My Parent is Incapacitated. Can I Get Power of Attorney for Their Medical Care?

Your parents raised you and took care of you when you needed them. Now, the tables have turned; they need you to care for them. This role reversal is difficult for everyone involved. In a perfect world, your parents would have created a Designation of Healthcare Surrogate and Advance Directive to plan for this situation, however, that often does not happen. If your parent is in deteriorating health and does not already have estate documents in place, what can you do now?

The principal of a Designation of Healthcare Surrogate document (the person who is naming someone else to make their healthcare decisions for them) must be mentally capable of making their own decisions to name someone as their surrogate. If someone is incapacitated and no longer capable of naming someone else to do this, then they cannot grant you authority over their medical care. In this situation, you would need to petition the Court to grant you a guardianship over their care.

To start the guardianship process, your attorney will file two petitions with the Court. The first petition is for the Court to determine that your parent is incapacitated. An examining committee, that includes a doctor, will need to meet with your parent and establish this. The initial petition could be disputed by your parent or another family member who does not believe that they are incapacitated. Any disputes can lengthen the legal process and add another layer of complexity.  If the Court finds that the parent is incapacitated, the second petition is for the Court to name you (or someone else) as the guardian over the incapacitated person. The Court could award you full, partial, permanent, or temporary guardianship over your parent. Similar to the first petition, this petition could also be disputed by another family member who wants someone else to be named as guardian. That individual could file a counter-petition with the Court and seek to be named as the guardian. In this situation, the Court may require that both parties go through mediation before it names a guardian.

Once you secure guardianship of your parent, you will be able to make healthcare decisions on their behalf, pay their bills, and manage their assets. You can have the peace of mind knowing that your parent will receive the best of care. The primary downsides to guardianships are that they can be time-consuming, involve the Court, and are costly to establish. A guardian also has ongoing fiduciary duties that require them, amongst others, to provide an annual accounting to the Court.

If you are seeking to obtain a guardianship over your parent or loved one, contact Huth, Pratt & Milhauser. We specialize in estate planning and can guide you through this process as well as ensure that you remain in compliance with the Court’s fiduciary requirements for guardians.

Huth, Pratt a& Milhauser

Huth, Pratt& Milhauser is a boutique law firm that offers a wide range of legal services in the specialty areas of wills, trusts, estates, probate, guardianship, and related matters. The range of legal services that Huth, Pratt & Milhauser provides in these specialty areas includes planning, administration and litigation. The experience and skills of our attorneys and staff, coupled with our knowledge of applicable law, enable us to provide outstanding representation to our clients.

Although we are located in South Florida, we proudly serve clients throughout the country and around the world from our Boca Raton offices. We strive to provide superior and focused counsel in a timely manner and at a competitive price.

Huth, Pratt & Milhauser

2500 North Military Trail, Suite 460

Boca Raton, Florida 33431

Phone: 561-392-1800

hpmlawyers.com

How Can I Remove a Personal Representative?

When a loved one living in South Florida creates an Estate Plan, they name a Personal Representative who will manage and close the Estate after their death. Typically, the Personal Representative takes their responsibility very seriously and fulfills all their fiduciary and legal obligations. Unfortunately, there are situations when some Personal Representatives do not do this. If you are in a situation in which you believe a Palm Beach County or Florida-based Personal Representative is not fulfilling their obligations, you may be wondering what you can do about it.

If you are a beneficiary or heir of the decedent, you can seek the removal of the Personal Representative named in the decedent’s Estate Planning documents and request the appointment of a new one. Florida’s laws list specific reasons that are grounds for the removal of a Personal Representative. These include if the Personal Representative:

• Was not qualified at the time they were appointed to the position.
• Has a mental or physical condition that makes them incapable of serving, or the Court has determined that they have an incapacity to serve.
• Has failed to comply with Court orders.
• Maladministered the Estate, wasted its assets, or not accounted properly for the sale of any assets.
• Failed to “give bond or security for any purpose”.
• Was convicted of a felony.
• Had a conflict of interest with the Estate.
• No longer lives in Florida (if this was a condition of their original appointment to the role).[1]

Additionally, if the Will that named this individual as the Personal Representative is revoked, their appointment to this role is also revoked.[2]

The first step in removing a Personal Representative is contacting a law firm that has attorneys who specialize in probate litigation, like Huth, Pratt & Milhauser. Your attorney will file a Petition with the Court to request the removal of the Personal Representative. The Petition will include the reason for the removal and evidence supporting it. Once the Petition is filed, your attorney will inform all interested parties (heirs, beneficiaries, the Personal Representative, creditors, etc.) about the Petition. The Personal Representative will likely contact a probate litigation attorney of their own. Their attorney and your attorney will try to negotiate an agreement without going to Court. If the negotiation does not produce an acceptable result, your attorney will argue your case in Court and the Judge will determine if the Personal Representative should be removed. If they are removed, the Court will appoint a new Personal Representative or Curator and the existing Personal Representative will submit a final accounting of the Estate. Depending on the reason why the original Personal Representative was removed, they may face criminal charges as well.

