Filing 33870760 E-Filed 10/30/2015 09:48:54 AM IN RE: GUARDIANSHIP OF CARLA SIMMONDS IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA PROBATE DIVISION CASE NO. PETITION FOR ORDER AUTHORIZING PAYMENT OF COMPENSATION OF GUARDIAN (July 29, 2015 through October 27, 2015) Petitioner, Elizabeth Savitt, alleges: . to Petitioner is the duly appointed and acting plenary guardian of the person and property of Carla Simmonds (the Ward). The total amounts of all prior fees paid or costs awarded to petitioner in this proceeding are: Fees: $7,267.50 Costs: $21.81 as more fully described on the spreadsheet attached hereto as Exhibit Petitioner has rendered services and incurred expenses as guardian of the person and property of the Ward from July 29, 2015 through October 27, 2015, as more ?Jlly described and set forth in the itemized schedule of services and expenses attached hereto as Exhibit for which petitioner has not been paid. Petitioner's records indicate that during the period of time above mentioned, Petitioner has performed services as guardian of the person and property of the Ward in the total amount of 22.25 (.10 hours at No Charge) as re?ected in the attached time sheets. Petitioner is a professional guardian, and based upon the criteria established by Florida Statutes, Petitioner believes that a reasonable hourly rate of compensation for the services performed is $95.00 per hour. Therefore, a reasonable compensation for the services performed and expenses incurred by Petitioner during that period oftime is $2,104.25. WHEREFORE, Petitioner requests that an order be entered awarding petitioner reasonable compensation I or the services rendered for the bene?t ol? the Ward in the total amount and authorizing and directing that compensation be paid to the guardian from the Ward's Trust in the total amount of $2,104.25. Under penalties of perjury. I declare that I have read the foregoing, and the facts alleged are true. to the best of my kno? ledge and belief. Signed on 20t5. lil?al?lh Savill, Petitioner Ellen S. Morris. Esq. A Itome)? for the Petitioner Florida Bar Number: 850306 ELDER LAW ASSOCIATES PA 7284 W. Palmetto Park Road, Suite 101 Boea Raton, FL 33433 Telephone: (561) 750-3850 Fax: (561) 750-4069 Primary Email: emor?sta Secondary Email: Iruhinu?! ettierlaa-taaswintesenni Secondary Email: CERTIFICATE OF SERVICE HA I HEREBY CERTIFY that a copy of the foregoing was served ia the e-Portal on ?1153 day of October, 201 5. to Ronald E. D?Anna. Esq.. MeClosk). D'Anna Dieterle. LLP, 2101 N.W. Corporate Blvd, Suite 400, Boea Raton. FL 3343] and David M.Gar1en, Esq., Law Of?ce of David M. Garten, 400 Columbia Drive. Suite 100, West Palm Beach. FL 33409. Ellen 8. Morris. Esq. Florida Bar No. 850306 In Re: Guardianship of Carla Simmonds Case No. Date of Order Period Covering Fees Exgenses Total August 26, 2015 8/20/14 thru 7/28/15 $7,267.50 $21.81 $7,289.31 Total Awarded: $7,267 .50 $21.81 $7,289.31 EXHIBIT Savitt Guardians Elizabeth ?Betsy? Savitt 501 Country Club Dr. Atlantis, FL 33462 Phone: 561-573-1292 Account Statement Prepared for Carla Simmonds Re: Plenary Guardianship Previous Invoice Amount Last Payment Received Previous Balance Current Charges Total Due Fax: 561-439-6765 $7,289.31 $2,500.00 $2,289.31 $2,104.25 $4,393.56 Matter: Plenary Guardianship Carla Simmonds EXHIBIT Savitt Guardians Elizabeth ?Betsy? Savitt 501 Country Club Dr. Atlantis, FL 33462 Phone: 561-573-1292 Fax: 561-439-6765 Carla Simmonds Guardian?s Fees 8/2/2015 8/3/2015 8/7/2015 8/8/2015 8/8/2015 8/10/2015 8/10/2015 8/19/2015 8/19/2015 8/20/2015 8/21/2015 8/21/2015 8/25/2015 8/25/2015 8/25/2015 8/28/2015 9/3/2015 9/9/2015 9/10/2015 Invoice Date: October 27, 2015 Invoice Number: 10096 Invoice Amount: $2,104.25 Receive tax information from Dan. Review, e-mail request for documentation. Deliver additional tax documents. E-mail