If you read the first four blogs of this series, you know how much I encourage everyone to make sure they do some basic estate planning. This includes preparing a Will as well as a Durable Power of Attorney and Living Will. These may not seem like important documents to you now since you may be fine and in good health, but they become critical if you should become disabled. Without these documents in place, your family may be forced to seek to become your legal guardian which is something you want to avoid if possible. And by the way, it is a misnomer to think a spouse can act on behalf of the other spouse in terms of managing assets. True, a spouse may have access to accounts owned jointly, but that is not true for accounts that are in the name of one spouse only, such as IRA's and 401K plans. Similarly, both spouses need to sign a deed for the sale or transfer of any real property, even if jointly owned.
Assuming you have not been on top of your planning as you should, and something happens to you or your spouse where a guardianship is needed, here is what you can expect.
Step One: Filing a Verified Complaint and Medical Certifications
The first thing you need to know is that a guardianship is a formal legal proceeding that involves convincing a judge that the person alleged to be incapacitated (the AIP) lacks the mental capacity to manage his or her own affairs. It requires the filing of a Verified Complaint along with the Certifications from two doctors stating, in effect, that the person is in fact incapacitated due to some type of medical condition. Typically, for an older person, this can be due to some form of dementia, such as Alzheimer's Disease, or a stroke, or some other traumatic brain injury.
Step Two: Notice to Family Members
Close family members will need to be given notice of the court action and given the opportunity to respond. In most cases, there are no objections and the case will proceed uncontested; but at times this can create a real conflict in the family, usually over who will serve as guardian. It is sad to say, but guardianship cases provide the ideal environment for bringing to the surface many conflicts in the family that have been buried for years.
Step Three: Court Appointed Attorney
As is the case in all guardianships, the court will appoint an attorney to represent the AIP. Even if there is no doubt that the person is incapacitated, the appointment of an attorney is required as a matter of due process. The attorney's job is to interview his or her client (the AIP) and to advocate for the stated or known wishes of the AIP. It could be that the AIP does not want a guardian in which case the attorney will tell that to the court. If the attorney feels the medical records are not completely accurate and that his client may in fact have capacity, the court may direct that a third doctor exam the AIP.
Step Four: Court Hearing
Assuming the case is uncontested, the parties will need to appear in court and testify as to the facts set forth in the Complaint. Our court rules require the AIP to appear in court as well, but in many cases, their appearance is waived if the doctors state it would not be in their best interest to appear in court. If the judge feels the medical records are credible and there are no other objections, then a formal Judgment will be entered that declares the person to be incapacitated. That person is now referred to as a “ward.” The judge will also designate who the guardian will be.
Step Five: Qualifying as Guardian
Once the Judge enters the Judgment of Incapacitation, the guardian must then go to the County Surrogate's office to be sworn in as guardian. This is called “qualifying as guardian.” In some instances a bond is required, depending on the relationship between the ward and guardian and the amount of assets involved. Guardians need to account annually to the court in terms of the ward's assets and income as well as their well-being.
See, that's a lot of stuff! And it can be expensive too. The cost of a guardianship can run anywhere from $2,500 to up to tens of thousands of dollars, depending on whether they are contested. They can also produce a great deal of stress and inconvenience for the entire family, not to mention the stigma of being declared incapacitated.
It is best to avoid all of this by being just a little proactive and spending a few bucks on some basic planning documents. You will thank yourself if something unexpected should happen to you or your loved one.
Serra Law Group can help
If you are faced with a situation where you think you may need to obtain guardianship for an older or younger adult, it is best to consult with an Elder Law attorney to get some assistance and guidance. This is especially true if you think the case may be contested in some manner or difficult to prove. At Serra Law Group, we have been assisting people with Elder Law issues for close to 30 years and can help you navigate what can be a very daunting and nebulous process.