Habitat - July/August 2016 - (Page 11)

leGal TALK Dealing with the Incapacity or Death of a Resident J. Mike Williams Fowler, Hein, Cheatwood & Williams, P.A. I t is inevitable that at some time management will be forced with the unfortunate situation of dealing with either the death or incapacity of a resident. Prior to implementation of the Resident's Selection of Personal Representative Due to Incapacity, Death or Abandonment Form in 2014, dealing with the death or incapacity of a resident was quite challenging. In cases involving the death of a resident where there was no will, management was faced with contacting the family and encouraging them to become administrator of the estate, so that Letters of Administration could be obtained. This can be a taxing process as the family has to apply for Administration in the Probate Court in the County where the property lies. In many instances, the family did not want to spend the resources for the appointment. Management was then left with taking liability risks by simply having the family members execute a release and removing the personal property, or as a last resort, filing a dispossessory warrant. For those cases involving the incapacity of a resident, management would require the family member to obtain an appointment by the court as guardian if the tenant did not have other required legal documents that would allow the family members to act on his or her behalf. In 2014, GAA released the Incapacity, Death or Abandonment Form. This should be used by all members. It gives management the right to take action, such as contacting the Resident's Personal Representative to remove the resident's property in the event of incapacity, abandonment or death without the necessity of a court order. Management must wait 15 days after the death or incapacity of the resident before taking any action. The resident's estate (family or heirs) has 15 days to produce a certified copy of a legal document or court order regarding the petition for administration, probate or guardianship. This addendum only applies if the resident was the sole occupant of the premises; the resident is deceased or incapacitated or the apartment is abandoned; rent or other charges due are unpaid; and management has not been provided notice of a court appointed legal representative or guardian for the estate or property of the resident. The form should be used properly and in strict compliance. At the time the lease and addenda are executed, the resident should designate a primary and secondary personal representatives on the Incapacity, Death or Abandonment Form. This is the person management will contact in the event the resident becomes incapacitated, dies or abandons the property. The use of this addendum will certainly make it easier for management to act and resolve issues involving the incapacity, death or abandonment of the resident. To simply put it: This is a must-use form that will simplify matters in the event that a resident dies or is incapacitated. If you have any comments or suggested topics that you would like addressed for future articles, please email J. Mike Williams at mwilliams@apartmentlaw.com. * Fowler, Hein, Cheatwood & Williams serves as corporate and litigation counsel in the multifamily housing industry. Their practice areas include, but are not limited to evictions, defense of lawsuits, mold litigation, fair housing defense throughout the country, code enforcement defense, lease revisions and general consultation of their clients. J u ly/au g u s t 2 016 | h a bitat | 11

Table of Contents for the Digital Edition of Habitat - July/August 2016

Chair’s Message
Legal Talk
The Greening of the Atlanta Multifamily Housing Industry
Government Affairs
Up Close
LEED in Sustainability
Volunteer’s Corner
AAA Platinum Patron Member Profile: BOS Security
AAA Gold Patron Member Profile: For Rent Media Solutions
AAA Gold Patron Member Profile: Belfor
AAA Gold Patron Member Profile: Renters Reference Services Inc.
New Members
Advertisers’ Index

Habitat - July/August 2016