What Is The Difference Between A Guardianship And An Adoption?
Video Summary
What is the difference between a guardianship and an adoption? Well, there are completely different procedures involved. Let’s talk about an adoption. An adoption usually involves a minor child and that means whenever you adopt someone, that they become like your natural born child and you have to give notice to the natural parents or get their consent, as far as that’s concerned. There is basically a boorish child services that provide a range for adoptions particularly when the parental rights had been terminated through a court proceeding.
An adoption is where you cut off all the rights of the natural person or natural parents and then the child becomes like the natural children of whoever the people are or the persons who adopt them. They no longer inherit or have a right to inherit from their natural parents. Their natural parents have no right whatsoever. All their parental rights have been terminated. That doesn’t mean that the adopting parents may not in particularly if they know about it or if it’s a family adoption that they may not still keep them, let them see their natural born child or contact, but that’s done on a case by case basis. That’s where you completely terminate the parental rights of someone.
Turning to a guardianship, in a guardianship, just breakdown the word as far as guard or guardian, that means someone that’s put in the position to protect a particular person. Guardianship’s can be for minors, since they are not of age and don’t have the ability to contract, particularly if the minor has inherited a lot of money or has received a lot of money.
The guardian, number one doesn’t adopt this person and then become their child, but they are charged with possibly making decisions as far as what they call a ward or the person who is subject to the guardianship and make decisions about their welfare. You know, what kind of medical treatment and make decisions if it’s a child, as far as schooling, [inaudible 02:48], and basically raising the child. If it’s an elderly person, as far as where they would stay, whether they need to be have assisted living, whether they need to be in a skilled nursing facility. You have the guardian of the person who makes those decisions.
As with the minor, you also have the guarding of property. The guarding of property is a person who’s responsible for the money that the minor is … If you have a minor who has money or if you have an older person who has become incapacitated, they are charged with taking care of that persons money. They must have an accounting. Guardianship’s are supervised by the court, so that you have to prepare an annual accounting. With older folks, you have to file a plan as far as where they’re going to be. You have to have all the expenses and everything else approved by the court. It’s not an inexpensive proceeding and it’s usually followed by an incompetency proceeding.
A guardianship has to do with taking care of somebody, both as the guardian of the person and also as the guardian of the property, taking care of their money and accounting for it, and using it for the person or who’s called the ward. Usually requires they bond so that if you don’t use it, they have someone to look to. Guardianship’s and adoptions are completely different procedures. The adoptions are usually with minor children whenever the parental rights have been discontinued or there’s some family matter where they want to have the child be adopted by some other member of the family.
If you have any questions, we don’t handle adoptions here, however, we do handle guardianship’s. If you have some questions about guardianship’s, you can give us a call. It’s 727-847-2288.
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- Published in Guardianship, Videos
Do Contractors Have An Obligation To Complete Their Work Within A Certain Time Period?
Video Summary
Do contractors have a liability or an obligation to complete their work within a certain time period? We direct you to whatever contract you entered into with the contractor. Most contracts are fairly open-ended … although, the answer to it is, the contract would dictate it. They cannot just drag it on forever. If that’s the case, where they’re not doing it in a timely fashion, or, you haven’t seen them, or they haven’t showed up for 30 days, it could be considered that they have abandoned the job.
You can then notify them that they have a certain amount of time in which to complete the job, or else you’re going to terminate their services and retain the services of someone else to complete the job. That way you would hold them responsible for whatever the cost would be that you had to pay over and above the contract amount. When they’re supposed to perform is dictated by a contract.
My experience has been it’s very difficult to get a contractor to agree to a certain time period, and have them put in there … or, furthermore, even if you do have a time period, or a time when they’re supposed to have it done subject to rain delays and acts of God or hurricanes, or whatever, there’s no penalty if they run over. You don’t want to have to fire them or whatever as far as that’s concerned so you almost get in a desperate situation.
In my career it’s been very few times that I’ve been able to put in a contract between an individual and a contractor that there’s penalty, of, say, $100 a day for every day that they don’t have the job done, that they agree to pay. I have had some contractors say, “Well, if … I’ll tell you what. We’ll give you that penalty clause in there that’s $100 day for every day past this, but, you also have to give us a bonus for $100 day for every day that we get it done before the deadline.”
It’s very difficult to negotiate a penalty. Most contracts should or do have some sort of time period. If you’re dealing with work orders or something, or an insurance company is hiring the contractor, that’s difficult, because you can’t, then, terminate them or fire them because you’re not the one that contracted them to do the services.
If they’ve abandoned the job or haven’t shown up for thirty days, I think that you probably have reason to demand or terminate their contract for … abandoned the job and hire a new contractor. Of course there’s economics of all involved with that. It may cost you more to get it done, and the contractor may not be solvent, or, you may not want to spend the money on a lawyer to try and recover the additional costs.
If you have some questions, I don’t know that I can answer them for you, as far as when do they have to have it done? Give me a call at 727-847-2288.
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- Published in Real Estate, Videos
Can I Trigger Ineligibility For Medicaid Coverage For Skilled Nursing?
