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  1. #1
    Hersister is offline Junior Member
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    mentally incompetent

    What is the name of your state? Virginia

    My sister has just been hospitalized with alcohol induced dementia. She has been declared mentally incompetent. Her ex-husband would like to have legal guardianship of her since they have a minor child together and since I am her only relative and I live out of state. My sister lost her job and was kicked out of her friends apartment shortly before she was hospitalized. Her husband is saying that she is indigent and that she needs to be in a government funded facility, nursing home, whatever. The hospital wants to discharge her soon and her exhusband refuses to allow her to live at his home temporarily and provide care for her while they wait for any SS benefits to kick in and she is placed in a care facility. We have offered to take her but that would mean that we would move her out of state and she would not be able to return and get any benefits in her home state. My question is....her name is still on the very expensive house where her husband and children live....in the divorce he was to stay in the house until the kids were grown and then sell and split the money or buy her out. Is she entitled to any of that money now to help provide quality care for her or will it be that Medicaid/Medicare will have to pay her way and the husband keeps the house and pays nothing out of pocket. He is very adamant about having guardianship himself "for the sake of the kids" but we are starting to worry about an ulterior motive. Please help!What is the name of your state?
  2. #2
    LdiJ is offline Senior Member
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    Quote Originally Posted by Hersister View Post
    What is the name of your state? Virginia

    My sister has just been hospitalized with alcohol induced dementia. She has been declared mentally incompetent. Her ex-husband would like to have legal guardianship of her since they have a minor child together and since I am her only relative and I live out of state. My sister lost her job and was kicked out of her friends apartment shortly before she was hospitalized. Her husband is saying that she is indigent and that she needs to be in a government funded facility, nursing home, whatever. The hospital wants to discharge her soon and her exhusband refuses to allow her to live at his home temporarily and provide care for her while they wait for any SS benefits to kick in and she is placed in a care facility. We have offered to take her but that would mean that we would move her out of state and she would not be able to return and get any benefits in her home state. My question is....her name is still on the very expensive house where her husband and children live....in the divorce he was to stay in the house until the kids were grown and then sell and split the money or buy her out. Is she entitled to any of that money now to help provide quality care for her or will it be that Medicaid/Medicare will have to pay her way and the husband keeps the house and pays nothing out of pocket. He is very adamant about having guardianship himself "for the sake of the kids" but we are starting to worry about an ulterior motive. Please help!What is the name of your state?
    I would guess that the guardianship is about preserving the house....perhaps in part for the sake of the kids, and perhaps in part for his sake. If he gets guardianship of her then he has control over her financial affairs.

    Even though you live in another state, it would be far better for you to have guardianship of your sister....and a judge would be far more likely to grant guardianship to you, than to an ex-husband.

    If you had guardianship, you could file a motion to modify the orders and partition the house, and then it would have to be sold or dad would have to refinance for enough to buy your sister out....and then there would be resources to provide the care that she needs.
  3. #3
    BelizeBreeze is offline Senior Member
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    A guardianship is a very restrictive form of control over an incompetent person and is only valid for "life" decisions. For example, where to live, what medical treatments to seek, and other living conditions.

    A conservatorship is less restrictive but comes with conditions also. Conservators are appointed to look after the financial needs of an individual. They must approve financial decisions and have the power to make them for the persons they were appointed to help.

    Although both titles can be held by the same person, the court will need to appoint the conservator AND in most cases, a bond is required. And in the present case, while there are minor children with interest in the 'estate' of the inapacitated, the court is bound to look at the impact of it's decision as it affects those children.

    Although you MAY be able to be appointed as guardian of your sister, conservatorship or limited conservatorship is an entirely other matter.
  4. #4
    LdiJ is offline Senior Member
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    Quote Originally Posted by BelizeBreeze View Post
    A guardianship is a very restrictive form of control over an incompetent person and is only valid for "life" decisions. For example, where to live, what medical treatments to seek, and other living conditions.

    A conservatorship is less restrictive but comes with conditions also. Conservators are appointed to look after the financial needs of an individual. They must approve financial decisions and have the power to make them for the persons they were appointed to help.