Huth, Pratt & Milhauser

Huth, Pratt & Milhauser is a boutique law firm that offers a wide range of legal services in the specialty areas of Wills, Trusts, Estates, Probate, Guardianship, and related matters. The range of legal services that Huth, Pratt & Milhauser provides in these specialty areas include planning, administration and litigation. The experience and skills of our attorneys and staff, coupled with our knowledge of applicable law, enable us to provide outstanding representation to our clients.

Although we are located in South Florida, we proudly serve clients throughout the country and around the world from our Boca Raton offices. We strive to provide superior and focused counsel in a timely manner and at a competitive price.

[1] The Florida Senate. Chapter 733 Section 504 – 2021 Florida Statutes – The Florida Senate. Accessed October 30, 2024.

[2] The Florida Senate. Chapter 733 Section 504 – 2021 Florida Statutes – The Florida Senate. Accessed October 30, 2024.

How Can I Remove a Personal Representative?

When a loved one living in South Florida creates an Estate Plan, they name a Personal Representative who will manage and close the Estate after their death. Typically, the Personal Representative takes their responsibility very seriously and fulfills all their fiduciary and legal obligations. Unfortunately, there are situations when some Personal Representatives do not do this. If you are in a situation in which you believe a Palm Beach County or Florida-based Personal Representative is not fulfilling their obligations, you may be wondering what you can do about it.

If you are a beneficiary or heir of the decedent, you can seek the removal of the Personal Representative named in the decedent’s Estate Planning documents and request the appointment of a new one. Florida’s laws list specific reasons that are grounds for the removal of a Personal Representative. These include if the Personal Representative:

• Was not qualified at the time they were appointed to the position.
• Has a mental or physical condition that makes them incapable of serving, or the Court has determined that they have an incapacity to serve.
• Has failed to comply with Court orders.
• Maladministered the Estate, wasted its assets, or not accounted properly for the sale of any assets.
• Failed to “give bond or security for any purpose”.
• Was convicted of a felony.
• Had a conflict of interest with the Estate.
• No longer lives in Florida (if this was a condition of their original appointment to the role).[1]

Additionally, if the Will that named this individual as the Personal Representative is revoked, their appointment to this role is also revoked.[2]

The first step in removing a Personal Representative is contacting a law firm that has attorneys who specialize in probate litigation, like Huth, Pratt & Milhauser. Your attorney will file a Petition with the Court to request the removal of the Personal Representative. The Petition will include the reason for the removal and evidence supporting it. Once the Petition is filed, your attorney will inform all interested parties (heirs, beneficiaries, the Personal Representative, creditors, etc.) about the Petition. The Personal Representative will likely contact a probate litigation attorney of their own. Their attorney and your attorney will try to negotiate an agreement without going to Court. If the negotiation does not produce an acceptable result, your attorney will argue your case in Court and the Judge will determine if the Personal Representative should be removed. If they are removed, the Court will appoint a new Personal Representative or Curator and the existing Personal Representative will submit a final accounting of the Estate. Depending on the reason why the original Personal Representative was removed, they may face criminal charges as well.

Huth, Pratt & Milhauser

Huth, Pratt & Milhauser is a boutique law firm that offers a wide range of legal services in the specialty areas of Wills, Trusts, Estates, Probate, Guardianship, and related matters. The range of legal services that Huth, Pratt & Milhauser provides in these specialty areas include planning, administration and litigation. The experience and skills of our attorneys and staff, coupled with our knowledge of applicable law, enable us to provide outstanding representation to our clients.

Although we are located in South Florida, we proudly serve clients throughout the country and around the world from our Boca Raton offices. We strive to provide superior and focused counsel in a timely manner and at a competitive price.

[1] The Florida Senate. Chapter 733 Section 504 – 2021 Florida Statutes – The Florida Senate. Accessed October 30, 2024.

[2] The Florida Senate. Chapter 733 Section 504 – 2021 Florida Statutes – The Florida Senate. Accessed October 30, 2024.