Guardianship is a process in which the court removes rights from an incapacitated person and assigns them to a guardian. This procedure is made necessary when a person loses capacity and has not previously created a durable power of attorney and other documents naming somebody to handle financial and health care matters.
The proceeding commences upon filing a Petition to Determine Incapacity and a Petition to Appoint Guardian. The Court appoints three people as an examining committee, consisting of medical professionals and a person who is familiar with the type of incapacity. The court also appoints an attorney for the “Alleged Incapacitated Person.” These safeguards are intended to protect the person’s rights.
The appointed attorney serves the pleadings on the person, and represents the person. The committee members individually examine the Alleged Incapacitated Person and submit a report of their findings.
The Alleged Incapacitated Person is permitted to attend the hearing, and may speak or actively defend the case. If the Court finds the person to be incapacitated, the Court appoints a guardian for the person, now referred to as the “Ward.” The Court may appoint a Plenary Guardian (where all rights are delegated to the guardian) or a Limited Guardian (where only certain rights are delegated).
Generally, the fees for creating the guardianship are paid from the Ward’s own funds, including the fees for the attorney representing the guardian, the attorney representing the Ward, and the examining committee. However, if the person is determined to be competent, thus dismissing the case, all expenses may be assessed to the petitioner.
The guardian is required to file a care plan and a report describing the financial, medical and personal aspects of the case annually. The guardianship continues until the Ward dies or regains capacity. Thus the costs do not end when the guardianship is implemented.
If you have not appointed somebody to act for you with a durable power of attorney, do it NOW. It does not cost much, and certainly nowhere near the cost of Guardianship. Guardianship requires a lawyer. If you believe a guardianship might be required, please contact Pyle, Dellinger & Naylor, PLLC —we have been your local, trusted Guardianship Attorneys for over 20 years.