Adrian P. Thomas. LL.M., TD. Michele M. Thomas, Esq. a Daniel A. McGowan, Esq. A TH LAW OF ICE 01- Robett M. Esq. I ADRIAN PHILIP THOMAS RA. . 5, jonathan W. B?dges, Esq. *1 Iet'frey S. Benin, Esq. Victor D. Orilmela, Esq. Raymond Papalella, Esq. Also admitted in Ohio and Also admitted in North Carolina January 2, 2015 Robert J. Hauser, Esquire Pankauski Law Firm, PLLC 120 South Olive Avenue, Suite 701 West Palm Beach, FL 33401 Re: Guardianship of Albert Vassallo, Sr. Our File No. 2579?001 Dear Mr. Hauser: First and foremost, I wish to extend a happy and healthy new year to you. This morning, i was able to speak with my clients and I have been informed that i will be receiving a fully executed copy of the Settlement Agreement and Releases for delivery to you by Tuesday, January 6, 2015. Regarding the approximate $8,128.00 in electronic withdrawals as referenced in paragraph 3 of the Settlement Agreement, enclosed please find documentation supporting payments of expenses on behalf of the ward. The details of these transactions are as follows: 1. December 11, 2013 $1,482.68; Hartford Auto Insurance $153.02 Chase credit card $864.67 32.46 22.32 Seacrest Service/Condo $196.21 Seacrest Service/Condo $116.00 Seacrest Service/Condo 5 98.00 2. February 12, 2014 - $1,288.25; Chase credit card $707.27 17.75 Seacrest Service/Condo $196.21 Seacrest Service/Condo $116.00 SImTrust Center - 5'15 East Las Olas Boulevard, Suite 1050, Fort Lauderdale, Florida 35301 Phone: (954) 764-7273 1 Fax: (954) 764-7274 l? IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA IN RE: PROBATE DIVISION IX CASE NO. GUARDIANSHIP OF ALBERT VASSALLO, SR. Incapacitated Person. ORDER ON VERIFIED PETITION FOR DIRECTION ACT THIS CAUSE came before this Court on February 13, 2015 on the Guardian?s Veri?ed Petition for Direction to Act, which was ?led on January 27, 2015 (hereinafter, ?Petition?). The Court, having reviewed the Petition, having heard argument from counsel, reviewed the ?le and being otherwise fully advised, ?nds as follows: 1. Elizabeth Savitt (the ?Guardian?), pursuant to Fla. Stat. ?744.447, has petitioned this Court for the entry of an order authorizing her to act. The Guardian was appointed on September 9, 2014, as the limited guardian of the person and property for the captioned Ward. 2. Shortly thereafter, in October of 2014, the Guardian sought to compel the return of certain of the Ward?s funds and property from the Ward?s adult children, Albert Vasallo, Jr. Jr?) and Susan Mast (?Susan?). 3. Prior to a hearing on these contentious matters, the parties participated in court? directed mediation. 4. On December 1, 2014, the Guardian, Al Jr., Susan, and the Ward?s court-appointed counsel participated in the referenced mediation before the Honorable Jack Cook (retired). The mediation resulted in a signed agreement (the ?Mediated Term Sheet?). 5. The Mediated Term Sheet contains all of the material terms of an agreement. Nevertheless, it expressly states that the Mediated Term Sheet is to be reduced to a formal written agreement and that promissory notes are to be executed by Al Jr. and by Susan. 6. After the Mediated Term Sheet was executed, counsel for the Guardian and for Susan and A1 Jr. agreed on the form of a settlement agreement and promissory notes. However, as of the date of ?ling the instant Petition, both of the Ward?s adult children who are parties to it, Al Jr. and Susan, have either refused to execute or refused to deliver the signed formalized agreement. They also will not deliver the promissory notes required by the mediated terms. Their counsel, Robert Trinkler, Esq., has now moved to withdraw. Whether to Authorize the Mediated Term 7. Pursuant to Fla. Stat. ?744.447 and Fla. Stat. (10) and (11), the Guardian seeks this Court?s approval and authorization for her execution of such Mediated Term Sheet (and for the prospective execution of such written formalized agreement as was contemplated therein). The Mediated Term Sheet, summarized, provides as follows: a. Al Jr. will execute a promissory note for $45,000 payable to the Guardian at 4% per annum interest. b. Susan will execute a promissory note for $54,000 payable to the Guardian at 4% per interest. c. Susan will execute a second promissory note for $8,000 to the Guardian at 4% per annum with interest running from September 9, 2014, the enforcement of which is subject to Susan?s failure to account to the Guardian for $8,120 in electronic Withdrawals of the Ward?s funds. (1. Each promissory note is due at the earlier of (1) the death of the Ward or (2) under the 15-year amortization schedule. Each note is secured by the obligor?s inheritance or trust distributions. WHEREFORE, the Guardian prays that this Court enter an order which grants the instant Petition, as follows: I) grant to the Guardian the authority to execute the Mediated Term Sheet and the formal written agreement as contemplated; (2) grant the Guardian the authority to institute breach of contract proceedings against Al Jr. and Susan for their breach of the Mediated Term Sheet, and, alternatively, to sue them for the underlying wrongs that were the basis for the Guardian?s claims that led to the Mediated Tenn Sheet; (3) grant to the Guardian the authority to amend the Ward?s Revocable Trust by rcplacing the named co-Trustees and to ?md the Revocable Trust; (4) award to the Guardian her reasonable attomey?s fees and costs; and (5) grant any other such fiu?ther relief as this Court deems just and proper. VERIFICM Under penalty of perjury, I have read the foregoing document and the facts stated therein are [1116. . I I .2 1'Savitt Date In re ami?imslirp Qfl'ursu?n Page 7 of8 IN THE CIRCUIT COURT OF THE FIFTEENTI-I JUDICIAL IN AND FOR PALM BEACH COUNTY, FLORIDA Case 50 2013 CA 016492 Km MB DONALD E. CLARK II and .IILL MARIE CLARK Plaintiff, vs. SECURITY, 3 Florida Cocportion doing business as Sunn Security; ALARM PARTNERS, a Florida mited ability company: and TELULAR CORPORATION, a foreign corportion, Defendant. REPORT COMES NOW, the undersigned certi?ed Mediator from ARC Mediation, and reports to this Honorable Court: The Mediation was held on December 3, 2014, the result of which was: Mreement El No agreement CI Plaintiff attorney to file Mediator Report El Defense attorneyr to ?le Mediator Report if: (Z I I I . (?d-1V4 "Jack Cook, Certi?ed Circuit?Ciuil Mediator ARC Mediation Copies Furnished to: All parties CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished mi mail/e-service upon: Sheri L. Hazeltiue, Esquire, 800 Palm Trail, Suite 3, Delray Beach, FL 33483 i':1 . a - . Brian M. O?Connell, Esquire, 515 N. Flagler Dr., 20th Floor, West Palm Beach, FL 33401 1. .. 'r Robert M. Trinkler, Esquire, SunTrust Center, Suite 1050, 515 East Las Olas Boulevard, Fort Lauderdale, FL 33301 (If-"5i -. . - - and James Vassallo via e-mail . -. -. and via regular US. mail to: Ralph Vassallo, 303 Lake Avenue South, Nesconset, NY 11767, Jacqueline S. Cantela, 26 Parkside Ave, Miller Place, NY 11764 and Marie Vassallo-Castagnette, 433 Mills Rd., Unit #26, Calverton NY 11933, this 27th day of January, 2015. PANKAUSKI LAW FIRM PLLC 120 South Olive Avenue, Suite 701 West Palm Beach, FL 33401 Phone: (561) 514?0900 jli?f": Li 111.3. i: .1 By: Robert J. Hauser Robeit J. Hauser Florida Bar No.: 55141 In re Guardiath of Vassallo Page 8 of8 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR PALM BEACH COUNTY IN RE: GUARDIANSI-IIP 0F DIVISION ALBERT VASSALLO, SR. CASE N0.: lncapacitated Person. MEDIATED TERM SHEET This Term Sheet is made this I day of December, 2014 by and among the Parties listed below, for and in consideration of the mutual promises and releases made herein, the receipt and adequacy of which is acknowledged by all Parties hereto. On this the - 19? th day omeber, 2014, the Parties (collectively ?Parties?): - . of thePerson . - Sr., represented by Robert Hansel", Esq. Respondents, Susan Mast and Albert Vassallo, Jr., represented by Robert Trinlder, Esq. Court Appointed Counsel for the Ward, Brian M. O?Connell, Esq. desire to resolve the various disputes in the above referenced Guardianship of Albert Vassallo, Sr., Incapacitatecl Ward (?Guardianship? and respectively) so as to avoid the continued . expense and uncertainty of litigation and do so as follows: VASSALLO, JR lg?! Al Jr. will execute a promissory note for $45,000 to Elizabeth Savitt, as Guardian of Albert Vassallo at 4% per annum with interest. Note is payable at the earlier of (1) death of Al 81:, or. (2) under a 15-year amortization schedule. First Payment is due January 1, 2015. Entire balance is secured by Al Jr.?s expected 3/6? w/ IN RE: GUARDIANSHIP 0F Albert Vassallo, Sr. Incapacitated FURTHER AG NT The Parties shall execute a more fonnalized settlement agreement. OTHER AGREEMENTS Courtthatshedoes not believe itisinthebest interest of the Ward for any of his family to serve as his trustee. DISMISSALS All pending motions or petitions shall be dismissed, except for the Petition to Remove Trustees. FEES All Parties shall bear their own attorneys fees and costs. This will be further reduced to a written agreement with attached form promissory notes and amortization schedule. Filing 21336652 Electronically Filed 12/08/2014 1 1:52:07 AM IN THE CIRCUIT COURT OF THE JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA Case No.: SOZOIMODOBEWSBIX GUARDIANSHIP OF ALBERT VASSALLO, Sr. REPORT COMES NOW,the undersigned certified Mediator from ARC Mediation, and reports to this Honorable Court: The Mediatlon was held on December 1, 2014, the result of which was: B??greement Cl No agreement El Plaintiff attorney to ?le Mediator Report El Defense attorney to ?le Mediator Report iaciggock. Certified Circuit Civil Mediator MC Mediation Copies Furnished to: All parties e. The parties agreed on a current expense budget (?Expenses?) of $820 per month (subject to adjustments) and payment of $2,083 per month as compensation to Susan Mast for care of the Ward, if the then-current schedule continues. f. The parties agreed to exchange mutual general releases except as to the performance of this agreement. g. The Guardian consented to represent to the Court that it is not in the best interests of the Ward for any of his family to serve as his trustee. h. Attorneys? fees are home by the parties. 