Guardianship is designed to protect the rights and interests of the ward, and the court does so by establishing strict procedures for appointment of a guardian and to ensure the guardian’s compliance with the rules. The guardianship procedures are some of the most complicated legal proceedings in any court and require the assistance of an attorney. Establishing a guardianship can be expensive, and the costs of administering a guardianship of the property can be considerable. For this reason, it is usually a good idea to see if there are any alternatives to a guardianship proceeding before starting the process.
The Guardianship Process.
The process of appointing a guardian begins with filing a petition in court. The petition must detail the financial and personal situation of the person for whom a guardian is sought to be appointed, and the nature of his or her disability or incapacity. The court will also require a written statement from a medical specialist or psychiatrist (medical expert) who is familiar with the person. The statement must describe the nature of the disability and the reasons why a guardianship is necessary. The court may require live testimony of the medical expert in court.
After the petition for guardianship is filed, it must be served on all interested parties, including the person for whom the appointment of a guardian is sought. The court will schedule a hearing date. The court may also assign an attorney or temporary guardian to the person alleged to be incapacitated to make sure the interests of the person are protected.
The court hearing itself may be relatively brief if the case is uncontested and the person for whom the guardian is sought consents to the appointment if the person can still legally consent. Depending on the status of the alleged incapacitated person, the medical expert may or may not recommend that he/she be present for the hearing.
If the court approves the appointment of a guardian, the guardian must qualify to serve, and sometimes post a bond (insurance) to serve. The guardian is usually obligated to provide the court with a report of the financial and personal status of the incapacitated person within a short time of appointment and then at least once annually. At the Law Offices of Leo Mikityanskiy, we provide professional guidance and assistance to guardians in all stages of guardianship proceedings and reporting. The guardian must regularly communicate with the incapacitated person and periodically visit the person to ensure the person’s needs are met.
Alternatives to Guardianships.
Some alternatives to Guardianship include Powers of Attorney and prior designations of Guardian before the need arises. It is highly advisable for an elderly person to have a Power of Attorney appointing a relative, a loved one, or a friend as an agent. A simple, inexpensive Power of Attorney will ensure that your children can make personal and financial decisions for you and sign legal documents if you lose your capacity to make the decisions and sign yourself. This power includes proper Medicaid Planning if necessary. If there is no such Power of Attorney, complicated, lengthy and expensive Guardianship proceedings have to be brought in court to appoint a Guardian for a person who lost capacity due to an age-related disease such as Alzheimer’s, and then the court may limit what the Guardian can do. Another useful document is a Health Care Proxy, appointing an agent for making medical care decisions, or Living Will, which is a set of instructions concerning medical care. Power of Attorney and Health Care Proxy/Living Will are very serious legal documents, and they must be properly prepared, explained to you, and executed, or they will not be valid.
Learn more about the guardianship process or being named as a guardian for your loved one, and how to avoid the costly and complicated guardianship process with advance Estate Planning. Contact guardianship attorney Leonid Mikityanskiy at our Brooklyn, NY office at (718) 256-3210.
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