When does the guardianship proceeding begin?
A Guardianship proceeding is commenced by the completion and submission of an Order to Show Cause and a Petition to the Court. These documents set forth the details of why a Guardianship is needed for the Alleged Incapacitated Person.
What are the proceedings of the hearing?
At the hearing, the Petitioner testifies as to the need for the guardianship, who they desire to be appointed as Guardian and the powers requested. The court Evaluator testifies as to his/her findings and recommendations. Other witnesses may also be called. The Court typically states its conclusions at the end of the hearing in a Bench Decision.
What happens after the Judge determines the person is in need of a guardian?
Once the Judge determines that the AIP is in fact incapacitated or is a person in need of a Guardian, a proposed Order and Judgment is prepared by the Petitioner’s attorney and filed with the Court for judicial approval. The Order and Judgment sets forth the name of the Guardian(s), the powers granted to the Guardian, and the compensation due to the Court Evaluator for his/her services which will be paid from the Incapacitated Person’s (“IP”) assets or as otherwise directed by the Court. A signed Order and Judgment is necessary for the appointment of the Guardian.
The Guardian may be required to post and file a Bond with the Court. The Guardian will also have to sign and file certain documents for his or her appointment, including a Consent to Act, Oath and Designation, and other Court forms. Once all documents have been filed, the County Clerk will issue a Certified Commission to Guardian, which is the document enabling the Guardian to act.
Is there any kind of training that I will have complete should I gain guardianship?
The Court will require the Guardian to take a class, offered through the Office of Court Administration, to teach the Guardian about his/her duties and responsibilities.
Are there any reportings that the Guardian will have to make?
The Guardian will have to file an Initial Report within ninety (90) days of being Commissioned, to report on the initial assets of the Guardianship and as to the IP’s well-being. The Court appoints a Court Examiner who will review the required Guardianship accountings.
Further, the Guardian will need to file an Annual Report in the month of May, setting forth his or her acts as Guardian for the preceding year ending December 31st. The report accounts for the Guardianship assets and the IP’s well-being.
Can I be compensated for being a Guardian?
The Guardian can seek compensation for services rendered as Guardian. Compensation is requested when filing the Annual Report. The Court Examiner will review the request for compensation and the Court will make an Order as to same. If the guardianship assets are low, the Court can reduce the standard compensation or deny the request. The Guardian can waive compensation.
Can Medicaid planning and asset protection planning be done for the incapacitated person?
A Petition can request authority to do Medicaid planning and asset protection. The Petition must clearly establish the validity of the plan and that at no time will the Alleged Incapacitated Person be left without assets or Medicaid to meet the medical needs. The Courts can authorize a Guardian to implement Asset Protection Planning, Estate Tax Planning and Medicaid Planning for an incapacitated person. The Court will base its decision on whether the plan is in the best interest of the incapacitated person and whether a reasonable person would also implement such a plan.
How would the incapacitated person sell or buy Real Property?
A Guardian must apply to the Court for the authority to sell or buy real property for the incapacitated person. The Court will review the terms of the Contract of Sale/Purchase, the Contract price and the need for the transaction. The Court appoints an independent Certified Appraiser to certify the fair market value of the property and to determine if the Contract price is reasonable. The Court can seek modification of a Contract or reject it.
For a glossary of common terminology, click here.