8. The Court concurs with the Guardian?s judgment that it is in the best interest of the Ward for the Court to ratify the Mediated Term Sheet. An agreement will largely avoid the legal expense from the guardianship which would be associated with litigation on the merits. Furthermore, the Court accepts the Guardian?s testimony that the Mediated Term Sheet represents a fair and reasonable compromise regarding obligations owed to the Ward. See Fla. Stat. (10). 9. Accordingly, the Court will ratify the Guardian?s execution of the Mediated Term Sheet and any prospective written formalized agreement with the same material. terms. Whether to brin a suit on the Mediated Term Sheet or if necessar on the merits. 10. As of the date of ?ling the instant Petition, the Ward?s two adult children who agreed to the Mediated Term Sheet have not complied with the mediated terms. Their counsel has now moved to withdraw. 11. Accordingly, the Guardian seeks authorization vis-a?vis Fla. Stat. to bring a civil action against Al Jr. and Susan to enforce the Mediated Term Sheet. See Fla. Stat. ?744.44 1 (1 1). 12. Section ?744.441(l 1)provides in relevant part: After obtaining approval of the court pursuant to a petition for authorization to act a guardian of the property may: [1 1} Prosecute or defend claims or proceedings in any jurisdiction for the protection of the estate and of the guardian in the performance of his or her duties. [emphasis supplied) 13. The Court concurs that the Guardian has a ?duciary obligation to protect the Ward?s person and property. As a result, it is appropriate for the Guardian and bene?cial to the Ward for her to institute proceedings against Al Jr. and Susan to enforce the Mediated Term Sheet, and to otherwise protect, marshal, and secure the Ward?s revocable trust and assets which would be available for his bene?t. 14. For these reasons, the Court authorizes the Guardian to institute civil proceedings against Al Jr. and Susan to enforce the Mediated Term Sheet. 15. If the Mediated Tenn Sheet cannot be enforced in civil court, the Guardian alternatively requests court authorization to sue Susan and A1 Jr. in the Civil Division. According to. the Guardian, the Ward had claims to recover substantial funds that are allegedly the property of the Ward; to void transfers of the Ward?s property that were allegedly undertaken at a time when he lacked capacity; and to address those instances in which Susan and Al Jr. have allegedly exploited or taken advantage of the Ward both before and after the Guardianship. These are the claims that the Guardian attempted to settle at mediation with the Mediated Term Sheet. 16. The Court concurs that the Guardian has a good faith basis to pursue these claims. If the Mediated Term Sheet cannot be enforced in civil court, then the Ward will still have claims against Susan and Al Jr. and it is therefore in the best interest of the Ward?s estate to take legal action to recover it. Whether to amend and fund the Ward?s Revocable Trust in accordance wit?LaLStat. 8744.441{ 17} (12L 17. The Ward maintained assets pursuant to the Albert Vassallo Revocable Trust Agreement (the ?Revocable Trust?). When he became incapacitated, three of his children (James, Susan, and A1 Jr.) became the successor co-Trustees. On September 30, 2014, this Court directed all ?nancial institutions to distribute and/ or transfer immediately all of the ward?s funds, including accounts belonging to the Revocable Trust, to the guardianship account on behalf of the Ward. 18. The Guardian has averred, however, that the Revocable Trust is a reasonable alternative mechanism for the Ward?s assets (1) to be used during life and (2) to pass to his heirs outside of probate as an estate planning mechanism. the Ward?s assets pursuant to section 744.4410?) and (19), for the remainder of the Ward?s life. Therefore, the Court grants authorization to the Guardian to amend the Ward?s revocable trust and to name herself as sole Trustee pursuant to the provisions Fla. Stat. 20. The Ward could have amended his own Revocable Trust and replaced the named successor co-Trustees at will and at any time, but for the adjudication of his incapacity and the appointment of the Guardian in this captioned cause. See Fla. Stat Jasser v. Saddeh, 97 So. 3d 241 (Fla. 4th DCA 2012). Under subsection (19), the Guardian may now do so in the Ward?s place. 5. The Mediated Term Sheet contains all of the material terms of an agreement. Nevertheless, it expressly states that the Mediated Term Sheet is to be reduced to a formal written agreement and that promissory notes are to be executed by A1 Jr. and by Susan. 6. After the Mediated Term Sheet was executed, counsel for the Guardian and for Susan and Al Jr. agreed on the form of a settlement agreement and promissory notes. However, as of the date of ?ling the instant Petition, both of the Ward?s adult children who are parties to it, Al Jr. and Susan, have either refused to execute or refused to deliver the signed formalized agreement. They also will not deliver the promissory notes required by the mediated terms. Their counsel, Robert Trinkler, Esq., has now moved to withdraw. Whether to gathering the Mediated Term Sheet. 7. Pursuant to Fla. Stat. {$744447 and Fla. Stat. (10) and (11), the Guardian seeks this Court?s approval and authorization for her execution of such Mediated Term Sheet (and for the prospective execution of such written formalized agreement as was contemplated therein). The Mediated Term Sheet, summarized, provides as follows: a. A1 Jr. will execute a promissory note for $45,000 payable to the Guardian at 4% per annum interest. b. Susan will execute a promissory note for $54,000 payable to the Guardian at 4% per interest. 0. Susan will execute a second promissory note for $8,000 to the Guardian at 4% per annum with interest running from September 9., 2014, the enforcement of which is. subject to Susan?s failure to account to the Guardian for $8,120 in electronic withdrawals of the Ward?s funds. (1. Each promissory note is due at the earlier of the death of the Ward or (2) under the 15-year amortization schedule. Each note is secured by the obligor?s inheritance or trust distributions. IN RE: or Albert Vassallo, st. incapacitated Mameuonmnasmsaot inheritance [trust distribution. SUS MA Susan will execute a promissory note for $54,000 to Elimbetb Savitt, as Guardian of Albert Vassallo at 4% per annum with interest. Upon maturity of the note, an additional payment of $2,160 shall be made which represents accrued interest from November 15, 2013 to present Note is payable at the earlier of (1) death of A1 Sn, or (2) under 15-year amortization schedule. First payment is due January 1, 2015. Entire balance due is secured by Susan?s expected disuibution. I I -Susan. separately execute apromissorynote. for $8,000to?ie Guardianshipof Albert Vassallo at 4% per annum with interest running from September 9, 2014. Note is payable at the earlier of (1) death of Albert Vassallo, Sn, or (2) pursuant to 15 year amortization schedule. First Payment is due January 1, 2015. Entier balance due would be secured by Susan?s expected inheritance-Joust distribution. This promissory note will be held in escrow by the GuardiaBship of Albert Vassallo, Sr., unless and until the Guardian has determined in good faith and in her sole discretion that Susan Mast has failed to accomt for the $8,128.00 in electronic withdrawals as follows, or if the withdrawals did not bene?t the Ward: $1,482.68 12mm 1,238.25 mam 1,293.44 5/23/14 2,254.31 mom 1,504.32 33014 W?e/ IN RE: GUARDIANSHIP OF 'Albert 1?luv'assalln, Sr. Incapacitated If the Guardian determines that the withdrawals bene?ted the Ward, it will return the original signed $8,000 note to Susan Mast. If the Guardian chooses to enforce the note, it will give written notice to Susan Mast through her attorney of the decision to enforce the note and the amounts due, adjusted on the amounts, if any, that bene?ted the Ward. Susan will present her evidence of the use of the ?mds within 30 days of today, December 1, 2014. DuringthetimetheWard resideswith SusanMasLthepartiesagree onawrrentexpensebudget of $820.00 based on the following: 140.00 . Bus Company Tops 150.00 Health and cosmetics, depends, razor, Vitamins 80.00 Petty cash for movieslpersonal. - . . 450.00 Food 820.00 Total less bus fare ifpaid by the Guardian. The parties also agree on $2,083 per month to Susan Mast as compensation for care of the Ward, ?andso (5 hours ofcarex6daysperweek;8hourson Sunday) ELEASES All Parties shall exchange mutual general releases including (in all ?duciary capacities, including, but not limited to, attorney?in-fact, trustee, andforguardian) except as to the Parties performance of this agreement. 