Filing # 38042450 E-Filed 02/19/2016 02:53:10 PM

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA GUARDIANSHIP DIVISION CASE NO: 502014GA0000267XXXXMB IN RE: GUARDIANSHIP OF MARGARET ESTELLE REID ___________________________________/ OBJECTION TO MARGARET REID FALLON’S EMERGENCY PETITION FOR ORDER AUTHORIZING JUDICIAL MODIFICATION OF IRREVOCABLE TRUST OF WARD Petitioner, DONNA REID O’NEIL (“Donna”), as an Interested Person, Co-Trustee and successor Guardian of the Person and Property of Margaret Estelle Reid (the “Ward”), by and through their undersigned counsel, hereby files this Objection to Petitioner’s, Margaret Reid Fallon’s, Emergency Petition for an Order Authorizing Judicial Modification of Irrevocable Trust of Ward, and states as follows: 1.

Donna qualifies as an interested party under §731.201(23) 1, Florida Statutes. An

interested party means any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. Fla. Stat. §731.201(23). Donna is the Co-Trustee and a beneficiary of the Margaret E. Reid Irrevocable Income Only Trust (“Income Only Trust”) and Margaret E. Reid Revocable Trust (‘Revocable Trust”) (collectively, “Trusts”). 2.

On February 16, 2015, Petitioner filed an Emergency Petition for an Order

Authorizing Judicial Modification of Irrevocable Trust of Ward (“Petition”) as the Sole Limited

1

As an interested party, Donna is entitled to file an objection in a guardianship proceeding. Hayes v. Guardianship of Thompson, 952 So. 2d 498 (Fla. 2006).

Guardian of the Ward and Co-Trustee of the Trusts. 2 The Court has No Jurisdiction over the Income Trust. 3.

Despite Petitioner’s request, Petitioner cannot use this Court’s jurisdiction over the

guardianship and its assets to engulf the Trusts established by the Ward. Beekhuis v. Morrison, 89 So. 3d 1114 (Fla. 4th DCA 2012); See Chaffin v. Overstreet, 982 So.2d 11, 14 (Fla. 5th DCA 2008) (explaining that appearing before the probate court in one capacity does not subject that party in a separate capacity to the jurisdiction of the court); see also Mfrs. Nat. Bank of Detroit v. Moons, 659 So.2d 474, 475 (Fla. 4th DCA 1995) (holding that the probate court did not have jurisdiction over the trustees because there was no service of process on trustees and the trustees did not voluntarily submit to the jurisdiction of the court). 4.

In this matter, this Court has presided over only the Ward’s guardianship

proceedings. Pursuant to the terms of the trusts, the co-trustees, Donna and Petitioner, would have to act unanimously in all actions relating to the Trusts. It is undisputed that both Co-Trustees have not subjected the Trusts to this Court’s jurisdiction in any of its pleadings. To the contrary, Donna as Co-Trustee, and previously as co-guardian, has filed a Motion to restrict the creditors of the guardianship proceedings from accessing the Trusts. A copy of this Motion to Restrict is attached hereto as Exhibit A. Modification of Income Trust is not Unanimous and is not in the Best Interest of the Ward. 5.

Petitioner has conclusively stated that the Ward has additional expenses to which

the Ward did not foresee, therefore warranting the modification of the Income Trust. However,

2

On February 10, 2015, Petitioner previously sought to have the Income Trust modified citing verbatim the same reasons as the current Petition. The February petition was met with objections from Edward Reid, Thomas Reid, and Lawrence Reid. Copies of said objections is attached hereto as Exhibit B.

what Petitioner has failed to state in her motion is that the additional expenses can be, and should be, resolved by the adoption of a plan where the family members provide care to the Ward instead of the continued use of a 24/7 CNA. On the contrary, the Ward did foresee medical expenses in the future and expected her children to assist with those expenses. 6.

This plan and proposal was discussed between the siblings with the Elder Care

Coordinator appointed by this Court. Donna and Lawrence agreed to first modify a separate trust, the Merritt Island Trust, not the Income Trust. The modification of Income Trust would only be subsequently agreed to if certain conditions were applied. For example, if and only if Margaret would agree to reinstate the care taking plan that was previously in place prior to her becoming sole limited guardian, where Donna and Margaret would take care of the Ward lessening the amount of time and expenses needed for a CNA. This caretaking plan will substantially decrease the costs to the Ward, especially if the other siblings are also allowed to care for the Ward. 7.

In addition, the Elder Care Coordinator requested that the siblings come up with a

visitation plan to resolve the pending visitation issues that had recently arisen when Margaret refused to allow equal access to the Ward by all of the Ward’s children, mainly Donna and Lawrence. 8.

