Author Archives: The Gufford Law Firm
In Florida, What is the Time Limit to Set a Hearing on a Motion to Dismiss or on Any Other Motion in a Civil Action?
In Florida, What is the Time Limit to Set a Hearing on a Motion to Dismiss or on Any Other Motion in a Civil Action?
If a Pro Se Defendant files a Motion to Dismiss; or if either Party files any other Motion in a Civil Action, what is the time limit from when the Motion is filed to the time that a Hearing must be set by either Party on the Motion before it becomes invalid? Furthermore, is the answer to this question stated anywhere in the Florida Rules of Civil Procedure?
I agree with some of the other commentators on this question. There is no real time limit to call up Motion to Dismiss. Even though the Defendant filed it, I would suggest that it be called up for hearing regardless of whom filed the same. If not, the case will just sit out there in perpetuity and will eventually be dismissed for lack of prosecution.
What can I do if my girlfriend violated felony probation took our 3yr old and went to a different state no custody order?
Because of her warrant she lost her disability checks and all benefits for 3yr old my ex is also HIV & HEP C positive because of warrant lost access to her HIV meds my 3yr old and I are negative for HIV & HEP C I am birth father and I am on the birth certificate
You need to file a Paternity/Parental Responsibility action coupled with an Emergency Motion for the Return of the Child. I would also advise law enforcement and DCF of the situation.
Why would a court award “Sole Parental Responsibility”? What are Florida Statutes governing this?
Wife alleges I have psychological and substance abuse issues that prevent the possibility of shared parenting. I don’t but I certainly need to know what a judge considers in making this decision…
Yes I am ProSe no money… she ran me out long ago.
The pertinent statute is 61.13. I have added a link to this answer that should give you more insight. Sole Parental Responsibility is very much the exception in Florida and is generally only ordered in cases where one parent is “unfit” to share in the parenting of the child. It is necessary, before sole responsibility is given to one parent, that the court determine that shared responsibility would be detrimental to the child. The statutory law and the case law on the subject states that the Court must find that shared parental responsibility would be detrimental to the best interests of the child . If the court determines that shared parental responsibility would be detrimental to the child, it may order sole parental responsibility. There are also statutory reasons for a Court to Order Sole Parental Responsibility.
In any event, simply having psychological problems and/or substance abuse problems in the past, depending upon the severity of course, are not sufficient to award the other parent sole parental responsibility. The important thing is to show the court that both issues are being or have been addressed and dealt with through counselling, treatment, etc. Judges see cases involving these issues every day in a variety of different contexts. The key to the future with your child and how the court will address the same is in your hands.
MY SON IS BEING SUED FOR DIVORCE. HE IS IN JAIL. SHOULD I HIRE AN ATTORNEY FOR HIM?
Yes, you should almost without question hire an attorney to represent your son’s interests. I don’t know what the Wife has asked for in her Petition, but issues such as parental responsibility, child support alimony and division of assets and debts could be important issues that need to be addressed. Even though he is in prison at this point, it would not be a good thing for him to leave prison with a back breaking Judgment for payment of child support/alimony, etc. that he has no ability to comply with.
Question: Can I move out of state if I have a child and have been separated from his father 3 years but are still legally married? We have a child support order already but no custody agreement. My sons lives with me full time
The short answer to the question is Yes. You can go with your child wherever you want to so long as there is no court order in place that prevents you from doing so. The real answer is that if you did leave the state with the child, you could be placing yourself in a difficult legal situation as Florida would be the home state of the child until such time as you had lived outside the state with the child for 6 months. The relocation statute could come into play. 61.13001. Thus, while you probably can leave, it might not be best to do so without getting things in place properly before you go.
My spouse committed adultery and i want to divorce him. i have a 6 month old child he has not seen since he was born due to living 4 hrs away. He hasnt helped me financially with him what so ever. he says he wants custody of him but i have a domestic charge against him and dont trust him with my child. also, he has my car that is in both our names which i have been paying for since we financed it– he says he will wreck it before giving it to me. I want to start my divorce process as soon as possible just dont know where or how to start.
The adultery issue is probably not a significant issue for the court as Florida is a “no fault divorce” state. There are some limited circumstances in which it might be applicable. The more significant issue is the domestic violence. That is a significant factor that needs to be addressed. You need an experienced family law attorney to assist you with navigating your way through this process.
What constitutes good grounds for objecting to or moving to strike a notice of non-jury trial filed in a family case?
