Written by Jeffrey Skatoff • July 11th, 2016
Attorney Brian Spiro prevailed in a highly contentious guardianship trial in Florida. The case was tried in the Probate/Guardianship/Mental Health Division of the Sarasota County Circuit Court.
He was successfully able to navigate the issues of incapacity—when our client’s mother (“Alleged Incapacitated Person” or “AIP”) performed poorly on each examining committee member’s report; lesser restrictive alternative(s); and, the appointment of a guardian.
Prior to trial Mr. Spiro filed a Voluntary Dismissal of the client’s initial Petition for Guardianship, pursuant to the Fourth District’s recent decision in Gort v. Gort. An analysis of the Court’s decision may be found here.
In short, the Court found that the AIP was not incapacitated and no permanent guardian was appointed. The client was able to effectively remove her mother from a disastrous situation of neglect and financial mismanagement at the hands of the AIP’s son.
There is often a great deal of misinformation regarding the guardianship process due to the lack of familiarity many have with guardianship proceedings. Each case is unique. In this case, the AIP’s assets were of a nature that a guardianship should not have been recommended by our client’s initial counsel. AIP owned her homestead, and was the recipient of social security income.
In order to fund a potential guardianship, massive siphoning of the already-modest monthly social security income would have had to take place. Social Security—for its part—has a mechanism in place where a representative payee can be established in order to serve as the recipient for the monthly benefit. The Court found that this was a lesser restrictive alternative.
At trial, he successfully argued against a finding of incapacity contrary to the recommendations of the examining committee members. The Court took evidence from various social service and governmental agencies and found that the AIP’s preference for our client to aide her was paramount.
Brian Spiro is a Florida guardianship attorney, who handles contested guardianships and probate litigation throughout Florida. Mr. Spiro may be reached at (561) 842-4868.