The guardianship laws require that the judge shall determine whether the ward, prior to incapacity, has executed any valid” advance directive naming a health care surrogate. If an advance directive exists, then the judge is required to “specify in its order and letters of guardianship what authority, if any, the guardian shall exercise over the surrogate.” Generally, the judge will provide that the guardian shall have no authority over the health care surrogate pending further order of the court. See, Fla. Stat. sec. 744.3115 

It is unclear whether the client has a health care surrogate directive from her husband. If she has one, then we could probably get the judge to modify his previous order appointing the ETG. The judge could not modify or revoke her authority as the health care surrogate without finding grounds under Florida Statute section 765.105. Therefore, in all likelihood, she would have the right to make the health care decisions and to discuss her husband’s care with his doctors.

If there is no directive naming her as her husband’s health care surrogate, then the client may not gain back control of her husband’s health care. However, at a minimum, the judge will probably require that she be kept informed of her husband’s care and treatment.

This situation highlights the importance of proper estate planning, including a directive naming a health care surrogate.

The opinion begins with an attention-getting line — “This appeal pits ‘integrity’ in the practice of law against an unwarranted game of ‘gotcha.’” Fortunately, integrity won out over gotcha on appeal although not at the trial court level.  In the pretrial stipulation, in several pretrial hearing, and in the opening statement, counsel for the defendant insurer agreed that the only issue was  the amount of damages owed to the insured, which had acquired its rights by assignment.  The pretrial specifically stated: “[The assignor] assigned its rights to the insurance proceeds [the purchaser] on December 23, 2005.” Thus, the parties specifically agreed to the fact of the assignment.

Nevertheless, after the plaintiff rested its case, counsel for the insurer moved for a directed verdict and argued that the plaintiff had failed to prove the existence of the assignment.  Plaintiff’s counsel reminded the court of the stipulation and the motion was denied. The motion was renewed at the close of all the evidence, and was again denied.

Persistence paid off though at the meeting to discuss the jury instructions (i.e., the charge conference).  Insurance counsel asserted that the issue of the assignment was a “question of fact for the jury.”  This time the trial judge disregarded the argument that the fact of the assignment had been stipulated and allowed the jury to be instructed that it should determine whether a valid assignment had been made to the Plaintiff.  Not surprisingly, because there had been no evidence of an assignment due to the stipulation, the jury found there was no assignment and ruled for the insurance company.  The trial court refused to grant a new trial when the Plaintiff requested one. Fortunately, the Fourth DCA reversed this travesty of justice on appeal, and reaffirmed the binding nature of stipulations and that once a fact is stipulated no proof of it is required.

I would like to say this has never happened to me.  Unfortunately, this or something similar happens all too often. Early in my career I had defense counsel try a nearly identical “gotcha” on me.  They stipulated to the liability of a vicariously liable defendant.  That is, if the actively liable defendant was guilty, then the vicariously liable defendant was liable.  After I rested my case, opposing counsel argued that I had failed to prove the vicariously liable defendant owned the car and lent it to the actively liable defendant.  When I said that I would reopen my case and present that evidence and the judge said he would allow me to, insurance counsel capitulated on that issue.

Unfortunately, this means that it is not uncommon for unscrupulous individuals to marry people late in life to gain these rights.  Fortunately, the Florida legislature recently passed a law that makes it possible to deny the rights and benefits of a surviving spouse to a spouse who procured the marriage by fraud, duress, or undue influence.  See, Fla. Stat. sec. 732.805 Previously, heirs and beneficiaries could do little to challenge a deathbed marriage.

Clients will sometimes try to bolster a case by recording an opposing party.  This not only exposes them to potential criminal liability, but is generally useless.  An unlawfully recorded conversation is not admissible in court.

