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No Power of Attorney? What now?

I recently received the following email from a client: “Attorney Lehn, my father had a stroke and is in the hospital. The doctor says that he will now need long term care. The social worker at the hospital called asking me if my father has a power of attorney. I don’t believe he does. . I know the high cost of a nursing home and am concerned that he cannot afford it. Please help!”

If the father has no advanced directives or a power of attorney, this gets quite complicated. Without those documents, the daughter is not legally allowed to make those decisions for her father. She needs an attorney to assist her in becoming guardian of her father.

A guardianship is a legal proceeding in which a guardian is appointed to exercise the legal rights of an incapacitated person, an adult who has been judicially determined (through a court proceeding) to lack capacity to manage some of his property or to meet at least some of the essential health and safety requirements of the person.

What exactly does a guardian do, you might ask? Well, it depends. A guardian who is given authority over the property of the incapacitated person (deemed a “ward”) is required to inventory the property, invest it prudently, and account for it by filing a detailed report with the Court.

If a guardian is appointed over the ward’s person, the guardian may do things such as provide medical, mental and personal care services and determine the best kind of residential setting suited for the ward. A guardianship will accomplish this, though the Florida Statutes command that all other means necessary be exhausted prior to appointment of a guardian.

To answer the second part of her question, about how she can pay for her father’s care if he requires long term skilled care in a nursing home, I would strongly advise her to consult with a qualified Medicaid planning attorney such as myself to guide her through the legal process and ensure her father gets the proper care and can pay for such care. Medicaid can be a minefield.

In summary,

  • If you have no advanced directives, guardianship is the solution
  • Guardianship is monitored by the court, so you will need an attorney to represent you to petition to be the guardian
  • Medicaid is an entitled program which assists people to pay for long term care.
  • Medicaid is a minefield Hire an attorney
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