probate if the testator was competent at the time the will was executed. Jervis v. Tucker, 82 So.3d 126 (FL 4th DCA 2002). A testator will be found to have been competent if they possessed the ability to “mentally understand in a general way the nature and extent of the property to be disposed of, and the testator’s relation to those who would naturally claim a substantial benefit from the will, as well as a general understanding of the practical effect of the will as executed.” American Red Cross v. Estate of Haynsworth, 708 So.2d 602, 605 (FL 3rd DCA 1998). Florida courts will apply these standards and also evaluate the facts specific to a particular case in order to determine if a testator was of “sound mind” when they created the will. Estate planning lawyers play an important role in this process and have the responsibility of ensuring that the testator is legally competent at the time the will is created.

Home health care owners and operators, be smart

October 30, 2017 | by Chepenik Trushin LLP

Do you own a home health care agency or nurse registry? Safeguard your referral sources through a non-compete agreement and enforce it!

The home health care industry generally includes businesses that provide skilled nursing, physical therapy, and other health-related services to homebound patients. If you run a home care company, you know that referrals are crucial. This is because patients typically seek out home care services after a referral from a “middle man,” such as a physician, hospital, or skilled nursing facility. As a result, home care companies hire marketing representatives to promote the companies and cultivate relationships with the middle men in hope of securing future patient referrals for their business.

Imagine that you hire such a marketing representative, train her, and give her access to your company’s internal referral source database, preferences, and strategies. Naturally, you want to protect your sources, so the representative signs a confidentiality and non-compete agreement as part of her employment contract. After some time, the representative quits, and all of a sudden you start receiving significantly less referrals from the sources that the representative worked on while employed by you. Coincidence? It turns out that the representative started working for your direct competitor and used her relationship with your precious referral sources to your competitor’s benefit, in direct violation of the non-compete agreement. Surely the law is on your side, right?

Incapacity and marriage, the role of guardianship court

October 9, 2017 | by Chepenik Trushin LLP

Do incapacitated wards need prior court approval to marry? Subsequent ratification is enough

Already in 1888, the United States Supreme Court first recognized the right to marry as one of the fundamental rights of all individuals. Describing marriage as “the most important relationship in life,” the Court went on upholding that marriage is “the foundation of the family and society, without which there would be neither civilization nor progress.” Maynard v. Hill, 125 U.S. 190 (1888).

Regretfully, when it comes to marriage of incapacitated persons, they are sometimes the victims of emotional abuse, neglect, and financial exploitation. For this reason, a guardianship court may remove an incapacitated person’s right to marry if there is clear and convincing evidence that he or she is incapacitated with respect to that right. Fla. Stat. 744.3215(2)(a); 744.331(6). However, even when a guardianship court does not remove the right to marry, an incapacitated person’s right to marry becomes “subject to court approval” when his or her right to contract has been removed. Fla. Stat. 744.3215(2)(a). This legal framework aims at protecting the ward by allowing a court to assess the risks of abuse and exploitation, while upholding the ward’s fundamental right to marry, to the greatest extent possible.