Here is a much more detailed blog post by a criminal defense attorney:  Recording Telephone Conversations and Communications in Florida

I have a fear of dentists and have neglected my teeth for years. The pain is so great in a few teeth that I finally broke down and went to a sedation dentist. They examined me and came up with a proposal to fix my entire mouth for the sum of 13,000.00, and finance it. The financing would result in the final total being 18,546.00 from GE Money Bank. Never heard of them. After having a day to crunch the numbers, the 309.00 payment over 5 years was going to be difficult. My girlfriend is willing to pay the dentist the 13,000.00 in cash, but I’ve signed a contract stating that I agreed to the 309.00 payment for 5 years. The contract was signed Friday afternoon, the first session is scheduled for Monday (08/02/10). Can I rescind the contract and simply give the dentist cash, rather than incur all that interest? What are my choices? No work has been done on my mouth as yet. My dentist would be happy to get paid the cash, but the contract that was signed would probably have to still be honored. How could I cancel this contract?

Am I stuck with the ridiculous interest payments and the grand total of 18,546.00? 

First, congratulations to the reader for realizing that he has a signed contract that may be valid.  You would be surprised how often clients come into the office having  just signed a contract for the purchase of real estate for many hundreds of thousands of dollars and say:  “I just signed this contract.  Can you look it over and tell me if it is okay?”  It is too late to have your lawyer look over a contract after it is signed.  At that point, if you have all the requisites for a valid contract, the damage is done.  So that is lesson number one — have your lawyer look over contracts before you sign them and not after.

Second, the contract is between GE Money Bank and the reader.  It is not between the reader and the dentist.  Nevertheless, the dentist is still the key to backing out of the contract at this time.  By the way, the GE in GE Money Bank stands for General Electric and it is a major consumer finance company.

Finally, I think the key to the reader’s problem is simple — just ask.  On Monday, he should walk into the dentist’s office a little early and offer to pay up-front if the dentist will tear up the contract.  I bet that the dentist will be happy to tear up the financing contract and take the money.  This is especially true if he just signed the contract on Friday.  Most likely it has not been submitted to GE Money Bank yet and no monies have been advanced to the dentist.

All is not lost if the dentist will not tear up the contract and take the money.  If that is the case, the next step is to read the contract.  Interest is charged for use of money over time.  The $5,546.00 interest charge is based on the use of the $13,000.00 for three years.  If there is no pre-payment penalty in the finance contract, then the $13,000.00 can be paid at any time and the interest due after the date of payment avoided.  Even if there is a pre-payment penalty, it is likely to be much less than $5,546.00.

I am often surprised by how often someone will come to me for a “legal” way out of a situation when they have not even tried to talk to the other party.  Sometimes the solution is as simple as asking.  I will bet that is the case here.  But, if not, the next step is to read the contract and see if anything in it can be used to your advantage or keeps you from doing what you want to do.  In this case, as with most finance contracts, it probably can be prepaid and some money may be saved.

Ordinarily the authority of any agent ends with the incapacity of  his or her principal.  This is not the case with a durable power of attorney.  In fact, that is where the term durable comes from; i.e., it is “durable” because it survives the agent lack of capacity.  A durable power of attorney must contain the phrase:  “This durable power of attorney is not affected by subsequent incapacity of the principal except as provided in s. 709.08, Florida Statutes”.  However, “similar words showing the intent that the authority of the attorney in fact survive the principal’s incompetency may also be used.  Therefore, a durable power of attorney can be useful in avoiding guardianship because the attorney-in-fact can manage property for the incapacitated person.

It is not, however, necessary for the principal to be incapacitated for the durable power of attorney to be effective.  The attorney in fact can begin using the power of attorney the day it is signed.  The principal does not have to be incapacitated. This makes a durable power of attorney both very useful and very dangerous.  Powers of attorney can be, and have been, used to steal from the principal.  For that reason, I caution clients they may not want to deliver them until needed.  An other alternative is to appoint co-attorneys-in-fact in the hope that each will keep the other honest.

However, durable powers of attorney can be “springing,” which means they cannot be used by the attorney in fact until the principal becomes incapacitated.  Incapacity is defined as the inability to manage property  as defined in Florida Statute section 744.102(12)(a) . The exercise of a springing power requires the delivery of affidavits to the third-party.  This can be problematic because a physician may be reluctant to certify someone as incapacitated as required for the usefulness of a springing power.

