Guardianship

Establishing a guardianship for a loved one can be a very difficult and time consuming process. The laws are designed to protect the alleged incapacitated person’s rights and create a high bar to prove the person lacks capacity. The law requires that you prove by clear and convincing evidence that the alleged incapacitated person lacks capacity, and that you qualify to serve as the guardian. The court will appoint a three person panel of doctors, psychologists, social workers, or nurses to examine the alleged incapacitated person and provide a report to the court with their conclusions. The court will also appoint an attorney to represent the alleged incapacitated person. After the reports from the examining committee are received, the court will have a hearing to review the reports and any other evidence submitted, including testimony of witnesses. If the judge believes the individual lacks capacity, then the judge will appoint an guardian.

Once appointed, the guardian must take a guardianship education course. The guardian must also submit an inventory of the ward’s property and annual accountings. There are numerous laws governing the responsibilities of guardians and the “paperwork” requirements can be quite burdensome. For these reasons, I typically recommend that you avoid petitioning for a guardianship if at all possible. If the alleged incapacitated person has executed a durable power of attorney and has named a health care surrogate, then it is generally possible to avoid a guardianship.

 

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