The most frequently asked questions about guardianship concern when it’s needed, how the process works, and whether there is a way to avoid it. The idea of guardianship may feel troubling if you’ve never known anyone who needed a guardian, says a recent article, “Guardian process can be lengthy, difficult” from The News-Enterprise.
Simply put, guardianship is a court proceeding restricting or removing the right of a person to manage their own financial, legal, and medical affairs.
Guardianship is not exclusive to elderly individuals, as it is often used to protect adults and older children with disabilities. Guardianship or Conservatorship is mainly needed when the person is unable to manage their finances, incapable of understanding the scope and consequences of making their own medical decisions, or is at risk of exploitation due to diminished capacity.
The process for obtaining guardianship for another person is complicated and takes at least several months before a guardianship order is entered into the legal record.
The first step is for the person who seeks guardianship for another person to file a petition with the District Court in the county where the impaired person lives. The person who files the petition is known as the petitioner, and the person who may need guardianship is known as the respondent. The petitioner is usually a family member but may also be a concerned person or an institution, like a nursing facility.
The petition is often paired with a request for emergency guardianship pending a trial. A short trial may be needed to get an emergency order. The court then sets a trial date and issues an order for an evaluation.
Different states have different requirements, which is why the help of an experienced estate planning attorney is needed. In some states, reports from three independent team members are required: a healthcare professional, typically the respondent’s primary care physician; a Court Appointed Visitor, usually a social worker; and a Guardian ad Litem, an attorney who represents the interests of the allegedly incapacitated person.
Each team member must conduct an independent evaluation and submit a separate report to the court with their findings and a recommendation. After the reports are submitted, a trial is held before a judge.
If the guardianship is granted, by trial or by the judge, a guardian is appointed to make decisions for the person, and a conservator is named. The conservator is in charge of the person’s finances. Both the guardian and conservator are required to file reports with the court concerning their actions on behalf of the respondent throughout their roles.
How can guardianship be avoided? It’s far simpler and less costly for the family to work with an estate planning attorney to have Durable Powers of Attorney and Health Care Power of Attorney documents created before any incapacity. Paired with fully funded revocable living trusts, the family can have complete control over their loved one without court intervention.
These documents cannot be prepared after a person is incapacitated, so a proactive approach must be taken long before they are needed.
Reference: The News-Enterprise (Sep. 24, 2022) “Guardian process can be lengthy, difficult.”
