Guardianships are for those individuals who cannot make decisions for themselves and there is a willing and able person to step in and make those decisions for the person who cannot. There are several situations in which an adult would need a guardianship. Parents of incapacitated or special needs children who are over 18 years of age or so will be. Guardianships can also be obtained for adults who no longer have capacity. Whether you are seeking to be the guardian of a special needs child or family member, or of a parent who no longer can make decisions for themselves, there are several steps to the process including notice to interested individuals and court hearings.
What’s the First Issue to Tackle?
For previously competent adults: Is there a current power of attorney instrument that continues to be effective during the principle’s incapacity? Will the interested parties (spouse of alleged incapacitated person, children or siblings of the alleged incapacitated person) consent to your petition to become guardian? Is the alleged incapacitated person a harm to themselves or others? Each individual situation will determine how quickly a hearing will be set on the Court’s calendar regarding the guardianship hearing or whether a guardianship proceeding is the correct course of action.
For minors who will soon be adults: Are both parents of the child willing and able to be co-guardians of the special needs person? Is there a good relationship between these two individuals or will one parent object to the guardianship proceeding? Will the interested parties (siblings and parents of the special needs person) consent to your petition to become guardian?
The Second Issue to Tackle?
Are you asking the Court for Guardianship of the Person, Guardian of the Estate, or both? Guardianship of the Person will authorize the guardian to make decisions for the person, meaning where that individual will live and medical decisions or any other decision that affect the person. Guardian of the Estate will authorize the guardian to collect the assets of the incapacitated person, manage those funds, and spend those funds for the benefit of the incapacitated person.
Evidence will need to be gathered to show to the Court that the alleged incapacitated individual is not able to care for him/herself or manage his/her financial affairs.This is done by obtaining a physician’s report, followed by the Court setting a date regarding this matter. Once guardianship is obtained, there is periodic reporting to the Court regarding the status of the ward and accountings of the ward’s financial matters.
Seek Guidance from a Knowledgeable and Experienced Probate Attorney
Guardianships can be a complex process if the matter is contested by either the alleged incapacitated person or an interested party of the alleged incapacitated person. However, guardianships can be a relatively simple process when the alleged incapacitated person desires assistance and the interested parties are all in agreement. You need an experienced attorney to help you navigate through the court process.