Typically, the court will appoint the same person to serve as to guardian of the person and guardian of the property, but may appoint separate guardians. Much depends on the facts and circumstances. Whenever the is a family dispute over who should be guardian the risk of the court appointing a third party increases and, all the more so, where there are concerns of financial and/or physical abuse. Since it is not unusual for people to exaggerate or embellish the facts, an experienced guardianship attorney may be able to nip many problems in the bud.

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Generally, if the court is satisfied that the petitioner is a suitable person to be appointed guardian, such determination being considered separately with regard to guardian of the person and guardian of the property, the petitioner will be appointed legal guardian. However, the court may decide to appoint someone other than the petitioner, including a complete stranger to the family, such as an attorney, to serve as guardian and may appoint different people to serve as to guardian of the person and guardian of the property. Therefore, it is important to go to court prepared.

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The procedure or process for becoming a legal guardian first requires a determination as to whether the alleged disabled person needs guardianship of the person or of the property or both, – more often it is both. A petition for guardianship needs to be filed in the circuit court for the county in which the alleged disabled person resides, supported by two physician’s certificates verifying the cause, nature and scope of the incapacity in conformity with court rules. Various other documents needs to be filed and the appropriate parties served. Then the case is set in for a hearing. Prior to the hearing, shortly after the case is filed, the court appoints an attorney to represent the interests of the alleged disabled person, who investigates and files a written report with the court. The court may or may not require the petitioner to testify. The appearance of the alleged disabled person often is waived. The court determines whether bond is needed and if so how much. After a guardian has been appointed, the guardian must attend a court sponsored seminar on the duties of a guardian. A fiduciary report needs to be filed with the court after the hearing and annually thereafter providing a detailed accounting of the disabled person’s assets and income, duly verified.

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Contesting a guardianship can be highly stressful and costly, but when a loved one’s health, safety and financial security are in jeopardy, one has to do the right thing and act swiftly. The first step should be to consult with an experienced guardianship lawyer to evaluate the situation and provide guidance as to how to proceed. How one proceeds depends on the stage of the proceedings. The earlier one retains legal counsel the more options one may have to resolve the conflict in a sensible, cost-effective manner.

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Any competent person over 18 years of age may serve as legal guardian absent facts that persuade a court that such person is unsuitable to serve as guardian. Legal guardianship is a serious matter and one should have an understanding of the nature and scope of one’s obligations as guardian and have understanding and compassion for the disabled person. People who are going through their own life crises, such as serious health issues, financial or marital difficulties, substance abuse problems, and so forth probably should not be taking on this responsibility, but much depends on the circumstances. Get legal counsel as early as possible.

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Because this is a complex area, the first step should be to consult with an experienced guardianship lawyer to evaluate the situation and provide guidance as to how to proceed. Stress and misguided good intentions, not to mention those who have ill-intentions, may easily cause major family rifts and set in motion an expensive legal battle that might be avoided with the assistance of someone experienced in these matters.

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Although there is no legal requirement that one be represented by legal counsel, it is prudent to do so. The process can be involved for someone who does not deal with these matters on a regular basis. Moreover, there often are important legal and strategic planning considerations that ought to be considered before one proceeds with a guardianship. If nothing else, investing in a comprehensive consultation with an experienced guardianship lawyer can help save you considerable time, stress and avoid costly mistakes. Bear in mind that you are usually dealing with the intimate subject of taking over control and responsibility for another human being who, even if suffering from moderate to advanced mental incapacity, still has feelings and fluctuating moments of understanding. Moreover, there are other areas of law that often have to be dealt with, such as estate planning, tax planning, marital property rights, and very importantly, Medicaid law. Mismanagement of the disable person’s planning for disability, in particular with regard to eligibility for public benefits, can very serious and possibly subject the guardian to personal legal liability and could even result in criminal prosecution. Long story short, don’t short-change yourself or the disabled person by cutting corners. You need to find out what you need to know and do things right!

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Generally, a durable general power-of-attorney, if adequately drafted, enables the agent or attorney-in-fact, to act on behalf of the incapacitated person, like a guardian would and thus guardianship is not necessary. However, if the person who gave the power-of-attorney is cognitively impaired and refuses to cooperate, guardianship may be necessary. Also, if the power-of-attorney document does not provide the authority needed to do certain things, guardianship may be necessary. The court always has authority to appoint a guardian over the protests of a person named as power-of-attorney if the court believes it necessary.

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The ability to understand the nature and effect of a power-of-attorney is critical, but there are other factors a court requires to evidence sufficient mental capacity. Mental incompetency or incapacity can be a complex area where different standards of incapacity may apply depending on the context. A person may have significant cognitive impairment and yet be able to understand certain things that meet the legal standard of competency to make a Will or sign a power-of-attorney. Other factors, such as stress, depression, medications, and so forth may cause temporary distortions of mental capacity. An experienced guardianship lawyer or elder law attorney may be very helpful with mental capacity determinations. Someone who is frail and physically unable to manage his or her affairs might be need guardianship even if mentally competent.

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A person who lacks the ability to manage his or her affairs or make responsible business or healthcare decisions may need a legal guardian. Mental incapacity or cognitive impairment is a matter of degree.

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