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Can my mother's siblings use her funds to pay for her attorney fees?

Can my mother's siblings use her funds to pay for her attorney fees?

Full question:

I have applied for guardianship of my mother who has moderate dementia. She has been classified as legally incompetent and legally recognized as so. When I filed the guardianship papers, her brothers and sisters retained an attorney on her behalf, but they are paying his fees with her money from her account. Can they do this or are they not responsible for the fees since they retained him and mom is unable to consent because of her mental incapacity?

Category: Courts
Date: 04/07/2025
State: Oklahoma

Answer:

According to the law, if a person is deemed incapacitated, the court may appoint an attorney to represent them in guardianship proceedings (see Okla. Stat. tit. 30, § 30-3-107). If your mother is legally incompetent, her siblings cannot unilaterally decide to use her funds to pay for an attorney they retained on her behalf. The court must ensure that any attorney retained is independent and that there are no conflicts of interest that could harm your mother's interests.

The court's role is to determine whether the appointment of counsel is in the best interest of the incapacitated person. If the court finds that the attorney retained by her siblings is not independent, it may appoint another attorney to represent your mother. Therefore, the use of her funds for attorney fees without proper court approval and oversight may not be permissible.

For further assistance, you may want to consult a legal professional familiar with guardianship laws in your state.

This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.

FAQs

How to legally deem someone incompetent?

To legally deem someone incompetent, a court must evaluate their mental capacity. This typically involves a medical assessment and a legal hearing. Evidence of the individual's inability to make sound decisions due to mental illness, cognitive decline, or other factors is presented. If the court finds sufficient evidence, it can declare the person legally incompetent, which affects their ability to manage their own affairs.

How to get legal guardianship of a parent with dementia?

To obtain legal guardianship of a parent with dementia, you must file a petition in court. This process usually involves providing medical documentation of the parent's condition, demonstrating their inability to manage their affairs. A hearing will be scheduled where evidence will be presented. If the court agrees that guardianship is necessary, it will appoint you as the guardian, granting you legal authority to make decisions on their behalf.

Does it matter if the incompetent person has been appointed a guardian?

Yes, if a person has been appointed a guardian, it signifies that the court has recognized their incompetence. The guardian is responsible for making decisions in the best interest of the individual. This appointment affects the rights of the incompetent person and ensures that their affairs are managed by someone deemed capable by the court.

How to be declared legally incompetent?

To be declared legally incompetent, a court must assess an individual's mental capacity. This often involves a medical evaluation and a legal hearing where evidence of the person's inability to make informed decisions is presented. If the court finds that the individual cannot manage their affairs due to mental incapacity, it will issue a declaration of incompetence.

How is a person determined to be incompetent?

A person is determined to be incompetent through a legal process that includes a medical evaluation and a court hearing. The court reviews evidence regarding the individual's mental capacity, including expert testimony. If the court concludes that the person cannot make informed decisions or manage their affairs, they may be declared incompetent.

How is a person with dementia declared incompetent?

A person with dementia is declared incompetent through a court process that assesses their mental capacity. This typically involves medical evaluations and legal hearings where evidence of their cognitive decline is presented. If the court finds that the dementia significantly impairs their ability to make decisions, it may declare them incompetent and appoint a guardian.