Video Summary

What are some signs that my loved one may need a guardianship? Well first and foremost, any time you’re thinking about filing a guardianship proceeding, you have to consider whether or not there’s a lesser restrictive alternative. Well what is a lesser restrictive alternative? Well a lesser restrictive alternative in this situation would be a power of attorney. If your loved one has a valid, durable power of attorney that has an agent named, and that agent is acting on their behalf and is not abusing the power of attorney, then most courts are going to find that a guardianship is not necessary because there is already in place a lesser restrictive alternative, which is a power of attorney.

But let’s just say you’re in that situation where your loved one did not execute a power of attorney prior to incapacity. What are some of the signs that you may notice that your loved one may need a guardianship? Well one sign would be spending their resources, such as money, selling their home, doing things that don’t make sense to their financial plan.

Now we can’t stop people from making poor financial decisions, but a great example that I could give you would be if your loved one has decided to invest $30,000, within the last month, in vacuums. Well that’s not really a prudent investment, and beyond not being wise financially there may be something more going on. Possibly your loved one is being manipulated, and may not be making the financial decisions for themselves.

That’s just one example. Another example would be if you’re starting to see that your loved one cannot manage their health, cannot manage their person, and cannot manage things that are necessary to their person and to their well being. Again, if you do not have a valid power of attorney in effect, a lot of the times a guardianship proceeding will be necessary.

Those are just some of the things to look out for to see whether or not your loved one may be a viable candidate for a guardianship proceeding. If you have any other questions regarding a guardianship, please refer to give me a call here at Waller & Mitchell at 727-847-2288.

Video Summary

How do you know if someone is considered legally incompetent?

Well, I’m gonna take the easy road first, as far as that’s concerned.  If you’re under the age of eighteen in the state of Florida, you’re not an adult, and so legally you’re not competent to contract.  And so you’re not legally competent.  And when this comes in to play is whenever you’re to receive a great deal of money, then it may require a guardianship.  If the minor is to receive, let’s say from an estate, an inheritance and the amount of money is less than $15,000, then the natural parents can accept this inheritance in behalf of the minor child, or the minor who is legally incompetent.

Also, when it comes to contracting, you can contract with a minor, however it’s not legally binding on the minor.  After he turns – any time before age eighteen, he can disavow the contract.  After he turns eighteen, he has a reasonable time in which to disavow the contract, or he can ratify the contract after he turns age eighteen.

Now as far as people, other people who are considered legally incompetent, that usually comes with an incapacity hearing; and it’s related to a guardianship proceeding, wherein the judge has a hearing and has a panel of three professional – mental health professionals.  I believe it’s a psychiatrist and some other people serve on a panel, and they have a recommendation after they interview the alleged incapacitated person.  In a guardianship proceeding, they appoint a lawyer to represent this person, and as a result of being incapacitated, the person loses all of their rights.  And so it’s a trial and in order for the judge to consider that, since it’s a drastic measure, many times the judge will not declare somebody totally incapacitated, may still give them the right to do certain things such as vote and other matters.  But you tell whether or not someone is legally incapacitated or incompetent by an order, which the judge enters finding that they’re incompetent.

So if you have any questions about capacity, incompetency, give my firm a call.  It’s 727-847-2288.  My associate, Jaleh Piran-Vesseh is one who handles elder law and guardianships

Video Summary

Is a guardianship appropriate for my loved one? Guardianship proceedings are designed to provide safe mechanisms for assistance to prevent the abuse of a vulnerable person. They are also used to alleviate the risks that an incapacitated person may present to himself, herself or to others. Furthermore, they are used to restore the incapacitated individual with the help and financial security that they deserve.

The intent of guardianship law is to accommodate the best interests of the alleged incapacitated person or ward, which is someone who has already been adjudicated as incompetent and to do so in such a way as to preserve as much of the ward’s independence as possible under the particular set of circumstances of that individual.

Guardianship should be considered an extraordinary procedure used only as a last resort when no other mechanisms for support will suffice to protect your loved one.  A guardianship is not necessary for every incapacitated person, but those who lack support mechanisms to overcome their incapacity.

A guardianship may be necessary if your loved one is a danger to themselves, such as lacking the ability to be responsible for their cleanliness, their own care or their own personal nutrition.  A guardianship may also be necessary for your loved one if they may be in financial danger such as spending funds improperly or making repeated foolish investments due to their incapacity.  In this situation, a guardianship may be the only alternative to preserve your loved one’s funds for their lifetime of needs.

A guardianship may also be necessary if there are wrongful fiduciaries or caregivers in place who commit wrongful acts either purposefully to your loved one or potentially in error.  In this situation, a guardianship may be the only way to protect them against such malfeasance or misfeasance.

If you believe that a guardianship is appropriate for your loved one, please contact Waller & Mitchell today to set up an appointment to discuss all of your legal needs.

Video Summary

Good morning, my name is Tom Mitchell; I’m a partner with the law firm of Waller & Mitchell in downtown New Port Richey, Florida. I want to speak to you today a little bit about what you have to do if an elderly member of your family, a parent perhaps, starts to lose the ability mentally or physically to take of themselves. If your family’s fortunate and the parent has done the proper planning, they may have a Power of Attorney in place, which means that the trusted family member whose been given that power can act on their behalf, but if there is no Power of Attorney, it may be necessary to file a guardianship action on behalf of the person.

Now a guardianship action is a court proceeding and what happens is that you need an attorney and the attorney prepares certain documents that are known as pleadings and the pleadings state that we believe this senior individual is incapacitated, that’s the technical word, doesn’t mean they’re mentally unable, doesn’t mean they’re physically unable, but it’s some combination typically of both. They have had a decline in mentation and they have the usual problems of the aging process. So we file these pleadings, we describe what we think the problem is, we list who the doctor is, we list who the family members are and at that point, those papers get filed with the court, the court then appoints a medical committee, a three person committee to examine the individual and make a recommendation as to whether or not a guardianship is needed. The court also appoints an individual, an attorney, to represent the alleged incapacitated person, just to make sure that they’re not some nice little old person that we are trying to steal all their money, and by the way, if you’re thinking of that, don’t do it in a guardianship, because the court supervises guardians very closely.

If you need to file guardianship action on behalf of one your parents who may be declining in their later years, you can contact me at Waller & Mitchell and we’ll be glad to take care of it for you. This is Tom Mitchell with the law firm of Waller & Mitchell in New Port Richey, Florida.