QUESTION
What can be done about items being taken back that were given away?
Asked on Apr 19th, 2013 on Criminal Law - South Carolina
More details to this question:
My friend gave me some items some time ago, now she has been declared incompetent and the guardian wants to come to my home and take what she thinks my friend gave me. She claims to have a court order to take possession of my friend’s personal items. However, my friend gave them to me. Can she legally come into my home and take items that do not belong to her. She is threatening to bring the law with her, as far as I know there is no search warrant. Please advise. Thank you. I have selected criminal as a category but I think it’s more guardian.
10 ANSWERS
Ronald A. Steinberg
No! A gift is complete when the item passes to your hands. She would have to prove that the person was incompetent WHEN THE GIFT WAS GIVEN, not now.
Answered on Apr 26th, 2013 at 12:33 PM
The issue is whether you friend was incompetent at the time she gave the items to you. If so, you will probably be required to return them. If not, you should file an opposition to the guardian?s motion in court.
Answered on Apr 23rd, 2013 at 9:38 PM
Chapter 7 Bankruptcy Attorney serving Syracuse, NY
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Andrew T. Velonis, P.C.
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If she has a court order, insist on seeing it before you allow her in to your home. Once you get a copy, take it to a lawyer to find out if it says what the guardian claims. You may be able to challenge this, but it may not be worth the expense in doing so.
Answered on Apr 23rd, 2013 at 11:48 AM
Personal Injury Attorney serving Charlotte, NC
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Paul Whitfield and Associates P.A.
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A gift is a gift but if a person is incompetent that may suggest there was no gift. Compressed in any event you must do what the court orders you to do. If the person is ordered to collect the assets of the incompetent then that is what they have to do.
Answered on Apr 23rd, 2013 at 11:48 AM
Michael J. Breczinski
Well it depends on whether she was incompetent at the time and what the items were. You should get a lawyer to go into court to stop her and have a hearing on this point.
Answered on Apr 23rd, 2013 at 1:52 AM
Criminal Law Attorney serving Sacramento, CA
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Alison Elle Aleman
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The guardian should have to prove that these items were given to you when the person was already incompetent to do so. If she cannot prove that, the items belong to you. You can contest any court order with a hearing before the judge who issued the order. Tell the guardian that you wish to contest any order she has against you, and want to know when the person was adjudged to be incompetent. Be prepared to show when you received ownership of these items, and hopefully it will be before she became the guardian for your friend.
Answered on Apr 23rd, 2013 at 1:51 AM
Workers Compensation Attorney serving Torrance, CA
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Law Office of William S. Lindheim
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If your friend now incompetent has given you something, it belongs to you (assuming your friend was not incompetent at the time of transfer). If the guardian now wants those items and is asserting the personal properties belong to your incompetent friend, he/she will have to go to court and file "an application for writ of possession" before the Superior Court under Cal. Code of Civ. Procedure Sec. 512.010. The guardian will have to apply to the Superior Court to get this writ. Of course, you will have to be notified and a hearing will be held and you may participate in the hearing to defend your claim to those properties. During the hearing, the judge will determine who will utlimately own the property. Of course, the losing side may appeal.
Answered on Apr 23rd, 2013 at 1:26 AM
A gift by a competent person cannot be rescinded after it has been given away Unless the giver was incompetent at the time of the gift.. If the guardian has a court order, it sounds like the issue of competence has already been decided against you.
Answered on Apr 23rd, 2013 at 1:16 AM
Automobile Negligence Attorney serving Orlando, FL
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Kelaher Law Offices, P.A.
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No, she can't simply come into your home and engage in some ridiculous type of self-repossession. Tell the "guardian" to take it up with the court; a court order allowing her to take possession of the ward's property does not give her the right to come onto your property, unless the court specifically gives her that right in an order.
Answered on Apr 23rd, 2013 at 1:15 AM
Criminal Defense Attorney serving Anderson, SC
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The David F. Stoddard Law Firm
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If the friend was incompetent at the time she gave you the items, then it is possible that you could be forced to return the items. However, for the guardian to have a court order requiring you to return the items, the guardian would have to serve a motion on you and you would have a right to appear before the court before such an order is issued.
Answered on Apr 22nd, 2013 at 10:51 PM