How do you prove if a parent is incompetent, and take control of the estate?

Asked almost 4 years ago - Marathon, FL

My mother has drinking problem and is becoming mentally incompetent. She has a family history of mental diabilities. How can I gain control of her estate?

Attorney answers (3)

  1. Dan W. Armstrong

    Contributor Level 14

    Answered . Guardianship proceedings are designed to provide safe mechanism for assistance to prevent abuse of a vulnerable person, to alleviate the risk that an incompetent or incapacitated person may present to herself or to others and to restore the incompetent to health and financial security. The intent of the law in his proceeding is to accommodate the best interests of the alleged incapacitated person/ward to preserve their independence as much as possible under the particular circumstances of the cause. Guardianship is governed under FL Statue 744. The court first determines the persons ncapacity by using 3 medical professionals and they make their reports to the court. A hearing is set within 45 days (although an emergency Guardianship may be done faster if the court is convinced that the person is in imminent harm. A that Hearing the court determines if that person is incapacitated and taking into the “”least restrictive means test” rules on that legal determination. If the court deems the person incapacitated, that person remains legal incapacitated until they can provided evidence otherwise and remove the determination. At the same Hearing the Court then would hear Application from people that have applied to be the Wards Guardian. Once the Guardian is appointed he/she must file an Inventory within 60 days of appointment and annual thereafter of the person and property of the Ward for court oversight. I advise you to see an Elder Law Attorney in your county and further discuss this procedure to insure and protect your mother and her assets as soon as possible.
    My comments are not intended to establish an attorney-client relationship, are not confidential, and are not intended to constitute legal advice. Proper legal advice can only be given by an attorney who agrees to represent you, who reviews the facts of your specific case, who does not have a conflict of interest preventing the representation, and who is licensed as an attorney in the state where the law applies.

    Dan W. Armstrong, Attorney
    Law Offices of Dan W. Armstrong, P.A.
    822 A1A North, Suite 303
    Ponte Vedra Beach, FL 32082
    (O) 904.280.0058, (F) 904.280.0109
    http://www.danarmstrong.com

  2. Susan Michals King

    Contributor Level 10

    Answered . Mr. Armstrong's answer gives a fairly good explanation of the law. One clarification is that at an Emergency Temporary Guardianship hearing, the alleged incapacitated person (AIP) need not be present and no determination of incapacity is made at that time. I also strongly suggest that you consult an elder law attorney well versed in guardianship matters. One other issue you should be advised about is that if, at the time of the hearing on incapacity, the court rules that your mother is not incapacitated under the law then both you and your attorney may face monetary sanctions if the court finds that you acted in bad faith in bringing the proceeding. While this is rare, it is included in the Florida Guardianship statute. I usually suggest that the concerned individual (i.e. you) consult with either the AIP's physician, or, hire a qualified Geriatric Care Manager to assess the AIP and provide you with a written report as to the probability of incapacity. It is usually well worth the cost.

    My comments are not intended to establish an attorney-client relationship, are not confidential, and are not intended to constitute legal advice. Proper legal advice can only be given by an attorney who agrees to represent you, who reviews the facts of your specific case, who does not have a conflict of interest preventing the representation, and who is licensed as an attorney in the state where the law applies.

  3. Susan Lynne AlexanderMyers

    Contributor Level 10

    Answered . I am not licensed in your state. Prior to going to court, you may wish to have a licensed neuropsychologist evaluate your mother. While she apparently has a drinking problem, it is not automatic grounds for a court to strip her of her rights to manage her estate. A private evaluation will treat your mother with more dignity than hauling her into court as a first option. In addition, if you mother has existing estate planning documents, they should dictate how incapacity will be determined.

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