Guardianship is the Legal Process of one person taking over the rights and responsibilities of an incapacitated person. The incapacitated person’s ability to care for themselves is brought to the attention of the court, and another person is appointed to step in and care for them. It is a very serious process and should be treated with extraordinary care. Our firm focuses on helping families avoid Guardianship whenever possible. We accomplish this through good estate planning.
However, there are times when Guardianship is unavoidable. This often happens when an intellectually disabled child reaches the age of majority. Often time’s parents find themselves unable to deal with doctors or financial institutions on behalf of their child once that child is over 18. In cases where the person has mental capacity issues, Guardianship may be necessary to ensure that they continue to be taken care of.
Another situation where Guardianship becomes necessary is when a person loses mental capacity due to illness or injury. If a person has executed a Durable Power of Attorney and Medical Power of Attorney before becoming incapacitated, Guardianship can usually be avoided. However, if they have not done so, it can be very difficult for family and close friends to step in and take care of them. In many cases, it will require going through the court process of Guardianship.
When Guardianship is unavoidable, it is still important to keep the Guardianship as limited as possible and allow the “ward” to be as involved as possible in the decision-making process. “Ward” is the term used for a person who is determined incapacitated by the court and placed under guardianship. It is important to remember that a disabled person is first and foremost a person. Making sure the legal system respects that distinction is important.
Having a loved one who has lost the capacity to care for their self is very troubling. Even more troubling is when you are unable to assist the loved one with simple tasks such as managing their finances or helping them make healthcare decisions. If you are in this situation, we can help you to obtain Guardianship over that loved one so that you can ensure that they continue to get the care that they need.
Guardianship of the Person
Guardianship of the Person pertains to a person’s ability to care for their self on a daily basis and determine where they may live and travel. The Guardian of the Person is responsible for ensuring that the “Ward” has access to medical care and a safe place to reside. The Guardian will also be responsible for filing an Annual Report on the Well Being of the “Ward” with the Probate court.
Guardianship of the Estate
Guardianship of the Estate refers to the financial aspects of caring for a person. The court will approve an amount of money that can be expended on the “Ward” each month. Any additional spending must be approved by the court. In addition, the guardian is responsible for ensuring that funds are invested properly. In many cases, the Ward can be given an allowance or a small portion of money that they can spend each month. The Guardian is responsible for filing an accounting with the court each year on the anniversary date of the creation of the Guardianship.
The first step in the Guardianship process is for the proposed Ward to undergo a medical examination. The Ward’s physician details their medical opinion of the capacity of the Ward. Once the Physician’s statement is obtained, the Application for Guardianship can be filed with the Probate Clerk. The potential Ward must then be personally served by a process server. The potential Ward’s spouse and immediate family must be notified of the proceedings.
The court will appoint an Attorney Ad Litem to represent the potential Ward’s interest. The court will also appoint a court investigator to help the court determine if Guardianship is appropriate. Once the Attorney Ad Litem has met with the potential Ward, he will prepare a report based on his interaction with the potential Ward.
At this point, a hearing can be scheduled. At this hearing, the Judge will decide if Guardianship is appropriate. (This is the typical situation. However, in contested matters a jury sometimes decides after a trial on the merits.) If the Judge decides Guardianship is appropriate, the Judge will sign the Order Appointing Guardian and determine an appropriate amount for Bond.
Once the Guardian obtains a bond and takes an Oath, the court will issue Letters of Guardianship. These letters are very important as they give the authority to the Guardian. The Guardian is then responsible for creating an inventory of the Ward’s property and filing that inventory with the court.