Any lawyer who prepares powers of attorney has probably seen instances where people waited until it is too late to seek a power of attorney.  Often a parent becomes incapacitated and then a child realizes that they need to sell property or transact some business for the parent.  If the parent is already too incapacitated to do it themselves, the child may seek  a power of attorney so they can help the parent.  Unfortunately, it is too late for an incapacitated parent to sign a power of attorney.  A person must be competent to delegate their authority to another.  Powers of attorney are useful for planning ahead, but you must plan ahead.

Florida outlawed common law marriages in 1967. Since then no amount of playing house together can make you husband and wife in Florida, as discovered by Kimberly Hall and Roberto Maal.  Ms. Hall and Dr. Maal had the full ceremony, represented to the world that they were husband and wife, purchased a home as “husband and wife,” and even had two children.  However, one small detail was never attended to; i.e., they failed to obtain a marriage license, solemnize the marriage before an acceptable official, and return the license to the clerk of the court for recording.  The completed step one (i.e., they got a license), but failed to complete steps two and three.  See, Fla. Stat. sections 741.01 to 741.212 Years later when trouble arose, Ms. Hall was denied a “divorce” because she and Dr. Maal were never married.

A failure to obtain a license and be properly married can have serious consequences in a number of situations besides divorces.  In a divorce, it can cause a loss of rights to marital property and alimony.  Moreover, in an estate, it could cause a loss of rights to a life estate in a homestead, an elective share, and family allowance.  If there is no marriage, then there is no surviving spouse.  If  the purchasers of real property are not married, then they do not acquire the property as tenants-by-the-entireties and have no creditor protection and no survivor rights.  The forgotten marriage license is the opposite of the forgotten spouse problem.  Either one is serious though.

The time limits in probate cases can be unforgivingly short.  For example, you must object to the personal representative’s accounting within thirty (30) days and set a hearing on your objection within ninety (90) days. A recent post in the Florida Probate & Trust Litigation Blog illustrates how true that is.

The issue in the case reported on, which was an opinion from the Third District Court of Appeal, was whether the three (3) month statute of limitations in Florida Statute section 733.212(3) applied to a motion to disqualify a personal representative.  The Third District Court of Appeal held that it did apply.  Consequently, a motion to disqualify filed more than three (3) months after the service of a notice of administration on the party seeking disqualification is barred.  What makes this case interesting is that it directly conflicts with a decision of the First District Court of Appeal, as certified by the Third District Court of Appeal.  The First DCA had held that the statute of limitations under Florida Statute section 733.212(3) did not apply to a motion to disqualify a non-resident personal representative.

The lesson of Hill v. Davis is that you cannot take your time when it comes to any potential claims or rights involving a deceased person or estate.  Most of the time limits are much shorter than in other litigation.  All claims against a decedent are barred two (2) years after the date of death.  Absent the granting of an extension of time, a claim may also be barred three (3) months from the first date of the publication of the notice to creditors.

While Hill v. Davis is a good example of the short time limits involved in probate litigation for lawyers and clients alike, the two cases together are good examples of why lawyers cannot always tell their clients what “the law” is. Trial courts are bound to follow the decisions of appellate courts in Florida.  Before the Third DCAs opinion was issued, a trial court in any of the DCAs was bound to follow the reasoning and opinion of the First DCA.  But now a trial court located in the First DCA must follow the opinion in Angelus v. Pass while a trial court in the Third DCA must follow Hill v. Davis.  This is true even if the judge thinks that the opinion of the other DCA is the more well reasoned and convincing opinion.  But what about a trial court in one of the other three (3) DCAs?  Trial courts in those three (3) DCAs are free to follow whichever opinion they think is the better one.  Yet another DCA may have a similar case before it and may try to reconcile the two cases, follow one of the two cases, or come up with yet another approach.  Eventually the Florida Supreme Court will resolve the conflict between the DCAs and its decision will become the law.  At least until a lower court distinguishes the Supreme Court’s opinion in a similar case or the waters are otherwise muddied.

Is it any wonder then that when a client consults a lawyer and asks “What is the law on this?”  that the lawyer scratches her head and says, “Well, I’ll have to do some research.”?  And later reports that “the law is unclear” or “conflicting.”  Add to that the fact that every litigated case has its own unique facts and it can be very difficult to predict the outcome of any case.