debt of incapacitated person in Florida
Problem: Incapacitated person with fairly signifcant credit card debt. This person’s only significant assets are a trailerhome and the land on which the home is located.
Questions: What is the best course of action for a general power of attorney to protect those assets (i.e. writing to the credit card companies to explain situation, filing bankruptcy for incapacitated person, filing some kind of exemption if creditors seek judgment)? Also, what is the likely course of action of the credit card companies when bills cease to be paid? Can they automatically slap a lien on the property or must they go to court to get a lien?
Re: debt of incapacitated person in Florida
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No, a creditor cannot automatically slap a lien on a property for an unpaid debt. They must file suit with the court and obtain a judgment. The judgment would then become a lien subject to restrictions as set forth below.
A power of attorney has no effect on a debt or debts of a party. It affords absolutely no protection against creditors. You are obviously confusing the POA with some other instrument.
On the other hand, if the trailer home is the homestead of the debtor, it is protected against the claims of any creditor except one who the debtor gives a mortgage and uses the trailer as collateral. Credit card companies can sue and obtain a judgment but they cannot touch the land or the trailer on it.
Scott R. Jay, Esq.
Scott R. Jay
Law Offices of Scott R. Jay
1575 Northeast 205th Street
Miami, FL 33179-2133