|Written by Randall D Howard|
The basic skills, mental capacities, and physical well being to accomplish simple, daily tasks are things most of us take for granted. However, various situations can deprive individuals of these basic life requirements whether young or old. Strokes, advancing age, other medical and/or mental conditions, or accidents can all take from people the ability to function on their own.
While this situation is difficult and frustrating for the individual affected, family members are also impacted. Ultimately, the family member closest to the person usually becomes the caregiver, or is involved in arranging that care. One question that often arises in these cases is whether to seek legal guardianship of the loved one. The following steps will lead you through that process:
Step 1. Understand clearly why you are seeking guardianship. This is not always an easy question to answer, as the individual you seek guardianship of may not understand the reasoning. I cannot tell you how to make the decision for your particular case, but following are some valid and not so valid reasons for seeking guardianship.
Valid reasons include: The loved one is not seeking or is refusing critical health care. The loved one is continually putting himself/herself into dangerous situations at the risk of severe injury. The individual can no longer manage their own financial affairs to the point of property foreclosure, legal actions, etc.
(Tip: Any recent specific situations will carry more weight if documented by doctors, etc. and included in the petition).
Invalid reasons include: Your desire to handle the personâ€™s financial affairs to your liking, even though the individual is fundamentally capable. Your desire as guardian to limit the personâ€™s rights beyond providing reasonable safety and medical care for the person.
Step 2. Once you have determined you have a valid cause, then you need to contact a lawyer to petition the court. Remember, you are asking the court to rule in your favor. The action is not automatic. Your attorney will prepare the appropriate documents seeking an order to appoint a guardian.
There will be a court cost in the range of $250. This differs by state and jurisdiction. However, this cost is sometimes waived if the person over whom guardianship is being sought is destitute. Your attorney can help you with this. The attorneyâ€™s costs to the guardian can differ in various parts of the country, but the fee for their time should be just a few hundred dollars if the petition is relatively simple (most are).
Step 3. The court will require that a Guardian Ad Litem be appointed. The cost of the Ad Litem should be a few hundred dollars at most. This cost is paid by the one seeking guardianship. This person will be an attorney who will interview the person and make a determination of that personâ€™s disability. He/she will then prepare a report of his/her findings.
The person over whom guardianship is sought has the right to and may hire an attorney to block the petition.
Step 4. A court hearing will be held so that a judge may hear both sides. The person over whom guardianship is sought has a right to be at the hearing, but often is not if medical or mental conditions dictate.
The attorney for the proposed guardian will present the petition. The judge will review and then ask questions. The Guardian Ad Litem will then present his/her findings and recommendation. If the disabled individual contests the action, then their attorney will present their case (most often the petition is not contested).
Step 5. If there is no contesting of the petition, the judge will rule based on the evidence presented. If he judges in favor of guardianship, the attorney for the proposed guardian will have an order prepared stating who the guardian will be. Those papers are then filed and the new guardian is in place.
This article is not legal advice. Only an attorney who knows your particular circumstances can provide legal counsel. This is rather just an outline of the steps in the guardianship process.