Guardianship

When the term “guardianship” is used, most often people will think of children and the need to appoint a guardian to look after minors and their finances in the event that they are left without parents. In the elder law arena, guardianship takes on another connotation, that is, the appointment of an individual (usually, as directed by a court) to look after another adult’s needs (personal and/or financial) when they are not able to continue to manage their own affairs.

Adults, over the age of 18, can make their own personal and financial decisions. But as adults, we must contemplate the possibility of disability - due to medical conditions, accident, age or other serious factors. For that reason both estate planners and elder law attorneys strongly advise competent clients to sign such advance provisions as a Health Care Proxy for medical decision making, and a Power of Attorney for financial decision making. These two documents, will allow the designation of another adult to make decisions in the event that one is incapable of making day to day decisions. There are, of course, other nuances to these documents, but for the purpose of this article, suffice it to say, such document’s can generally forestall the need for the appointment of a guardian.

In the event a Health Care Proxy and/or Power of Attorney is not signed, and a person becomes incapable of handling their personal decisions and/or finances, a guardianship proceeding may be instituted. Generally, a relative or close friend will notice significant changes that suggest that the individual is experiencing diminished capacity, for example not able to pay bills in a timely way or perhaps appears disheveled when once an impeccable dresser. Those events may trigger an inquiry into the person’s current situation.

Guardianship is commenced by a petition and an “order to show cause” or “OTSC” presented in the Supreme Court in which the person resides. The filed petition will describe the background information that the Judge requires to hear the matter, including general information regarding the person’s medical condition, income, assets, and family. The person for which the petition is being filed is referred to as the “Alleged Incapacitated Person” or “AIP”. The person is “alleged incapacitated”, at this juncture of the proceeding because the judge has not had an opportunity to see or speak to the Alleged Incapacitated Person. The petition will also describe the “plan of action”. When making an application to a court for the appointment of a guardian, it is most important that you recite your plans for the individual’s care and the use of their funds. The plan could include sale of the home, the hiring of home health aides, transfer of funds for estate planning purposes, support of a disabled child, or admission to a nursing home. Each “plan of action” will be unique to the particular individual’s situation.

Once the Judge determines that there is the possibility that a person is in need of a guardian, the Judge will sign an Order to Show Cause, that is an order to appear in court on a specified date and time to explain why the individual may or may not need a guardian. The Judge will also appoint a “Court Evaluator” to review all of the information in the petition, interview all parties, and make a recommendation to the judge at the time of the hearing. The Court Evaluator does not represent the Alleged Incapacitated Person or the petitioner’s interests and is a neutral party. If the Alleged Incapacitated Person requests representation, the court may appoint counsel to ensure that the Alleged Incapacitated Person’s position is represented and his/her interests are promoted at the hearing.

On the day of the hearing, the Judge will request that the petitioner verify all of the information in the petition by testifying in court. If the Alleged Incapacitated Person objects to any of the testimony, the Alleged Incapacitated Person may offer evidence to the contrary.

Following the testimony of the petitioner, the petitioner may present additional witnesses. The Alleged Incapacitated Person may or may not participate or call witnesses.

Once both sides have presented evidence of the Alleged Incapacitated Person’s ability to handle his/her personal and financial affairs, the Judge will call upon the Court Evaluator to give their opinion and recommendations.

The Judge will often render a decision from the bench and appoint a guardian of the person and/or the property of the Alleged Incapacitated Person and declare them incapacitated. It should be noted that this finding of “incapacity” may be appealed. Indeed, recovery of capacity may be established in a subsequent proceeding.

The appointed guardian may then be bonded, take an educational program to learn more about their responsibilities as a guardian, and start to make decisions according to their “plan of action” and court rulings.

If a guardian is appointed, the guardian is required to report to the Court on an annual basis as to their actions as guardian of the person and/or the property of the Incapacitated Person.