Category Archives: Dementia

When a person is incapacitated or unable to care for their own legal matters, another individual may be assigned guardianship. Guardians are individuals assigned by Florida courts. They oversee the well-being of an incapacitated person or a minor.

Guardianship often entails the management of the incapacitated person’s assets or property. Many life circumstances can result in the need for a guardian. If you have legal questions regarding guardianship in Florida, it’s important to speak with an attorney in Daytona Beach.

Types of Volusia County Guardianship

There are several types of guardianship that can be established under Florida state law. The most common type of Volusia County guardianship is for adults suffering from an incapacity, such as dementia.

However, other types of guardianship exist. For example, a minor may have a significant inheritance and need assistance ensuring the security of their assets. Florida state law requires minors to have a guardian handle large amounts of money for them.

In an emergency, the courts may establish temporary guardianship for someone who has become incapacitated unexpectedly. Temporary guardians typically have authority for a few months while permanent guardianship is established. This legal process generally takes a few weeks to complete.

How to Establish Guardianship in Florida

Establishing guardianship in Volusia County, Florida, involves engagement with the local courts. The person seeking guardianship must first file a petition with the court.

This petition must detail the mental and physical condition of the person for whom the petitioner is seeking guardianship. This person is known as the alleged incapacitated person, or AIP.

The petitioner must submit a written oath to promise they will handle the AIP’s estate in a legal manner. The courts also require an application with details that include the petitioner’s:

  • Work history
  • Educational experience and training
  • Background information

Speaking with a skilled attorney in Florida will ensure that you submit all the required paperwork if you’re seeking guardianship. After this paperwork is filed, the court will appoint a legal professional to inform the incapacitated person about the guardianship.

In some cases, the process will require a medical examination to establish the need for guardianship.

What Does a Guardianship Entail?

When a Florida court rules that an individual is completely incapacitated, the court may appoint a trustworthy person as a plenary guardian. This person wields full decision-making power over the incapacitated person, who is known as the ward.

A plenary guardian can take the following actions on behalf of their ward:

  • Entering legal contracts
  • Defending lawsuits and filing claims
  • Determining the ward’s place of residence
  • Accepting or declining medical treatment
  • Managing and selling property
  • Applying for public benefits

These are only a few examples of the rights bestowed on a plenary guardian in Florida. If you have questions about the role of guardianship in your case, reach out to a knowledgeable legal professional.

When you are seeking guardianship for an AIP, a skilled guardianship attorney can walk you through the process and represent you at required hearings.

Most estate plans include advance directives that state your wishes for health care and end of life decisions.  But, as some families are finding out, these advance directives may not be specific enough for certain diseases, such as Alzheimer’s.

Without a specific directive, some families facing this issue have had to go to court.  The results are usually not favorable for the families.

One such case recently occurred in Oregon.  In this case, the Alzheimer’s patient had previously signed an Advance Directive after being diagnosed with early onset Alzheimer’s disease.  She wanted to prevent her life from being prolonged once the disease became severe.  Her Advance Directive stated that she did not want to be fed through tubes and other mechanical assistance.

However, she was being kept alive by spoon feeding by her nursing home caregivers.  The woman’s husband went to court arguing that his wife would not want to be kept alive in this manner and that her acceptance of food was an automatic response and not a change in her wishes.

The Court found against the family.  The judge said she would not order the facility to stop spoon feeding Nora.

“It’s not a happy decision for me, said the Judge to the husband.  From what you have told me, your wife would hate this.”

The judge went on to say that the advance directive form only speaks to artificial nutrition.  It does not specifically mention food or water presented by hand.

The Law Office of Debra G. Simms can prepare an Advance Directive specifically for dementia and dementia-related diseases such as Alzheimer’s.   This new advance planning document allows sufferers of such diseases to record the specific difficulties associated with these illnesses and to detail what type of health care you want to be followed once you are no longer able to make your own quality of life decisions.

Call the Law Offices of Debra G. Simms at 386.256.4882 to learn more.

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

Consider the following as you make your plans.

  • Consult with a Florida Bar Board Certified Elder Law Attorney. Many attorneys offer an initial free consultation for estate planning matters.
  • Those named in your Durable Power of Attorney should be aware of the document and have access to the document.
  • The person with dementia should name a successor (back-up) agent for the power of attorney in the event the agent may be unable to act. (Illness, resignation, death)
  • Once a power of attorney for health care document and a living will is in place, give copies to the person’s health care providers and agents.
  • Consider choosing an attorney or a corporate trustee (bank or broker) to manage the individual’s estate if the person lacks a trusted individual with time or expertise.
  • The person with dementia should discuss his or her wishes with the chosen agent to make sure the agent is comfortable carrying those wishes out.

