5 Steps for Obtaining Guardianship

Question:

How Can I Get Guardianship of My Elderly Parent or A Loved One With A Disability?

Answer:

Loved ones who have a developmental disability, are disabled, have dementia, Alzheimer’s, or are otherwise incapacitated give rise to the need for someone to handle such a person’s affairs.  If that person cannot create a Power of Attorney, a Guardianship proceeding is often brought to appoint someone to handle these duties. Guardianship refers to the legal process of a court-appointed relationship between a capable adult and a person over the age of eighteen who has a disability preventing them from being able to make informed decisions or is unable to manage their own affairs without risk to themselves or others.

Step 1: Consider Restrictive Alternatives to Guardianship

In some cases, full guardianship is not the best course of action. An individual may only require assistance for financial or medical decisions.

  • Financial decision-making alternatives include a durable power of attorney and representative payees.
  • Health care decision alternatives include advanced health directives and power of attorney.
  • If daily intervention is needed look into community-based services, mediation, and even counseling.

Step 2: Consider Hiring an Attorney

Guardianship proceedings can be a lengthy legal process and sometimes highly contested. An attorney with expertise in adult guardianship can provide expertise on current guardianship laws, help with filing the court petition, offer fiduciary responsibility guidance, and advise on guardianship alternatives.

Step 3: Obtain a Physician’s Certificate or Doctor’s Letter

When filing for Article 17-A Guardianship, one doctor and one psychologist, or two doctors must provide certification that the individual is unable to manage their affairs because of intellectual disability, developmental disability, or traumatic head injury.

Step 4: Petition the Court to File for Guardianship

Once a petition for guardianship is filed with the court, a hearing date will be scheduled.

Once the petition for guardianship has been filed you must notify the proposed ward of the application.  Anyone with a legal right to know about the guardianship petition must also be contacted, including family members.

Step 5: Prepare for the Hearing

During the hearing, the petitioner must provide convincing evidence that the incapacitated person is unable to manage their personal and/or financial affairs. The court will determine whether to give the guardian the ability to make decisions on behalf of the incapacitated adult. The power given to the guardian may be limited by the court depending on the mental capacity of the person involved.  There are two types of guardianships, guardianship of the person and guardianship of the property.

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