1M (I RE: GUARDIANSHIP OF Albert Vassallu, Sr. Incapacitated Qg?g No. 502014GA00036WBIX INWITNESS WI-IEREOF, thcPartieshaVehereunto settheirhands andsealsthis day of December, 2014. ?ma/V 4 Date EL ETH SAVITT, Guardian Mw/wm ROBERT USER, ESQ, attorney for Savitt Date - ST rt 1? Date ER, ESQ, Attorney forle Fate BRIAN M. Court Appointed Counselforthe Ward. Re?redJudgeJackCook Mediator WHEREFORE, it is ORDERED AND ADIUDGED as follows: (1) the Guardian may execute the Mediated Term Sheet and the formal written agreement as contemplated; (2) the Guardian may institute civil breach of contract proceedings against A1 Jr. and Susan for their breach of the Mediated Term Sheet, or, if needed, to alternatively sue them to recover property on behalf of the Ward; (3) the Guardian may amend the Ward?s Revocable Trust by replacing the named co- Trustees and naming herself has sole Trustee; (4) the Guardian may fund the Revocable Trust by transferring all or substantially all of the Ward?s accounts to the Revocable Trust; and (5) The Court reserves jurisdiction to enforce this order and to order payment of the Guardian?s fees and those of her counsel. DONE AND ORDERED, in Chambers, in Delray Beach, Palm Beach COunty, Florida, this day of February, 2015. The Honorable David E. French Circuit Court Judge T44.441. Powers of guardian upon court approval, Fl. ST 744.441 (9) Borrow money, with or without security, to be repaid from the property or otherwise and advance money for the protection of the estate. (10) Effect 3 fair and reasonable compromise with any debtor or obligor or extend, renew, or in any manner modify the terms of any obligation owing to the estate. l) Prosecute or defend claims or proceedings in any jurisdiction for the protection of the estate and of the guardian in the performance of his or her duties. Before authorizing a guardian to bring an action described in 5. 736.0207. the court shall ?rst ?nd that the action appears to be in the ward's best interests during the word's probable lifetime. There shall be a rebuttable presentption that an action challenging the word's revocation of all or part of a trust is not in the wards best interests if the revocation relates solely to a devise. This subsection does not preclude a challenge alter the wards death. If the court denies a request that a guardian be authorized to bring an action described in 3. 736.0207. the court shall review the continued need for a guardian and the extent of the need for delegation of the ward's rights. (12) Sell, mortgage, or lease any real or personal property of the estate, including homestead property, or any interest therein for cash or credit, or for part cash and part credit, and with or Without security for unpaid balances. (13) Continue any unincorporated business or venture in which the ward was engaged. (14] Purchase the entire fee simple title to real estate in this state in which the guardian has no interest, but the purchase may be made only for a home for the ward, to protect the home of the ward or the wards interest. or as a home for the ward's dependent family. if the ward is a married person and the home of the ward or of the dependent family of the ward is owned by the ward and spouse as an estate by the entirety and the home is sold pursuant to the authority of subsection lit), the court may authorize the investment of any part or all of the proceeds from the sale toward the purchase of a fee simple title to real estate in this state for a home for the ward or the dependent family of the ward as an estate by the entirety owned by the ward and spouse. If the guardian is authorized to acquire title to real estate for the ward or dependent family of the ward as an estate by the entirety in accordance with the preceding provisions, the conveyance shall be in the name of the ward and spouse and shall be effective to create an estate by the entirety in the ward and spouse. (15) Exercise any option contained in any policy of insurance payable to, or inuring to the bene?t of, the ward. (16) Pay reasonable funeral, interment, and grave marker expenses for the ward from the ward's estate, up to a maximum of $6,000. (I 7) Make gifts of the ward's property to members of the word's family in estate and income tax planning procedures. (13] When the wards will evinces an objective to obtain a United States estate tax charitable deduction by use of a split interest trust (as that term is de?ned in . . - but the maximum charitable deduction otherwise allowable will not be achieved in whole or in part, execute a codicil on the word's behalf amending said will to obtain the maximum charitable deduction allowable without diminishing the aggregate value of the bene?ts of any bene?ciary under such will. 744.441 . Powers of guardian upon court approval, FL ST 744.441 (19} Create or ninettd revocable omits or create irrevocable trusts of property of the ward's estate which may extend beyond the disability or life of the ward in eonneetion with estate, gift. inmate, or other tax planning or in connection with estate planning. The court shalt retain oversight of the assets transferred to a trust. unless otherwise ordered by the cou?. (20) Renounce or disclaim any interest by testate or intestate succession or by inter vivos transfer. (21) Enter into contracts that are appropriate for, and in the best interest of, the ward. (22) As to a minor ward, pay expenses of the ward's support, health, maintenance, and education, if the ward?s parents, or either of them, are aLiVe. Credits Laws 1974, c. 74-106, 1; E1a.i?t.1974, Supp 744 501; Laws 1975. e. 75-222. 22, 26; Laws 1977, c. 77-174, 1; Laws 1977, 0. 77-328, 2; Laws 1979, c. 79-400, 281; Laws 1980, e. 80-203, Laws 1986, c. 36-120. i .: -. -. . 89?96. . !.?52.Arnendedby I'r?1997, - 4' 11. eff. 3n i 1's Lane I. at?; 201M 2' illi'. 1. 2006; Laws 2006. 5. 2006-217, 5; 4:5, eff. Jul}; 1, 7007; Laws 201 t, 201L183, 12, eff. June 1. Notes of Decisions West?s F. S. A. 744.441, FL ST 744.441 Current through Ch. 255 (End) of the 2014 2nd Reg. Sess. and Sp. Sess. of the Twenty?Third Legislature End of Document 21) 1 5 Thomson Reuters. 31?) claim to original if Gm eminent Works West's F.SA 744.108 744.108. Guardian's and attorney's fees and expenses Effective: May 30, 2003 Currentness A guardian, or an attorney who has rendered services to the ward or to the guardian on the wards behalf, is entitled to a reasonable fee for services rendered and reimbursement for costs incurred on behalf of the ward. (2) When fees for a guardian or an attorney are submitted to the court for determination, the court shall consider the following criteria: The time and labor required; The novelty and dif?culty of the questions involved and the skill required to perform the services properly; (0) The likelihood that the acceptance of the particular employment will preclude other employment of the person; The fee customarily charged in the locality for similar services; The nature and value of the incapacitated person's property, the amount of income earned by the estate, and the responsibilities and potential liabilities assumed by the person; The results obtained; The time limits imposed by the circumstances; The nature and length of the relationship with the incapacitated person; and The experience, reputation, diligence, and ability of the person performing the service. (3) In awarding fees to attorney guardians. the court must clearly distinguish between fees and expenses for legal Services and fees and expenses for guardian services and must have determined that no con?ict of interest exists. 744.108. Guardian's and attorney's fees and expenses, FL ST 744.108 (4) Fees for legal services may include customary and reasonable charges for work performed by legal assistants employed by and working under the direction of the attorney. (5) All petitions for guardian's and attorney's fees and expenses must be accompanied by an itemized description of the services performed for the fees and expenses sought to be recovered. (6) A petition for fees or expenses may not be approved without prior notice to the guardian and to the ward, unless the ward is a minor or is totally incapacitated. (7) A petition for fees shall include the period covered and the total amount of all prior fees paid or costs awarded to the petitioner in the guardianship proceeding currently before the court. (8) When court proceedings are instituted to review or determine a guardian's or an attorney's fees under subsection (2). such proceedings are part of the guardianship administration process and the costs, including fees for the guardian's attorney, shall be determined by the court and paid from the assets of the guardianship estate unless the court ?nds the requested compensation under subsection (2) to be substantially unreasonable. Credits Laws 1975, c. 75?222, 18, 26; Laws #389. e. sass. 1; Laws was. a, 99--2?l, Laws E996, c. 96554. p; 2. Amended by Laws 2003., c. 2003-57. gi- May 30. 2003'. Not-es oi? Decisions {66) West's F. S. A. 744.108, FL ST 744.108 Current through Ch. 255 (End) of the 2014 2nd Reg. Sess. and Sp. Sess. of the Twenty-Third Legislature End of ?ecament 2015 Elimusnu Reuters No claim to original if (loam-unqu Wail-.5 736.0402. Requirements for creation, FL ST 736.0402 West's Florida Statutes Titie XLII. Estates and Trusts (Chapters 731-740) (Refs 8: Annos) Chapter 736. Florida Trust Code (Refs 81 Annos} Part IV. Creation, Validity, Modi?cation, and Termination West's F.SA 736.0402 736.0402. Requirements for creation Effective: July 1, 2007 Currentness (1) A trust is created only if: The senior has capacity to create a trust. The settler indicates an intent to create the trust. (0) The trust has a de?nite bene?ciary or is: l. A charitable trust; 2. A trust for the care of an animal, as provided in 5. 736.0408; or 3. A trust for a noncharitable purpose, as provided in 3. 