If an adult family member is having difficulty managing their financial and personal affairs, it may be time to consider a Guardianship of the Estate, Person, or both. Prior to initiating a Guardianship, it is important to discuss all of the alternative options with your attorney. To establish a Guardianship, the Applicant (person seeking to become guardian) must show the Proposed Ward (person having difficulty) is incapacitated by clear and convincing evidence. Given the high burden of proof, and family strife a Guardianship can cause, initiating a Guardianship should be a procedure of last resort. If you find yourself facing this situation, the following step-by-step process outlines what you can expect throughout each stage of the Guardianship.
1. Physician's Certificate of Medical Examination: Prior to filing an Application for Appointment of Permanent Guardianship of the Person or Estate, a Physician's Certificate of Medical Examination (CME) should be obtained. The CME is a physician's assessment of the proposed ward's condition based on an examination of the proposed ward. Amongst other things, the CME states the nature of the proposed ward's incapacity, their physical and mental condition, any applicable medical diagnosis, and discusses their ability to handle business, finances, operate a vehicle, vote, make decisions regarding residence and marriage, and consent to medical treatment.
If for some reason the CME cannot be obtained prior to filing the Application, it may be obtained after. The court cannot grant an application without the CME and it may not be dated more than 120 days prior to filing the Application and the doctor must have examined the proposed ward within 120 days prior to the filing.
If the basis of the Application is mental retardation, more relaxed rules apply to the CME, most notably the doctor must have examined the proposed ward within 24 months prior to the date of the hearing, rather than 120 days of the Application filing.
2. Application for Appointment: The Applicant must sign a verified Application setting forth the grounds for the Guardianship, which is then filed with the court in the County where the proposed ward resides. The CME is attached as an exhibit. The court clerk will issue a notice and citation stating the Application was filed, the names of the parties, and a statement regarding the rights of interested parties.
The Proposed Ward must be personally served with notice and citation. The Proposed Ward may not waive personal service. Other persons required to receive personal service, or any type of service, may waive their right to service and notice. Unless waived, personal service must be made on the Proposed Ward's parents, conservator or person having control of the Proposed Ward, Proposed Ward's spouse, the person named in the application to be appointed guardian if said person is not the applicant.
The notice and citation and application must be sent via certified mail, return receipt requested to all adult children of the proposed ward, all adult siblings of the Proposed Ward, the administrator of a nursing facility where the Proposed Ward resides, the operator of a residential facility where the Proposed Ward resides, a person whom the applicant knows holds power of attorney signed by the Proposed Ward, and other statutorily specified persons.
The Proposed Ward must be personally served with notice and citation. The Proposed Ward may not waive personal service. Other persons required to receive personal service, or any type of service, may waive their right to service and notice. Unless waived, personal service must be made on the Proposed Ward's parents, conservator or person having control of the Proposed Ward, Proposed Ward's spouse, the person named in the application to be appointed guardian if said person is not the applicant.
The notice and citation and application must be sent via certified mail, return receipt requested to all adult children of the proposed ward, all adult siblings of the Proposed Ward, the administrator of a nursing facility where the Proposed Ward resides, the operator of a residential facility where the Proposed Ward resides, a person whom the applicant knows holds power of attorney signed by the Proposed Ward, and other statutorily specified persons.
The Applicant must file a copy of the notice and an affidavit stating compliance with the above notice provisions.
3. Statutory Wait: The Court may not act on the Application until the Monday following the expiration of a 10 day wait period. The 10 day wait period begins on the date notice and citation has been made. If only personal service is required, the wait period begins on the dated the last person is personally served. If mailed notices are required, the wait period begins when the notice and affidavit stating compliance is filed.
4. Court Investigator & Report: Once an Application is filed, a Court Investigator will investigate the circumstances of the case and file a report of his or her findings and conclusions. The report will include the Court Investigator's opinion as to whether a guardianship is needed, and if so, who is the appropriate person to be appointed.
5. Attorney ad Litem Appointed: If the Proposed Ward has not already sought their own legal counsel, an Attorney ad Litem will be appointed to represent the Proposed Ward. The Attorney ad Litem meets with the proposed ward, reviews the Application and other court filings and the proposed ward's medical records, then pursues the course of action his or her client desires. If the Proposed Ward wishes to contest the Guardianship, the Attorney ad Litem will proceed accordingly. If the Proposed Ward cannot communicate his or her wishes to the Attorney ad Litem, he or she will proceed in the best interests of the Proposed Ward.
6. Guardian Ad Litem: A Guardian ad Litem is not appointed in every Guardianship. When a Guardian ad Litem is appointed, his or her responsibility is simply to represent the best interests of the Proposed Ward. The Guardian ad Litem only considers what is best for the Proposed Ward, which may be in conflict with what the Proposed Ward desires. Conversely, an Attorney ad Litem is required to comply with the wishes of the Proposed Ward regardless of whether the course of action is in the Proposed Ward's best interests.
7. Hearing: Generally the Proposed Ward must attend the Guardianship hearing, unless excused by the Court. The applicant will be asked questions by the attorneys and Court. If the Guardianship is contested, a complete jury trial may be held, with witness testimony. The judge or jury will render a decision regarding appointment of a Guardian, bond, and all other issues. Generally the Applicant requests a reduced bond. Later the Attorney ad Litem requests fees to be paid, from the Guardianship Estate or County, if the Estate is not able to pay. If a Guardian ad Litem was appointed, they too will seek payment.
8. Bond, Oath, Letters of Guardianship: After appointment, the Guardian must post bond, file an oath and then Letters of Guardianship are issued. The Letters of Guardianship evidence the Guardian's legal authority to act on behalf of the Ward.
9. Declaration of Guardianship in the Event of Death or Incapacity: If a parent is named Guardian of the Ward, it is wise to execute a Declaration of Guardianship which nominates a Successor Guardian to serve in the event the Guardian becomes incapacitated or dies. This document limits future court involvement. If the parent Guardian dies or becomes incapacitated, the Successor Guardian may be appointed by the court on submission without a hearing. Some people choose to include this nomination in their Last Will and Testament, however a separate Declaration of Guardianship is easier to submit to the court if needed. Further, it keeps the Last Will and Testament private, which many people wish to do.
10. Inventory and Appraisement: If Guardianship of the Estate has been granted, an Inventory and Appraisment must be filed within 30 days after the date the Guardian is appointed. The Inventory and Appraisement lists the property owned by the Ward and each item's value. A List of Claims due to the Ward, if any, is also attached to the Inventory and Appraisement.
11. Annual Accounts and Annual Reports: A Guardian of the Estate must file an Annual Accounting within 60 days of the 12 month anniversary of the date of appointment. The Annual Accounting tracks all the assets and liabilities of the Ward's Estate. A Guardian of the Person must file an Annual Report regarding the Ward. The Annual Report includes information related to the Ward's residence, condition, health, medical treatment, etc. The Letters of Guardianship specify the due dates for Annual Accounts or Reports. The Guardian must also submit proof of bond at this time.
An uncontested Guardianship can be a fairly straightforward matter. However, a contested guardianship may involve several extra steps not listed above and can quickly become very time consuming, expensive, and stressful. Hopefully you never need any of the information contained in this article. However, if a loved one ever becomes incapacitated or you believe a guardianship may be imminent, contact an elder law attorney who can guide you through the process.
No comments:
Post a Comment