Video Summary
Can I trigger ineligibility for Medicaid coverage for skilled nursing care once I’ve already been approved for Medicaid coverage? The answer to that question is an emphatic absolutely. Let me give you an example. I had a client of mine today asked me a question regarding the sale of a vehicle. The situation, this gentleman was already approved for Medicaid, was already in the skilled nursing facility and Medicaid had already been paying for skilled nursing care for several months. He was in a position where he had a vehicle. That vehicle he was obviously getting no use out of because he was in skilled nursing care and could not drive, so his daughter wanted to know if it would be a possibility that he could either sell the vehicle or give the vehicle to her.
That sort of situation you absolutely would not want to do anything with the vehicle. Not sell the vehicle or give it away. The reason being is that Medicaid eligibility is reviewed on an ongoing basis. This specific situation, if he gave the vehicle to his daughter he would be looking at a period of ineligibility based upon the value of the vehicle because it would be considered a gift, a transfer of assets for less than value. What if you sold the vehicle? That wouldn’t be considered a gift. Well know it wouldn’t but in that sort of situation, the money that he would receive as a result of the sale of the vehicle in this situation $20,000 would also trigger ineligibility for Medicaid coverage due to the fact that he would now be over the above threshold which is $2,000 which would then make him ineligible for Medicaid coverage.
In this specific situation, what you would do is you keep the vehicle. You can store it, hopefully at a relative or a family member’s house, free of charge and then the vehicle will still have it’s exempt characteristic and will not be counted against you for Medicaid coverage purposes, but you also are sure that your vehicle is secure. These are just some things that you want to think about once you’ve already received approval for Medicaid coverage because the Department of Children and Families is allowed to continually review financials at least for one year from the period of eligibility all the way through the review period after that initial year. Keep this in mind.
If you have any other questions regarding Medicaid approval, Medicaid planning or the actual Medicaid application, please give us a call here at Waller & Mitchell at 727-847-2288.
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- Published in Medicaid Planning, Videos
What Types Of Things Must I Disclose When I’m Selling My House?
Video Summary
What types of things must I disclose whenever I’m selling my home? Well this emanates from a case that’s probably twenty-five-years-old called Johnson versus Davis. The Supreme Court came down on selling your home, or your residential property, that says that a seller must disclose to a buyer any matters that may materially affect the value of the property that are not readily observable. This provision has also been carried over into the present contract that has been approved by The Board of Realtors in the Florida Bar. It provides precisely what I have said.
What falls into that category? Well certainly if you have a leaky roof, you can’t very well not tell them about it. If you have a fire or a flood and then you’ve taken care of it, you need to disclose that the property has previously flooded. Things such as that. It gets into a more grey area whenever, let’s say, that someone has died in the home. Certainly if it’s coming out of an estate, well that’s fairly apparent. I don’t know that that’s a matter that may materially affect the value of a property.
Well take it one step further. What happens if someone was murdered in the home, or some crime was committed, or is was a grow house? Well those matters maybe something that could materially affect the value of a property. Another matter is what if you know that your neighbor had sinkhole? Now are you required to disclose that your neighbor had a sinkhole on his property although you haven’t experienced any sinkholes? There’s any number of grey areas that come into being or of what you need to disclose.
The realtors have a fairly comprehensive sheet that they go through for each component of your home, such as the plumbing, the electrical, all of the disclosure sheet, and so that should be a pretty good guide as far as completing that as to whenever you sell your home. Go through that disclosure to let them know how long it’s been since you’ve redone the roof, whether you’ve experienced leaks, things such as that.
The best thing to do however, if you’re going to buy a home, is to have your own inspection done. But that’s not the question you wanted to know. From a seller’s perspective, what you needed to disclose. I always recommend the sellers to air on the side of more disclosure rather than less so that you don’t have to worry about it coming back to haunt you later on. When in doubt, I’d go ahead and disclose the matter to the buyer. If they like your home, and it’s in good shape, and there’s no really other problems, it’s not going to keep them from buying the house. If they wind up buying the house and later on have seller’s remorse, or some other reason that they wanted to get out of the house, or bring a lawsuit against you, that you’ve made the disclosure and you’ve taken away that reason for them to try and come after you for failure to disclose.
The buyer’s remedies for a seller failure to disclose is if they can bring an action within one year it’s called “rescission,” which means that you turn around and you offer to convey the property back to the seller, and in turn you receive your money. This is a difficult remedy; sometimes you’ve paid off mortgages, that the seller doesn’t have the money, that you have a mortgage that you have to pay off, or you’ve made substantial improvements, so there’s any number of problems.
The other aspect of it, if that remedy is not feasible, is to sue for whatever the cost to repair is or to correct the problem. That is your other remedy. Of course, before you have a good lawsuit with that, you need to make sure that whoever you’re suing has the money to pay. That’s another aspect of looking at it. This obligation to disclose not only extends to a seller, but also to realtors that if they know of any information they must disclose it to the buyer or make the disclosure.
There is another problem as far as buyers are concerned if they wish to bring an action against the seller: they have show they the seller knew of the problem. Many times you see whenever you’re buying bank-owned property, there’s a big disclosure saying they’ve never occupied the property and therefore do not know if there are any problems with it. That’s a discussion as far was what needs to be disclosed, and certainly a grey area.
If you have any questions, well give me a call at 727-847-2288.
Thank you.
- Published in Real Estate – Selling, Videos