736.0409. The trustee has duties to perform. (6) The same person is not the sole trustee and sole bene?ciary. (2) A bene?ciary is de?nite if the bene?ciary can be ascertained now or in the future, subject to any applicable rule against perpetuities. (3) A power of a trustee to select a bene?ciary from an inde?nite class is valid. If the power is not exercised within a reasonable time, the power fails and the property subject to the power passes to the persons who would have taken the property had the power not been conferred. Credits Added by Laws 2006. (3.. 2006-217. 4, eff. July 1. 2007. 35.0432. Requirements for creaticn"Ir-Av: GE, 1 I a .1 West's F. S. A. 736.0402, FL ST 736.0402 Current through Ch. 255 (End) of the 2014 2nd Reg. $685. and Sp. 8655. of the Twenty?Third Legislature I fi?ii 4a? Jasser v. Saadeh, 97 So.3d 241 (2012) 3? Fla. L. Weekly D1696 97 So.3d 241 District Court of Appeal of Florida, Fourth District. Summer JASSER, Lena Mamone and Anthony Saadeh, As Co?Trustees of the Trust Agreement of Karim H. Saadeh dated June 24, 2009, Appellants, V- Karim H. SAADEH, Appellee. NOS- 4D09-4879, 41310- 140, July 18, 2012. Rehearing Denied Oct. 10, 2012. Synopsis Background: Petition was ?led to determine father's incapacity, and an emergency temporary guardian (ETG) was appointed. After entry of an agreed order dismissing the guardianship proceeding. and requiring Father to execute a trust naming his children as co-trustees, the Circuit Court appointed a new examining committee and, based on their unanimous determination that father was competent, dismissed the petition to determine incapacity and terminated the emergency temporary guardianship. Father also ?led petition to revoke the trust, and the Fifteenth Judicial Circuit Court, Palm Beach County, Rich-Lars! J., entered orders that, among other things, declared the trust void ab initio. Children, as trustees of the trust, appealed multiple orders, and the appeals were consolidated. Holdings: The District Court of Appeal held that: l. i agreed order dismissing the guardianship proceedings and requiring father to execute the trust was a nullity, and father lacked authority to execute the trust. Af?rmed. West Headnotes (6) {35 Mental ?eaith Temporary guardian Mental Health 3} Dismissai cips'oceedings Mentai Health Confirming or vacating ?nding; new commission or new trial Agreed order dismissing plenary guardianship proceedings involving father, and requiring him to execute trust naming his children as co?trustees, was a nullity, and thus trial court had authority to vacate order, appoint new cxamining committee. and, after committee unanimously found father completely competent, dismiss the petition for determination of incapacity and terminate the emergency temporary guardianship; petition to determine incapacity could not be dismissed until issue of incapacity was actually determined, and could not be dismissed without also terminating the emergency temporary guardianship, since appointment of guardian deprived Father of nearly all his rights. . 744.3193M i 7'44 33%. 1 Cases that cite headnete Meatai ?eaith Appearance and representation by attorney: guardian ad litem Mentai Hearing and Detenninaticn An attorney for an alleged incapacitated person may not waive an adjudicatory hearing when required. West?s $.23 A. 1744.33 1. {uses that cite headcote Meatai Determination irientai discader in generai Mentai i?ieaitii 37-3 Dismissai ei?iproceedings If a person is incompetent, it is the duty of the court to assure that person's protection and his or her autonomy is respected to the greatest extent possible; to permit dismissal of proceedings where a party is in fact incompetent may endanger that person. West?s S, 3t. idi?l. Cases that cite this beaten-etc Jasser v. Saadeh, 97 So.3d 241 (2012) Sf?afil ween; Bids? i4} i?i Mental Health en Mentai incompetency or incapacity in general The guardianship statutes and rules should not be used to protect competent persons from their ways or to protect their bene?ciaries; an individual who is competent should not be subject to the control of the courts through guardianship proceedings, temporary or plenary. Cases that cite this headnote Mentai Temporary guardian Mentai Eealth em Dismissal of proceedings Father who was the subject of a petition to determine incapacity, and for whom an emergency temporary guardian (ETG) had been appointed, lacked authority to execute trust naming his children as co-trustees, even after dismissal of the plenary guardianship proceedings; emergency temporary guardianship had not been terminated, ETG had been delegated all of father?s legal rights except the right to vote. and father and ETG could not both execute the right to contract. 393i. Cases that cite this headnote Mental Health the Temporary guardian To permit both a ward and an emergency temporary guardian (ETG) to exercise the right to contract would render the protection afforded by an ETG non-existent; in such cases, the ward could continue to deal with his or her property and conceivably give it all away while a petition for incapacity is pending even though that person is incompetent but not of?cially adjudicated as such. Cases that cite this headrtete Attorneys and Law Firms *242 Hum II t" ?until and Ashley/N. Ciklin Lubilz Martens 3c O'Connell, P.A., West Palm Beach. for appellants. Irwin R. Gilbert and Bryan . Yarnell of Gilbert Yarnell, Palm Beach Gardens, for appellee. Opinion PER CURIAM. In their consolidated appeals, Summer asset, Lena Mamone, and Anthony Saadeh, the children of appellee, Karim Saadeh, appeal ?ve orders, arising out of proceedings to determine the incapacity of their father as well as the appointment of an emergency temporary guardian. In connection with these proceedings, Saadeh executed a trust agreement, the validity of which was later contested by him after competency proceedings were dismissed. The crux of this appeal is a challenge to the court's summary judgment determining that the trust was void ab fnitio. Because we conclude that the court correctly determined that Saadeh did not have legal authority to create the trust, we af?rm the summary judgment. Karim Saadeh, now in his eighties, emigrated from Jordan with his wife, raised a family of three children, and became a very successful businessman. He and his wife were wealthy at the time of his wife's death in 2007. After her demise, Saadeh contemplated remarrying. Saadeh met a younger woman through one of his wife's relatives. He loaned her money, which greatly disturbed his children even. though he had. his lawyer draw up a promissory note. The children then worried about his other substantial bank accounts on which they were named aceountholders. The children became concerned that their father was not completely competent and expressed that concern to his business and estate planning attorney, Michael Singer. To prevent Saadeh from draining his accounts, the children transferred over a million dollars from these accounts to other accounts over which he had no control withorit his knowledge. Saadeh was upset when he discovered that his children had drained his accounts. Around the same time, he discovered that *243 substantial money and jewelry located in a safe were missing. Because his children had the combination to his safe, he Suspected that they had likewise taken these assets. 744.441, Powers of guardian upon court approval, FL ST 744.441 West's F.S.A. 744.441 744.441. Powers of guardian upon court approval Effective: June 21, 2011 Cnrrentness After obtaining approval of the court pursuant to a petition for authorization to act, a plenary guardian of the property, or a limited guardian of the property within the powers granted by the order appointing the guardian or an approved annual or amended guardianship report, may: (1) Perform, compromise, or refuse performance of a ward's contracts that continue as obligations of the estate, as he or she may determine under the circumstances. (2) Execute, exercise, or release any powers as trustee, personal regresentative, custodian for minors, conservator, or dance of any power of appointment or other power that the ward might have lawfully exercised, consummated, or executedif not incapacitated, if the best interest of the ward requires such execution, exercise, or release. (3) Make ordinary or extraordinary repairs or alterations in buildings or other structures; demolish any improvements; or raze existing, or erect new, party walls or buildings. (4) Subdivide, develop, or dedicate land to public use; make or obtain the vacation of plats and adjust boundaries; adjust differences in valuation on exchange or partition by giving or receiving consideration; or dedicate easements to public use without consideration. (5) Enter into a lease as lessor or lessee for any purpose, with or without option to purchase or renew, for a term within, or extending beyond, the period of guardianship. (6) Enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement. (7) Abandon property when, in the opinion of the guardian, it is valueless or is so encumbered or in such condition that it is of no bene?t to the estate. (8) Pay calls, assessments, and other sums chargeable or accruing against, or on account of, securities. C) Alternatively, the Guardian petitions for court approval to sue Susan and for damages. 