By: David M.Garten, Esq.

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

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

By: David M. Garten, Esq.

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

In Rosenkrantz v. Feit, 2011 Fla. App. LEXIS 19915 (Fla. 3^rd 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