Losh v. McKinley

86 So. 3d 1150 (2012)

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Losh v. McKinley

Florida District Court of Appeal
86 So. 3d 1150 (2012)

Facts

Frances Losh (defendant) was in her early 90s and lived at home. Losh sometimes asked other people to write checks for her because her handwriting had become shaky. Other than that, Losh managed her own financial matters, maintaining a ledger of her financial activity. Losh kept most of her cash in money-market accounts with low return rates. Losh owned several pieces of real estate. However, Losh did not insure some of the property because she believed that she had sufficient liquid assets to cover potential damages. Losh fell and broke her tailbone. Losh did not immediately seek medical help because she thought her tailbone was only bruised. Losh was eventually hospitalized for the injury. When Losh returned home, she hired 24-hour nursing help while she recovered. Losh also paid her daughter, Carlin McKinley (plaintiff), to fly across the country to help her. However, McKinley refused to stay at Losh’s home and filed a petition to have (1) Losh declared incompetent and (2) a guardian appointed to manage all of Losh’s medical and financial matters. Pursuant to Florida procedure, the trial court had three doctors examine Losh. The first doctor found that Losh was mentally healthy. The second doctor found that Losh had some mild cognitive issues, such as difficulty remembering information about her medications. The third doctor found that Losh was cognitively alert and had excellent memory. The first doctor recommended not appointing a guardian. The second and third doctors each recommended a limited guardianship over some financial matters. The trial court expressed concern that Losh (1) needed help writing checks, (2) was at risk of being unduly influenced by her caregivers, and (3) was possibly making poor financial decisions because she kept her cash in low-return accounts and did not insure her real estate. The trial court then appointed a guardian to handle virtually all of Losh’s medical and financial matters, stripping Losh of most of her legal rights. Losh appealed.

Rule of Law

Issue

Holding and Reasoning (Lagoa, J.)

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