What constitutes good grounds for objecting to or moving to strike a notice of non-jury trial filed in a family case? No discovery has been conducted and no temporary relief orders have been issued. There has been absolutely no time to prepare the case for trial and without ANY discovery from the other side (who filed the Notice of Non-Jury Trial) and no depositions taken in the matter, it is impossible to adequately prepare the case for trial in such limited time per the notice.
The fact that there has been no temporary relief order or hearing entered is not grounds. However, the failure to comply with mandatory disclosure and/or discovery may be good grounds. Also, the matter must be “at issue”, meaning that the pleadings, Petition, Answer, Counter-petition and Answer to Counter-petition have been filed. Also, there are time limitations associated with noticing the case for trial. I would not venture into this situation without the assistance of a good family law attorney.
Firstly, the purpose of this blog post is not to say that I have any favoritism towards Fathers over Mothers when it comes to whom I represent. I represent both fathers and mothers with equal vigor. So, this post should be equally informative to both. In the marriage context, Father’s have just as many rights to the care, custody and control of their children as mother do. In the non-marriage context, father’s have to establish their status as the legal father of the child, i.e paternity. The term paternity does not mean a “paternity test”. Paternity testing is a method of proving paternity and establishing the legal father/child relationship. The Department of Revenue has added to the public’s confusion. DOR can only establish paternity and child support obligations and enforce the same. However, in their orders, they frequently refer to one parent as being the “custodial” or “non-custodial”. Since DOR can only establish paternity and child support, these designations are very misleading to both parents. In essence, the designation of a custodial or non-custodial parent in a DOR order is meaningless. Until a court that has the capacity to determine custody issues has done so, either parent can petition the court for relief.
In the early days of child custody law, mothers definitely had the upper hand when it came to custody issues. That has changed quite a bit over the last few years as Florida has abandoned concepts of “custody” and made shared parental responsibility the standard in Florida.
What does “Shared Parental Responsibility” mean you might ask? The term is somewhat misleading and has nothing do with who has a child and when. It simply means that both parents are required to “confer” when making “major decisions” affecting the welfare of their children. Did I say “agree”. No, I didn’t. I said “confer”. About what? “Major Decisions”. If you can’t agree on a major decision, then you take it in front of the judge and the judge decides the issue.
The next issue is what type of Parenting Plan is the Court going to enter. You have have heard terms like “primary residence”, “primary custody”, “primary residential responsibility”, etc. Those terms no longer exist under Florida Law because they were misleading and gave the person who had “primary residential responsibility” the belief that they did not have to engage in shared parenting because they had “custody”. All of that changed in 2008 when the Florida Legislature enacted sweeping changes to Florida’s child Custody Laws. Basically, the misleading terms were taken out of the statutes in favor of shared parenting as it was intended to be.
In the 19th Judicial Circuit (Martin, St. Lucie, Okeechobee and Indian River Counties), we are blessed with having a set of Circuit Judges who are very knowledgeable in the changes to Florida law. Fathers and Mothers receive equal treatment and consideration when it comes to parental responsibility and timesharing considerations. However, old myths still haunt the public’s view of child custody. The theory that in order for a father to get majority timesharing that he has to prove the mother to be “unfit” is no longer true. Likewise, the theory that Father’s always get “screwed” in the divorce/child custody context is likewise not true. Mothers need to be aware of this as well because many of them operate under these myths.
In the 2008 legislative session, Florida made sweeping changes in its law regarding how, what was commonly referred to in the public as “custody” or “primary residence” is determined. The term “custody” is not a proper term under Florida law even though it has been used for years by the public, lawyers and judges to describe the parent with whom a child primarily lives. Because of the extensive impact of the new legislative changes, requiring a revision to not only many statutes, but numerous Supreme Court forms, as well as the likely creation of new ones, this law does not go into effect until October 1, 2008.
In its most simplistic explanation, this new law eliminates the terms “custody”, “custodial” and “non-custodial parent”, “primary residence”, “primary residential parent” and “visitation” from Chapter 61 and all other statutes which utilize these arcane and often litigation inducing terms, in exchange for shared parenting plans and time-sharing arrangements.
However, the law goes further by expanding the considerations of shared parental responsibility and in the establishment of parenting plans, which include time-sharing schedules, which are now mandatory.
