Guardianship in 5 Easy Steps
When someone you care about has reached a point where acting alone is no longer a good option and may be in need of a legal guardian, figuring out how to start and finish the guardianship process can seem daunting. Yet despite how intimidating is may seem, asking a court to appoint a guardian boils down to a 5-step process.
Finding a guardianship attorney
Filing court documents to start the guardianship process
Preparing for the hearing
Attending the hearing
Post-hearing tasks
For our purposes, let’s say Sam wants to be appointed guardian of his mother, Monica. Sam is fifty and Monica is eighty-five. She’s a widow and she’s getting forgetful. She has type 1 diabetes and she keeps ending up in the emergency room because she keeps forgetting to take her insulin. And because Monica never executed a power of attorney or healthcare proxy, Sam is pretty powerless in a legal sense when it comes to caring for his mother. Because Monica is so intelligent, independent, and head-strong, she refuses to accept that her memory is not what it is and, as a result, she doesn’t feel the need for a guardian to help take care of her when she’s been on her own for over twenty years.
Step 1: Finding a Guardianship attorney
Is it possible to go through the legal guardianship process without an attorney? Absolutely. Is it easy? Not in the least. I think most attorneys who are familiar with the guardianship process would advise that trying to navigate the legal waters alone is a brave task best left to the experts.
Of course, attorneys have reputations for being expensive. However, many lawyers who focus on elder law and guardianships are happy to offer clients their services on a flat-rate basis. At the very least, this should help mitigate clients’ concerns regarding expensive hourly fees. Further, this helps clients get over the worry that every six-minute phone call is going to cost them money. When an attorney offers his or her services on a flat-rate basis, clients can ask as many questions as they like, which their attorneys should be all too happy to answer.
Step 2: Starting the Guardianship Process
Usually, the clock on the process starts ticking the moment Sam files the proper documents in court. Once the paperwork is filed with the guardianship clerk, the same papers must be served on the proper parties. These parties include Monica, aka the Alleged Incapacitated Person (AIP), Monica’s close family members, if Monica lives in a nursing home or other type of residence, the director of the residence is entitled to receive notice of the proceeding, as well as Mental Health Legal Services if Monica is in a home or residence.
Step 3: Hearing Preparation
In terms of the overall guardianship process, preparing for the hearing is really where most of the work is done.
A judge who handles guardianship matters will sign the papers and schedule a hearing for roughly a month from the time of filing. At the same time, the judge is likely to appoint a court evaluator, an attorney for the AIP, and possibly even a temporary guardian if the AIP is alleged to be in imminent harm.
Who are all of these people?
A court evaluator is appointed to act “as the eyes and ears of the court.” The court evaluator is something akin to an investigator who reviews all the documents, interviews Monica and the people closest to her, and generally investigates the claims Sam made in his petition. Afterward, the court evaluator’s job is to make a report and recommendation to the court either in favor of or in opposition to the appointment of a guardian for Monica.
Similarly, a judge may appoint an attorney to protect Monica’s rights. The appointed attorney will meet with Monica, identify whether she feels she needs a guardian, and will advocate for her accordingly (regardless of the volume of evidence that may point in the direction of a dire need for a guardian).
Finally, if the alleged circumstances are either causing harm currently or likely to cause harm to Monica in the very near future, then the judge will usually appoint a temporary guardian to collect and protect her assets.
It’s also during the preparation stage that Sam, the party who started the process, will go about collecting as much info as possible to support his claim that Monica needs a guardian. Even though medical records such as hospital documents, medical evaluations, etc., are usually included in the initial paperwork, preparing any expert witnesses such as doctors, social workers, etc., may also be necessary before the hearing.
Step 4: Attending the Hearing
Different judges have different ways of doing things. However, here are the most important considerations that take place during a guardianship hearing.
First, the judge will want to see and speak with Monica. In some instances, an AIP cannot attend the hearing. That won’t prevent the court from granting the appointment of a guardian, but it does put something of a heavier burden on the petitioner asking for the appointment.
Judges want Monica in the courtroom so they can see for themselves who she is and whether the evidence and allegations that have been made about her are aligned with reality. It also lets a judge ask Monica questions directly, such as, “Do you think you need a guardian? These allegations that Sam has made, are they true?” What a judge sees and hears in the courtroom is extremely powerful evidence.
The next thing to identify is whether Monica consents to the appointment of a guardian. If the answer to that is yes, then forget the evidentiary hurdles that Sam, as the petitioner needs to overcome. If Monica admits, “Yes, I have significant limitations and I consent to the appointment of my son as the guardian of my person and property,” you’re likely in for a short hearing.
On the other hand, if Monica does not consent, then Sam needs to prove to the court that, without the appointment of a guardian, Monica is likely to suffer harm. That’s the legal standard: no guardian = harm to the AIP. And that’s where all of the medical evidence and testimony comes in, to tell the court that, despite Monica’s lack of consent, she has significant functional limitations, i.e., dementia, that is affecting her ability to engage in activities of daily living and, as a result, such inability will lead to harm.
That’s what happens at the hearing. Sam’s job is to get all of that evidence on the record so the judge can make his or her findings of fact in order to grant the petition to appoint a guardian for Monica. And if Sam does not meet that hurdle, then no guardianship will be created.
Step 5: Post-Hearing Tasks
Go ahead and assume Sam presents enough credible evidence so that the judge appoints him as guardian of Monica’s person and property. Then what?
Sam has to file an order with the court for the judge to review and sign. (I say Sam has to do this but because Sam is a smart guy, he hired a guardianship attorney who does all of that for him.)
Once he has the order signed by the judge, Sam takes it to the guardianship clerk who will issue a certified commission. The commission is not a commission in the sense of what sales people earn when they sell something. A commission is a court document with a raised seal that gives Sam the legal authority to act as Monica’s guardian. Sam may or may not be required to file a bond (sort of like insurance in case Sam ends up being a thief and steals all of Monica’s assets). And before Sam receives his commission, he’ll likely have to attend some sort of training to qualify as a guardian.
After that point, the court’s order will generally spell out Sam’s precise authorities as well as his immediate tasks. In addition, the court will expect annual accountings and reports from Sam. This is done to ensure that Sam is living up to his expectations as Monica’s fiduciary, meaning Sam is legally obligated to act in Monica’s best interest.
In essence, those are the five basic steps to starting and finishing a guardianship. Overall, the process takes about three months. It’s not as painful as it may sound, especially if you hire a good attorney familiar with the ins and outs of guardianship laws in New York.
Good luck!