Legal Question in Wills and Trusts in Florida

My father had an aneurism which burst in his brain, he is now unable to work. My mother needs to be able to make important decisions regarding the house and cars which are all under his name. She also needs to apply for social security benefits for him, since he is mentally incapable. How would I go about starting the process of getting a guardianship and/or power of attorney granted to my mother for my father? I'm really at a loss here and any help would be greatly appreciated.

Asked on 9/05/10, 8:35 am

1 Answer from Attorneys

Richard Stoffels Stoffels Law Group

From the facts that you have indicated, it might be difficult to have your father name your mother as his attorney in fact in a durable power of attorney. For him to do so, he would have to have legal capacity in order to execute the document naming your mother. He might have that capacity, but that is not clear from the facts that you have indicated.

If he does have the capacity to execute the durable power of attorney, that would probably be the easiest route to take. However, if he does not, you will need to look at a guardianship. Establishing a guardianship is done in two steps, the first is determining that your father has in fact lost his legal capacity, and the second, once his status is determined by the court is to appoint a legal guardian for him.

In the first step, your father would be examined by what is commonly referred to as an examining committee, a group of three doctors or other medical professionals appointed by the court. Based upon their opinions, his capacity is determined.

To start all of this, your mother, as the proposed guardian will need to obtain legal assistance. Guardianship law requires that their be an attorney of record for the guardianship as long as it is in existance. If you are in the Tampa Bay area I would be pleased to meet with you and discuss your situation further, but if not, you should consult a local attorney that is familiar with guardianships in the county of residence of your parents.

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Answered on 9/10/10, 8:54 am

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