Managing Family Law/Elder Care Law
Nexus Cases Using Collaborative Law Strategies
. . . Guardianship in Florida is filed in the probate court. My first guardianship
case involved a fifty-year-old deaf mute who had received a large
settlement from a lawsuit, but because of his disabilities, the court did not
want him to have access to that settlement. Therefore, a guardianship of the
person was required and a trustee was appointed to manage his assets. (Funny how the Courts will sometimes set up problems for the people they are really trying to assist.)
I have also
worked on cases involving long-term marriages—marriages of more than fifty
years—where the parents were beginning to decline in health and their children
were starting to apply for guardianships or having difficult conversations with
their parents regarding what would happen to them in the future; i.e., where
they would live, and/or if they would have to go into a nursing home. Many such
“end of life” questions come up in the practice of elder law—i.e., how and
where I am going to live out my life, and who is going to make decisions for me
when I an incapacitated? In some cases, one or both of the parties are becoming
incompetent due to dementia, Alzheimer’s, or other frailties of age affecting
the decision making process and one spouse’s ability to care for the other
spouse.
For
example, I once had a case involving a couple who had been married for about
sixty-two years. The wife wanted a divorce because she was concerned that her
husband was trying to kill her. In all of her interactions with me she appeared
to be perfectly competent, but during the divorce proceedings it became clear
that she had some defects of the memory. The parties had been separated for two
years and were living apart; they had homes in different areas of the state and
in different states. They had three children; two were aligned with their
mother and wanted her to receive all of the couple’s assets, and one child was
aligned with the father. In my opinion, instead of talking to their parents
about filing for divorce, the children should have been talking to me about
filing a guardianship for both parents, because both parents had serious memory
defects. Ultimately, the parents got divorced; and the children became engaged
in what I refer to it as a pre-death probate process, because the children were
basically dividing up their parents’ assets and aligning themselves with the
parent who they were expecting to receive an asset from in future years.
As it
turned out, some of the assets that the parents claimed to own were, in fact,
non-existent, even though we had done due diligence in that area. For example,
both spouses had certificates of deposit and bank statements that showed that
they had a certain amount of money in the bank; we later learned that the
parents had subsequently taken that money out of the bank and used it for their
daily living expenses. Consequently, instead of having $200,000 in the bank,
the couple only had $20,000. Indeed, between the time of the signing of a
marital settlement agreement that had been negotiated with everyone’s full
disclosure and knowledge and the time we appeared in court for a final
judgment, it became apparent that both spouses had delusional notions regarding
the extent of their assets. Therefore, the couple was probably not competent
with respect to making decisions concerning a divorce; and we should have been
pursuing guardianship issues instead.
In a similar case, I dealt with a couple who had been
married for fifty-six years, and the wife had full-blown Alzheimer’s dementia.
She did not know on a day-to-day basis where she was or who she was with; she
did recognize her husband and her children, but only to a minimal extent. It
was clear that she was fully incompetent. Her husband had been taking care of
her for several years; and unfortunately, he had made some statements to his
adult children, who were in their fifties, complaining about the care that his
wife required. The children had interpreted the husband’s concerns and
complaints as a reluctance to care for his wife; and one day, they simply took
their mother out of her home, claiming that they were taking her to the
beautician to get her hair done, and she was never returned to the home.
Although the children were seemingly trying to protect their mother from
neglect by her husband, they wound up destroying both parents’ lives. The
husband died just nine months later, having never seen his wife again because
of the actions of his children.
I
believe that we are likely to see more guardianship cases in the elder law area
in the future, largely because as our life expectancy increases we will see
more couples who have been married for fifty, sixty, or even seventy years.
Many of those couples have adult children who have been married for twenty to
forty years; and those children are becoming the caregivers of their parents in
much greater numbers than in previous years. Ultimately, as adult children
become caregivers conflicts will arise over the definition of appropriate care.
Indeed, we are seeing a growing number of conflicts over where elderly parents
should live and who should be providing their care. Unfortunately, I am also
seeing more cases involving parents who are outliving their retirement savings.
When they retired twenty or thirty years ago they had significant assets, but
now that they have become dependent on nursing home care their assets are gone
and their children are applying for them to be enrolled in Medicaid.
All
too often, the children of elderly parents receive bad advice that leads to
very confusing family law issues, especially when you have one party to a
marriage who may be suffering from dementia or Alzheimer’s and may be
incompetent, and their children want to control the care of their parent but
they do not really know how to go about doing that. For instance, in the case I
referred to where the adult children took their mother away from the home where
she had been living with her husband of fifty-six years, those adult children
started cleaning out bank accounts so that they would have sufficient assets to
take care of their mother. The husband then went to an attorney who advised him
to file for divorce so that the court would freeze the couple’s assets, thereby
ensuring that that husband would be able to protect his half of the assets.
However, that was not an effective strategy—in fact, the children used the
divorce filing as evidence that their father no longer wanted to have anything
to do with his wife. In this case, the husband’s original attorney wound up
making his client’s problem far worse than it was to begin with. When the
husband consulted me we immediately withdrew the divorce petition and filed a
guardianship petition instead. Unfortunately, the children had already used the
divorce petition which was filed in Florida as evidence in their case for a
conservatorship in California, where they had taken their mother by plane, even
though she did not know where she was going; and she never returned to Florida
until after her husband’s death.
My Name: Aubrey Harry
Ducker Jr.
My Firm Name: The Law Offices of
Aubrey Ducker, PLCMy Title: Managing Member
My Phone #: 407-645-3297
My Email: Aubreylaw@gmail.com
My Website: www.aubreylaw.com
Business Address: 2020 Mizell
Avenue, Winter Park, FL 32792
Aubrey Harry Ducker, Jr., is a member of the Orange County Bar Association and the Florida Bar and the American Bar Association. He has received a AV Preeminent Peer Review Rating from Martindale-Hubbell. Mr. Ducker serves by court appointment as a Guardian Ad Litem, advocating for children in contested custody and abuse or neglect cases. After serving six years in the U.S. Navy onboard the USS George Bancroft, SSBN-643, Mr. Ducker attended the Valencia Community College, the University of Central Florida and the University of Florida Levin College of Law in Gainesville.
Mr. Ducker’s
practice focuses on Collaborative Divorce, Elder Law, Family Law and
Guardianships. He also shares Mortgage Mediation Education Inc. as a co-owner
and lecturer on Ethics. Mr. Ducker is previously published under the Aspatore
Label with Inside the Minds, Strategies for Family Law in Florida. He also
serves on the board of Director of several non-profits and Chairs the Board of
Christian Ethics Today.
Mr. Ducker previously
served as Attorney for the City of Eagle Lake, Florida
