A Guardianship is a legal proceeding whereby the Court gives a person (the "Guardian") the power to make personal and financial decisions for another the "Ward"). A guardian may be appointed by a Court when the Court determines that an individual is unfit and unable to govern himself or herself and to manage his or her affairs.
If you would like for this firm to discuss with you concerns that a guardianship may be necessary for a loved one, please click this LINK to our client resources page for the questionnaire that best fits your situation. We ask that you complete this questionnaire and bring it with you to your appointment.
Below are some of the more common questions client's ask us relating to Guardianships:
Who Can Determinte the Legal Need For A Guardian?
Only a Court can determine the legal need for a guardian of a person who is above the age of eighteen (18) years of age.
- Note: The law generally provides that parents are the guardians of a minor child until he or she turns the age of eighteen (18) or unless a Court has previously emancipated that child before their eighteenth (18th) birthday. Upon a person's 18th birthday, he or she is automatically of age unless a Court order is entered to the contrary and parents no longer have any legal decision making authority on behalf of their child.
Does A Person With A Durable Power of Attorney Need A Guardianship?
It depends. A Durable Power of Attorney generally grants broad powers from a Principal to an Attorney-in-Fact (an "Agent"). However, a Power of Attorney is by law limited to only those authorities specifically set-forth in the document.
There are situations in which a person may have a Durable Power of Attorney but a Guardianship may still be necessary. For example, if a Power of Attorney that was signed was limited to banking, an Agent cannot use that document to sell land. Another example is if an Agent named in a Power of Attorney is unable to serve (by reason such as death) and no successor is designated who is able to act as Substitute Agent.
For a further discussion about Durable Power of Attorneys, please click this
LINK.
Does A Person With a Health Care Proxy Need A Guardianship?
It depends. A Health Care Proxy generally grants health care decision making authority from a Principal to a Health Care Agent (sometimes referred to as a "Proxy") in such circumstances when a Principal is unable to give informed consent to medical treatment himself or herself.
However, if an Agent named in a Health Care Proxy is unable to serve (by reason such as death) and no successor is named, then the appointment of a Guardian may be necessary for health care purposes.
For a further discussion about Combined Advanced Directives for Health Care/Living Wills, please click this
LINK.
When Is A Guardianship Appropriate?
A Guardianship is appropriate when impaired judgement or capacity poses a major threat to a persons welfare. A medical evaluation by at least two (2) licensed physicians or psychologists are necessary to establish the proposed Ward's condition. However, our a Court can determine the legal need for a guardian.
How Can I Become A Guardian?
Assuming that two licensed medical professionals are prepared to attest to the proposed Ward's incompetence, a Verified Complaint must be filed by an interested person with the Surrogate's Court in the County in which the Ward resides or has property requesting the entry of a judgment of incapacity and the appointment of a guardian. The Verified Complaint must state the names and address of all the next-of-kin of the alleged incapaciated person who must be put on notice of the proposed guardianship. An Affidavit of Assets and Income must also be attached providing the known assets and income of the alleged incapaciated person.
Once the Verified Complaint and attached affidavits are reviewed by the Court, an Order Fixing Hearing Date is entered, an independent attorney is appointed to represent the alleged incapaciated person, who meets with the alleged mental incapacitated person and determines if he or she determines to oppose the action. A report is thereafter submitted to the Court providing the recommended course of proceeding.
- If no opposition is to be submitted by the alleged incapaciated person or any next-of-kin, then at the hearing the Court generally enters an order declaring the alleged incapacitated person incapaciated and directs that the proposed guardian qualify before the Surrogate's Court to act as Guardian.
- If opposition is submitted by the alleged incapaciated or any next-of-kin, the Court at the hearing will enter a discovery order and establish a timeline for a full-hearing on the issue.
How Long Does The Appointment Last?
An emergency temporary guardianship can last up to sixty (60) days. A permanent guardianship may last until the death of the Ward or Guardian, until the Ward is able to establish that he or she has regained comptency, or until the Guardian resigns or is removed by the Court.
What Authority Does The Guardian Have?
Unless limited by the Court, the Guardian has total control over the finances and the personal decisions of a Ward. This include decision where the ward will live, determining how the Ward's funds will be spent, and making routine medical decisions for the ward. For extraordinary decisions, however, such as extraordinary medical care, the administration of antipsychotic drugs, commitment to a mental health facility, or the sale of the Ward's real estate, the Guardian has to seek the approval of the Court in a seperate proceeding.
What Are The Responsibilities of The Guardian?
- If a Guardian is of the Person, he or she has the authority to oversee the medical care of the Ward and consent to medical treatment. A report must be filed with the Court as to the Ward's well-being annually.
- If a Guardian of of the Property, he or she has the authority to manage the financial affairs of the Ward, including accounting carefully for all of the Ward's income and expenditures made on his or her behalf. This is accomplished by the Guardian filing an inventory listing the Ward's assets with the Court as of the date of appointment and by filing annual accounts with teh Court detailing all income and expenses the Ward has. A final account must be filed wehn the guardianship is terminated or when a Guardian resigns or is removed. A guardian is liable for his or her acts until the Court allows (approves) the account.
- NOTE: Commonly, a person is appointed a Guardian of the Person and Property of a Ward, unless the Court Orders to the contrary.
What Are The Alternatives To A Guardianship?
There are several less restrictive alternatives to guardianship. These include Durable Powers of Attorney, Representative Payees, Trusts and Advanced Directives for Health Care. Each of these options may avoid or delay the need for a guardianship. However, any of these documents need to be executed BEFORE and individual is incapable of doing so due to mental impairment.
Who Pays For Legal Fees And Costs?
Legal fees and costs relating to guardianship are generally paid from a Ward's assets, subject to Court approval that the fees and costs inured to the benefit of the Ward.