Florida Statute 736.04113(1)(b) 3, allows for judicial modification of irrevocable

trust when modification is not inconsistent with settlor’s purpose. Specifically, the statute states: (1) Upon the application of a trustee of the trust or any qualified beneficiary, a court at any time may modify the terms of a trust that is not then revocable in the manner provided in subsection (2), if: … (b) Because of circumstances not anticipated by the settlor, compliance with the terms of the trust would defeat or substantially impair the accomplishment of a 3

Petitioner incorrectly cited to Fla. Stat. 736.04114(b) which does not exist. Fla. Stat. 736.04114 refers to the limited judicial modification of a trust for federal tax purposes and is inapplicable to this matter.

material purpose of the trust;… 9.

Florida Statute 736.04113(1)(b) is inapplicable because the Ward specifically

requested in the Trust documents to prevent the Ward any access of the principal balance of the Income Trust. Instead, the Ward set up sufficient income and assets to have her medical expenses to cover her medical costs in a time of need. Nothing mentioned in the Emergency Petition suggests that the terms of the Income Trust is being defeated by the expenses incurred. To the contrary, the Petition only vaguely states that additional costs have incurred. 10.

Moreover, in its consideration to use its discretion on the modification of the trusts,

“[t]he court shall consider the terms and purposes of the trust, the facts and circumstances surrounding the creation of the trust, and extrinsic evidence relevant to the proposed modification” Fla. Stat. 736.04113(3)(a). And, “the court shall consider spendthrift provisions as a factor in making a decision, but the court is not precluded from modifying a trust because the trust contains spendthrift provisions.” Fla. Stat. 736.04113(3)(b). 11.

Petitioner seeks to have the Court modify the terms of the Income Trust, which

specifically only allows for the Ward to benefit from the interest of said trust and prohibits the Ward from accessing the principal of the trust. Pursuant to Article IV(A) of the Income Trust, the Trustee shall distribute to the Settlor or expend for her all of the income which is earned by the trust, in monthly installments. However, “no principal shall be distributed to Settlor or any other person during Settlor's lifetime.” See Article IV(B) of the Income Trust. 12.

Petitioner has not explored or attempted to explore other means that would result

in greatly lessening the expenses to the Ward. Instead, Petitioner seeks to have the Income Trust modify so that she can pay the enormous amount of attorney’s fees incurred by Petitioner during the pendency of the Guardianship proceedings.

13.

Donna, along with other siblings, have offered to take care of the Ward to reduce

CNA costs to the Ward. Without additional information from Petitioner as to what other costs have “unexpectantly” been incurred by the Ward, except for Huber’s fees, Donna and the other beneficiaries of the Income Trust cannot adequately respond to this request. 14.

As beneficiary and Co-Trustee of the Income Trust, Donna objects to the

modification of the Income Trust as this is not in the best interest of the Ward. WHEREFORE, DONNA REID O'NEIL respectfully requests this Court enter an Order denying Margaret Reid Fallon’s Emergency Petition for Order Authorizing Judicial Modification of Irrevocable Trust of Ward, and grant such other and further relief as it deems just and proper. Respectfully submitted, SCHLESINGER & ASSOCIATES, P.A. Attorneys for Petitioner Donna Reid O’Neil 800 Brickell Avenue, Suite 1400 Miami, FL 33131 Phone: (305) 373-8993 Facsimile: (305) 373-8098 E-mail: [email protected] E-mail: [email protected] E-mail: [email protected] By:

/s/ Michael Schlesinger MICHAEL J. SCHLESINGER Florida Bar No. 141852 HELOIZA A. CORREA Florida Bar No. 78124

CERTIFICATE OF SERVICE I HEREBY CERTIFY that the foregoing was served by e-mail upon those listed below on February 19, 2016. Jami L. Huber, Esq. JAMI L. HUBER, P.A. Attorney for Co-Guardian Margaret Reid Fallon Holly M. O’Neil, Esq. BROAD & CASSEL Attorney for Co-Guardian James Dillon Edward Reid

[email protected]

Lawrence T. Reid, Jr.

