Guardianship And Conservatorship Legal Questions

This is highly fact dependent.  To be placed under guardianship, someone must, due to a physical or mental condition, be unable to manage their finances or provide for their own food, shelter and medical care AND less restrictive alternatives, such as a Medical and Durable [Financial] Power of Attorney must be insufficient.  This typically occurs when someone who needs nursing home care refuses to enter a nursing home, when the DPOA agent is robbing the person, or when the DPOA is insufficient because the person is giving everything to charity, QVC or amazon.... Read More

Would you be equally happy if your father and his new wife signed a contract not to change their wills to include each other? Your father may well not be a candidate for guardianship.  A court can only put a person under guardianship if that person is, due to mental or physical condition, unable to manage their finances or to provide for their own food, shelter and medical care.  In addition, applying for guardianship takes time and a spouse has priority.  This could easily take two years.  If your father is dying of sepsis, he is unlikely to live long enough for anyone to become his guardian.... Read More

Your father can name you his agent under a Durable [Financial] Power of Attorney, giving you access to his finances while preserving his, and under a Medical Power of Attorney, allowing you to speak for him when he cannot communicate.  The earlier these are in place, the better.  To make sure they give you all the authority you need (applying for Medicaid, hiring home health, paying taxes, redirecting mail if he moves, etc.), talk with an elder law attorney.  Don't just download some "one size fits all" form.  You can find an elder lawyer near you using the Find a Lawyer function on the website of the National Academy of Elder Law Attorneys (www.naela.org),... Read More

Unless the POA specifically allows the agent to appoint a successor agent, no. If your father's dementia is advanced, it may be wise to seek guardianship of him before you are unable to act.  You may want to talk with a local elder lawyer.  You can find one on the website of the National Academy of Elder Law Attorneys (www.naela.org).... Read More

If your neice has the legal capacity to do so, she can name you her agent in a Durable Power of Attorney.  If not, you can apply to the court for guardianship.  However, her husband has priority and must waive his right.  To find a lawyer to help you, you might check the website of the National Academy of Elder Law Attorneys (www.naela.org)... Read More

This varies with county court filing fees, location and the cost of the lawsuit to try to overcome your father's prior right to be the guardian if one is needed.  Keep in mind that a person can only be put under guardianship if, due to a mental or physical condition, they are unable to manage their own finances or unable to provide for their own food, shelter and medical care.... Read More

If all you did was suggest talking to an attorney, you did not give legal advice.  In most states you could have also handed her a form of Temporary Power of Attorney for Our Minor Child(ren), which both parents can sign, allowing someone to register the child in school, take the child to the doctor, etc.  Often these are available online.  But you are right to be cautious about giving legal advice.  Our laws vary from state to state.  Their application varies from one situation to the next.  In addition, there may be complicating factors or ancillary considerations which an attorney could tease out.  Without regularly practicing in a certain area of law, it is hard to know what those might be.... Read More

In Texas an agent under a Medical Power of Attorney is authorized to voice the wishes of the person granting it if that person is unable to communicate, nothing more. The person who can complete papers and access funds for payment of expenses is the agent under the Durable [Finanical] Power of Attorney.... Read More

What gobbledygook!  Ordinarily a Durable Power of Attorney gives you authority to access someone's finances to pay for his care.  Being nominated means just that:  the person would prefer that the court appoint you.  Usually a person with valid Medical and Durable Powers of Attorney does not need a guardian, which a court must appoint.... Read More

A local elder law attorney can help you bring suit against your aunt for conversion (converting your mother's property to her own) and violation of her fiduciary duty (her duty to put your mother's interests first) as agent under a Durable Power of Attorney.  But please note that this may not be what happened.  Your aunt may simply have paid the nursing home. In any event, a elder law attorney can contact the nursing home to remind them that absent a history of abuse or exploitation, neither an agent under a Medical Power of Attorney nor a conservator can limit your mother's right to see you and receive calls and mail from you.  The right resides with your mother wherever she lives. You can find an elder law attorney near you using the Find a Lawyer function on the website of the National Academy of Elder Law Attorneys.    ... Read More

It is very, very difficult to obtain conservatorship based on alcoholism or drug abuse.  Generally speaking, a person is eligible to be protected by a conservatorship/guardianship only if, due to a physical or mental illness, they are unable to provide for their own food, shelter or medical care or to manage their finances.  Getting a court to recognize alcoholism or drug abuse as a physical or mental illness seems to be a high hurdle.... Read More