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Incompetency disputes often generate probate litigation

Financial exploitation of the elderly is a steadily growing problem in Ohio and nationwide. This often arises when an elderly person becomes incompetent to handle his or her own affairs. Where preparations have been made in advance, a relative is chosen to take care of those affairs through a duly executed power of attorney. On occasion, the agent under the power of attorney may negligently or intentionally dissipate the elderly relative's funds.  When that happens, the situation may become prime fodder to be fought out as probate litigation in the county probate court.

In that situation, other family members may go into the probate court and file a petition to have a guardian appointed by the court. Generally, the power of attorney is popular tool to avoid the expensive court-controlled guardianship procedures. However, when disputes arise about that person's alleged breach of fiduciary duties by carelessness or intentional behavior, the court has authority to determine the outcome. 

A problem of that kind was recently reported in another state. The siblings claimed in a court filing that their brother had abused his power of attorney over their incompetent mother's affairs and wasted money from her estate to the tune of tens of thousands of dollars. The court, however, agreed to appoint that same brother to serve as the mother's court-appointed guardian. That turned out to be a misguided judgment.

For example, in one instance the probate court found that he spent $72,000 of estate funds in an effort to derive timber proceeds from the mother's lands. He got proceeds of $42,000, thereby causing a loss of $29,000. The court also determined that the guardian had paid himself $71,000 for the work. Similar problems resulting in probate litigation occur regularly in Ohio, with varying degrees of negligence or intentional wrongdoing by the agents or guardians of the incapacitated victim. Persons may assist elderly citizens being financially abused by reporting such activities to a state or county watchdog agency that protects the rights of the elderly.

Source: sevendaysvt.com, "Who Is Watching Vermont's Legal Guardians?", Taylor Dobbs, April 4, 2018

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