Guardianship and the Court
Like any other court action, a guardianship is a serious matter. Whereas in a criminal case or a civil case the prosecutor or plaintiff seeks to take away the defendant’s freedom or money, the Applicant in a Guardianship action is asking the Court to strip the Ward of the right to make his own decisions in medical and or financial matters. Such an action is not to be taken lightly and is governed by the same legal protections afforded all citizens.
BURDEN OF PROOF
The burden is on the Applicant to prove by clear and convincing evidence first that the prospective ward is an incompetent person who cannot manage his own life/finances without the aide of a guardian and second that the applicant is a suitable person to serve as the guardian.
At a minimum, incompetency must be shown by presenting a Statement of Expert Evaluation completed by the prospective ward’s doctor or licensed clinical psychologist. Suitability is shown through a criminal background check, a court interview of the applicant and, if finances are to be managed, a surety bond secured by the applicant. A bond is an insurance policy that the funds will not be misused.
The prospective ward is entitled to notice that the Guardianship action has been filed. Service is made by a Court Investigator – a social worker who explains the guardianship notifies him of the date, time and location of the hearing and advises him of all the rights that the prospective ward has in the matter. These rights include:
- The right to object to the application;
- The right to be present at the hearing;
- The right to have a friend or family member present at the hearing;
- The right to be represented by an attorney, at a hearing;
- The right to have an attorney appointed (at Court expense, if necessary);
- The right to be examined by an independent medical expert (at Court expense, if necessary); and to introduce evidence of the evaluation.
- The right to present evidence of a less restrictive alternative to guardianship;
- The right to have a record of the hearing for appeal, if needed.
The Court Investigator will also help to have an attorney appointed to assist the prospective ward. (At Court expense if necessary)
The prospective Ward’s Next of Kin who reside in the state are also notified of the application and the time, date, and location of the hearing. They can become parties to the case if they object to the guardianship or to the applicant.
Once a guardian is appointed, the Court remains involved as the superior guardian. All actions taken by the Guardian from collecting assets and income, paying bills and selling property to moving the ward to a different home or placement must be reported to and approved by the Court.
Annually, the Guardian must report to the Court about the Ward’s residence and medical condition, verify the contacts he has had with the Ward and that the Ward has seen his doctor. If handling finances, the Guardian must account for all moneys spent and show proof of bank balances, cancelled checks and all assets. The Court retains the right to remove the Guardian if he doesn’t perform his duties correctly.
The Guardian may also have dealings on behalf of the ward involving Social Security, Medicare, Medicaid, pension providers, insurance companies, realtors, and litigation involving the ward or his property.
Clearly, a guardianship can be an intense undertaking both for the prospective ward and the prospective guardian. In many cases, however, it is the only way to aide and protect an incompetent adult.
An experienced elder law attorney can counsel and guide an applicant through the legal, medical and financial complexities he faces. This can ease some of the strain allowing the Guardian more time to care for and connect with his loved one.