“Shared Parental Responsibility” versus “Sole Parental Responsibility”
In Florida, the Court has two initial options when deciding “parental responsibility” issues. The Court can award the parties “Shared Parental Responsibility” or it can award one of the parties “Sole Parental Responsibility”. What is the difference between “Shared Parental Responsibility” and “Sole Parental Responsibility” you might ask? Under the new statute, “Sole Parental Responsibility” means a court-ordered relationship in which one parent makes decisions regarding the minor child. “Shared parental responsibility” means a court-ordered relationship in which both parents retain full parental rights and responsibilities with respect to their child and in which both parents confer with each other so that major decisions affecting the welfare of the child will be determined jointly.
Parenting Plans must Now be Developed instead of the Court Determining Primary Residence
Generally speaking, the courts favor Shared Parental Responsibility. The terms “Primary Physical Residence” or “Primary Residential Responsibility” were in the past considered by many to be the “buzzwords” for what is generally referred to as “custody” in many other states. Those terms have now been deleted from the 2008 version of the statute in favor of the Court now developing a “Parenting Plan” for the child(ren). A “parenting plan” 1 has certain minimum requirements (see footnote) 2 .
What is Shared Parenting?
Shared parenting requires parents to confer with each other when making major decisions that affect the health, safety and welfare of the child. It does not mean 50/50 custody as the term
itself might imply. In fact, it has nothing whatsoever to do with where a child lives or the amount of time the child spends with one parent or the other 3 . Shared parenting only means that both parents have to confer with each other when making major decisions affecting the welfare of their children and that both parents retain full parental rights and responsibilities. In short, just because parents are breaking up or divorcing each other, it does not mean that they are divorcing their children.
Sole Parental Responsibility is the Exception in Florida Law-On What Basis Can the Court Award Sole Parental Responsibility?
Sole Parental Responsibility is very much the exception in Florida and is generally only ordered in cases where one parent is “unfit” to share in the parenting of the child. It is necessary, before sole responsibility is given to one parent, that the court determine that shared responsibility would be detrimental to the child 4 . The statutory law 5 and the case law on the subject states that the
Court must find that shared parental responsibility would be detrimental to the best interests of the child . If the court determines that shared parental responsibility would be detrimental to the child 6 , it may order sole parental responsibility 7 . There are also statutory reasons for a Court to Order Sole Parental Responsibility 8 .
Rotating Custody- Another Option for The Court to Examine
Another option for parents who generally “get along” with each other is “rotating physical custody” (50/50). This type of situation has, in the past, generally not been favored by the courts and the statutes 9 . However, rotating custody is becoming more in “vogue” at the current time 10 .
The Factors that the Court Must Consider in Developing a Parenting Plan
When the parents cannot agree on a parenting plan, the court will make the decision for them after considering the totality of the circumstances, with the overriding consideration being the child’s best interests. To make that determination, the court considers the following factors:
- The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required
- The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
- The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.
- The length of time the child has lived in a stable, satisfactory environment.and the desirability of maintaining continuity.
- The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.
- The moral fitness of the parents.
- The mental and physical health of the parents.
- The home, school, and community record of the child.
- The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
- The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things.
- The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.
- The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.
- Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought
- Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.
- The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.
- The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.
- The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse
- The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.
- The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.
- Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.
In many cases, a consideration of these factors results in awarding custody to the parent who has been the child’s primary caretaker during the marriage/relationship 11 . Although this is often the child’s mother, any preference for the mother strictly on a gender basis is outmoded and has been abrogated by statute and case law on the subject 12 . In many cases, fathers have been proven to be the better parent and have been awarded primary residence.
1 Under the statute, a “parenting plan” is defined as follows: “Parenting plan” means a document created to govern the relationship between the parties relating to the decisions that must be made regarding the minor child and shall contain a time-sharing schedule for the parents and child. The issues concerning the minor child may include, but are not limited to, the child’s education, health care, and physical, social, and emotional well-being. In creating the plan, all circumstances between the parties, including the parties’ historic relationship, domestic violence, and other factors must be taken into consideration. The parenting plan shall be developed and agreed to by the parents and approved by a court or, if the parents cannot agree, established by the court.
2 As per the statute:
(b) Any parenting plan approved by the court must, at minimum, describe in adequate detail how the parents will share and be responsible for the daily tasks associated with the upbringing of the child, the time-sharing schedule arrangements that specify the time that the minor child will spend with each parent, a designation of who will be responsible for any and all forms of health care, school-related matters, other activities, and the methods and technologies that the parents will use to communicate with the child.
