Friday, January 27, 2012

Trustee Compensation

By: David M. Garten, Esq.

ARTICLE: Trustee Compensation

Sec. 736.0708, Fla. Stat. reads:

736.0708 Compensation of trustee.

(1)  If the terms of a trust do not specify the trustee's compensation, a trustee is entitled to compensation that is reasonable under the circumstances. 

(2)  If the terms of a trust specify the trustee's compensation, the trustee is entitled to be compensated as specified, but the court may allow more or less compensation if:

(a)  The duties of the trustee are substantially different from those contemplated when the trust was created; or

(b)  The compensation specified by the terms of the trust would be unreasonably low or high.

(3)  If the trustee has rendered other services in connection with the administration of the trust, the trustee shall also be allowed reasonable compensation for the other services rendered in addition to reasonable compensation as trustee. In general,  a trustee's compensation depends upon  the extent and character of the

Friday, January 20, 2012

ARTICLE: Deposing An Incapacitated Person

As a prerequisite to deposing an incapacitated person (or an alleged incapacitated
person), it may be necessary to: (a) have a hearing to determine whether the witness is
disqualified from testifying, and/or (b) submit written deposition questions to the witness.

A witness is presumed competent to testify until the contrary is established. See §90.601,
Fla. Stat. (every person is competent to be a witness, except as otherwise provided by
statute);Rutherford v. Moore, 774 So. 2d 637 (Fla. 2000); Hawk v. State, 718 So. 2d 159
(Fla. 1998).  Even a person who has been declared insane can be found competent to
testify. SeeBelcher v. Johnson, 834 So. 2d 422 (2nd DCA 2003),  citing Fla. Power &
Light Co. v.Robinson, 68 So. 2d 406 (Fla. 1953).  The witness’s unreliability goes to his

Friday, January 13, 2012

Designation Of A Health Care Surrogate For A Minor

Article:  Designation Of A Health Care Surrogate For A Minor

The following proposed  statute  is expected to  pass during  the next legislative session  and
become law before this summer. This statute will give a parent or other legal guardian the
authority to designate a surrogate to give medical consent for a minor in the parent or the legal
custodian’s absence. For example, a caretaker being designated as a surrogate for emergency
medical treatment while the parents are on vacation and cannot be timely contacted. The
proposed statute reads as follows: 

765.2035. Designation of a health care surrogate for a minor

(1) A natural guardian as defined in s. 744.301 (1), legal custodian or legal guardian of the
person of a minor may designate a competent adult to serve as a surrogate to make health care
decisions for the minor. Such designation shall be made by a written document which shall be

Friday, January 6, 2012

Attorney's Fees For Rendering Services To An Estate

ARTICLE: Attorney's Fees For Rendering Services To An Estate

Sec. 733.106(3) provides: “Any attorney who has rendered services to an estate may be
awarded reasonable compensation from the estate.”  This statute is not restricted to
services that bring about an enhancement in value or an increase in the assets of  the
estate, but  also includes services that are successful in  effectuating the testamentary
intention set forth in the will, that prevent the appointment of a personal representative, or
that obtain the removal of a personal representative.

When is an attorney entitled to an award of attorney's fees pursuant to §733.106(3)?

ü In re Estate of Lewis, 442 So.2d 290 (Fla. 4th DCA 1983). In Lewis, a beneficiary
whose devise was being contested by the personal representative on the basis of undue

Monday, January 2, 2012

Co-Agents’ Duties And Liabilities Under A Durable Power Of Attorney

ARTICLE:  Co-Agents’ Duties And Liabilities Under A Durable Power Of Attorney

In Rosenkrantz v. Feit, 2011 Fla. App. LEXIS 19915 (Fla. 3rd DCA 12/14/11), sister brought a declaratory judgment action against her brother/co-agent[1] under their mother's durable power of attorney. [2] Sister sought a declaration of her rights as a co-agent and an accounting.  Sister alleged that she was unable to issue subpoenas to her mother's bank to obtain bank account information, but could not issue the subpoenas, or obtain this information, without her brother's concurrence which he refused to give. She alleged that her brother was not fulfilling his fiduciary role and refused fully to account for their mother's assets. Sister sought declaratory relief to determine: 1) the extent to which she could act without the