Monday, August 11, 2014

How to Stop a Guardianship in Florida - Petition for Incapacity

Jeffrey Skatoff
There are certain steps that, if in place prior to the guardianship proceeding, can avoid the guardianship altogether, even if a finding of incapacity has been made. These steps include the creation and funding of a revocable living trust, the creation of a durable power of attorney, and the creation of a health care proxy. The guardianship court is required to determine whether there are lesser restrictive means to protect the incapacitated person that a full fledged guardianship. If there are such less restrictive means, the guardianship court is required to to implement them instead of the guardianship, unless certain circumstances are present (which could be financial exploitation of the incapacitated person by the person named as fiduciary in the documents).

•A revocable trust is a trust that names a successor trustee to manage one's assets in the event of incapacity. If the assets have been retitled in the name of the revocable trust, the successor trustee will immediately assume control of the assets, obviating the need for a guardianship in many cases.

•A durable power of attorney gives to a named person (the agent) the right to control the finances of the principal who is now incapacitated. A durable power fo attorney is a well recognized document under Florida law.

•A health care proxy allows another person to make medical decisions on one's behalf.

With these three documents in place, the guardianship court may avoid the appointment of a guardian.

Full Article and Source:
How to Stop a Guardianship in Florida- Petition for Incapacity

6 comments:

  1. But courts roll right over DPoA's all the time?

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  2. The key to these documents working is having a strong lawyer who will stand toe-to-toe with the proposed guardian and the judge and not back down.

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  3. Make a videotape of signing of advance documents to prove, if challenged, capacity at time of execution.

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  4. Dear Thelma and others,

    Do you believe the video which ABC News presents online at http://abcnews.go.com/video/playerIndex?id=8486577 conclusively proves that Mary Ellen Bendtsen was competent? that Mary Ellen's infirmity was not being exploited? If you believe this video did not conclusively prove that Mary Ellen was competent and prove that her infirmity was not being exploited, exactly how did the video fail to prove this?

    I raise these questions because I believe it is important when videotaping the execution of your documents to do so in a way which proves not only that you are competent but also that your infirmity is not being exploited. After all, it has been well established that many completely competent individuals are taken in by fraudsters.

    What does it take to prove conclusively that a person is competent or incompetent? That a person is or is not being exploited? And, perhaps even more importantly, how can you protect yourself from being exploited into SUBSEQUENTLY executing documents which contradict the ones you videotaped yourself executing? This is the very question that I have tried to address with regards to laws which provide you the ability to “self-prove” your Will before you die. See http://home.roadrunner.com/~tvfields/2005WHCOAHandout/Frameset01.htm

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  5. I had DPOA for my Mother her so-called court appointed atty. Said it was no good even before the hearing.

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  6. Kathleen:

    NASGA says: If you don't know your rights, you don't have any!

    You have to read the law and make sure your lawyer is doing the right thing.

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