Guardianship is intended to provide a substitute decision-maker for adults who are disabled or incapacitated. Guardians are given the authority to assist adults with their personal, medical, and some limited financial affairs. Considering the breadth of power this entails and the fact that the adult will lose the freedom to govern themselves, the guardianship appointment process is rightfully strict. The process begins when a family member or close friend submits a petition to the county court where the adult resides. The court will then schedule a hearing to assess whether or not guardianship is necessary.
Before the Hearing
If you are petitioning for guardianship, there are four important things you’ll need to do before the hearing:
- Provide notice to the adult, family members, and applicable agencies including a copy of the petition
- File proof of service to the interested parties with the court
- File proof of incapacity in a health professional’s reportÂ
- Arrange for the adult to attend the hearing
If the adult cannot attend the hearing, their doctor should indicate this on the certificate of incapacity.
What to Expect at the Hearing
As long as everything has been properly filed and handled ahead of time, and there are no objections, guardianship hearings are usually pretty quick—sometimes no more than a few minutes. The judge will base the majority of their decision on the health professional’s report. If the judge needs additional clarity on any aspects of the case, they’ll ask the petitioner or the adult a few questions. Some common questions include:
- Does the adult understand what is happening with the petition for guardianship?
- Does the adult have a preference as to who should be their guardian?
- Does the adult have a power of attorney that names a guardian?
- Why does the petitioner believe guardianship is necessary?
- Why is the petitioner the best choice of guardian for the adult?
- If the adult’s assets and estate are complex, is the petitioner seeking conservatorship? if so, do they understand bond requirements?
- Does the petitioner have a care plan in place?
- Does the petitioner have a history of successfully assisting the adult?
- Are there any interested parties (family, friends, or others) who object to the guardianship?
After the Hearing
Once the petitioner has been granted guardianship, the adult is referred to as the ward. The guardian will be charged with handling the ward’s personal and medical affairs. Common guardianship responsibilities include:
- Determining where the ward will live
- Monitoring the ward’s living situation to ensure proper care
- Accessing the ward’s medical records
- Consulting with the ward’s doctors and making important medical decisions regarding treatment and care
The guardian will also need to file an annual status report to the court each year. If the court finds that the guardian has abused their power, or that they have failed in their responsibilities, the guardianship can be revoked. The court will appoint another family member or close friend as the new guardian, or the judge can appoint a professional or public guardian if necessary.
How to Contest a Guardianship Appointment
If you believe the purportedly incapacitated adult is of sound mind, you can testify at the hearing in their defense, and you can request an independent physician or psychologist offer a second opinion. If you don’t believe the petitioner is the best guardian for the adult, you can also object to who is presented to serve, offer evidence to support your concerns, and suggest another potential guardian. After a guardian has been appointed, you may also be able to file a petition with the court if you believe the guardian is remiss in their responsibilities to the adult. however, it is better to handle this immediately to avoid statutory limits on these complaints.Â
How Much do Guardianship Proceedings Cost?
The length and cost of guardianship proceedings varies from case to case, and hinges largely on whether or not there are any parties who contest to the guardianship. You can expect to incur the following costs:
- Court fees for filing the guardianship petition
- Attorney’s fees for filing the guardianship petition
- Fees for professionals who attest to the individual’s incapacity (doctors, psychologists, social workers, etc.)
- Court-appointed attorney’s fees for the ward’s attorney
- Costs of notifying family members of hearings and proceedings
- Ongoing attorney’s fees during the course of guardianship
- If conservatorship is necessary, accounting fees for record keeping and court account approval
The adult’s estate usually pays for the guardianship proceedings, but a petitioner may be forced to pay for their certain costs or fees if the guardianship is found unwarranted and denied.Â
Does a Guardian Get Paid for Their Time?
A guardian is entitled to fair compensation for their time, although most family members do not request compensation from the adult’s estate. If compensation is approved, it usually will not exceed 5% of the adult’s annual income. It is common, however, for a guardian to be reimbursed for expenses incurred in the guardianship process. The guardian would just need to keep good accounting records and submit the expense requests to the conservator or the court depending on the circumstances.Â
Is an Emergency Guardianship Possible Under Urgent Circumstances?
If immediate and irreparable injury loss or damage will result if the guardianship is not appointed on an emergent basis, a judge can grant emergency guardianship to a petitioner on a temporary basis. the emergency guardianship would eventually expire, unless the temporary guardian produces evidence that a general guardianship is necessary, and a permanent guardian can be appointed.
Call Guardianship and Conservatorship Attorney Colton Johnston at (480)618-0351 to discuss your case today.
