Guardianship is the court process whereby an individual (usually a family member) is appointed by the court to make health care and/or financial decisions form someone who the court has deemed incompetent and not able to make those decisions him or herself. Because this is such an important proceeding, the legislature has felt it necessary that when a guardianship petition is filed in the court, the court shall appoint a member of the bar (an attorney) to represent the alleged disabled person (ADP for short) during the process. The Court Appointed Counsel is responsible for representing the ADP and asserting their wishes and instructions regardless of their physical or mental status.
What is guardianship and do I need it? Guardianship is the court process whereby an individual (usually a family member) is appointed by the court to make health care and/or financial decisions form someone who the court has deemed incompetent and not able to make those decisions him or herself. It is what the court calls, “the means of last resort” because the court prefers alternatives over guardianship because it is so restrictive. Such alternatives are powers of attorney, joint account ownership, etc.
Guardianship is taken by the court very seriously. Why? The answer is actually simple. When a person is incarcerated in prison, he or she has lost their liberty, i.e., their ability to make their own decisions. With guardianship, even though it is a civil matter and not criminal, the court is making a determination that a person is not competent based on medical evidence, and essentially taking that person’s rights away to make medical and financial decisions from that point forward. The only way to get guardianship removed is to prove that the medical condition no longer exists or the person has regained the ability to make their own decisions.
Because this is such an important proceeding, the legislature has felt it necessary that when a guardianship petition is filed in the court, the court shall appoint a member of the bar (an attorney) to represent the alleged disabled person (ADP for short) during the process. That attorney is referred to as the Court-Appointed Counsel or CAC. The CAC is responsible for representing the ADP and asserting their wishes and instructions regardless of their physical or mental status. That means that if a person with end-stage Alzheimer’s Disease does not believe anything is wrong and does not want a guardian, it is the CAC’s job to tell the court the ADP does not want a guardian.
Additionally, as part of the job of a CAC, he or she may also interview family members, review medical records, request depositions of medical professionals, and although very rare, conduct a jury trial on behalf of the ADP if competency is strongly contested. Often times, the ADP is either unconscious or non-communicative due to a disease or physical trauma, like a head injury. The court will regularly call on the CAC to opine as to the best-suited person to serve as guardian because the CAC is the court’s eyes and ears during the guardianship process.
Since the guardianship process can be very intense and contentious, it is best to be prepared and get your estate planning documents in order. The best part about estate planning is YOU get to choose who makes those difficult medical and financial decisions. If a guardianship is initiated, you may not get who you want. For example, you might not get along with your child, and would prefer your sibling be your guardian; however, if a guardianship is initiated, your child stands in a higher priority of appointment than your sibling. Therefore, if the matter is contested, your sibling would have to prove that he/she is better suited to be your guardian than your child. So as parting words of wisdom…make sure you are prepared! Get your estate planning documents together so you can avoid guardianship at all costs! Call the attorneys at ERA Law Group, LLC today at (410) 919-1790.
When a person is no longer able to appropriately care for themselves or manage their property, it is important to ensure that they are protected.
Many people find themselves in a precarious situation when their spouse, parent, sibling, friend, etc. are no longer able to feed themselves regularly, pay their bills, see the doctor, and generally not take care of their person or finances. When a person is no longer able to appropriately care for themselves or manage their property, it is important to ensure that they are protected. When a person will not or cannot voluntarily seek assistance on their own, you may have to request the Court to intervene in order to ensure their safety. On this week’s #TuesdayTips article, the attorneys at ERA Law Group, LLC want to discuss the process of filing for Guardianship.
When filing a Petition for Guardianship of the Person and/or Property, the Petitioner is seeking the Court to declare the alleged disabled person incompetent and therefore unable to care for themselves and/or manage their property/finances. This would let the Petitioner, when appointed Guardian, to act on behalf of the alleged disabled person and make sure they are taken care of physically and financially.
The steps to file the Petition can be confusing as the Petition requires specific information and documents for filing. For example:
- The Petition requires various information about the alleged disabled person, including but not limited to their finances, the purpose of the filing, the diagnosis, etc.
- The Petition requires time sensitive certificates related to the alleged disabled person’s disability from two medical providers.
- After filing, the Court will appoint the alleged disabled person an attorney to represent them in the proceeding. The attorney will meet and speak with the alleged disabled person and contact anyone else, including the Petitioner, that s/he feels is necessary.
- The Petitioners will also be required to notify certain people and facilities that would need to be made aware of the Petition.
- Finally, there will be a hearing to decide whether the findings are such that the Court will declare the person incompetent and appoint a Guardian, presumably the Petitioner.
In most cases this process is painless. In the other cases the process can be litigious and emotionally challenging for the Petitioner, the family, and the alleged disabled person. In either case, it would be in your best interests to speak with an attorney to make sure the Guardianship process is completed effectively and accurately. In the event you oppose the Petition, it’s important to make sure your opportunity to object does not expire and your objections are appropriately identified.
The health, safety, and well-being of your friend or family member is of utmost importance. Call the attorneys at ERA Law Group, LLC today to help navigate you through this process.