Probate Section Report
by
Larry E. Ciesla

The last monthly meeting of the probate section for 2004 was held December 8 at 4:30 p.m. in the fourth floor meeting room in the civil courthouse. Jean Sperbeck reported that she has been in discussion with Judge Roundtree, who, as of January 1, 2005, replaces Judge Chance as one of the two probate judges in Alachua County. According to Jean, Judge Roundtree intends to continue running the probate division in the same manner as Judge Chance, with a minimal amount of change. I am sure that I speak for the entire section when I state that we all welcome Judge Roundtree to the probate bench and wish him good luck and smooth sailing in these uncharted waters.

The meeting next proceeded with a discussion triggered by a November 16 Wall Street Journal Article regarding the problems engendered by the HIPPA law’s interaction with estate planning documents such as powers of attorney, health care surrogates and revocable living trusts. In particular, in the case of a so-called “springing” power of attorney, and in the case of the standard clause used in designation of a successor trustee in a revocable living trust, both require the person designated as (successor) fiduciary to obtain a statement from the designating party’s physicians, indicating the incapacity of the designating party, in order to trigger the authority of the (successor) fiduciary.

Under HIPPA, it will not be possible for the latter party to gain access to the medical records of the former. Even if access to the medical records is not needed, the physicians may refuse to cooperate with a (successor) fiduciary’s request for a written opinion of incapacity. The author of the Wall Street Journal article suggests that a simple HIPPA waiver form will in most cases solve the problem. Your author volunteered to work on a draft of such a waiver and to present it at the next section meeting for review. It should be pointed out that a waiver form may not solve all problems in this area. For example, if a grantor of a revocable living trust who is serving as initial trustee executes a HIPPA waiver enabling the person named as successor trustee to have access to the grantor’s medical records and to have the grantor’s physicians’ cooperation in issuing an opinion letter regarding the grantor’s subsequent mental capacity, such a waiver would, by law, be revocable at any time by the grantor. To get around this problem, it may be necessary to draft the trust in a manner which conditions the grantor’s continued service as trustee upon the grantor producing an opinion letter stating the grantor maintains sufficient capacity to continue serving as trustee. Enforcement of such a provision would rest either with beneficiaries, who are contingent (non-vested); one or more co-trustees; or, perhaps a non-co-trustee “trust protector”. At this point we do not have a cure-all solution and it appears we will need to give the matter further consideration.

The meeting next continued with a discussion regarding trust accountings initiated by one of my early mentors, Jim Lang, who is now the senior partner in the firm of Lang, Haswell, and Cole. Jim indicated that he is handling a trust with in excess of 30 beneficiaries, of which only one is demanding an accounting. Jim was wondering how best to handle such a situation, especially considering the substantial cost thereof which would of necessity be borne by the non-demanding beneficiaries. Some members of the section encouraged the idea of trying to work with the demanding beneficiary, either by shaming it into waiving its right to an accounting due to the cost involved, or perhaps giving that beneficiary an informal summary of the trust’s transactions, without compiling a formal principal and income accounting. I advised Jim that in all trust cases it is my practice to prepare and provide formal principal and income accountings to all trust beneficiaries, on an annual basis, as required by Section 737.303, Florida Statutes.

Since I either represent the trustee or I am myself serving as trustee, my primary concerns are complying with the applicable statutes regarding the duties of the trustee, and being entitled to take advantage of the 6-month statute of limitations set forth in Section 737.307(1), Florida Statutes, regarding all matters disclosed in an annual accounting. If a proper principal and income accounting is not prepared and distributed to the beneficiaries, it seems to me that the trustee is simply inviting subsequent litigation from the beneficiaries (not to mention the suit by the trustee against the lawyer for failing to advise the trustee to obtain the accountings which would likely have prevented the suit by the beneficiaries in the first instance).

Finally, for those who may have missed this in a recent Gainesville Sun article in Thursday’s “News of the Weird” column, researchers have uncovered the answer to the question which has been bothering many practitioners for many years, to wit: “Why do attorneys want to become judges?” According to the Sun article, a Tampa area female bailiff’s private diary entries were introduced in evidence by her husband at her divorce trial. Apparently the bailiff was conducting research in a motel room with a local county judge, who laid his judicial robe on the bed for the bailiff to wear so that she could “...feel the power that his black robe possessed,” whereupon the judge is purported to have asked “Why do you think successful attorneys strive to be judges?”

The probate section continues to meet on the second Wednesday of each month. Please provide me with your email address if you would like to be notified of each meeting.

 
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