Helping You Navigate The Guardianship Process
At Heritage Elder Law & Estate Planning, our attorneys help families navigate the guardianship process. Guardianship is the government’s rule book for getting control of the decision-making process over another individual for financial or health care purposes. Oftentimes, the guardianship process is unnecessary if some very basic estate planning tools are in place, such as a financial power of attorney or a health care power of attorney. Unfortunately, some family members never get around to putting these basic documents in place and are left with no other legal option other than to ask the court for help.
Guardianship is awarded when someone no longer has the mental capacity to make sound decisions. The process consists of removing another person’s legal ability to make decisions for themselves. It is a very stressful and sometimes expensive undertaking to pursue.
The process begins with drafting a petition, and the petition has to be explained in person to the one you’re looking to get authority over. After that petition is drafted and explained, it gets filed with the court. The court wants to make sure that everything is appropriately heading in the right direction, so they appoint an attorney for the alleged incapacitated who acts as an advocate for the best result for that individual, whatever it might be.
Once this step is completed, a date is set to appear in front of the judge. It could be one, two, even three months in the future. When appearing before the judge, an expert must testify as to the medical condition and the mental incapacity. The incapacitated person has the option to be there and rebut the allegations of incapacity. The petition to the court must explain the nature of the assets and who is looking to get control of those assets. The person looking to control the assets must disclose their financial information as well. Depending on the familial relationship, there are requirements of who should be notified. The procedure in each county and the process of local rules of court can vary greatly.
Should the judge take all the evidence into consideration and believe that the allegations of incapacity are true, he/she has the option of granting a guardianship petition and giving the decision-making authority over just the finances, just the health care or both.
However, the process is still not finished. After becoming appointed as guardian, you have to account for all the finances within a period of time and then yearly thereafter. Documentation on how money is spent and how much is left must be kept, and the judge or the court controls that process indefinitely.
Guardianship should not be undertaken lightly as instituting a guardianship while someone still has capacity can have severe and lasting repercussions for a family.
In a rare situation, an emergency guardianship may be warranted. An emergency guardianship is only granted when a situation develops where, if the judge doesn’t grant immediate relief, severe and irreparable harm will occur to the individual. This would be a situation where someone is likely to pass away or experience some extreme physical detriment should the situation not be brought under control.
Contact Our Attorneys Today
Should you need assistance with guardianship, please contact our firm at 724-897-7781 to obtain a free consultation on the matter.