How Do I Prevent Family From Controlling a Disabled Relative's Property?
Full Question:
Answer:
The answer will depend on whether either of you have a power of attorney from the father. If not, it may be necessary to establish a guardianship to manage his property and affairs. The answer will depend on all the facts and circumstances involved. The father must be competent to sign a power of attorney or revocation of the same. A physician may be able to attest to the father's competency or lack thereof if a challenge is anticipated. A diagnosis of Alzheimer’s or dementia alone is not an indication of incompetence.
Legal capacity is the level of judgment and decision-making ability needed to sign official documents. In order to be competent or have legal capacity to sign documents, a person must be able to understand and appreciate the consequences of his/her actions. In many cases, the person with dementia is able to understand the meaning and importance of a given legal document.
If your father lacks legal capacity to sign legal documents, it will likely be necessary to establish a guardianship. If you suspect financial abuse, there are state laws dealing with elder abuse.
Please see also:
http://www.ksag.org/page/elder-abuse
http://www.agingkansas.org/LongTermCare/LCE/hotlines.html
The following are KS statutes:
59-3056. Voluntary petition for appointment of conservator.
An adult person for whom no guardian or conservator has been appointed,
and who is not a proposed ward or a proposed conservatee may file in the
district court of the county of residence of such person a verified
petition requesting the appointment of a conservator for the petitioner.
The petition shall include:
(a) The person's name, age, date of birth, address of permanent residence
and present address or whereabouts, if different from the person's
permanent residence;
(b) the factual basis upon which the person alleges the need for the
appointment of a conservator;
(c) the name, age, date of birth, gender, address, place of employment,
relationship to the petitioner, if any, of the individual or corporation
whom the petitioner requests that the court appoint as conservator, and any
personal or agency interest of the proposed conservator that may be
perceived as self-serving or adverse to the position or best interest of
the proposed conservatee, and whether such individual or corporation should
be required to file a bond. If the proposed conservator is under contract
with the Kansas guardianship program, the petition shall state that fact;
(d) a request that the court make a determination that there is a need
for the appointment of a conservator and that the court appoint a
conservator;
(e) the names and addresses of the relatives nearest in kinship to the
person;
(f) the general character and probable value of the real and personal
property, including the amount and sources of income, of the person;
(g) the name, address of any existing fiduciary for the person and a
description of that fiduciary relationship.
59-3058. Petition for appointment of guardian or conservator for an adult
with an impairment; contents; evaluation; plan.
(a)(1) Any person may file in the district court of the county of
residence of the proposed ward or proposed conservatee or of any county
wherein the proposed ward or proposed conservatee may be found, a verified
petition requesting the appointment of a guardian or a conservator, or
both, for an adult with an impairment in need of a guardian or conservator,
or both. If the proposed conservatee is not a resident of or present within
the state of Kansas, such petition may be filed in the district court of
any county in which any property of the proposed conservatee is situated.
(2) If a petition is filed in the district court of a county other than
the county of residence of the proposed ward or proposed conservatee, the
court may consider whether it is in the best interests of the proposed ward
or proposed conservatee or in the interests of justice for the proceedings
to take place in that county.
(3) If the court finds it is not in the best interests of the proposed
ward or proposed conservatee or in the interests of justice that the
proceedings take place in that county and the proposed ward or proposed
conservatee is a nonresident of the state of Kansas, the court may dismiss
the matter immediately, or may continue the matter for a specific period of
time not to exceed 60 days to allow for the filing of proceedings in the
state of residence. After the expiration of that period of time, or upon
the filing of proceedings in the state of residence, the court shall
dismiss the petition without prejudice.
(4) If the court finds it is not in the best interests of the proposed
ward or proposed conservatee or in the interests of justice that the
proceedings take place in that county and the proposed ward or proposed
conservatee is a resident of a different county in Kansas, the court may
dismiss the matter immediately, or may transfer venue to the county of
residence, or may continue the matter for a specific period of time not to
exceed 60 days to allow for the filing of proceedings in the county of
residence. After the expiration of that period of time, or upon the filing
of proceedings in the county of residence, the court shall dismiss the
petition without prejudice.
