my mother has dementia mental illness and can no longer look after her assets how do i go about taking control
What is the process for getting a power of attorney and being appointed guardian of my son who has mental illness and is in jail charged with murder
Car / Auto Accident Lawyer
I am not licensed in WA and this is not to be construed as legal advice.
Did your mother give power of attorney to anyone before she became ill? If so, that person would be able to handle whatever affairs are described in the document.
If she did not give power of attorney to anyone, then your option is to speak with an attorney who can assist you in becoming a legal guardian for your mother.
Elder Law Attorney
Assuming that your mother never signed a power of attorney, you will need to go to court to request appointment as her guardian or conservator. A local elder law attorney can advise you about guardianship and managing her assets correctly so that she will not be disqualified for Medicaid if she needs nursing home care.
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Seems lke you need a guardian. A guardian is an individual who acts on behalf of another who is incapable, either by reason of age or condition, of acting on their own behalf. We are all familiar with guardian angels, whose firm vision has been formed by James Stewart in "It's a Wonderful Life". In law, guardians function in much the same way: as a guardian appointed by a court for a particular instance; to assure the rights of an elderly patient for whom a conservatorship is brought; for a missing person who is otherwise being sued in litigation, or, in the case of a will, for minor children. There are other occasions and reasons for guardians to be appointed.
In some instances, and older proceedings, the guardian is referred to as the "next friend" of a litigant; this means that they are looking after that person's interest in the case as if they were their friend -- even though they have been appointed to that status by operation of law, or the Court itself.
Guardians for elderly patients assigned as part of a conservatorship proceeding, or as a guardian ad litem in other proceedings, have limited service. Their charge is to investigate the proceedings (and their ward) and to then make a report to the Court. They are then paid for their services (using the assets of the ward, or the estate, as the source) based on an award made by the judge.
WHEN A GUARDIAN IS NEEDED
[bullet] Conservatorship or Guardianship reserve the property and assets of an elderly person. The court will frequently appoint an ad litem to make certain that the illness is real, and that the request for a conservatorship is appropriate and necessary.
[bullet] Where there are assets that need to be protected against claims, and some unknown person may appear to have rights to the assets, the Court will frequently appoint a guardian. Payment of a guardian is directed by the court, from sums from the assets of the ward.
[bullet] A mortgage foreclosure action is commenced, but the mortgagee cannot locate the mortgagor to obtain personal service. The Court will name a guardian ad litem to look after the interests of the property owner (even if the end result is that he loses his property).
[bullet] Anytime that a minor child is named as a party in litigation, there is a strong possibility that a guardian ad litem will be named by the Court.
[bullet] In a partition action, or an estate action involving remaindermen or unborn heirs, the Court will frequently appoint a guardian to represent those interests.
[bullet] If a plaintiff in a personal injury litigation is unable to speak for themselves or represent their interests, a guardian may be appointed for the express purpose of settling a claim or lawsuit.
NAMING A GUARDIAN
Naming a guardian is not placing up a child for adoption. The child continues to bear their birth name, but becomes a ward of the guardian, rather than the state. This is not dissimilar to Batman (Bruce Greyson) taking on his ward Robin, the boy wonder.
The means of achieving this is through a simple clause placed in the will naming an individual as guardian, and sometimes also a trustee, on behalf of the minor. The guardian and the trustee may be two different individuals.
The guardian looks after the person, and the property, of the minor. They attend to their health needs, educational needs, family needs, and other mental well being. They may or may not be compensated, depending upon the nature of the claim. A guardian should never use his ward's money or propery for personal use.
Elder Law Attorney
I respectfully disagree with all three of the above opinions. You see, a diagnosis of dementia alone is not an indication that someone does not have the capacity to contract. What is important is whether the person, at the moment they are signing a contract or testamentary document, understands what they are signing and basically understands what the effect of the document and who the beneficiaries are, in addition they need to know who the members of their family are. I have prepared many estate planning documents, trusts, and powers of attorney for people who have been diagnosed with early stage age related dementia. I recommend you contact an elder law attorney in your area as your options become more limited with the passing of time and the disease process progresses. You can find an attorney from the National Academy of Elder Law Attorneys or NAELA. Their web site is NAELA.Org NAELA is a non profit national elder law attorney organization devoted to legal education and advocacy for seniors.
Marty Burbank, JD, LLM
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