accountant of?ce. Meeting at accountant to sign amended tax return. T.C. Dan re: tax, meeting with Dr. Heller, additional background on Craig. Carla's desire to meet with Chandler to decide how to help support him. Additional concern over the telephone. E-mail to E. Morris re: homestead. E-mail to Dan. T.C. Craig to set up meeting. Bill pay, ?ling. T.C. Relator. Review contract. T.C. Relator with cash offer on house, text to Dan, E-mail to E. Morris of?ce. Receive fee-hearing order, e-mail E. Morris re: homestead. Review petition. Relay more information about offer. Review petition to list, sign and scan. T.C. Dan re: agreement on billing. E-mail attorney for amendment. Review billing. E-mail to E. Morris of?ce for dra? of plan and PR, due early. T.C. Dan Schmidt to discuss ongoing therapies. Work on annual plan. Scan tax return form to Dan. Forward billing to Dan Schmidt. Review court documents from E. Morris. E-mail from Dan re: petitions, vague, wants to "win" in court, unclear about what. Voice message about Carla's family and moving back home. Notes to ?le. E-mail Ellen Morris of?ce re: petitions. T.C. Craig E.S. E.S. E.S. E.S. E.S. E.S. E.S. E.S. E.S. E.S. E.S. E.S. E.S. E.S. E.S. E.S. E.S. E.S. E.S. .20 .30 .10 .20 .20 .20 .20 .40 .20 .40 .10 .25 .00 .10 .20 .15 $19.00 $28.50 $104.50 $19.00 $19.00 $19.00 $19.00 $38.00 $19.00 $19.00 $19.00 $38.00 $9.50 $23.75 $95.00 $9.50 $19.00 $14.25 $28.50 9/10/2015 9/13/2015 9/13/2015 9/14/2015 9/15/2015 9/15/2015 9/17/2015 9/17/2015 9/17/2015 9/21/2015 9/21/2015 9/21/2015 9/21/2015 9/21/2015 9/22/2015 9/22/2015 9/22/2015 9/24/2015 9/24/2015 9/24/2015 9/24/2015 9/25/2015 9/25/2015 Simmonds re: update on Chandler and visitation with Carla. T.C. Dan Billing, ?ling. T.C. Relator needs to de-list the rental on MLS. Gave new date for answer to petitions. Sign forms with Corcoran for MLS listing cancellation. Work on annual accounting Dan Schmidt sends additional insulting messages about only meeting Carla with a lawyer present. Wants a war to break out. E-mail E. Morris re; fee orders. Review letter to Attorney. Send text to contact Chandler Simmonds. Work on annual accounting. E-mail ?'om E. Morris. Additional accounting. E-mail from E. Morris. Dan is demanding accounting when it is not due yet. T.C. Gar?eld Simmonds. Scan documents to Ellen Morris. Text messages from Dan Schmidt (6). Unclear what he is talking about. He states the IRS has con?rmed with him that I should have Carla's refund. Demands a check to trust for 4,745.00 and if not threatens a court date. Request again by text to Dan Schmidt to meet with Carla. His response was a continuation of insults, evasiveness, threats to "meet me in court" and other ideas that do not make sense. He refuses to release information about when and where Carla is having therapy. T.C. Chandler Simmonds re: sprint account. T.C. E. Morris of?ce re: issues with Dr. appointments, Physician Report, court required documents not obtained from Dan Schmidt. Scan account history to accountant for annual accounting. Prepare additional documents for ?le. T.C. Doctors on ?le for records. Reply to E-mail from E. Mom's. T.C. UMB. Fax guardianship letter of instruction and letters of guardianship. T.C. Guardianship ?nancial re: additional questions and request for documents. Additional research and scanning. Text from Dan about moving Carla back to her home in contradiction to everything they have said in the last 10 months. E-mail to Ellen Morris. T.C. Dr. DaifParker, fax request. T.C. Dr. Robert Heller Text from Dan with insults and stating he would drOp Carla off at my home or her home next Friday. E.S. E.S. E.S. E.S. E.S. E.S. E.S. E.S. E.S. E.S. E.S. E.S. E.S. E.S. E.S. E.S. E.S. E.S. E.S. E.S. E.S. E.S. E.S. .10 .20 .20 .20 .00 .10 .10 .80 .30 .25 .10 .10 .40 .50 .40 .40 .60 .20 .20 .25 .10 $9.50 $19.00 $19.00 $19.00 $95.00 $9.50 $19.00 No Charge $76.00 $28.50 $23.75 $9.50 $19.00 $9.50 $38.00 $47.50 $38.00 $38.00 $57.00 $19.00 $19.00 $23.75 $9.50 He no longer wants to care for her. 9/25/2015 Review petition. E.S. .20 $19.00 9/26/2015 E-mail E. Morris re: description of events on Friday. E.S. .10 $9.50 9/27/2015 T.C. E. Mom's of?ce re: information from Attorney E.S. .30 $28.50 Garten re: Carla needing to change residence by today. 