(b) The petition shall include:
(1) The petitioner's name and address;
(2) the proposed ward's or proposed conservatee's name, age, date of
birth, address of permanent residence, and present address or whereabouts,
if different from the proposed ward's or proposed conservatee's permanent
residence;
(3) if the proposed ward or proposed conservatee is a nonresident of the
county in which the petition is filed, a statement of why it is in the best
interests of the proposed ward or proposed conservatee or in the interests
of justice for the proceedings to take place in that county;
(4) if the proposed ward or proposed conservatee is under the age of 18
years, the factual circumstances under which the petitioner alleges that
the minor should be considered to be of the age of majority pursuant to the
provisions of K.S.A. 38-101, and amendments thereto, or concerning when and
where the rights of majority were conferred upon the minor pursuant to the
provisions of K.S.A. 38-108, and amendments thereto;
(5) a statement that it is the petitioner's belief that the proposed ward
or proposed conservatee is an adult with an impairment in need of a
guardian or a conservator, or both;
(6) the factual basis upon which the petitioner makes that allegation;
(7) the names and addresses of any spouse, adult children and adult
grandchildren of the proposed ward or proposed conservatee, and those of
any parent and adult siblings of the proposed ward or proposed conservatee,
or if no such names or addresses are known to the petitioner, the name and
address of at least one adult who is nearest in kinship to the proposed
ward or proposed conservatee, or if none, that fact. If no such names or
addresses are known to the petitioner, but the petitioner has reason to
believe such persons exist, then the petition shall state that fact and
that the petitioner has made diligent inquiry to learn those names and
addresses;
(8) the name and address of any person or agency having custody of the
proposed ward or proposed conservatee, or any other person or agency who
has assumed responsibility for the proposed ward or proposed conservatee,
and the circumstances under which the proposed ward or proposed conservatee
came into such person's or agency's care or control;
(9) the name and address of any person or corporation acting for or
nominated to act on behalf of the proposed ward or proposed conservatee
pursuant to any power of attorney, trust or other fiduciary relationship
established by any court order, and a description of that authority or
relationship. If not known, the petition shall state that the petitioner
has made diligent inquiry to learn this information;
(10) a list and description of all court proceedings in which the
proposed ward or proposed conservatee is a party, or is the subject of, or
may be a beneficiary of, or in which any rights of the proposed ward or
proposed conservatee may be determined or affected, and the name and
address of any attorney who represents the proposed ward or proposed
conservatee in such matter. If not known, the petition shall state that the
petitioner has made diligent inquiry to learn this information;
(11) in general terms, the location, type, and value of any real or
personal property of the proposed ward or proposed conservatee, including
the amount and sources of any income of the proposed ward or proposed
conservatee. If not known, the petition shall state that the petitioner has
made diligent inquiry to learn this information;
(12) the names and addresses of witnesses by whom the truth of the
petition may be proved;
(13) the name, age, date of birth, gender, address, place of employment,
relationship to the proposed ward or proposed conservatee, if any, of the
individual or corporation whom the petitioner suggests that the court
appoint as guardian or conservator, or both, and any personal or agency
interest of the proposed guardian or proposed conservator that may be
perceived as self-serving or adverse to the position or best interest of
the proposed ward or proposed conservatee, and if the suggested guardian or
conservator is under contract with the Kansas guardianship program, that
fact;
(14) if the petitioner suggests the appointment of co-guardians or
co-conservators, or both, a statement of the reasons why such appointment
is sought and whether the petitioner suggests that the co-guardians or
co-conservators, if appointed, should be able to act independently or
whether they should be required to act only in concert or only in concert
with regard to specified matters; and
(15) a request that the court make a determination that the proposed ward
or proposed conservatee is an adult with an impairment in need of a
guardian or a conservator, or both, that the court enter one or more of the
orders provided for in K.S.A. 59-3063, 59-3064 and 59-3065, and amendments
thereto, and that the court appoint a guardian or a conservator, or both,
for the proposed ward or proposed conservatee.
(c) Any such petition may be accompanied by, or the court may require
that such petition be accompanied by, a report of an examination and
evaluation which meets the requirements of K.S.A. 59-3064, and amendments
thereto. In such case, the petition may include a request that the court
accept this report in lieu of ordering any additional examination and
evaluation pursuant to K.S.A. 59-3064, and amendments thereto.
(d) Any such petition may be accompanied by, or the court may require
that such petition be accompanied by, a proposed guardianship plan as
provided for in K.S.A. 59-3076, and amendments thereto, or a proposed
conservatorship plan as provided for in K.S.A. 59-3079, and amendments
thereto, or both.