Marc J. Soss, Esq.

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Guardianship Appointment IN Judge’s Discretion

A commonly asked question, in litigated Florida guardianship proceedings, is whether an immediate family member has priority over other relatives? The answer is Yes, as far as being considered, but not necessarily as to being appointed. The Judge is required to make the determination based upon what what he or she believes is in the best interest of the ward. While a certain relative or spouse may be the ward’s choice, the judge has “limited discretionary” selection of who is appointed guardian of the ward. Poteat v. Guardianship of Poteat, 771 So.2d 569, 572 (Fla. 4th DCA 2000). As a result, it is up to the judge to make the final determination as to who is to be appointed as the ward’s guardian. The Fifth District Court of Appeal held in Wilson v. Robinson, 2005 WL 3499495 (Fla. 5th DCA Dec 23, 2005) that “Discretion is abused when no reasonable person would take the view adopted by the trial court.” Canakaris v. Canakaris, 382 So.2d 1197, 123 (Fla.1980).


The best legal planning may not be enough to keep you safe from guardianshipMom's rights stripped after daughter questions trust

BRADENTON, Fla. — Even the best retirement plans may not be enough to keep a stranger from taking over your life under the state’s troubled guardianship system, the I-Team found. Alice Yaniscavitch said she thought she was making all the right moves in retirement when she went to a lawyer to set up a family trust – a decision she says ended up costing her control over her own life.  The 85-year-old moved in with her daughter Terri McGuire and her son-in-law Mickey in Manatee County after last year selling her home in Cleveland, Tennessee. “Terri was taking care of me. She’s very good,” Yaniscavitch told I-Team Investigator Adam Walser last month.   At the time, Yaniscavitch was waiting to see if a judge would permanently place her in court-ordered guardianship, which she said she didn’t want. “It’s my life – not theirs,” said Yaniscavitch.  Yaniscavitch said the thing she feared most was “going to a nursing home.”  “They’re not going to put me in one,” she said.  McGuire and the advocacy groups that she reached out to were concerned when the case first started in late November.  They contacted the Florida Office of Public and Professional Guardians, a watchdog agency set up three years ago to police the state’s broken guardianship system.  So far, the agency hasn’t taken any action in Yaniscavitch’s case. 

How did the guardianship start?

Yaniscavitch gave both her daughters – Terri McGuire and Lori Yaniscavitch – powers of attorney over her health care decisions as part of her retirement planning, according to court records.  In November 2017, Yaniscavitch set up an irrevocable family trust, with 90 percent of her money benefitting McGuire, who was taking care of her and the rest going to Lori, according to the trust document obtained by the I-Team.  Tennessee attorney Jeff Miller wrote, witnessed and notarized the trust agreement.  “She knew why she was there. She had a purpose for being there,” said Miller.  Miller said Yaniscavitch wanted to move her assets into a trust to make sure she would be eligible for a future government benefit.  Miller said she also wanted her daughters to avoid going to probate court to settle her estate after her death. But when Lori Yaniscavitch found out about the trust, she went to court in November, seeking guardianship for her mother.  Lori Yaniscavitch wouldn’t speak to the I-Team at a recent court hearing, but in court documents, she alleges her sister was financially exploiting their mother and endangering her health.  When I-Team Investigator Adam Walser asked Alice Yaniscavitch if she felt safe in her daughter Terri’s home, she replied, “Oh, yeah. Definitely.”

Daughter moves to break up trust
Lori’s attorneys asked a judge to remove her mother from Terri’s home and put her in memory care and argued her mother didn’t know what she was doing when she signed the trust document in 2017, court transcripts and documents from the case show.  But Stetson Law Professor Roberta Flowers, director of the Stetson Elder Law Center, said that may be difficult to prove.  “The issue revolves around, under the law, was the person capable at the moment they signed the document,” said Flowers.  “You have to have people who are there when they signed the document who are able to articulate what was going on with that person, how was that person acting so that a judge at some future date can say ‘Oh yeah. Ok. It sounds like that person understood,’” said Flowers.  Miller said he put those safeguards in place when Alice Yaniscavitch signed her trust documents.  “She was fully engaged, fully aware of what she wanted to do,” Miller told the I-Team. “She was the one who spoke out and told me what she wanted and why she wanted it.”

Judge freezes all accounts
But Judge Deno Economou froze Yaniscavitch’s trust account, along with Terri and Mickey McGuire’s bank accounts.  Their funds were frozen before Christmas, according to the court order, but the McGuires hope the Florida Court of Appeals will overturn the judge’s order.  “The allegation is that they have improper funds in that account. Unfortunately, there’s no evidence to support that,” said attorney Marc Soss, who represents the McGuires. “It’s someone trying to second guess the estate planning that Alice put into place because they don’t like it.”  Judge Economou also appointed Anne Ridings as Yaniscavitch’s guardian.  Within a few days of being appointed guardian, Ridings took all of Yaniscavitch’s jewelry for safekeeping. Terri McGuire showed ABC Action News photos she took of hundreds of pieces of her mother’s jewelry before they were taken. “Gold watches… I’ve got bracelets, a lot of earrings, diamond earrings,” said Yaniscavitch about the jewelry she had taken from her. 