9/27/2015 Time spent on phone calls to E. Morris of?ce, E.S. 2.00 $190.00 facilities to accommodate emergency move, Craig Simmonds, to comply with request. 9/27/2015 Meet Craig Simmonds and travel to Boca Raton to E.S. 1.80 $171.00 Dan Schmidt?s home to pick up Carla, call Boca police for civil assist. 9/27/2015 Billing and ?ling. E.S. .40 $38.00 9/27/2015 E?mail E. Morris of?ce re: additional discussion of E.S. .20 $19.00 events. 9/28/2015 Telephone conference with E. Morris of?ce. E.S. .20 $19.00 9/28/2015. T.C. Dr. Morariu, fax request. E.S. .25 $23.75 9/2 8/2015 Review Neurological report from Dr. Morariu. E.S. .20 $19.00 9/28/2015 T.C. UMB re: funds held in medical savings. E.S. .30 $28.50 9/29/2015 T.C. UMB E.S. .10 $9.50 10/1/2015 E-mails with E. Morris of?ce re: Physician report, E.S. .20 $19.00 Dr. requests. 10/6/2015 T.C. UMB, T.C. accountant. File new documents, E.S. .50 $47.50 receive refund from IRS. 10/7/2015 T.C. from Chandler needs help with ?nancial aid. E.S. .30 $28.50 T.C. Share Ford, Carla's best friend. 10/14/2015 T.C. E. Morris, motion to compel access, budget and E.S. .20 $19.00 fees. 10/14/2015 Receive Physician's Report, update annual plan, and E.S. .40 $38.00 submit. 10/14/2015 Receive statement from UMB, forward to ES. .40 $38.00 accountant. T.C. accountant re: additional questions on annual accounting. 10/19/2015 Communicate and compose letter for Chandler E.S. .40 $38.00 Simmonds with documentation for scholarship 10/23/2015 Review billing from ELA. E.S. .20 $19.00 [0/23/2015 Additional e-mails re: David Garten petitions. E.S. .20 $19.00 10/26/2015 Billing and ?ling. E.S. .20 $19.00 10/27/2015 Review filings by David Garten, petitions from E. E.S. .40 $38.00 Morris of?ce, send response e-mail. SUBTOTAL: 22.25 $2,104.25 Costs SUBTOTAL: $0.00 TOTAL: $2,104.25 PREVIOUS BALANCE DUE: $2,289.31 CURRENT BALANCE DUE AND $4,393.56 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORJDA Case No. IN RE: GUARDIANSHIP OF CARLA SIMMONDS, RESPONSE TO MOTION TO COMPEL PAYMENTS FROM THE TRUST Respondent and Trustee, Daniel Schmidt, as the Successor Trustee under the Carla Simmonds Revocable Trust Agreement Ufa/d May 8, 2012 Schmidt?), by and through the undersigned counsel, hereby responds to the Motion to Compel Payments from the Ward?s Trust ?led on October 27, 2015 (the ?Motion to Compel Payments?), and in support states: 1. The Ward, Carla Simmonds, as Settlor (prior to her incapacity), established the Carla Simmonds Revocable Trust Agreement on May 8, 2012 (the ?Trust?). Carla named Mr. Schmidt as Successor Trustee under the Trust due to her trust and con?dence in Mr. Schmidt, and Carla knew that Mr. Schmidt would act for the best interests of Carla. 2. Therefore, pursuant to her trust and con?dence in Mr. Schmidt, Carla granted Mr. Schmidt the unfettered discretion on how and when to make distributions to Carla, or for her bene?t, in the unfortunate event of an incapacity. Unfortunately, such risks came to pass and Carla needed a guardian appointed over her person because of Carla?s inability to care for herself. The Guardian then ?led the Motion to Compel Payments. 3. The Trust?s clear terms provide: In such event of incapacity, the co and/or Successor Trustee in the co and/or Successor Trustee?s, if any, present bene?ciary?s, if appropriate, 00043 .0001 In re: Guardianship of Carla Simmonds Case No.: Response to Guardian?s Motion to Compel Payments from the Ward?s Trust Page 2 of 4 sole discretion, shall use so much of the income and principal of the Trust Estate for the Settlor?s benefit and those dependent upon Settlor until the termination of Settlor?s incapacity, adding unused income to principal periodically. Trust at Article XI, Section (emphasis added). 