1- 1111.15 1?4?1. ILUU UJIHLIQULU I IU) J. LVJ. IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA Case No. IN RE: GUARDIANSHIP OF CARLA SIMMONDS, RESPONSE TO GUARDIAN PETITION FOR ORDER AUTHORIZING GUARDIAN TO WITHDRAW FUNDS FROM AND CLOSE ACCOUNT Respondent and Trustee, Daniel Schmidt, the Successor Trustee under the Carla Simmonds Revocable Trust u/a/d May 8, 2012 (?Trustee?), by and through the undersigned counsel, hereby responds to the Guardian?s Petition for Order Authorizing Guardian to Withdraw Funds from and Close Ward?s IRA Account ?led on March 2, 2016 (the Petition?), and in support states: I. 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 IRA Petition. 3. The Trust?s clear terms provide: In such event of incapacity, the co and/0r 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 Petition for Order Authorizing Guardian to Withdraw Funds from and Close Ward?s IRA Account Page 2 of 5 sole discretion, shall use so much of the income and principal of the Trust Estate for the Settlor?s bene?t 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 previously inappropriately requested this Honorable Court to compel the Trustee to distribute payments through the Guardian?s Motion to Compel Payments from the Ward?s Trust ?led on October 27, 2015 (the ?Motion to Compel 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 ms: Co. v. Ihrman, 45 So. 3d 499, 505?06 (Fla. 4th DCA 2010). Despite such clear law, the Guardian ?led and pursued the Motion to Compel Payments and now ?led the IRA Petition. 5. Pursuant to the Florida Guardianship Law, the assets of the guardianship estate are to be used to pay the Guardianship expenses. See, Fla. Stat. (2015). The Guardian admitted in the Motion to Compel Payments that the Guardianship estate has several thousand dollars in a health savings account, which can be obtained through health expense reimbursements (the Ward has thousands of dollars of reimbursable expenses for which the Guardian need only timely apply for reimbursement), and $1,480.00 per month in Social Security (subsequently changed to $1,505.00 per month) that give the Guardianship estate a $300.00 per 00043.0001 In re: Guardianship of Carla Simmonds Case No.: Response to Guardian?s Petition for Order Authorizing Guardian to Withdraw Funds from and Close Ward?s IRA Account Page 3 of 5 month operating surplus. Subsequently, the Guardian con?rmed that she also has $3,327.67 in the Guardianship account and a pending insurance claim. 6. Further, just over one year ago, the Guardian gifted the Ward?s car, worth several thousand dollars, to the Ward?s son. The Trustee objected precisely because the Trustee knew the expense of the care of the Ward, yet the Guardian chose to press forward to rid the Guardianship estate of several thousand dollars of value and now, amazingly, complains that the Guardianship is without necessary funds. 7. Still further, the Guardian petitions here to liquidate the Ward?s IRA, but with ostensibly no plan for the remainder of the funds (over that currently properly due and owing) - while incurring taxes and penalties that exceed the Guardianship expenses claimed. The Guardian even fails, as required, to set forth whether the IRA Petition complies with the Guardianship plan. See Fla. Prob. R. 8. The Trustee, the Trustee?s counsel and the Ward?s personal counsel all have discussed the Guardian?s admitted $300.00 per month surplus, the reimbursement account, the insurance claim, the IRA, taking more ef?cient actions, etc., with the Guardian and her counsel. 9. However, solely as a result of the Trustee?s actions in trying to protect the Ward?s ?nances, the Guardian and her counsel now raise purported breach of trust actions against the Trustee apparently in an effort to coerce the Trustee to pay off the Guardianship expenses. 10. However, at the same time, the Guardian admitted in the Motion to Compel Payments that every expense the Ward has (other than the Ward?s Mortgage, homeowner?s association fee and lawn maintenance) is paid by the Trustee. See Motion to Compel Payments at 000410001 particular proceeding in the case; or (3) whether the person falls under the de?nition of an ?interested person.? Daniel Schmidt has never ?led a written request for notice under Ruled 5.060. Daniel Schmidt will not be affected in any way by the outcome of the Petition and is not authorized to ?le a Response. Even were Daniel Schmidt to ?le a written request for notice, such request would be stricken for the reasons set forth above unless he was directly affected by the outcome of a particular proceeding. The relief sought by the guardian in the Petition has nothing to do with the Ward?s Trust and Daniel Schmidt will not be affected in any way by any of the relief sought in the Petition. WHEREFORE Elizabeth Savitt respectfully requests that Daniel Schmidt?s Response be stricken and the Court enter an Order determining that Daniel Schmidt lacks standing as an interest party in the guardianship. I HEREBY CERTIFY that a copy of the foregoing was served via the e-Portal on this 23rd day of March, 2016, David M. Garten, Esq., Law Of?ce of David M. Garten, 400 Columbia Drive, Suite 100, West Palm Beach, FL 33409 and William J. Maguire, Esq., MAGUIRE LAW CHARTERED, 400 Columbia Drive, Suite 100, West Palm Beach, FL 33409. Mme? Ellen S. Morris, Esq. A ttomey for the Guardian Florida Bar Number: 850306 ELDER LAW ASSOCIATES PA 7284 W. Palmetto Park Road, Suite 101 Boca Raton, FL 33433 Telephone: (561) 750-3850 Fax: (561) 750-4069 E-Mail: emorris?le[dcrlawassociatescom Secondary E-Mail: lmbin@elderlawassociates.corn Secondary E-Mail: 1.4?1 UJIHLIAULU LH-QUIUL 1. IN THE CIRCUIT COURT IN AND FOR PALM BEACH COUNTY, FLORIDA Probate Division (II MILLER) File No: In Re: Guardianship of CARLA B. SIMMONDS RESPONSE TO PETITION FOR ORDER AUTHORIZING GUARDIAN TO WITHDRAW FUNDS FROM AND CLOSE IRA ACCOUNT COMES NOW the Ward, CARLA B. SIMMONDS, by and through her undersigned counsel, and ?les this Response to the Guardian?s Petition for Order Authorizing Guardian to Withdraw Funds from and Close Ward?s IRA Account, and as grounds therefore, states: 1. There is currently $3,327.67 in the Guardianship bank account. 2. The Guardian receives from the Ward?s Social Security. In addition, on information and belief, there is $2,800.00 in the Ward?s health savings account and $5,000 due and owning from the Ward?s health insurance company. 3. In short, there are suf?cient funds in the Guardianship account, including receivables, to pay the current and future Guardianship administration expenses. 4. The taxes and penalties associated with early withdrawal from the Ward's IRA is approximately 50? on the dollar, a 50% reduction in ?uids. The Ward is only 47 years old, and she needs her IRA for her future living expenses. WHEREFORE, CARLA B. SIMMONDS requests that this Court deny the Guardian?s Petition for Order Authorizing Guardian to Withde Funds from and Close Ward's IRA Account. I HEREBY CERTIFY that a true and correct copy of the forgoing has been furnished by E-mail to: Ellen Sue Morris, Esq., 7284 Palmetto Park Rd., Ste 101, Boca Raton, FL 33433-3406 and William Maguire, Esq., 400 Columbia Drive, Suite 100, WPB, FL 33409 21" day of March; 2016. LAW OFFIC M. GARTE David M. Garter], q. 400 Columbia rive, Suite 100 West Palm each, FL 33409 Tel: (551) 39-0054 lFax: (561)687-8103 Florida 454680 By: