Q: Is an older person who is able to care for herself with a dedicated long term friend's help, Incapacitated?
The person described in the question was mandated to have a fiduciary when she was caring for herself with a friend`s help and she had a very good credit rating. The fiduciary does little but intrude in the bill paying process and charge a lot of money!
A:
Under California's new supported decision-making law, an older person who can manage daily life with a friend's help is not necessarily incapacitated. This law allows individuals to make their own decisions with support, rather than needing a fiduciary or conservatorship. If the person is functioning well with their friend's help, they might not require a fiduciary. However, individual circumstances vary, and legal advice could be beneficial if there are concerns about unnecessary fiduciary oversight.
Here is more information: https://selfhelp.courts.ca.gov/options-help-someone-impairment-or-disability#
This is a technical article for lawyers: https://slobar.org/wp-content/uploads/2023/04/ASSEMBLY-BILL-1663-PROTECTIVE-PROCEEDINGS.pdf
Yelena Gurevich agrees with this answer
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A:
In California, the determination of whether an older person is incapacitated and in need of a fiduciary isn't solely based on their ability to perform daily tasks or manage finances with assistance. Incapacity typically refers to a person's inability to make decisions or manage their affairs due to mental or physical limitations. If an individual is able to make informed decisions and understand the consequences of those decisions, especially with some assistance, they may not be legally considered incapacitated.
It's concerning if a fiduciary was appointed despite the person's ability to care for themselves with help. If you believe the appointment of the fiduciary was unnecessary or if the fiduciary is not acting in the best interest of the person they are supposed to help, you might consider taking legal action. This could involve petitioning the court to review the situation and potentially remove the fiduciary.
In such cases, it's advisable to gather evidence demonstrating the individual's ability to manage their affairs, perhaps with statements from the long-term friend or medical professionals. Consulting with a lawyer who has experience in elder law or guardianship issues can provide guidance on how to proceed and protect the rights and interests of the individual in question. Remember, each situation is unique and requires careful examination of the facts and applicable law.
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