4. In the face of such trust terms providing absolute discretion, the Guardian inappropriately requests this Honorable Court to compel the Trustee to distribute payments. Florida courts have been clear that a court cannot compel the Trustee of a discretionary trust to make distributions in order to pay guardianship expenses, making a clear distinction that a guardian cannot supplant his or her determination for that of a settlor with respect to a trust established prior to the incapacity. See, Covenant Trust Co. v. Ihrman, 45 So. 3d 499, 505-06 (Fla. 4th DCA 2010). Moreover, it is highly improper, and there is no basis in law or fact, to request a court to make a prospective ruling compelling a trustee (or anyone else) to makepayments to, or for. the bene?t of, a guardianship estate without a determination of need or propriety, and without court oversight. In fact, established Florida law states the exact opposite. See, 744.108, Fla. Stat. (2015). See also Fla. Stat. (2015) (expenses may be paid during the interim . .subject to obtaining court approval of the annual accounting. . 5. Still further, the Guardianship Estate here has the assets and ability to meet Carla?s needs. For instance, the Guardian has control over an IRA from Merrill in the amount of $45,000.00; Social Security in the amount of $1,480.00 (giving the guardianship estate a surplus of over $3 00.00, as admitted by the Guardian); funds from a tax refund; ?nds in a health savings account; and funds from an insurance policy. Thus, even if the Trust did not have a wholly discretionary standard for making distributions, the Guardian could not obtain the relief 00043 .0001 In re: Guardianship of Carla Simmonds Case No.: Response to Guardian?s Motion to Compel Payments ?'om the Ward?s Trust Page 3 of 4 requested herein because the law provides that the assets of the guardianship estate are to be used to pay such expenses. Fla. Stat. (2015) (?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 costs and attorney fees for the guardian?s attorney, an attorney appointed under s. or an attorney who has rendered services to the ward, 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?) (emphasis added). 6. Still ?irther, Mr. Schmidt, in his capacity as Trustee, is not subject to the personal jurisdiction of this Honorable Court, as no service of process has been directed to him in such capacity. Therefore, no relief can be granted against him, as Trustee. WHEREFORE, Daniel Schmidt, as Trustee, respectfully requests this Honorable Court to enter its Order denying the Motion to Compel, denying any relief to the Guardian and awarding all such other and further relief as the Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via e?mail to: Ellen S. Morris, Esq., Elder Law Associates PA, Attorneys for Guardian, 7284 W. Palmetto Park Road, Suite 101, Boca Raton, FL 33433 lmbin??elderiawassociatescom; and Ronald E. D?Anna, Esq., McClosky, D?Anna Dieterle, LLP, Attorneys for Personal Representative, 2101 NW. Corporate Blvd., Suite 400, Boca Raton, FL 33431 and David M. Garten, Esq., Law Of?ce of David M. Garten, 400 Columbia Drive, Suite 100, West Palm Beach, 000410001 In re: Guardianship of Carla Simmonds Case No.: Response to Guardian?s Motion to Compel Payments from the Ward?s Trust Page 4 of 4 FL 33409 and on this 20th day of January, 2016. MAGUIRE LAW CHARTERED 400 Columbia Drive, Suite 100 West Palm Beach, FL 33409 561-300-6812 561-687-8103 Williamfc?mamiire-Iawxom Attorney for Daniel Schmidt ls/ William J. Maguire William J. Maguire Fla. Bar No. 072112 00043.0001