[email protected]

Christopher J. Reid

[email protected]

Thomas Reid

[email protected]

[email protected]

[email protected]

___/s/ Heloiza Correa_______________ HELOIZA CORREA

Filing # 27414738 E-Filed 05/18/2015 03:06:15 PM

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA GUARDIANSHIP DIVISION CASE NO: 502014GA0000267XXXXMB IN RE: GUARDIANSHIP OF MARGARET ESTELLE REID ___________________________________/ MOTION TO RESTRICT CREDITORS TO GUARDIANSHIP ASSETS Petitioner, Donna Reid O’Neil (“Donna”), co-guardian of the person and property of Margaret Estelle Reid (the “Ward”), by and through undersigned counsel, files Motion to Restrict Creditors to the Guardianship Assets, and states as follows: FACTS 1. On December 04, 2014, Christopher Taylor, Petitioner’ attorney, filed a Petition for Attorney’s fees for the amount of $14,175.00. On March 4, 2015, this Court granted this Petition for fees for its full amount. A copy of this Court’s Order is attached hereto as Exhibit A. 2. On December 11, 2014, Michael Connors, Petitioner’s successor attorney, filed a Petition for Attorney’s fees for $9,582.00. On December 19, 2014, this Court, through its predecessor Judge, granted the petition for fees for its full amount. A copy of this Court’s Order is attached hereto as Exhibit B. 3. On December 18, 2-14, Holly O’Neil, counsel for co-guardian James Dillon, filed her Petition for Attorney’s fees for $18,392.78. On January 8, 2015, this Court, through its predecessor Judge, granted this petition for Fees for its full amount. A copy of this Court’s Order is attached hereto as Exhibit C. 4. On December 24, 2014, Jami Huber, counsel for co-guardian Margaret Reid Fallon, filed 1 SCHLESINGER & ASSOCIATES, PA 800 BRICKELL AVENUE  SUITE 1400  MIAMI, FLORIDA 33131  TELEPHONE 305.373.8993  FAX 305.373.8098

EXHIBIT A

CASE NO: 502014GA0000267XXXXMB her Petition for Attorney’s fees for $62,508.42 (for the period between May 23, 2014-August 13, 2014). This motion for fees is pending before this honorable court. 5. On April 20, 2015, Michael Connors filed his second Petition for Fees requesting payment from the Guardianship for Attorney’s Fees of $10,322.50 in addition to the previously awarded $9,582.00. This motion is still pending with this honorable court. 6. On April 23 and April 28, 2015, Ed Reid, the successor co-guardian, filed a written consent to the full payment of Jami Huber’s fees of $62,508.42. Copies of these consents are attached hereto as Composite Exhibit D. 7. On April 29, 2015, Holly O’Neil, counsel for co-guardian James Dillon, filed her second Petition for Attorney’s fees requesting payment for legal services performed and anticipated time of services to be performed during April 29, 2015 to May 20, 2015 equaling $30,687.99. 8. On May 8, 2015, an Amended Verified Inventory of Co-Guardians (“Amended Inventory”) was filed with the Court displaying the Guardianship Assets.1 9. The Amended Inventory states that the Ward currently has as “assets”: her homestead property, where the Ward lives; $59,553.56 of assets which include two IRAs, a fixed annuity account, and cash equaling $1,371.50; and the Margaret E. Reid Revocable Trust, Amended and Restates on August 21, 2012 and the Margaret E. Reid Income Only Irrevocable Trust dated November 14, 2012 (“Trusts”) that are separate and distinct from the guardianship matter. 10.

These Trusts were listed on the Amended Inventory due to the Clerk’s instructions

to the Guardianship that stated that if any of the guardians are also trustees, then the trust must be listed. A copy of the Clerk’s letter is attached hereto as Exhibit E. The Petitioner does not agree

Donna Reid O’Neil, co-guardian, did not sign the Amended Inventory due to objections she has to the contents and missing information. An objection to the inventory will be separately filed in this matter. 1

2 SCHLESINGER & ASSOCIATES, PA 800 BRICKELL AVENUE  SUITE 1400  MIAMI, FLORIDA 33131  TELEPHONE 305.373.8993  FAX 305.373.8098

CASE NO: 502014GA0000267XXXXMB that the Trusts are assets of the Guardian that can be pierced or accessed in order to pay the overwhelming attorney’s fees incurred in this matter. ARGUMENT It Is Improper For Creditors To Seek Payment From The Trusts’ Assets. 11.

As demonstrated by the facts above, there is over one hundred and forty five

thousand dollars being requested by the attorneys in this matter for services provided for during a limited time. That is approximately one hundred thousand dollars more than the Ward has as guardianship assets. 12.

Florida Courts have clearly prohibited the transfer of trust assets to the guardianship

estate, as it is unsupported by the law. Paula v. Schlesinger, 821 So. 2d 1182 (Fla. 3d DCA 2002); see also Nationsbank, N.A. v. Brenner, 756 So.2d 203 (Fla. 3d DCA 2000); Johnson v. Guardianship of Singleton, 743 So.2d 1152 (Fla. 3d DCA 1999); Cohen v. Friedland, 450 So.2d 905 (Fla. 3d DCA 1984). 13.