3 See Longo v. Longo, 576 So.2d 402 (Fla. 2nd DCA 1991) in which the Court stated that:
“As stated in section 61.13(2)(b)1, “[i]t is the public policy of this state to assure that each minor child has frequent and continuing contact with both parents after the … marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities of childrearing.” A natural parent should not be precluded from asserting valid parental rights, irrespective of a default judgment entered against him. See Rhines; Doane v. Doane, 279 So.2d 46 (Fla. 4th DCA 1973).”
4 Hunter v. Hunter, 540 So. 2d 235 (Fla. Dist. Ct. App. 3d Dist. 1989); Hicks v. Hicks, 511 So. 2d 628 (Fla. Dist. Ct. App. 2d Dist. 1987); Holland v. Holland, 458 So. 2d 81 (Fla. Dist. Ct. App. 5th Dist. 1984); Nichols v. Nichols, 432 So. 2d 648 (Fla. Dist. Ct. App. 1st Dist. 1983);
Sole parental responsibility of the parties’ child could not be awarded to the former wife absent a specified finding on the record or in the final judgment that shared parental responsibility would be detrimental to the child. Griffin v. Griffin, 665 So. 2d 352 (Fla. Dist. Ct. App. 1st Dist. 1995).
5 Fla. Stat. 61.13(2)(b)2 provides as follows:
2. The court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child. Evidence that a parent has been convicted of a felony of the third degree or higher involving domestic violence, as defined in s. 741.28 and chapter 775, or meets the criteria of s. 39.806(1)(d), creates a rebuttable presumption of detriment to the child. If the presumption is not rebutted, shared parental responsibility, including visitation, residence of the child, and decisions made regarding the child, may not be granted to the convicted parent. However, the convicted parent is not relieved of any obligation to provide financial support. If the court determines that shared parental responsibility would be detrimental to the child, it may order sole parental responsibility and make such arrangements for visitation as will best protect the child or abused spouse from further harm. Whether or not there is a conviction of any offense of domestic violence or child abuse or the existence of an injunction for protection against domestic violence, or child abuse or the existence of an injunction for protection against domestic violence, the court shall consider evidence of domestic violence or child abuse as evidence of detriment to the child.
a. In ordering shared parental responsibility, the court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child’s welfare or may divide those responsibilities between the parties based on the best interests of the child. Areas of responsibility may include primary residence, education, medical and dental care, and any other responsibilities that the court finds unique to a particular family.
b. The court shall order “sole parental responsibility, with or without visitation rights, to the other parent when it is in the best interests of” the minor child.
6 Trial court could not award wife sole parental responsibility for minor children without first making finding that shared parental responsibility would be detrimental to children. West’s F.S.A. 61.13(2)(b) 2. Schram v. Schram, 932 So. 2d 245 (Fla. Dist. Ct. App. 4th Dist. 2005).
Trial court was required to make a specific finding that shared parental responsibility would have been detrimental to the parties’ child before awarding mother sole parental responsibility. West’s F.S.A. 61.13(2)(b) 2. Evans v. Woodard, 898 So. 2d 230 (Fla. Dist. Ct. App. 2d Dist. 2005).
The trial court abused its discretion when it awarded sole parental responsibility to wife, in divorce proceeding, where there was no finding that shared parental responsibility would be detrimental to the children. West’s F.S.A. 61.13(2)(b)2. Coyne v. Coyne, 895 So. 2d 469 (Fla. Dist. Ct. App. 2d Dist. 2005). Trial courts are required to make a specific finding of detriment to the child before awarding sole parental responsibility. West’s F.S.A. 61.13(2)(b)2. Maslow v. Edwards, 886 So. 2d 1027 (Fla. Dist. Ct. App. 5th Dist. 2004).
Trial court’s failure to make a specific finding that shared parental responsibility would be detrimental to child before awarding sole parental responsibility to mother necessitated remand of paternity action. West’s F.S.A. 61.13(2)(b)2. Maslow v. Edwards, 886 So. 2d 1027 (Fla. Dist. Ct. App. 5th Dist. 2004).
