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Guardianship, sometimes referred to as conservatorship, is a legal process, utilized when a person can no longer make or communicate safe or sound decisions about his or her person and/or property or has become susceptible to fraud or undue influence. Unlike a Power of Attorney, a guardianship will remove the rights of the alleged incapacitated person, and thereby invest some or all of those powers in another person (the “Guardian”). A guardianship may be sought to remove only some or all of the rights of the alleged incapacitated person. Because establishing a guardianship may remove considerable rights from an individual, it should only be considered after all alternatives to guardianship have proven ineffective or are unavailable. A Guardian may be sought to deal with a long-term issue (I.E. permanent guardianship) or may be sought to deal with an immediate temporary issue (I.E. emergency temporary guardianship).
To institute a permanent guardianship the Petitioner (the person seeking the determination of incapacity) must hire an attorney and file certain pleadings with the Court. The Court will then appoint an attorney to represent the interests of the alleged incapacitated person. The Court will also appoint an examining committee (consisting of three qualified persons, one of whom will be a doctor) to examine the alleged incapacitated person and determine his or her ability to handle his or her personal affairs. They will submit their reports to the Court. A hearing will then be heard before the Court and each party, the petitioner and the alleged incapacitated person, will have an opportunity to present their case. If necessary, this hearing may include witnesses and other presentation of proof and evidence. Following the hearing the Judge will determine if the alleged incapacitated person should have some or all of his or her rights removed. If the Judge determines that a person should have his or her rights removed, the Judge will determine if any less restrictive alternatives to guardianship exist (E.G. Durable Power of Attorney, Advanced Directive for Health Care, Trust, etc.) and if not the Judge will appoint a Guardian for the alleged incapacitated person (thereinafter referred to as the “Ward”). The Court may consider almost any person of legal age for appointment as Guardian, and this person may either be a family member or friend of the Ward or can be a professional Guardian.
Following the appointment of a Guardian, and depending on the extent of the guardianship, it becomes the Guardians responsibility to ensure the safety and well-being of the Ward. The Guardian may be required to post a bond to ensure the protection of the Ward’s assets and file annual reports, including a report on the safety and well-being of the Ward and an annual accounting detailing the year’s financial receipts and expenditures.
Unless terminated by the Court, a permanent guardianship will remain in place until the death of the Ward and will require final reports and accountings following the death.
At Griffin & Griffin we strive to make this complicated and overwhelming process as easy as possible for our clients. We represent both family members seeking guardianship as well as alleged incapacitated persons and we understand that this process is not easy, legally or emotionally, for anyone involved. We work hard to minimize the impact this process has on families and loved ones.
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