16. Alternatively, if the Mediated Term Sheet is not approved or if a litigation to enforce the Mediated Term Sheet fails, then the Guardian requests court approval to sue Susan and A1 Jr. in the Civil Division to recover the substantial funds that are rightfully the property of the Ward; to void transfers of the Ward?s property that were undertaken at a time when he lacked capacity; and to address those instances in which Susan and Al Jr. have exploited or taken advantage of the Ward both before and after the Guardianship. If no mediated agreement exists, then the Ward will still he owed money from Susan and A1 Jr. and it is therefore in the best interest of the Ward?s estate to take legal action to recover it. D) The Guardian seeks further authorization from this Court to amend and fund the Ward?s Revocable Trust in accordance with Fla. Stat. $444411 17} and." or 119). 17. The Ward mainta' ed assets pursuant to the Albert Vassallo Revocable Trust Agreement (the ?Revocable Trust?). When he became incapacitated, three of his children (James, Susan, and Al Jr.) became the successor co?Trustees. On September 30, 2014, this Court directed all ?nancial institutions to distribute and] or transfer immediately all of the ward?s funds, including accounts belonging to the Revocable Trust, to the guardianship account on behalf of the Ward. 18. The Revocable Trust, however, is a reasonable alternative mechanism for the Ward?s assets (1) to be used during life and (2) to pass to his heirs outside of probate as an estate planning mechanism. Unfortunately, two of the co-Trustees are Susan and A1 Jr. the proposed defendants in the claims discussed above). Because of their adverse position to the Ward and the Guardian, they should not continue to serve as co-trustee. A third co?Trustee, James, is so hostile to his siblings and vice-versa as a result of this litigation that he cannot serve objectively as a co- Trustee. In re Guardianship quassallo Page 5 of 8 Jasser v. Saadeh, 97 So.3d 241 (2012) Fla. LIWeeidy' [31696 exercise all delegable legal rights and powers of the ward with the exception of his right to vote. Pursuant to statute, the court set the term of the temporary guardianship for ninety days. The day a?er the hearing, two of the members of the examining committee ?led their reports, both stating that Saadeh was fully capable of managing his own affairs and was completely competent. Unfortunately, the third person appointed to examine Saadeh passed away before the hearing. it does not appear that the court ever saw these reports. Within two days of the appointment of the ETG, Singer ?led an emergency petition to set aside the guardianship and for rehearing. The ward's court-appointed attorney joined in the petition and also moved for rehearing. The next day, only three days after the appointment of the ETG, Meyer, the attorney for the ETG, and the appointed counsel for Saadeh, submitted to the court an agreed order to ?settle? the guardianship. The parties agreed that execution of a trust would be the ?least restrictive alternative to plenary guardianship in this matter." The May 21 order provided for Saadeh to execute a trust agreement with his children sewing as co-trustees, which could be amended only with consent of the co-n'ustees. Upon Saadeh?s death, the trust assets would be distributed to the children. Saadeh would also execute a pour-over will, naming his three children as his co?persenal representatives, and devising the residue of his estate to his children. in addition, Saadeh would create a new healthcare surrogate designation, appointing his three children as his surrogates. The ETG would acquire all of Saadeh's assets and place title to them in the trust. Therea?er, the ETG could seek leave of court for her discharge. The order provided that Saadeh shall execute the trust, will and healthcare surrogate within seven days. The last provision of the order *245 states that ?All pending incapacity proceedings for the Ward in this Court are hereby dismissed, subject to the Court's retention of jurisdiction to enforce the terms of this Agreed Order if necessary.? At the same time, the court dismissed the examining committee and denied the pending petition to set aside the guardianship ?led by Singer the day before. It does not appear that Singer was noti?ed of any hearing on this issue. A?er the petition to set aside the guardianship failed, the accountant, Levine, who had power of attorney and who was Saadeh's current health care surrogate, ?led his own petition to set aside the guardianship and requested rehearing. In his petition, Levine aiieged that he had never been provided notice of the ETG proceedings. He attached the reports of two doctors, who stated that Saadeh was competent to attend to his own affairs. The court scheduled this motion for hearing on June 25, 2009. Despite the fact that the agreed order ?dismissed? the pending incapacity proceedings, neither the parties nor the court operated as though anything was dismissed. A few days after entry of the agreed order, Noble, the court-appointed attorney for the ward, ?led a motion for clari?cation of the order appointing the ETG. The court entered an order of clari?cation. In addition, both sides ?led motions to disqualify attorneys. Noble wanted to disqualify Singer from representing Levine, and Singer sought to disqualify Meyer from representing Bar?eld because Meyer simultaneously represented Saadeh's children. In addition, Noble complained that Levine was not forwarding bills that the ETG was required to pay on behalf of Saadeh, thus acknowledging that the ETG continued to exercise Saadeh's rights. Moreover, Saadeh was not allowed to hire Singer as his attorney in the incapacity proceedings. At a hearing, Singer raised the issue of whether the guardianship proceedings had been vacated and whether Saadeh's rights were restored. The ETG and the ward's court- appointed attorney argued that the order appointing the ETG took away all of Saadeh's rights, except the right to vote, and his rights had not been restored. The court agreed that all of his rights, with the exception of the right to vote, had been removed. The same afternoon and without noti?cation to Singer, the ETG had Saadeh sign a new trust agreement. Contrary to its title as an ?initial revocable trust,? the trust was not revocable by Saadeh. There are disputed issues of fact as to the circumstances surrounding the execution of the trust and what Saadeh was told regarding the terms of the trust. 2 The ward?s court-appointed attorney, however, admitted that he told him that if he signed the trust, the proceedings would be over. To transfer property to the trust, the ETG executed deeds to Saadeh's property, and Saadeh executed quit?claim deeds to some of the properties. When the parties next appeared before the court. the court questioned whether it had ?pulled the trigger" too quickly in signing the order of settiement because Saadeh was not really incapacitated. In other words. the court was concerned that it did not possess the authority to order Saadeh to enter into trusts if he were not *246 incapacitated and would have his Copies furnished to: Robert J. Hauser, Esquire, Pankauski Law Firm, PLLC, 120 South Olive Avenue, Suite 701, West Palm Beach, FL 33401 -F.- at?) Sheri L. Hazeltine, Esquire, 800 Palm Trail, Suite 3, Delray Beach, FL 33483 Brian M. O?Connell, Esquire, 515 N. Flagler Dr., 20* Floor, West Palm Beach, FL 33401 31:; Robert M. Trinkler, Esquire, SunTrust Center, Suite 1050, 515 East Las Olas Boulevard, Fort Lauderdale, FL 33301 I - gut) James Vassallo, 108 Westbury, Building B, Deer?eld Beach, FL 33442 Ralph Vassallo, 303 Lake Avenue South, Nesconset, NY 11767 Jacqueline S. Cantela, 26 Parkside Ave, Miller Place, NY 11764 Marie Vassallo-Castagnette, 433 Mills Rd? Unit #26, Calverton NY 11933 Jasser v. Saadeh, 97 So.3d 241 (2012) 37 Fla. Li Weekly?Df?lB-??' 7 if First, the statutes and rules do not provide for the dismissal of a petition to determine the incapacity of an individual before the actual determination of the issue. In Burden v. Guardianship of Borden ~1l/100re. 818 Solid 604 (Fin. 5th DCA 2002?, the court held that a petition for guardianship could not be dismissed before receiving the report of the examining committee: Section 7?44 33i contemplates that once a facially suf?cient petition to determine incapacity has been ?led, the court must that the alleged incapacitated person has an attorney, that an appropriately quali?ed committee examines the ensure examining person, and that an adjudicatory hearing be set no more than fourteen days after the ?ling of the report of the examining committee, unless good cause is shown to extend that time. Compliance with the requirements of sectien 344.331 is mandatory and the trial court's failure to adhere to those requirements constitutes reversible error. Id at 688-439. See Fla. Stat, {2898}; see also In re Keene. 343 302:1 9 l6, 91? (Pia. 4th UCA i977?) (?Proceedings to determine the competency of a person are generally controlled by statute and where a statute prescribes a certain method of proceeding to make that determination, the statute must be strictly followed?) (citation omitted). An attorney for the person may not waive an adjudicator-y hearing when required. See [a re Frederick. 