8 Fla. Stat. 61.13, effective October 1, 2008 now reads as follows:
Evidence that a parent has been convicted of a felony of the third degree or higher involving domestic violence, as defined in s. 741.28 and chapter 775, or meets the criteria of s. 39.806(1)(d), creates a rebuttable presumption of detriment to the child. If the presumption is not rebutted, shared parental responsibility, including time-sharing with the child, and decisions made regarding the child, may not be granted to the convicted parent. However, the convicted parent is not relieved of any obligation to provide financial support. If the court determines that shared parental responsibility would be detrimental to the child, it may order sole parental responsibility and make such arrangements for time-sharing as specified in the parenting plan as will best protect the child or abused spouse from further harm. Whether or not there is a conviction of any offense of domestic violence or child abuse or the existence of an injunction for protection against domestic violence, the court shall consider evidence of domestic violence or child abuse as evidence of detriment to the child.
9 See Fla. Stat. 61.121 which was not changed in the 2008 legislation that reads as follows:
61.121. Rotating custody
The court may order rotating custody if the court finds that rotating custody will be in the best interest of the child.
See also the case of Mancuso In Mancuso v. Mancuso, 789 So.2d 1249, (Fla. 4th DCA, 2001) the Court stated as follows:
“On the contrary, section 61.121, Florida Statutes (1997), requires that the trial court make a finding that rotating custody is in the best interest of the child. In light of the long-standing presumption that rotating the primary residence is not in the best interest of the child, the trial court should carefully examine a marital settlement agreement providing for such an arrangement and exercise its discretion in determining whether it is in the child’s best interest. See Bracken v. Bracken, 704 So.2d 746, 747 (Fla. 4th DCA 1998). See also Mandell v. Mandell, 741 So.2d 617, 618 (Fla. 2d DCA 1999)(holding that section 61.121 did not set aside the long held presumption that rotating custody is not in the best interest of a minor child).  Florida courts have identified several factors that a trial court should consider in determining whether the circumstances overcome the presumption against rotating the primary residence: (1) the age and maturity of the child; (2) whether the child is in school; (3) the proximity of the parents’ residences; (4) the child’s preferences; (5) the disruptive effect of the rotation on the child; (6) the reasonableness of the periods of time spent with each parent; (7) the relation of the periods of custody to divisions in the child’s life, such as the school year, and (8) the parents’ attitude toward one another or how their attitude will be perceived by the child. Bracken, 704 So.2d at 747 (citing Langford v. Ortiz, 654 So.2d 1237, 1238 (Fla. 2d DCA 1995)); MacConnell v. Cascante, 668 So.2d 668, 670 (Fla. 4th DCA 1996).”
10 In this author’s opinion, it is more in “vogue” because of Florida’s somewhat onerous child support obligations imposed on the parent who has less than 146(40%) overnight per year. However, for many parents this type of timesharing has worked out beautifully and has allowed the child to continue to have a strong bond with those parents.
11 See factor “o” above that states:
(o) The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.
12 See Fla. Stat. 61.13(2)(c) that provides in the new 2008 version of the statute as follows: There is no presumption for or against the father or mother of the child when creating or modifying the parenting plan.
See also the case of Walczak v. Walczak, 763 So.2d 1055 (Fla.4th DCA 1999) in which the Court, interpreting a previous version of the statute, held that:
- The “Tender years” doctrine has been abrogated by statute and case law; and
- 2. “Florida Statutes and in this district by opinion in Kuutti v. Kuutti, 645 So.2d 80 (Fla. 4th DCA 1994)(en banc). Some of the trial court’s comments lead us to believe that his decision to impose limitations on overnight visitation was based partially on the “tender years” doctrine.
Durable Power of Attorney
Q: What is a Durable Power of Attorney for Property?
A Durable Power of Attorney for Property (DPA) is a document that allows you (the principal) to give authority to another person (youragent or attorney-in-fact) to make financial/legal decisions and financial transactions on your behalf. It is called “durable” when, by its terms, it remains effective even if the principle becomes mentally incompetent.
Q: Who can serve as attorney-in-fact?
It need not be an attorney: any trusted adult, such as a spouse, partner, relative or friend, can serve as attorney-in-fact. Also, there are several nonprofit agencies that can fill this role. It is always a good idea to name at least one alternate attorney-in-fact to serve in the event that your first choice becomes disabled or dies. Your attorney-in-fact will have broad authority, and it is critical that the person or agency you choose be trustworthy and sensitive to your wishes.
Q: What powers can I give to my attorney-in-fact?
The powers you give your attorney-in-fact can be as limited or as broad as you like, and can include the power to buy property, to invest, to contract, to engage in tax planning, to make gifts, and, very importantly, to plan for government benefits, such as Supplemental Security Income and Medicaid (Medi-Cal in California).
