Requesting guardianship over a loved one is not something that our courts take lightly. After all, you are essentially taking someone’s rights away, and even in situations where it is absolutely necessary to bring in a trusted family member or friend to make decisions regarding health, safety, finances, etc., great care is taken to ensure every “I” is dotted and “t” crossed.
Just how detailed and well-intentioned is this process? Well, we are glad you asked. In my book, Who Gets Your Stuff When You Die, we break down several actions that help determine if your loved one’s situation necessitates a guardian.
Establishing a Guardianship — When loved ones need someone they trust
To establish a guardianship, the first step is to file a petition in Probate Court. Any interested party may file a petition, even if that person does not want to be appointed guardian. The Court will then determine if the individual named in the petition is, in fact, incapacitated in a way that makes them need a guardian.
For example, a loved one may be permanently disabled and unable to care for themselves or highly susceptible to financial or personal exploitation. Guardianship can be sought for the person, their estate, or both.
From there, several actions must take place.
- A notice must be sent to the proposed ward (your loved one) informing them that guardianship is being sought.
- An “attorney ad litem” must then be appointed by the Court to provide legal representation for the proposed ward. Their role is to determine the desire of the proposed ward and present all available legal arguments to the court. He or she must also attempt to obtain the proposed ward’s wishes regarding whether a guardianship will be created, the extent of the guardianship, and who that guardian would be if guardianship were permitted.
- A “guardian ad litem” may also be appointed to investigate and recommend what is in the best interests of the proposed ward. In many cases, their recommendations are not always consistent with the desires of the proposed ward whom the attorney ad litem must advocate.
- The applicant must also submit a statement from a physician.
- A proposed guardian must be identified and vetted. If this is an individual who is not a professional guardian, some training may be required. In a few circumstances, the Court may waive the training, but usually, it must be completed. The purpose of such training is to be sure the guardian understands what the court expects of them. There are laws to be followed and reports to be submitted. If no relative or friend is suggested, a professional guardian may be proposed.
- The Court must then hold a hearing. The person who has been identified as incapacitated may object at the hearing. That person may present his or her own evidence and even reports from a doctor or psychologist. Nothing can be assumed until all the facts are presented. If the Court decides that a guardian is needed and the proposed guardian is suitable, guardianship will be issued.
- The Court will create documents to identify the ward, guardian, and specific limitations and authorities of the guardian.
Again, even when guardianship is a necessity, it must be treated with the seriousness and respect it deserves. If you would like to avoid guardianship, there are preventative steps that can be taken by a person before they become disabled. You can read our blog post with seven alternatives to guardianship here. Your estate planning attorney can assist with crafting the necessary documents, answer any questions you may have, act as a resource for other valuable information, etc.
Call Leigh Hilton PLLC today!!
Do you have questions about guardianship and whether or not it is right for you or a loved one? Having a competent estate planner in your corner will help you and your family navigate the often overwhelming waters that come with protecting everything you own and everyone you love. That is our job, and we would like to think we do it better than anyone else. Please call Leigh Hilton PLLC so that we can help ensure you and your family are taken care of in the best way possible.
Leigh Hilton PLLC wants to be your first call every time for any estate planning need. We look forward to serving you.