Wedding ring taken off her finger
Yaniscavitch said Ridings even took the wedding ring off her finger, which she has worn for 58 years – even after her husband died.  “Horrible, horrible,” said Yaniscavitch when asked about losing the ring she wore for 58 years –even after her husband died.  “It’s called marshaling the assets,” said Jeff Swartz, a former judge and
law professor. “I can understand that the guardian wants to marshal and inventory assets – that’s fine – but taking her wedding band off her finger and not letting her have it back or taking her jewelry and just sticking it away – when maybe she does still wear it because at certain lucid moments she wants her things around her – that’s just not necessary.” Less than two weeks after the I-Team interviewed Yaniscavitch, her daughter Lori picked her up, saying she was taking her to a hair appointment.  Instead, she moved her into assisted living – even though court transcripts show the judge said earlier that Yaniscavitch should remain in her daughter Terri’s home. 

Injured in assisted living
Days later Terri shot a video of her mother at the memory care center, which she shared with the I-Team. In the video, Yaniscavitch complained of arm pain and said she had fallen.  Terri McGuire had her friend, who at the memory care center with her, call 911 for an ambulance to take her mother to a hospital, where doctors diagnosed Yaniscavitch with a fractured vertebra.  Days after Yaniscavitch went to the hospital, guardian Anne Ridings filed an emergency motion asking the judge to limit McGuire’s visits, court records show. The judge denied that request.  Ridings did not respond to the I-Team’s interview requests.  It’s unclear whether Yaniscavitch’s wishes will ultimately be carried out. She has not been in the courtroom to talk to the judge during five hearings so far. 
Before she was removed from her home, I-Team Investigator Adam Walser asked Yaniscavitch what would happen if a judge told her she hadgo to a nursing home. “I'm not, I'm not,” said Yaniscavitch. “I’d say you’re going to have to put me in jail. There’s no way they’re putting me in a nursing home. I’ve been through it. I’ve seen it. I don't want to be there.” The judge still hasn’t ruled yet on whether Yaniscavitch will be placed in a permanent guardianship. After Yaniscavitch was released from the hospital, she was taken to a rehabilitation center, where she is currently recovering from her injury.

Sarasota Guardianship Litigation Lawyer

Sarasota & Manatee County

Guardianship Litigation

Florida guardianship litigation often involves family members fighting against other family members in heated disputes over wanting the best for their loved one, the most appropriate person to serve as their guardian and the best manner to provide for their care.  I have experience in guardianship litigation in the following areas:

Incapacity Proceedings. Under Florida law, when a petition for incapacity is filed, the guardianship court will appoint a three  (3) member panel to examine the alleged incapacitated person. The individuals appointed include a medical doctor in the area of psychiatry, a psychologist, and a layperson. If two of the three persons find the alleged incapacitated person to be incapacitated, the guardianship court will schedule an incapacity hearing. The guardianship court will appoint an attorney to represent the alleged incapacitated person. The alleged incapacitated person has the right to hire their own attorney to defend against the incapacity proceeding.

Appointment of Guardian. If the guardianship court finds the person to be incapacitated, the court will determine whether a guardianship is needed. The court is required to determine whether there is a “less restrictive alternative” to a guardianship. For example, if the incapacitated person already has their assets in a trust, has a health care directive in place along with a durable power of attorney, the court might not appoint a guardian.

Pre-Need Guardian Designation: The court is also required to take into consideration if it determines that a less restrictive option is not available, a "Pre-Need Guardianship Designation" and family preference. Recently, the 1st District Court of Appeals, in the case of Koshenina v. Buvens, — So.3d —-, 2014 WL 304889 (1st DCA January 29, 2014) reversed a Probate Judge and concluded that “the plain reading of section 744.312(4) requires an approach that gives greater deference to designation and requires a showing that … the nominated individual should not serve as a preneed guardian because their appointment “is contrary to” the incapacitated individuals “best interests.”

Choice of Guardian. If the court finds that the appointment of a guardian is necessary, the guardianship court will appoint a guardian. If one able family member applies for the position, that person is likely appointed. If more than one person applies, the guardianship court will hold an evidentiary hearing to determine the most appropriate person to appoint. In such disputes, there are often allegations of financial abuse and self-dealing directed towards each of the family members.

Guardianship Accounting. A Florida guardian is required to file an annual accounting of the guardianship finances. Many guardians struggle to properly and accurately report their activities, and some engage in acts of self-dealing and theft from guardianship accounts. A family member or the court can pursue the improper acts of a guardian.

Removal of Florida Guardian. If a Florida guardian has performed poorly, the court on its own ar at the request of a family member can hold a hearing to determine whether the guardian should be removed. Grounds for removal include lack of proper care of the ward, financial self-dealing, theft, lack of proper accounting, and lack of compliance with court orders.

Breach of Fiduciary Duty: In some cases, litigation arises after a guardian has been appointed as a result of allegations that the guardian has neglected the Ward, stolen Ward’s money, or created a conflict of interest.

ABC ACTION NEWS REPORT: The best legal planning may not be enough to keep you safe from guardianship


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