Q: What is a “springing” Durable Power of Attorney?
Ordinarily, a DPA is effective as of the day it is signed and executed. This means that even if you are competent to make your own decisions, your attorney-in-fact will also have the legal authority to act on your behalf and engage in financial transactions.
A “springing” DPA, on the other hand, becomes effective at a later date, usually when the principal becomes mentally incompetent – it “springs” into effect at the point you lose capacity, as certified by a physician or other designated individual. Fla. Stat. 709.2108 provides as follows:
709.2108 When power of attorney is effective.—
Note: Some banks are reluctant to accept a “springing” DPA because of the possible ambiguities involved in deciding when a person is “mentally incompetent.” You should consult with your bank about its requirements for accepting a DPA.
Q: What are the advantages of a Durable Power of Attorney?
A DPA is a relatively easy, inexpensive mechanism for allowing another person to handle your legal and financial affairs. The main advantage for your loved ones is that if you have a DPA in place, your loved ones can avoid having to file a guardianship proceeding, which is extremely costly. Unlike a joint tenancy bank account, which people often use as a management device in the event of incapacity, a DPA does not give your attorney-in-fact legal access for his or her own use. Your attorney-in-fact must use your assets for your benefit. However, sometimes DPA’s are abused by the holder of the same because of the broad grant of powers. So, be careful who you choose.
Also unlike joint bank accounts, a DPA allows you to transfer decision-making power without disrupting your estate plan. When you create a joint tenancy bank account, you not only give your “joint tenant” access to your funds, but on your death, all of the funds in that account will automatically go to the joint tenant by right of survivorship. Assets in a joint tenancy account are not subject to your Will. A Durable Power of Attorney, on the other hand, in no way affects the disposition of your assets upon your death and, in fact, ceases to be effective when the principal dies.
A properly drafted DPA can give you the flexibility to plan for government benefits such as Medicaid. For example, the attorney-in-fact can be given authority to transfer the principal residence to your spouse if you need to be in a nursing home or require government assistance.
Q: What are the disadvantages of a Durable Power of Attorney?
The main disadvantage of a DPA is that it is subject to abuse because there is no ongoing court super-vision of the attorney-in-fact. This differs from a conservatorship or guardianship, under which a conservator is required to submit an ongoing accounting to the court. If the attorney-in-fact abuses his or her authority and acts improperly, a court may step in and take action. However, in many cases, the damage is already done, and it is difficult to undo it. Thus, you should take great care in selecting your attorney-in-fact. Many times, elderly people are taken advantage of by caregivers, maids, home health aids, etc. and give a DPA to them. If this occurs, immediate action needs to be taken to correct the situation. Joe Gufford Attorney has litigated several cases where this has occurred to stop the damage from continuing to accrue. However, the incapacitated person’s estate in one case was literally decimated and it took thousands of dollars to correct the situation. In that particular case, the caregiver called the Department of Children and Families in an attempt to get the incapacitated person’s daughter arrested for elder abuse. The caregiver also took the incapacitated person to an attorney to have them execute a new will. Although it is extraordinary, we were able to get the DPA invalidated and, in the guardianship action, we were able to engage in estate planning so that the incapacitated person’s true wishes as set forth in the valid will were put back into place.
Q: Do I need a lawyer to have a Durable Power of Attorney drafted?
Yes. Although there are “forms” available on the internet and even at your local Staples store, they are often not valid. They are worded broadly and may not succeed in delegating the range of authority you intend. First, a qualified attorney will be familiar with the state-specific requirements for DPA forms. Second, an attorney can draft the DPA to meet your individual needs. Third, since a DPA is subject to abuse, it is a good idea to meet with an attorney to make sure both the principal and attorney-in-fact understand the document and the attorney is assured of the principal’s competency.
Q: How do I execute a Durable Power of Attorney?
An adult must be competent in order to execute a valid DPA. If there is a question regarding competency, it is a good idea to get a doctor’s letter or declaration regarding the principal’s capacity to understand and sign a DPA at the time the document is executed. You must sign your DPA in the presence of two qualified witnesses and a notary public.
For real estate transactions, you will have to file your DPA with a county land records office. To be sure you meet your state’s legal requirements for a DPA, you should consult with a qualified attorney.
What are the Duties of the Agent?
The duties of the agent are outlined in Fla. Stat. 709.2114 which provides as follows:
709.2114 Agent’s duties.—