What Happens When a Guardianship is Requested?

Having to consider a guardianship over an aging parent is difficult, although sometimes necessary. If your loved one has revocable living trust or, in some cases, a recent durable power of attorney, properly drafted, and a health care proxy in place, the need for a guardianship proceeding may be eliminated – but what exactly is involved with a guardianship proceeding?

A guardianship is a legal relationship in which a probate court gives an appointed person, the guardian, the power to make personal and financial decisions for a ward, the person who is no longer capable of managing these decisions on their own. A guardian can be appointed when someone is incompetent due to mental illness, including dementia or Alzheimer’s disease, or physical incapacity.

Some of the steps that may be taken during a guardianship proceeding are:

  • First, evaluate your loved one to determine if, in fact, they are unable to care for themselves. This can involve family members, personal observations and physicians. In some cases, such as when someone has had a stroke and is completely incapacitated, this may be clear, whereas in other cases, such as someone who aging with memory loss, it may be less clear whether the person is still able to handle their own affairs.
  • If it is determined that the person is unable to care for themselves, you would then need to file a petition in the Probate Court requesting that a guardian be appointed.
  • The Court will require that the proposed ward receive notice of the petition. The Court sets a date by which anyone, including the proposed ward, may object to the guardianship.
  • A hearing is held and the judge decides whether a guardian should be appointed.
  • A temporary guardian can be appointed for 90 days, or a permanent guardianship can be established.

Having the proper documents in place can help both you and your loved ones avoid a guardianship proceeding. Work with an elder law attorney to make sure you have plans in place to address issues that may come up later in life.

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