It is undisputed in this Guardianship that neither of the co-trustees, Donna Reid

O’Neil and Margaret Reid Fallon, have ever filed any pleadings in the guardianship on behalf of the Trusts to subject the trusts' assets to the jurisdiction of the probate court. Beekhuis v. Morrison, 89 So. 3d 1114 (Fla. 4th DCA 2012); See Chaffin v. Overstreet, 982 So.2d 11, 14 (Fla. 5th DCA 2008) (explaining that appearing before the probate court in one capacity does not subject that party in a separate capacity to the jurisdiction of the court); see also Mfrs. Nat. Bank of Detroit v. Moons, 659 So.2d 474, 475 (Fla. 4th DCA 1995) (holding that the probate court did not have jurisdiction over the trustees because there was no service of process on trustees and the trustees did not voluntarily submit to the jurisdiction of the court). 14.

In this matter, Petitioner Donna Reid O’Neil is concerned that all of the Ward’s 3 SCHLESINGER & ASSOCIATES, PA 800 BRICKELL AVENUE  SUITE 1400  MIAMI, FLORIDA 33131  TELEPHONE 305.373.8993  FAX 305.373.8098

CASE NO: 502014GA0000267XXXXMB assets, $59,553.56, will be exhausted due to the enormous and exacerbated legal fees incurred by all parties. Currently, there isn’t enough money in the Guardianship Assets, pursuant to the Amended Inventory, to cover all of the requested attorney’s fees. 15.

Petitioner requests this Court for an Order limiting the Creditors, in this case the

previous and current attorneys, to only the guardianship assets. 16.

Besides the $59,553.56 listed in as the Guardianship’s assets, of which roughly only

$1,300 is in cash, the Ward only has a monthly income of $3,000 that is used to take care of the Ward and her needs. The exhaustion of the Ward’s current assets to pay legal fees for three coguardians would not be in the best interest of the Ward as the Ward would be left with only the monthly income of $3,000 to cover her needs. 17.

The creditors should not and cannot seek to have their attorney’s fees paid by the

Trusts as this is improper and not allowed under Florida Law. WHEREFORE, Petitioner, DONNA REID O'NEIL as co-guardian of the person and property of the Ward, MARGARET E. REID, respectfully requests this Court enter an Order restricting the Creditors to the Guardianship Assets, and grant such other and further relief as it deems just and proper .

4 SCHLESINGER & ASSOCIATES, PA 800 BRICKELL AVENUE  SUITE 1400  MIAMI, FLORIDA 33131  TELEPHONE 305.373.8993  FAX 305.373.8098

CASE NO: 502014GA0000267XXXXMB Respectfully submitted, SCHLESINGER & ASSOCIATES, P.A. Attorneys for Petitioner Donna Reid O’Neil 800 Brickell Avenue, Suite 1400 Miami, FL 33131 Phone: (305) 373-8993 Facsimile: (305) 373-8098 E-mail: [email protected] E-mail: [email protected] E-mail: [email protected] By:

/s/ Michael Schlesinger MICHAEL J. SCHLESINGER Florida Bar No. 141852 HELOIZA A. CORREA Florida Bar No. 78124

CERTIFICATE OF SERVICE I HEREBY CERTIFY that the foregoing was served by e-mail upon those listed below on May 18, 2015. Jami L. Huber, Esq. JAMI L. HUBER, P.A. Attorney for Co-Guardian Margaret Reid Fallon Holly M. O’Neil, Esq. BROAD & CASSEL Attorney for Co-Guardian James Dillon Cliff Hark, Esq. Hark, Burkhalter, Yon, PL Attorney for Edward Reid Lawrence T. Reid, Jr.

[email protected]

Christopher J. Reid

11628 NW 30th Street Coral Spring, FL 33065 [email protected]

Thomas Reid

[email protected]

[email protected] [email protected] [email protected]

___/s/ Heloiza Correa_______________ HELOIZA CORREA 5 SCHLESINGER & ASSOCIATES, PA 800 BRICKELL AVENUE  SUITE 1400  MIAMI, FLORIDA 33131  TELEPHONE 305.373.8993  FAX 305.373.8098

EXHIBIT A

EXHIBIT B

EXHIBIT C

Filing # 26450823 E-Filed 04/23/2015 01:00:37 PM

IN THE CIRCUIT COURT OF THE I5TH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA PROBATE DIVISION CASE NO.: 502014G4000267XXXXM8 (tB)

IN RE: GUARDIANSHIP OF:

MARGARET REID, Ward.