Questions? The Law Office of Debra Simms is here to help. Call us today 386.256.4882

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

Many legal forms (Power of Attorney, Living Will) can be completed without professional help.  However, if you have a complex situation or questions, it’s a good idea to seek legal advice and services from an attorney specializing in elder law.

Elder Law focuses on disability planning, guardianship, estate planning, and other legal issues that typically affect older adults.

If you have a family attorney, he or she may be able to refer you to an elder law attorney.  Other resources include:

When you meet with your lawyer be sure to talk to your lawyer about the following key issues as well as any other concerns you may have:

  • Options for health care and long-term care decision-making for the person living with dementia
  • Options for managing the individual’s personal care and property
  • Possible coverage of long-term care services, including what is covered by Medicare, Medicaid, veteran benefits and other long-term care insurance.

The laws vary from state to state; make sure you understand your local laws and have any out-of-state documents updated in your new state.

Questions? The Law Office of Debra Simms is here to help. Call us today 386.256.4882

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

Living Will

A living will is a document that expresses how a physically or mentally incapacitated person wishes to be treated in certain medical situations.

In a living will, the person states his or her wishes regarding artificial life support.  This document generally comes into play once a doctor decides that a person is at the end of life and unable to communicate his or her desires regarding life-sustaining treatment.

Advance Directives

Advance medical directives are legal documents that allow a person to document preferences regarding medical treatment and care.  This document allows a person with dementia to name an agent to make healthcare-related decisions on his or her behalf when he or she is incapable of doing so.  These decisions include choosing:

  • Doctors and other healthcare providers
  • Types of treatment

For a person in the late stage of dementia, the health care agent may also make end-of-life decisions, such as providing nutrition through a feeding tube or giving do-not-resuscitate (DNR) instructions to health care providers.

A Durable Power of Attorney is the legal document that allows a person with dementia to name an agent to make financial and legal decisions on his or her behalf when he or she is incapable of doing so.  These decisions include:

  • Choosing an assisted living or skilled nursing facility with a memory care unit
  • Applying for Medicaid, if applicable
  • Accessing bank or brokerage firms to handle finances
  • Hiring lawyers, accountants and private caretakers

When the time comes, these decisions can be difficult for families to make.  Help avoid disagreements and distress by having open conversations early on so everyone involved understands the plans.

The legal requirement for these documents varies from state to state.  Do not assume that your legal documents from another state are valid once you relocate.  Consult with an elder law attorney familiar with these issues.

Questions? The Law Office of Debra Simms is here to help. Call us today 386.256.4882

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

 

 

Before a person with dementia signs a legal document:

Talk with the person.

Find out if the person with dementia understands the document and consequences of signing it.  Make sure the person under the stands what is being explained and what he or she is being asked to do.

Ask for medical advice.

If you have concerns about the person’s ability understand, a doctor may be able to help determine the level of his or mental capacity.

Take inventory of existing legal documents.

Verify whether living wills, trust and powers of attorney were signed before the person was diagnosed.  He or she may not remember completing them.  Even if legal documents were completed in the past it is important to review them for necessary updates.

Do not delay.  Dementia can progress very slowly, but sometimes very quickly.  Failure to plan can lead to expensive and complex legal consequences.

Questions? The Law Office of Debra Simms is here to help. Call us today 386.256.4882

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

This is the first in a series of information on the legal issues associated with Dementia. 

While it’s Important for everyone to plan for the future, legal plans are especially important for a person diagnosed with dementia.  The sooner planning begins, the more likely it is that the person with dementia will be able to participate.

In many cases, time is of the essence.  If a person with dementia is able to understand the meaning and importance of a given legal document he or she likely has the legal capacity (the ability to understand the consequences of his or her actions) to sign the documents. The level of legal capacity required for a person to sign a particular document varies from one document to another.

It is very important to seek the services of an estate planning or elder law attorney as early on as possible.  Once dementia progresses, the client may no longer be able to understand and sign the documents.  I see this all too often in my law practice.

Legal Planning for persons with dementia includes:

    Planning for Long-Term Care and healthcare

  • ing arrangements for finances and property
  • Naming another person to make health decisions on behalf of the person with dementia
  • Executing a Will and/or Trust to make sure the person with dementia has control over who receive his or her property when he or she dies.

Questions? The Law Office of Debra Simms is here to help. Call us today 386.256.4882

This blog post is not case-specific and is provided only for educational purposes and is not intended to provide specific legal advice. Blog topics may or may not be updated and entries may be out-of-date at the time you view them.

Contact Us

Port Orange Office:
Prestige Executive Center
823 Dunlawton Ave. Unit C
Port Orange, FL 32129
Local: 386.256.4882
Toll Free: 877.447.4667
New Smyrna Beach Office:
817 E. 7th Ave
New Smyrna Beach FL, 32169
Local: 386.256.4882
Toll Free: 877.447.4667