583 Sold 44, 45 {Fla 41h BCA is incompetent, it is the duty of the court to assure that person?s protection and his or her autonomy is respected to the greatest extent possible. See 744.1012, Fla. Stat. To permit dismissal of proceedings where a party is in fact incompetent may endanger that person. On the other hand, without knowing whether the person is actually incompetent, the court could restrict a person's independent ability to deal with his property and place it out of the control of a *248 person who may be completely capacitated. The guardianship statutes and rules should not be used to protect competent persons ?om their ways or to There is good reason for such a rule. If a person protect their bene?ciaries. An individual who is competent should not be subject to the control of the courts through guardianship proceedings, temporary or plenary. That the order dismissing the plenary guardianship proceedings was a nullity is further supported by the fact that the order did not dismiss the petition for emergency temporary guardian, revoke the letters of guardianship, or terminate the same. Section Flerida Statutes {2608), permits the appointment of an ETG only a?er a petition for determination of incapacity has been ?led. For an ETG to be appointed there must be a pending determination of incapacity. As such, the court could not dismiss the petition for incapacity and retain the ETG. Unfortunately, that is what occurred in these proceedings. The ETG, and even court-appointed counsel for Saadeh, never intended to restore any rights to him during the period of the temporary guardianship, and their statements to the. court that all of Saadeh's rights had been removed were made at a hearing on the same day he executed the trust agreement. At a separate. hearing, the attorney for the children as trustees also told the court that because of the appointment of the ETG, Saadeh could not be a trustee of his own trust. Thus, the trustees acknowledged that the appointment of the ETG deprived Saadeh of all of his rights. Because all parties relied on the appointment as depriving Saadeh of the ability to exercise all rights, they are now judicially estopped ?'om taking the position that the incapacity proceedings were ?nal. See Bi?umberg :2 AA Cris C0 . 790 30 2d 1061, 1066 Because the order did not dismiss the ETG proceedings and restore Saadeh's rights, it was legally impossible to continue to deprive Saadeh of his rights unless incapacity was determined. The court, recognizing its mistake in entering the order which purported to dismiss the incapacity proceedings, appointed the new examining committee. Then, when the examining committee unanimously found that Saadeh was completely competent, it appropriately dismissed the petition for determination of incapacity and terminated the ETG. The court was within its authority in these rulings. We agree with the trial court that when the court conferred the wards rights on the ETG, it removed them from the ward; both cannot simultaneously exercise those rights. Section 744.3133 if 1) provides that the court shall specify the rights to be exercised by the ETG. In this case, the order delegated to the ETG all legal rights, reserving only the right to vote to the ward. Thus, the court removed the ward?s Jasser v. Saadeh, 9? $0.3d 2-11 (2012) ?at. weeks Stride i rights restored at the end of the temporary guardianship. The court stated: If it?s incapacitated, then it seems to me determined that he's not there's no reason that the court should have entered this settlement agreement in the first place because he should be allowed to exercise his own free will with regard to this If it's wrong, I want to undo it. A hearing ensued regarding whether Saadeh should have the right to choose his attorney. Both the ETG and the wards court-appointed attorney argued that he did not have the right to choose his attorney. Nevertheless the court permitted Saadeh to hire his own attorney. The court also reappointed an examining committee for the purpose of determining Saadeh's incapacity. In all other respects, the guardianship continued, and Saadeh did not regain any of his rights. In fact, his attorneys had to request and receive permission for him to travel. Each member of the new examining committee met with Saadeh and declared him fully competent and capable of managing his own a?airs. At the hearing to determine incapacity, the recently retained attorney for the children as trustees under the trust contended that because of the May 21st order dismissing the incapacity hearings, there was no competency issue to be resolved. Nonetheless, the court pointed out that all parties had labored under the assumption that incapacity was still at issue. The court proceeded to consider the examining committee reports. Based upon the unanimous determination of the examining committee that Saadeh was competent, the court dismissed the petition. Unfortunately, this did not end the litigation, far from it. Saadeh had already ?led a petition to revoke the trust. In his petition, he claimed the following: I) he had executed the trust based upon undue influence, coercion, and duress and without understanding its terms; 2) his children participated in the coercion and duress imposed on him and stood to gain substantially through the provisions of the trust; 3) he was denied the right to consult counsel of his choice; 4) the trust was inconsistent with the terms that he had previously discussed he would be willing to enter; 5) he did not agree to a trust that he could not revoke; and, 6) because he had never agreed to the trust when the settlement was presented to the trial court, a fraud on the court had been committed. The children defended as trustees and ?led a declaratory judgment action to determine the validity of the trust. Eventually, Saadeh moved for summary judgment. The three questions addressed to the court were: 1) whether the May 2009 order requiring the execution of the trust and dismissal of the incapacity proceedings was properly entered and valid; 2) whether Saadeh lacked the legal right or power to enter into the settlement or trust agreement; and 3) whether the trust agreement was void ab initio. The court did not reach the question of undue in?uence, coercion. duress, or fraud on the court. The court found that the May 2009 order was entered, but it did not authorize the execution of an irrevocable trust. When the court entered the order, it was not informed of catastrophic gift tax consequences if the trust was created, not was it informed that the trust could not be revoked by Saadeh himself. What it appointed the ETG and granted her all of the ward's legal rights, it thereby removed them from the ward. Thus, Saadeh had no legal capacity to enter into the trust ?24? agreements; Therefore, the June 2009 trust agreement was void ab initio. In addition, while the May 2009 order provided that the execution of the trust was the least restrictive alternative to a guardianship, the court found that ?[t[he implementation ol" a least restrictive alternative to plenary guardianship presupposes the appointment of a plenaly guardian is warranted.? See 744.344i.23, Ifthe court do es not ?nd a need for a plenary guardianship, then there is no need for a least restrictive alternative. The court could not order any less restrictive alternative before it found incapacity on the part of the ward. Finally, the court found that the trust went beyond the terms of the order in that the trust was executed as an irrevocable trust with very signi?cant tax consequences. For these reasons, the trial court determined the trust was void ab initio and ordered the return of the trust assets to Saadeh. From this order, the trastees appeal. The attack the trial court?s fmaljudgment by ?rst arguing that the May 2009 agreed order was ?nal, but not appealed: therefore, it is no longer subject to attack. They cite, however, to cases involving a voluntary dismissal of proceedings. This was not a voluntary dismissal, but rather an allegedly agreed settlement and a mutual dismissal. They also contend that the court was without jurisdiction to vacate the May 2009 order of dismissal because there was no incapacity petition pending due to its earlier dismissal. We disagree. Jasser v. Saadeh, 9? So.3d 241 (2012) 37 Fla. L. Weekly D1696 rights restored at the end of the temporary guardianship. The court stated: If it's incapacitated, then it seems to me there's no reason that the court should have entered this settlement agreement in the first place because he shoold be allowed to exercise his own free will with regard to this If it's wrong, I want to undo it. determined that he's not A hearing ensued regarding whether Saadeh should have the right to choose his attorney. Both the ETG and the ward's court-appointed attorney argued that he did not have the right to choose his attorney. Nevertheless the court permitted Saadeh to hire his own attorney. The court also reappointed an examining committee for the purpose of determining Saadeh?s incapacity. In all other respects, the guardianship continued, and Saadeh did not regain any of his rights. In fact, his attorneys had to request and receive permission for him to travel. Each member of the new examining committee met with Saadeh and declared him fully competent and capable of managing his own affairs. At the hearing to determine incapacity, the recently retained attorney for the children as trustees under the trust contended that because of the May 21st order dismissing the incapacity hearings, there was no competency issue to be resolved. Nonetheless, the court pointed out that all parties had labored under the assumption that incapacity was still at issue. The court proceeded to consider the examining committee reports. Based upon the unanimous determination of the examining committee that Saadeh was competent, the court dismissed the petition. Unfortunately, this did not end the litigation, far from it. Saadeh had already ?led a petition to revoke the trust. In his petition, he claimed the following: 1) he had executed the trust based upon undue in?uence, coercion, and duress and without understanding its terms; 2) his children participated in the coercion and duress imposed