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Thread: Attorney/ Estate Issues for Indigent People

  1. #1
    madmaxine
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    Default Attorney/ Estate Issues for Indigent People

    I have a family member who has mental problems and is disabled. This person is getting to the point where institutional care is needed, or a home supportive services nurse. She is also lacking a will- I worry about her property being seized. The problem is that this she is so crazed and paranoid, she will not sign over power of attorney to family members. I am unable to care for her- it has come to the point where she is a threat to herself.
    Has anybody dealt with this before? I can borrow money for a lawyer, but there must be a better DIY way for dealing with this.

  2. #2
    God/dess Lena's Avatar
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    Default Re: Attorney/ Estate Issues for Indigent People

    In most places you can be appointed her guardian or something. Call your local legal aid and ask them what to do.



  3. #3
    God/dess montythegeek's Avatar
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    Default Re: Attorney/ Estate Issues for Indigent People

    Maxine, any assets from a person who dies intestate go to persons according to law, they are not seized accept as an executor needs to to satisfy bills. Of course it does go more to paying the executor and costs so it is better to have a will.

    If the person is incapacitated (say mentally) there are ways to petition the court to appoint someone with a power of attorney or custodianship(depending on need/severity) but I know of no way to DIY (family members would have recognized status). I would recommend talking to a real attorney on your own or to legal aid. Procedures are going to vary by state.

  4. #4
    madmaxine
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    Default Re: Attorney/ Estate Issues for Indigent People

    Thank you monty and Lena. This is an unpleasant situation. My ex-boyfriend's grandpa had to sell off his possessions to be declared eligible for Medicare. I'm fearful the state will hold her home value against her medical care eligibility. Meanwhile, she's waiting for the magic fairies in the crawlspace of the house to appear and come to her aid........LOL.......

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    Veteran Member stant's Avatar
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    Default Re: Attorney/ Estate Issues for Indigent People

    First, I'll assume you're in California. If not, ignore everything that follows.

    This is a rather complex family law matter that involves multiple stages of mental health certification and court hearings. I recommend looking for a family law specialist that understands this complex area of California law, if you decide to pursue an involuntary guardianship. This is far beyond what legal aid will be able to handle.

    Generally this process begins with a so called 51/50 hold on the "patient" based on some imminent threat they impose. For example, if you were to call the police and tell them this individual was ranting and you believed was going to set their house on fire, the police would probably come and take them away in handcuffs, and put them into a local hospital with a "locked" psychiatric ward. This is good for the first 72 hours. During that time the patient is evaluated by two psychiatrists and both must be willing to testify that the patient requires involuntary treatment. I'm told that the presence of family members at each hearing stage of the process helps greatly if involuntary treatment is desired. This is the certification review hearing (where the term "certifiable" as applied to the whacked comes from). If involuntary treatment (detention) is ordered this lasts for 14 days. If the patient refuses medication during this period, and medication is needed, a Riese hearing is required to obtain an order for involuntarily medicating a patient. Aslo during this 14 day period, the county can petitition for conservatorship of the patient in a two step process under the office of the county public guardian. During the final phase, guardianship can be petitioned for transfer to the family, but can only be 1 year in length. This all falls under the guidelines of the Lantermin Petris Short Act "LPS" (sp?). Remember that under Cali. law the "gravely disabled" are more likely to be considered for involuntary treatment and guardianship over those that are an "imminent threat" to themselves or others. So once the 51/50 detention begins, you'll want to shift focus to establish "gravely disabled" status.

    Much like in criminal or civil courts, these hearings are a advocacy process. The patient is represented at each stage by the county Patient Advocate Counsel, and the state by the County Public Guardian.

    If this person is very old and suffering from progressive dementia of some type, the process is completely different. In this case the Probate court is involved and I am unclear on the details, although I believe it to be considerably simpler than the LPS process.

    I explain all this to give you a heads up on difficult and perilous nature of the process. If AT ALL possible, I would suggest exhausting all possible efforts to resolve this with your family member through loving persuasion rather than force. No doubt your abilities of persuasion by sweetness are considerable. You'll still need an attorney to draw up papers for a power of attorney and guardianship and possibly conservatorship, but these are simple and basic compared to the very long and painful LPS process.

    I'm sure my boys at Nolo press have a book out on this. I'll check and post a link if I see one.

    Edit: Bingo. Nolo has a book on Probate court conservatorships:
    http://www.nolo.com/lawstore/product...3C69905F180838
    The book does not cover LPS conservatorships which I detailed above, but mentions when they should be used. I highly recommend spending the $50 on this book, which translates to about 10 minutes of attorney time.

    I'd also check out (on powers of attorney agreements):
    http://www.nolo.com/lawstore/product...3C69905F180838
    and (on choosing long term care, including financial and legal aspects):
    http://www.nolo.com/lawstore/product...3C69905F180838
    Last edited by stant; 11-16-2004 at 01:03 AM.

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