• Trust LitigationChallenging the Appointment of a Personal Representative

    A person may designate a spouse, child or trusted friend or advisor to serve in one or more Fiduciary positions, such as Personal Representative of their Estate, Trustee of a Trust, or holder of their Durable Power of Attorney, designated Health Care Surrogate or designated Pre-Need Guardian. 

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    However, just because a person (or corporation) is named in one or more of these capacities in an otherwise valid, legal document does not guarantee his or her appointment or service as such.

    There is no absolute legal right to serve in such designated capacities.

    A Court of competent jurisdiction always has the authority to refuse to appoint such designated person to any Fiduciary position if it can be demonstrated that such individual is unfit to hold such office or position.

    Typical grounds for disqualification include mental or physical incapacity which renders such person incapable of performing their duties; holding or acquiring conflicting or adverse interests against the Estate or Trust that will or may interfere with its administration; or demonstrated acts of bad behavior or moral turpitude that call into question the character, integrity or honesty of the designated Fiduciary.

    Mere hostility or ill-will is not a sufficient basis to disqualify an otherwise eligible individual who has been designated by a Testator, Settlor, Principal or Power Holder in a properly executed, legal document to serve in a Fiduciary capacity.

    The proper legal vehicle to use in challenging the appointment of a Fiduciary is a Petition filed with the Court requesting that the nominated person’s fitness to serve in such capacity be formally determined.

    Every Court has the discretion to examine the character, integrity and honesty of those seeking to serve in Fiduciary positions.

    This is true because a Fiduciary is a person or corporation which is appointed to a special position of trust and confidence and who owes Fiduciary duties to all he or she serves or represents.

    For example, it has often been said that a Fiduciary owes a duty of undivided loyalty and a duty to refrain from self-dealing.

    Before conferring this special power and authority on anyone – even someone designated to serve as such – a Court must review his or her qualifications, credentials and experience, and, where such examination supports the conclusion that the designated person lacks the necessary qualities and characteristics to properly discharge his or her duties, the Court may legitimately refuse to allow him or her to serve because, once appointed to such position, he or she may use the resources of the Estate or Trust to defend himself/herself against removal from office.

    No Court should ever appoint a known or suspected unfit person to a Fiduciary position lest it be accused of acting irresponsibly.

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    If you or a loved one needs help with a situation involving one of these areas, please contact Thomas N. Silverman, P.A. at 561.775.7500 (24 hours) or info@FloridaProbateCounsel.com.

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