Guardianship is the process of getting a person or entity appointed by the Court in order to be authorized to make decisions for a minor or an incapacitated individual. If you have a relative who shows signs of incapacity, whether due to age, disease, or injury, and who has not implemented a comprehensive estate plan, including a durable power of attorney and medical power of attorney, it may be necessary to petition the Court to determine whether incapacity exists, the extent of such incapacity and who would be the most appropriate person or entity to serve as guardian of the person and his or her estate (assets). Incapacity is generally defined as a person having been rendered unable to make informed and rational decisions as to his or her health, finances, and proper living conditions (food, shelter, clothing). It also includes those who are under the age of majority (18 years).
Often a close family member is qualified and willing to be appointed as a guardian. Occasionally, family members are unable or unwilling to take on these responsibilities and, in these cases, a professional certified guardian may be the most appropriate appointee. The guardianship process is a complex judicial process because a person’s basic civil rights are at issue. The Court must be presented clear and convincing evidence that incapacity exists and may require evidence that the appointment of a guardian is the least restrictive alternative consistent with the individual’s rights. Guardianship requires periodic accountings and reports to the Court. A guardianship costs thousands of dollars, is emotionally burdensome and should be avoided by entering into a comprehensive estate plan before incompetency. However, if a loved one has become incompetent with no estate plan, or an inadequate estate plan, I will work with you to establish a guardianship and meet the statutory requirements.
If you or a family member needs counsel on the matter of guardianship, I will be sensitive to the emotional distress and seek to provide compassionate and professional guidance throughout the guardianship process.