Estate Planning

Contempt Overtruned for Son Hiding Incapacitated Mother

By David M. Goldman

Graham v. Florida Dept of Children and Families (Graham II), 970 So.2d 438 (Fla. 4th DCA December 5, 2007)

This is the continuing saga of the battle between Luke and Laurence over their mother Betty, who DCF had determined was in need of guardianship after determining "Luke is the son who most has Betty?s interests in mind." After Laurence failed to comply with the guardianship court order to disclose the out-of-state location to which he had moved his mother, the court held him in civil contempt. The Court also appointed Luke as temporary plenary guardian of Betty?s person and property, electing to disregard an advance directive Betty had executed over 8 months after the guardianship proceedings had been initiated.

On appeal, the finding of contempt was reversed for failure to properly serve the order to show cause. The appellate court also reversed the order appointing temporary guardian, holding the trial court had failed to properly determine and indicate the specific grounds upon which the advance directive was revoked by the court. The court further noted that the surrogate under an advance directive is not under any duty to prove the validity of the advance directive. Finally, the court noted two of the examining committee reports were filed over two months before the final hearing and, relying upon two physicians? affidavits filed before and after the hearing to determine incapacity use the wrong burden of proof - the correct burden of proof in a hearing to determine incapacity of a alleged incapacitated person (AIG) is by clear and convincing evidence. Thus the Court ordered the proceedings be dismissed.

Full post as published by Florida Estate Planning Lawyer Blog on March 20, 2008 (boomark / email).