Issues such as improper trust execution, breach of fiduciary duty, elder exploitation, and unnecessary guardianship sometimes warrant litigation to set things right. While these issues are not always directly related to one another, they share a strong association with an aging population, one that can become vulnerable to erroneous or dishonest actions. Relatives, beneficiaries, and individuals subjected to guardianships have certain rights when those actions occur. The litigation team of McLin Burnsed has developed powerful legal strategies to address common disputes involving the following:
Trust Litigation – Smart estate and wealth transfer planning has motivated many people to set up trusts to prevent beneficiary disputes and courtroom involvement during probate. Even so, beneficiaries, trustees, named charities, and others believing that they hold a claim to a settlor’s assets may challenge a trust for various reasons.
Some trust disputes spring from the resentment of a relative or other individual who received less than or none of what they expected, requiring defense against a frivolous or unfounded claim. Others, however, have legitimate foundations, such as a person or entity exerting undue influence over a settlor at the time a trust was executed, or a settlor lacking legal capacity during a trust’s execution. These and other grounds may demand litigation to defend against the manipulation or exploitation of a vulnerable individual. A trust may also be rendered invalid if it fails to conform to specific Florida statutes.
Breach of Fiduciary Duty Litigation – A person or entity serving in a fiduciary role, such as a personal representative, trustee, or guardian, has a duty to adhere to certain legal and ethical standards. In some cases, this fiduciary may make negligent, improper, or self-serving decisions that negatively impact an heir, beneficiary, or ward. Grounds for litigation include: undue influence, lack of capacity, fraud, forgery, duress, improper asset management, improper administration and distribution, conflict of interest, questionable accounting and other possible breaches. “If you are a trust or estate beneficiary, a ward, or an interested person to a guardianship, and you suspect that a fiduciary agent is mishandling assets, making poor investment decisions, or self-dealing, legal action may be necessary to expose and stop these breaches,” says Guardianship, Trust & Probate Litigation attorney Loren M. Vasquez. “Litigation imposes a thorough accounting, prevents further misconduct, and may restore improperly managed or stolen assets.”
Elder Exploitation Litigation – Sadly, elder exploitation is all-too-common in Florida, and may involve a member of one’s household, a relative, a caregiver, a neighbor, or some other trusted associate. The exploiter may seek to gain control of the elder person’s assets by misusing a guardianship or power of attorney designation, misappropriating funds from a personal or joint account, or failing to use an elder’s income for their adequate care. “It is heartbreaking to see someone abuse a position of trust to steal money, transfer property, forge documents, or otherwise seek to defraud a vulnerable elder,” says Guardianship & Trustee Litigation attorney Daniel J. Kersey. “We aggressively defend the rights of exploited elders to help restore their financial security and preserve their legacy.”
Guardianship Litigation – When certain legal criteria have been met, a vulnerable person may be placed under a guardianship. The appointed legal guardian is expected to act in the person’s best interests but may fail to do so. Breaches in fiduciary duty can and do occur, and some use their role to drain a ward’s assets for their personal benefit.
Guardianship is usually involuntary and instituted by a loved one seeking to protect an individual from perceived perils presented by mental illness, drug or alcohol dependence, or mental or physical incapacity. However, many people may not actually need to become wards of the state and may still be capable of managing their own affairs, even if they are incapacitated in some way. Even with incapacity, a person with their assets in a revocable trust with a healthcare surrogate named to address their medical directives can often avoid a guardianship. “Once a guardianship has been established, a ward will often justifiably want to regain their independence,” says General Civil Litigation attorney Phillip S. Smith. “We defend individuals from the intrusion, depletion of assets, lack of control, and restriction associated with having an appointed guardian.”
The litigation team of McLin Burnsed provides experienced representation for individuals, corporations, and institutions involved in these and other legal disputes. We work diligently and effectively to protect the rights and interests of beneficiaries, heirs, wards, and fiduciaries in the various disputes that may arise in these areas.