CONSENT TO PETITION FOR ORDER AUTHORIZING PAYMENT OF'JAMI L. HUBER, P.A.'S ATTORIIEYS' F'EES AND EXPENSES

EDWARD REID ("EDWARD"), as a son of the Ward and an interested person in these proceedings, by and through his undersigned counsel, hereby acknowledges receipt

ofa copy the petition

for Order Authorizing Payment of Attorney's Fees and Expenses by Jami L. Huber, p.A.[May 23,2014 through August 13, 20141. The undersigned consents and agrees to a payment of fees in the amount $61,682.50, together

of

with costs in the amount of 5825.92, for a total due and owing in the amount of

$62,508.42 and approves same without notice, hearing, or waiting Dated this 23'd day of April, 201

5

P.

105 E. Bayview Drive

Annapolis, MD21403 STATE OF FLORIDA

COUNTY OF PALM BEACH

SS:

.1n

TO before me this L2 duy of April, 2015, by Thomas V. to me or who provided identification in the form of

SV/ORN

Reid, who

) ) )

is

My Commission Expires CLIFFORD B. HARK 128005 MY COMMISSION # EE

EXPIRES: JanuarY 7, 201ô

NOTARY STATE OF Name: Clifford B. Hark

Sewices Bonded Thru Budget Notery

COMPOSITE EXHIBIT D

CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have this day served true and exact copies of the foregoing Consent upon all parties listed in the attached Service List by First Class Mail and/or e-service through the Florida Courts E-Filing Portal this 23rd day of April, 2015. Respectful ly subm itted

:

HARK IBUnXUALTER IVON,

rr,

Attorneys for Edward Reid 2l0l N.W. Corporate Boulevard, Suite 220 Boca Raton, Florida 33431

Telephone: Facsimile:

(561) 995-1800 (561) 995-1801

Primary Email: cliff( Secondary

Email:

[email protected]

Tertiary Email: BY: ESQUIRE CLIF B Florida Bar No. 301590

SERVICE LIST Case No.: 50201 4GA000267XXXXMB

(lB)

Michael Connors, Esq. Michael W. Connors, P.A.

Jami L. Huber, Esq.

P.O. Box 13197 North Palm Beach, FL 33408

500 S. Australian Avenue, Suite 500 V/est Palm Beach, FL 33401 j ami @iam i huberl aw.com admin@i amihuberlaw.com

[email protected] I audette@mconnorsl aw.com [email protected]

C

Holly M, O'Neill, Esq. Broad and Cassel One North Clematis Street, Suite 500 West Palm Beach, FL 33401

JAMI L. HUBER, P.4.,

Thomas Reid 464 N.E, 3'd Street Boca Raton, Florida 33432

TomReid1966@gmaiLcom

honei I [email protected]

camatucci @broadandcassel.com

Christopher J. Reid 11628NW 30th Street Coral Springs, Florida 33065

Michael J. Schlesinger, Esq. Schlesinger & Associates, PA 800 Brickell Avenue, Suite 700

Miami, FL 33131 [email protected] [email protected] [email protected]

Lawrence T. Reid, Jr. destsonofmargaretestel lereid @gmai L com

el

kingofclout@gmaiLcom

Filing # 26849085 E-Filed 05/04/2015 02:22:42 PM

IN TI{E CIRCUIT COURT OF TI{E JUDICI/tr1, CIRCUIT,IN AND FOR

15TH

PALM BBACH COLINTY, FLORIDA PROBATE DIVISION CASB NO.r 5020 1 4G4000?-67XXXXMB (lB)

IN RE: GUARDiANSHIP OF:

I},ÍARGARIT REID, 'Ward.

AMENDED CONSENT TO PETITtrON FOR ORDERÄI]ffiIORIZING PAYMÍENT OFJAN{I L. I{.U-BER. P.A.'S ATTOBNEYS' F'ENS ÄND EXPENSE$_

EDI\¡^RD REID ("BDIVARD"), âs a son of thc Ward and nn interosted person in proceeclings, by nncl through his undersigned counsel, hereby acknowledges roccipt

these

ofa copy the Petition

for Order Authorizing Pnyment of Âtiorneys' Fccs snd Ëxpenses by Jami L, Huber, P.Â. [May ?.3,2014 through August 13,20141. Thc undorsigrred conscnts and agrees to a paymont of t:ces in the amount $61,682.50, togothor

witit costs in the amount of $825.92, for a totål due

an