What is Guardianship?
Guardianship refers to the authority granted to a person by the Court to take care of a disabled person’s person and / or property. If a family member or someone in need is unable to manage his or her affairs due to frailty, long-term illness, disability or mental incompetency, you can petition the court for guardianship.
A person is deemed to be competent unless a court has determined otherwise. Before making a decision, the court appoints an attorney to represent the interests of the alleged disabled person, and that attorney provides the court with a written report. The alleged disabled person’s assets and income needs to be reported to the court, and there are strict rules governing the management and accounting of the assets of the guardianship estate.
The court may, but is not required to appoint the petitioner as guardian. There is no specific test to be met for a guardianship award. The court takes into account all the facts and circumstances and uses its discretion to make an equitable determination. An experienced attorney can assist you by explaining how a court may view the particular case and what should be done to satisfy the court to increase your chances of being appointed.
A guardianship order can be obtained in a day or two in an emergency situation, otherwise the process can take a month or several months. The cost, delay and administrative inconvenience of a guardianship can be avoided by having a durable general power-of-attorney signed before one becomes incompetent.
Planning and timing is important. Everyone, and senior citizens especially, should meet with an attorney with experience in these matters to review their basis estate planning needs and plan for disability. Having a power-of-attorney in place will make it easier for your representative to act quickly on your behalf and avoid the stress, delay, inconvenience and expense of a guardianship proceeding.
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