on him and stood to gain substantially through the provisions of the trust; 3) he was denied the right to consult counsel of his choice; 4) the trust was inconsistent with the terms that he had previously discussed he would be willing to enter; 5) he did not agree to a trust that he could not revoke; and, 6) because he had never agreed to the trust when the settlement was presented to the trial court, a fraud on the court had been committed. The children defended as trustees and ?led a declaratory judgment action to determine the validity of the trust. Eventually, Saadeh moved for summary judgment. The three questions addressed to the court were: 1) whether the May 20W order requiring the execution of the trust and dismissal of the incapacity proceedings was properly entered and valid; 2) whether Saadeh lacked the legal right or power to enter into the settlement or trust agreement; and 3) whether the trust agreement was void ab initio. The court did not reach the question of undue in?uence, coercion, duress, or fraud on the court. The court found that the May 2009 order was entered, but it did not authorize the execution of an irrevocable trust. When the court entered the order, it was not informed of catastrophic gi? tax consequences if the trust was created, nor was it informed that the trust could not be revoked by Saadeh himself. When it appointed the ETG and granted her all of the wards legal rights,_it thereby removed them from the ward. Thus, Saadeh had no legal capacity to enter into the trust '14? agreements. Therefore, the June 2009 trust agreement was void ab initio. In addition, while the May 2009 order provided that the execution of the was the least restrictive alternative to a guardianship, the court found that ?[tlhe implementation of a least restrictive alternative to plenary guardianship presupposes the appointment of a plenary guardian is warranted.? See ?Fii?i 34442}, Ela. Stat. (261118}. Ifthe court does not ?nd a need for a plenary guardianship, then there is no need for a least restrictive alternative. The court could not order any less restrictive alternative before it found incapacity on the part of the ward. Finally, the court found that the trust went beyond the terms of the order in that the trust was executed as an irrevocable trust with very signi?cant tax consequences. For these reasons, the trial court determined the trust was void ab initio and ordered the return of the trust assets to Saadeh. From this order, the trustees appeal. The co?trustees attack the trial court's ?nal judgment by ?rst arguing that the May 2009 agreed order was ?nal, but not appealed; therefore, it is no longer subject to attack. They cite, however, to cases involving a voluntary dismissal of proceedings. This was not a voluntary dismissed, but rather an allegedly agreed settlement and a mutual dismissal. They also contend that the court was without jurisdiction to vacate the May 2009 order of dismissal because there was no incapacity petition pending due to its earlier dismissal. We disagree. Jasser v. Saadeh, 97 So.3d 241 (2012) 37 L. Weekly 61696 First, the statutes and rules do not provide for the dismissal of a petition to determine the incapacity of an individual before the actual determination of the issue. In Borden Guardianship of Borden ore, Elli 502:1 5304 (Fla. 5th Bil-Jr 2062), the court held that a petition for guardianship could not be dismissed before receiving the report of the examining committee: Section ?744.3% contemplates that once a facially sufficient petition to determine incapacity has been ?led, the court must that the alleged incapacitated person has an attorney, that an appropriately quali?ed examining committee examines the person, and that an adjudicatory hearing be set no more than fourteen days after the ?ling of the report of the examining committee, unless good ensure cause is shown to extend that time. Compliance with the requirements of section 7144.33 1 is mandatory and the trial court's failure to adhere to those requirements constitutes reversible Id. at 6384)?), See 744.33ltj4?3, Fla, Stat. {21208}; see also In re Keene, 34?: Sold 9i6, 91'] (Tia. 4th DCA i977) (?Proceedings to determine the competency of a person are generally controlled by statute and where a statute prescribes a certain method of proceeding to make that determination, the statute must be strictly followed?) (citation omitted). An attorney for the person may not waive an adjudicatory hearing when required. See [a re Fredericir, 5518 SoEd 44, 45 (Fla. 4th DCA i387}. is incompetent, it is the duty of the court to aSSure that person's protection and his or her autonomy is respected to the greatest extent possible. See 744 l?iZ, Fla. Stat. {2008). To permit dismissal of proceedings where a party is in fact incompetent may endanger that person. On the other hand, without knowing whether the person is actually incompetent, the court could restrict a person?s independent ability to deal with his property and place it out of the control of a *248 person who may be completely capacitated. The guardianship statutes and rules should not be used to protect competent persons from their ways or to There is good reason for such a rule. If a person protect their bene?ciaries. An individual who is competent should not be subject to the control of the courts through guardianship proceedings, temporary or plenary. That the order dismissing the plenary guardianship proceedings was a nullity is further supported by the fact that the order did not dismiss the petition for emergency temporary guardian, revoke the letters of guardianship, or terminate the same. Section Maljii??hf 1), Florida Statutes {2908), permits the appointment of an ETG only after a petition for determination of incapacity has been ?led. For an ETG to be appointed there must be a pending determination of incapacity. As such, the court could not dismiss the petition for incapacity and retain the ETG. Unfortunately, that is what occurred in these proceedings. The ETG, and even court-appointed counsel for Saadeh, never intended to restore any rights to him during the period of the temporary guardianship, and their statements to the court that all of Saadeh's rights had been removed were made at a hearing on the same day he executed the trust agreement. At a separate hearing, the attorney for the children as trustees also told the court that because of the appointment of the ETG, Saadeh could not be a trustee of his own trust. Thus, the trustees acknowledged that the appointment of the ETG deprived Saadeh of all of his rights. Because all parties relied on the appointment as depriving Saadeh of the ability to exercise all rights, they are now judicially estopped from taking the position that the incapacity proceedings were ?nal. See Slumberg v. L-"Szixl Car ins. Co, 27% So?d i061, 1966 (Fla.2001}. Because the order did not dismiss the ETG proceedings and restore Saadeh's rights, it was legally impossible to conlinue to deprive Saadeh of his rights unless incapacity was determined. The court, recognizing its mistake in entering the order which purported to dismiss the incapacity proceedings, appointed the new examining committee. Then, when the examining committee unanimously found that Saadeh was completely competent, it appropriately dismissed the petition for detennination of incapacity and terminated the ETG. The court was Within its authority in these rulings. We agree with the trial court that when the court conferred the wards rights on the ETG, it removed them from the ward; both cannot simultaneously exercise those rights. Section i44303 i provides that the court shall specify the rights to be exercised by the ETG. In this case, the order delegated to the ETG all legal rights, reserving only the right to vote to the ward. Thus, the court removed the ward's Jasser v. Saadeh, 97 So.3d 241 (2012) 37 Fla. L. Weekly D1696 exercise all delegable legal rights and powers of the ward with the exception of his right to vote. Pursuant to statute, the court set the term of the temporary guardianship for ninety days. The day after the hearing, two of the members of the examining committee ?led their reports, both stating that Saadeh was fully capable of managing his own affairs and was completely competent. Unfortunately, the third person appointed to examine Saadeh passed away before the hearing. It does not appear that the court ever saw these reports. Within two days of the appointment of the ETG, Singer ?led an emergency petition to set aside the guardianship and for rehearing. The ward's court-appointed attorney joined in the doctors, who stated that Saadeh was competent to attend to his own affairs. The court scheduled this motion for hearing on June 25, 2009. Despite the fact that the agreed order ?dismissed? the pending incapacity proceedings, neither the parties nor the court operated as though anything was dismissed. A few days a?er entry of the agreed order, Noble, the court-appointed attorney for the ward, ?led a motion for clari?cation of the order appointing the ETG. The court entered an order of clari?cation. In addition, both sides ?led motions to disqualify attorneys. Noble wanted to disqualify Singer from representing Levine, and Singer sought to disqualify Meyer Jasser v. Saa-dett, 97 50.341 241 (2912) Weekly megs right to contract. The fact that the court removed his right to contract was speci?cally discussed not only in the original hearing appointing the ETG but in almost every other hearing thereafter. To permit both a ward and the guardian to exercise the right to contract would render the protection a?'orded by an ETG