Guardianship and Power of Attorney: Your Legal Questions Answered

Questioner

Power of attorney, guardianship? It's about my mother, 80 years old, widow, living alone with 2 children The specialist has now determined that she suffers from a form of dementia and she has subsequently been referred to a specialized care center where she has been staying since last week February 2019 My brother has now received a declaration of dementia that my mother is incapacitated. My brother now wants to urgently submit a request to the subdistrict court to request the Administrator so that he can sell the parental home as soon as possible. He sent me a form “Request for guardianship and/or institution of mentorship” to fill out and sign. How can I protect myself and my mother from this, what are our rights? Can my brother sell the house without my mother and I knowing? If I sign it how do I know he won't use my signature for something else? What can I do in this situation?

Lawyer

I recommend co-administration. The subdistrict court judge can appoint two persons as administrators. They are then co-administrators. Co-administrators can each independently perform the tasks of administrator. Co-administrators must both account to the subdistrict court judge for what each does. In doing so, both are equally responsible for everything. They can therefore divide the tasks among themselves, but each remains responsible for what he/she does and for what the other does. If the judge determines that problems are likely to arise in the collaboration, the judge will appoint someone else, if necessary from outside the family. There is space on the application form to indicate that two people wish to become administrators. An administrator arranges the financial affairs together with and for the person concerned and manages the (future) assets together with or for the person concerned. Duties and powers of an administrator An administrator looks after someone's financial interests. Shortly after his appointment, an administrator makes a list with a description of all the goods that fall under the administration. He receives a message about this from the registry. He sends a copy of this inventory to the court, subdistrict sector. The administrator must also ensure that the administration and the name of the administrator are stated for the goods that are included in a public register, for example a house. The main task of a trustee is to manage everything that has been placed under trust. That is to say, he must ensure that everything that has been placed under trust remains intact and is managed properly. He must also keep the administration for it. For example, money must be invested properly, interest must be credited on time and a house must be painted on time. The normal tasks during the trust also include arranging the financial household of the person concerned. This includes, for example, filing tax returns, but also applying for (special) assistance, rent allowance or a personal budget (PGB). An administrator must also ensure that the income of the person for whom the administration applies is used primarily for his or her livelihood. If the person concerned wants to dispose of – as the law calls it – something that has been placed under administration, he or she must have the cooperation of the administrator. For example, the person concerned cannot validly sell an asset that is under administration. If the administrator does not want to give permission for such an action, it is possible that the subdistrict court judge will grant substitute permission at the request of the person concerned. This can be requested by letter to the subdistrict court judge. Authority If the administrator wishes to dispose of goods that fall under the administration (sell or encumber), he must have permission from the person for whom the administration has been established. This also applies, for example, to taking out a loan and reaching a settlement on a monetary claim. If the person concerned is unwilling or unable to give permission, the administrator can request permission from the subdistrict court judge by letter. The subdistrict court judge can also give one-off permission for recurring expenses (such as travel expenses). The judge who establishes the administration can also immediately give the administrator a continuous authorisation for this. The judge can attach conditions to this authorisation.