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 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
- File proof of service to the interested parties with the court
- File the certificate of incapacity (usually completed by the adult’s doctor)
- 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. In such cases, someone will need to advise the adult of their rights, and fill out an Admonishment of Rights form with their responses. The advising party will need to indicate the following:
- That the adult has been notified that the petitioning party has filed for guardianship
- The adult’s response to the guardianship appointment request
- The adult’s preference as to who should be appointed as their guardian
- That the adult has been informed they have the right to appear for the hearing in person or by video conference
What to Expect at the Hearing
As long as everything has been properly filed and handled ahead of time, guardianship hearings are usually pretty quick—sometimes no more than a few minutes. The judge will base the majority of their decision on the doctor’s certification of incapacity. 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 will, power of attorney, or advance healthcare directive 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 savvy enough to manage the responsibilities?
- 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, agencies) 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, medical, and financial affairs. Common guardianship responsibilities include:
- Managing the ward’s assets and investments
- Selling property and liquidating assets to cover medical and living expenses
- Paying the ward’s bills
- Determine 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 make important medical decisions regarding treatment and care
- Filing the ward’s tax returns
The guardian will also need to file an annual status report and/or financial accounting 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 testify against them, offer evidence to support your concerns, and suggest another potential guardian. After a guardian has been appointed, you can always file a complaint with the court if you believe the guardian is remiss in their responsibilities to the adult.
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.)
- If the ward chooses to retain counsel, attorney’s fees for their attorney
- Costs of notifying family members of hearings and proceedings
- Ongoing attorney’s fees during the course of guardianship
- Accounting fees for record keeping and audits
Generally speaking, it’s reasonable to expect the process will cost $1,000 or more. The adult’s estate usually pays for the guardianship proceedings, but a petitioner may be forced to pay for their share of the costs if the guardianship is found unwarranted and denied.
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 court each year in the annual status/accounting report.
Is an Emergency Guardianship Possible Under Urgent Circumstances?
If there is a significant risk of death or bodily harm to the adult, a judge can grant emergency guardianship to a petitioner for up to six days. After six days, the emergency guardianship would expire, unless the temporary guardian produces evidence that an emergency guardian is necessary until a permanent guardian can be appointed.
Call Guardianship and Conservatorship Attorney Colton Johnston at (480)467-4313 to discuss your case today.