non-existent. In such cases, the ward could continue to deal with his or her property and conceivably give it all away while a petition for incapacity is pending even though that person is incompetent but not of?cially adjudicated as such. The ETG would be faced with the dif?cult task of recovering missing property. This case is distinguishable from Holmes Burt-fret; 30.2{1 387 (Fla. 2d DCA 2000}. In Holmes. an ETG was appointed for the ward. [d at 388 n. 2. The trial court refused to permit an attorney retained by the ward from participating in *249 the incapacity proceedings even though, pursuant to section the alleged incapacitated person was entitled to substitute his or her own attorney for the one appointed by the court. id. The appellate court granted certiorari, concluding that until the ward is declared incompetent, she is presumed competent to contract and to substitute her chosen counsel. Id However, in Hoimes there is no mention as to what rights were conferred on the ETG. Thus, the opinion does not stand for the proposition that even though the legal right to contract is removed from a ward, the ward may still contract until found incapacitated. a re Guardinnsa?tip cf?r'nham. 963 So?e? 2 F5 {Fla 4th DCA 2007) is more on point. In that case, a petition to determine the incapacity of the ward Was ?led, and an ETG with plenary authority over the ward's person and property was appointed, Footnotes much like the ETG authority in this case. See id. at 276* 77 The trial court did not adjudicate the ward incapacitated before the ward ?led a motion to substitute counsel, which the trial court denied. See id. On petition for writ of certiorari to this Court, we denied the petition on the ground that where the ward's right to contract had been removed by the appointment of a plenary guardian, she did not possess the right to contract and enter into an agreement with the attorney. See id. at 1278. Graham is consistent with the trial court?s conclusion that where an ETG is granted the right to contract, the ward can no longer exercise that power. As found by the trial court in granting summary judgment, at the time of the execution of the trust, the right to contract had been removed from Saadeh, as the parties acknowledged to the court the day that the trust was signed. Section 2736 0402(1}, Florida Statute {2008 provides that ?[a]trust is created only if: the settler has capacity to create a trust.? 736.0402{ E'ia Stat. (2008) (emphasis added). Thus, because Saadeh had no legal right to execute the trust, the trust was invalid and void. The trial court's ruling was correct. With respect to the issues raised in connection with the remaining orders on appeal, we ?nd no error. Af?rmed. WARNER, and CONNEK JJ., concur. Parallel Citations 37 Fla. L. Weekly D1696 The ?ve orders include: 1) ?Order Dismissing incapacity Proceedings? dated September 9, 2009; 2) ?Order on November 10, 2009 Hearing Re Saadeh's Motion to Strike Co?Trustees' Motion to Dismiss? nunc pro tune to November 10, 2009; 3) ?Order Granting Motion for Partial Summary Judgment and Rendering Final Judgment" dated December 22, 2009; 4) ?Order on Karim Saadeh's Motion to Enforce Judgment and Release Funds to Karim H. Saadeh and for Attorney Fees? dated March 23, 2010; and 5) ?Order Granting Saadeh's Amended Motion to Dismiss? dated September 17, 2010. The ETG prepared an af?davit which Saadeh signed, stating that he had executed the trust agreement voluntarily. However, Saadeh has continually testi?ed that he was misled as to the terms of the trust and that his execution was not voluntary. He was told that the execution of the trust was the only way he could end the guardianship proceedings and get his life back to normal. End of Document 2015 Thomson Reuters No claim to origin-at it Government Works Jasser v. Saadeh, 97 So.3d 241 (2012) L. Weekly 51ers i right to contract. The fact that the court removed his right to contract was speci?cally discussed not only in the original hearing appointing the ETG but in almost every other hearing thereafter. To permit both a ward and the guardian to exercise the light to contract would render the protection afforded by an ETG non-existent. In such cases, the ward could continue to deal with his or her property and conceivably give it all away while a petition for incapacity is pending even though that person is incompetent but not of?cially adjudicated as such. The ETG would be faced with the dif?cult task of recovering missing property. This case is distinguishable from Holmes Binr?hei?f, 766 So.2d 387 {Fla 2d DCA 2000). In Hofmes. an ETG was appointed for the ward. In'. at 388 2., The trial court refused to permit an attorney retained by the ward from participating in *249 the incapacity proceedings even though, pursuant to section 744 the alleged incapacitated person was entitled to substitute his or her own attorney for the one appointed by the court. Id. The appellate court granted certiorari, concluding that until the ward is declared incompetent, she is presumed competent to contract and to substitute her chosen counsel. Id However, in Holmes there is no mention as to What rights were conferred on the ETG. Thus, the opinion does not stand for the proposition that even though the legal right to contract is removed ?om a ward, the ward may still contract until found incapacitated. In H: of?im?tanz. as} Said 275 {Fla 41%: 2007?: is more on point. In that case, a petition to determine the incapacity of the ward was ?led, and an ETG with plenary authority over the ward's person and property was appointed, Footnotes much like the ETG authority in this case. See id. at 276? 77. The trial court did not adjudicate the ward incapacitated before the ward ?led a motion to substitute counsel, which the trial court denied. See id. 0n petition for writ of certiorari to this Court, we denied the petition on the ground that where the wards right to contract had been removed by the appointment of a plenary guardian, she did not possess the right to contract and enter into an agreement with the attorney. See id. at 2'38. Graham is consistent with the trial court's conclusion that where an ETG is granted the right to contract, the ward can no longer exercise that power. As found by the trial court in granting summary judgment, at the time of the execution of the trust, the right to contract had been removed ?'om Saadeh, as the parties acknowledged to the court the day that the trust was signed. Section 736.0402{ Florida Statute {2008), provides that ?[a]trust is created only if: the settler has capacity to create a trust.? Fla. Stat. (2008) (emphasis added). Thus, because Saadeh had no legal right to execute the trust, the trust was invalid and void. The trial court's ruling was correct. With respect to the issues raised in connection with the remaining orders on appeal, we ?nd no error. A ?rmed. WARNER, DAMGORGEAN and CONNER, JJ., concur. Parallel Citations 37 Fla. L. Weekly D1696 The ?ve orders include: 1) ?Order Dismissing Incapacity Proceedings? dated September 9, 2009; 2) ?Order on November 10, 2009 Hearing Re Saadeh's Motion to Strike Co=Trustees' Motion to Dismiss? nunc pro tune to November 10, 2009; 3) ?Order Granting Motion for Partial Summary Judgment and Rendering Final Judgment? dated December 22, 2009; 4) ?Order on Karim Saadeh's Motion to EnfOrce Judgment and Release Funds to Karim H. Saadeh and for Attomey Fees? dated March 23, 2010; and S) ?Order Granting Saadeh's Amended Motion to Dismiss? dated September 17, 2010. The ETG prepared an af?davit which Saadeh signed, stating that he had executed the trust agreement voluntarily. However, Saadeh has continually testi?ed that he was misled as to the terms of the trust and that his execution was not voluntary. He was told that the execution of the trust was the only way he could end the guardianship proceedings and get his life back to normal. 744.447. Petition for authorization to act, FL ST 5 744.447 West's Florida Statutes .Xliimirii-td Title Domestic Reittliirns (Chapters 741-759) Chapter 744. Guardianship (Refs 8: Annos) Part VI. Powers and Duties West's F.S.A. 744.447 744.447. Petition for authorization to act Currentness (1) Application for authorization to perform, or con?rmation of, any acts under s. 744.44] or 744.446 shall be by petition stating the theta showing the expediency or necessity for the action; a description of any property involved; and the price and terms ofa sale, mortgage, or other contract. The application must state whe?m? it conforms to the general terms of the guardianship report and whedror the word has been adjudicated incapacitated to act with respect to the rights to be exercised. (2) No notice of a petition to authorize a sale of perishable person] property or of property rapidiy deteriorating shall be required. Notice of a petition to perform any other cots rmder s. 744.441 or s. 744.446 shall be given to the ward. to the next of kin, if any. and to those interested persons who have ?led requ For notices and copies of pleadings, as provided in the Florida Probate Roles. unless waived by the court. Notice need not be given to a ward who is under [4 years of age or who has been determined to be totally incapacitated. Credits Laws 1974, 0. 74-106, 1; Fla.St. 1974, Supp. 744.503; Laws 1975, c. 75?222, 24, 26; Laws 1979, 0. 79?221, 12; Laws 1989, c. 89-96, 76; Laws 1990, c. 90?271, 55. Notes of Decisions (1 1) West's F. S. A. 744.447, FL ST 744.447 Current through Ch. 255 (End) of the 2014 2nd Reg. Sess. and Sp. Sess. of the Twenty-Third Legislature End of Document .0 2015 Thomson Reuters. No Claim to original US. Government Works