Ask Jaleh: Is a Guardianship Appropriate for My Loved One?

 

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.

Read more
No Comments

Is the Housing Market on the Rise for 2015?

 

Video Summary

 

Is the housing market on the rise in 2015?  Well you are simply asking an opinion of a real estate lawyer in New Port Richey, Florida.  From my perspective, yes; the market is picking up.  The number of sales in particular, as far as the price is concerned, we are seeing some price appreciation in that you have supply and demand. 

What is also interesting is the amount of owner financing that I’m seeing involved in the sale of properties or leases with options to sell.  So from my perspective in Pasco County, New Port Richey, Florida is yes, the housing market is improving substantially and hopefully we continue to get a price appreciation.

 

And if you need some assistance in selling your home or closing your home, I write title insurance and also if you need some help with the owner financing I’ll be glad to discuss with you the advantages, at least with an option to purchase, and also whether or not you can take back a note and mortgage and what the downside is to owner financing.


Give me a call at (727) 847-2288.

Read more
No Comments

Are You Still Liable for a Mortgage If You Quit Claim the Property to a Third Party?

 

Video Summary

 

Are you still liable for a mortgage if you quit claim the property to a third party?  The answer to the question is yes; you are still liable under the promissory note that the mortgage secures.  The mortgage is a lien against the property, which of course the buyer is taking the property subject to so they can enforce the mortgage or foreclose if the payments are not made. 

You signed a promissory note and so if you are the maker under the note you have liability under the promissory note.  The time that that would be a problem would be if the property was not worth as much as the amount that is owed under the note and then the mortgage holder could if they would sue you for what they call “a deficiency judgment.”  But you are not relieved from the liability under the promissory note if you simply convey away the property by quit claim deed, sale, or any other type of conveyance. 

So if you would like to be released and you want to convey the property away, well give me a call and I’ll tell you what will be necessary to do that.

 

My phone number is (727) 847-2288.

Read more
No Comments

Is a Seller Required to Disclose a Death in the Home?

 

Video Summary

 

Is a seller required to disclose if there has been a death in the home?  This goes back to the case law that is probably 20 or 25 years ago, when the Florida Supreme Court ruled in the case of Johnson vs Davis that said the seller in the sale of residential real property that they must disclose any matters that may materially affect the value of the property and which are not readily apparent. 

That usually involves a roof repair or some physical aspect of the house that is not readily apparent such as, if you have a sinkhole and you patch the sinkhole and did not repair it or other matters that would physically affect the house that you would have to repair at a later date. 

The law has since recognized some other aspects that are more intangible and so I do not believe that simply someone passing away in the home would be something that you would have to disclose because people die at home all the time.  The question if you take it one step further, let’s say there was a homicide or even a suicide, then that creates another issue and I do not know that it is clear cut or I have not seen a case on that where a buyer has sued to say that they wanted to resend the transaction because it was not disclosed to them that there was a homicide committed in the home. 

So my reaction or my opinion, not that there is any court opinion to justify this, is that you do not have to make that disclosure and in fact I have not seen that disclosure that the realtors customarily have a seller fill out for a buyer.  In our area there is, in Tarpon Springs, a super fun toxic waste area that has been taken over and there was some question as to whether or not if you are selling property that is close to that that you would have to disclose that. 

So these are all questions that I guess would be better if you did disclose it so that you do not have to worry about the buyer ever coming back against you because it was not disclosed but I do not know that that is encompassed in the disclosure requirements or whether that really materially affects the value of the property.


So hopefully I have shed some light on the issue.  If you would like to have me assist you in the sale of your home and the disclosures, well give me a call at (727) 847-2288.

Read more
No Comments

If Separated, Can My Spouse Inherit the Property I Buy, Before we are Divorced?

 

Video Summary

 

If separated, can my spouse inherit the property I buy before we are divorced?  Well one of the first things we need to address is Florida doesn’t have legal separation.  I believe that’s something comes from New York where they may have legal separation but we don’t have that.  In Florida either you’re married or you’re single, one of the two, you’re not anywhere in between as far as your rights are concerned.

 

So we get to the question as to whether or not your spouse can inherit your property.  Under our Florida law as is that you can leave your property to whomever you want under your will and you can exclude your spouse.  Your spouse then has the right to file what they call an elective share wherein they get I believe it’s 30 percent of everything you own no matter how you hold it, whether it be in a revocable trust or wherever.  So yes, you can buy property, you can leave it to whoever you want to.

 

Now if you happen to buy a home and you’re separated and you not going to be able get a mortgage when you buy a home in Florida if you’re married without the joint of your spouse because the Florida constitution requires that a spouse join in any conveyance or any mortgage as far as your homestead is concerned.  But let’s say you say, “Well that’s not a problem.  I pay cash for it.”  Well that’s, it’s not a problem until you get ready to sell it during your lifetime while you’re still alive, and then you turn around and have to have your spouse join in the deed in order to be able to sell it.  So if it’s your homestead here in Florida it’s not so much a problem buying it but when you get ready to get rid of it or try and mortgage it, you’ve got problems as far as needing your estranged spouse to sign.

 

Also if you are still married, even though you’re separated and you own your homestead here in Florida and you pass away, the spouse has a right to a life of state in your homestead property or can elect to take a half interest  provided that you don’t have any minor children.  If you have minor children then it’s automatic life estate.  So there’s any number of complications as far as purchasing property.  And so my suggestion is if you’re separated, well you need to go ahead and take care of getting divorced and clean up your property rights or enter into a marital settlement agreement with your separated spouse whereby they’re waiving any rights in this and that’s another way to handle these problems.

 

So if you have any questions on that, well give me a call at 727-847-2288.

Read more
No Comments