Portia Scott: Too often, seniors are robbed of their right to vote
But what about those whose right to vote was taken away? Not Florida's 1.5 million convicted felons, who lose their right to vote even after serving time. Rather, law-abiding citizens — who've patriotically exercised this precious right — can find it revoked by Florida's courts. Too often, it happens to seniors.
This is personal for me. My father, W.R. "Bill" Scott, 95, lives with me and my husband, Stuart City Commissioner Troy McDonald.
A brilliant and beautifully kind man and father of five, Dad was a church deacon, Boy Scout leader, state legislator, private-practice attorney and attorney for the city of Stuart, Martin County and the school board. He's achieved so much. But now, he needs some help. It's an honor to return, in part, the care he and my mother gave me. We're lucky our family can be here for each other in our time of need.
Not everyone is so lucky. As a probate and family law attorney with an advanced degree in elder law, I'm concerned that cracks in the system for determining incapacity can leave seniors particularly vulnerable to loss of due process. The rights they can lose — even before an official declaration — are sobering, and require awareness, guidance and preparation to prevent.
Like many states, Florida law enables the disenfranchisement of voting rights — and more — when deeming someone incapacitated. They could lose the right to marry, travel, their driver's license — even which movie to attend.
Here's how it works: If anyone with an "interest in your welfare" feels you're unable to make informed decisions about your health, finances or other matters, that person can petition probate court for a judge to determine your actual capacity. If you don't have an attorney, one is appointed to you.
Also appointed is a committee, usually including a doctor, psychologist and layperson, that meets with you individually to examine your mental and physical state. Your court-appointed attorney may brief you beforehand or afterward. If afterward, you'll likely be wondering why in the world these strangers are coming around to ask you questions. This can enhance any confusion you may have, and make you hesitant about participating.
Whether you participate or not, a hearing follows. The judge reviews the examining committee's reports. You can counter with evidence of your own, but if declared incapacitated, the court must appoint a guardian to manage your personal needs, estate needs or both. If considered an emergency, a temporary guardian could be assigned to govern your life — even before you can object.
Fortunately, the Florida Legislature recently enacted safeguards to reduce abuses, establishing a waiting period before guardian appointment. Unfortunately, a loophole exists. If the person filing the action swears you could suffer "substantial harm" if left alone, the guardian is assigned.
Then, there's no way to avoid a temporary declaration of incapacity.
The best protection is prevention. Get your affairs in order. Appoint someone you trust to assist with your finances and someone who will honor your health desires.
You can pre-empt the appointment of a questionable guardian by clarifying exactly who you'd want in the role should the situation arise. You can even specify who you don't want — should you have concerns about someone in your circle.
Yes, the entire prospect is scary. So preparation is everything. Like voting, difficult choices are best made when you're as informed as possible.
Stuart probate and family attorney Portia Scott has a master of laws degree in elder law.
This is exactly why the Tim Lahrman fiasco and kidnapping by Goshen, Indiana officials is so obscene. In order to rob Tim of his property he was wrongfully placed in a guardianship. This guardianshipship has continued for decades, and is used by unprincipled miscreants for their own parochial interests. It is now time for us - the great unwashed - to demonstrate that this invasion of our core rights as Americans will not be trampled upon.
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