Monday, April 14, 2008

Clara Gets Her Day In Court,... "Well Almost"!

Key West,Florida, USA .- Clara went to court on Friday 11, 2007. Her family was hoping to get clarification at a hearing to approve Guardian fees of $9,706.00 at the rate of $400 per hour for paying her bills and peforming tasks that her family had been performing for years at no charge.

Unfortunately, due to Clara's disabilites, we were approximately seven minutes late and were not allowed to object to certain fees billed by the Guardian in the hearing, granting the Guardian to charge Clara $9,706.00 in service fees. And even though she is being well taken care of by her family, her Guardian is being paid and is never involved in her day to day personal care.

This financial drain imposed on Clara, seriously brings into question whether Clara will be able to afford to stay in her home long term. Clara's Social Security checks of nearly $1,802, which previously went to pay for Clara's medications and groceries, now, it goes to pay for the Guardians attorney fees.

Download Clara's $9,760.00 Guardian Bill here =>>

Please click to enlarge

The date on this notice for the hearing to approve Guardian fees was done on March 6th, 2008 and NOT sent to the family.
We were informed by an attorney for the "Estate Trust" Mr. Adrian P. Thomas ,who is involved in a litigation in a separate action in West Palm Beach #502007CP003698XXXXSB to recoup Funds, Real Estate, Bonds, Certificates of Deposits and other assets improperly taken from the "Estate Trust" Clara and her husband Dr. A.J. Fernandez had built up over the years to take care of them during their retirement and to make for smooth transition to their heirs.

We were NOT given enough time to hire an attorney, review the billing, cross-reference our records or prepare any kind of objection, nor were we even given enough time to alter our schedules to attend the hearing on such a short notice .

When our family requests a hearing to contest Clara's Continuing Need For a Guardian, we would get a hearing date many weeks in advance to give all attorneys involved time to prepare. However, when the Guardian wants to get a hearing to get paid thousands of dollars of the Ward's money, the family is NOT notified, and IF they find out, they are given less than 5 days to review and prepare.

Does a party (family) with standing have a fair chance to be heard? Or does this exclusion toward "interested parties" constitute 'Extrinsic Fraud', as specifically articulated in the United States v. Throckmorton, 98 US 61, 65-66, 25 L.Ed 93 (1878), in which the United States Supreme Court said:

Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from the court..

Perhaps the Guardian did not notify the family because he may have felt that we, the family, do not have a right to be present at such hearing regarding the determination of how our loved ones money should be spent.

What does the Florida Supreme Court feel about attorneys conducting such maneuvers to keep 'interested parties' away from these types of hearings?

On the issue of whether family members should be allowed to participate, or be "Excluded" as it appears to be so in Clara's case, by not allowing adequate notice to interested parties.

According to Florida Supreme Court, in FSC CASE NO. SCO5-675 3DCA CASE NO. 04-985 L.T. CASE NO. 03-2125 GD WILLIAM F. HAYES, J R., ET AL. vs. IN RE: THE GUARDIANSHIP OF MAE THOMPSON had this to say:

"Granting standing to family members or close friends whose lives have been intertwined with that of the ward's for many years prior to adjudication does not give these persons the ability to decide what the ward's funds should be used for, it Merely provides the basis by which an alarm can be sounded and a judge alerted to a potential wasting or misuse of the ward's funds."

"Public policy demands that when a person is determined incompetent and their entire financial estate is managed by someone, who for all intents and purposes is a stranger to the ward, that there be the maximum amount of supervision and oversight. A trial judge does not have the resources, abilities, or personal knowledge concerning the ward's life circumstances to efficiently watch over the ward's assets. In fact, the court should welcome this class of persons' input in the Guardianship process."
One in which the Florida Supreme Court, in FSC CASE NO. SCO5-675 refers to the probate court as "exemplifies the fright perceived by citizens of this State, when the court takes extreme positions and measures as has occurred in these proceedings."

Is this the climate of fear that the courts are imposing on us as they take millions of dollars of our parents hard earned money, and leaving them destitute to face an uncertain future?

I doubt very seriously that the Guardian or his Attorney would stay on pro bono after my parents assets are depleted!

In Chapters 731-735, Florida Statutes, known as the Florida Probate Code,

"The Florida Probate Code defines the term "interested person" as any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. In any proceeding affecting the estate or the rights of a beneficiary in the estate, the personal representative of the estate shall be deemed to be an interested person. In any proceeding affecting the expenses of the administration and obligations of the decedent's estate, or any claims described in s. 733.702(1), the trustee of a trust described in s. 733.707(3) is an interested person in the administration of the grantor's estate.

The term does not include a beneficiary who has received complete distribution.

Related documents:

Memorandum of Law in support of petition for review.pdf

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