    Although both titles can be held by the same person, the court will need to appoint the conservator AND in most cases, a bond is required. And in the present case, while there are minor children with interest in the 'estate' of the inapacitated, the court is bound to look at the impact of it's decision as it affects those children.

    Although you MAY be able to be appointed as guardian of your sister, conservatorship or limited conservatorship is an entirely other matter.
    I must respectfully disagree with the bolded part. There is a distinct conflict of interest between the needs of the children, and the needs of the incapacitated parent.

    A court will not put the needs of the children (when they have another parent who is perfectly able to care for and support them) over the needs of the incapacitated parent, particularly if the government is going to end up picking up the tab if the ex-husband manages to finagle things so as to preserve mom's share of the house while putting mom on medicaid. (which honestly, probably can't happen anyway under the rules/laws for medicaid in these situations)

    I can just about guarantee that a court would never consider an ex husband as a conservator...particularly when joint assets are involved...over a family member with no interest in the joint assets.

    Hersister, please get a consult with an attorney in your sister's area who specializes in elder law. I realize that your sister may not be an elder, but the issues that surround her condition are those that are most commonly dealt with by attorneys who specialize in elder law.
  5. #5
    BelizeBreeze is offline Senior Member
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    Quote Originally Posted by LdiJ View Post
    I must respectfully disagree with the bolded part. There is a distinct conflict of interest between the needs of the children, and the needs of the incapacitated parent.

    A court will not put the needs of the children (when they have another parent who is perfectly able to care for and support them) over the needs of the incapacitated parent, particularly if the government is going to end up picking up the tab if the ex-husband manages to finagle things so as to preserve mom's share of the house while putting mom on medicaid. (which honestly, probably can't happen anyway under the rules/laws for medicaid in these situations)

    I can just about guarantee that a court would never consider an ex husband as a conservator...particularly when joint assets are involved...over a family member with no interest in the joint assets.

    Hersister, please get a consult with an attorney in your sister's area who specializes in elder law. I realize that your sister may not be an elder, but the issues that surround her condition are those that are most commonly dealt with by attorneys who specialize in elder law.
    now where in the hell did you get from the bolded part that I placed any degree of success on EITHER party. The statement is true and exact. Guardianship is one thing. Conservatorship is a completely different matter. PERIOD!
  6. #6
    Hersister is offline Junior Member
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    the tab if the ex-husband manages to finagle things so as to preserve mom's share of the house while putting mom on medicaid. (which honestly, probably can't happen anyway under the rules/laws for medicaid in these situations)


    Thank you so much to both of you who are giving us some info/insight into this....I have no understanding of any of this and we were just shell-shocked when we got there and the whole "I'll do this for the sake of the children" line sounded good until he started saying that he refused to put out any money for her care until Medicaid kicked in and handled it. He wants to spend no out of pocket and have no physical custody of my sister. We offered to bring her home with us and he told that her leaving the state was out of the question.

    Regarding the info above.....how do we make sure that he is disclosing all info on those forms...he is running around telling anyone that is involved in this case that she is indigent, has no assets, no anything...in actuality she has a car (though not worth much more than a few thousand bucks, some retirement benefits that will be coming from her government job when all that can be cleared up (she was there alost 30 years when she was fired) and partial ownership is a large house in an upscale neighborhood. We are not trying to take ANY of it, I want to make that clear...but we are wondering if some of those assets could be used to put her in a quality facility where she may possibly get care that could make a difference in her condition. That is another concern...if she does make improvement where she could possibly be moved out of a nursing home or something we feel like the husband won't pursue that because he has nothing to gain from it. I don't want to slam him and we are sensitive to the fact that iy would mean alot to the kids to have her there and he is doing things to try to get her taken care of but we are just concerned about his methods.
  7. #7
    BelizeBreeze is offline Senior Member
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    You need to call an attoney in her town to see what the cost and process would be to have the court appoint a conservator. It doesn't have to be a family member but can be appointed by the court.

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