How do I get guardianship | Stark & ​​Stark


The purpose of this article is to discuss the general process for being appointed guardian of a loved one or other family member. The process can be simple or complicated depending on a multitude of factors. This article will discuss the general process; while future articles will explore issues that can arise that make the process more complicated. However, it is important to understand the general process of obtaining guardianship before you can explore more complex issues.

The first assumption we have to make is that there is a loved one or family member who seems unable to manage their own affairs. This lack of ability may be due to age, illness, accident, or some other cause that has affected their mental ability to care for themselves. Once we are faced with this situation, there are a few steps to follow if we wish to be appointed guardian for this person. If there is already a power of attorney in place, this instrument can be used to provide care and assistance to that person, however, being appointed a guardian for someone often provides greater flexibility to easily manage their affairs. This article will not explore the differences between a guardianship and a power of attorney.

Once we have determined that this person needs help with their health, maintenance and/or finances, the next step would be to arrange what is needed to file for guardianship. The first thing to do in any guardianship process is to obtain assessments regarding the mental capacity of the individual in question from two doctors who will perform competency assessments to determine if the person has any issues regarding their mental capacity. If the assessments reveal that person’s competency issues that interfere with their ability to care for themselves, the process will move on to the next step.

Once the assessments are completed, a complaint should be filed with the county court in which the allegedly incapable person resides, seeking to have a guardian appointed for that person. This process is quite complicated and hence it is suggested that you hire a lawyer to help you in this regard. As part of filing the complaint, you must notify all potentially interested parties. These interested parties may be the spouse of the presumed incapable person, family members, other relatives related to the person or any other person who may have a power of attorney or other similar relationship with the presumed incapable person. In the petition, you will name the person you are proposing to be the guardian of the allegedly incapable person. Once the complaint has been filed and served, the court will take steps to move to the next step.

In the next step, the court will appoint a lawyer for the allegedly incapable person to represent their interests in this proceeding. The court will then set a later hearing date and ask you to notify the same interested parties mentioned above of said hearing date. On the hearing date, these people will have the opportunity to object to the application for guardianship or to object to the appointment of a particular person to serve as guardian. The purpose of the hearing will be to determine if a guardian is appropriate, what level of guardian should be appointed and who will act as guardian for the allegedly incapable person. This is a simplified explanation of what can happen, as more complex issues can arise during this part of the process.

If the court appoints a guardian, that person will have to meet certain conditions to act as guardian for that person. Once these conditions have been met and the appointment order has been completed, this person will now be able to manage the affairs of the presumed incapacitated person as if they were themselves. This gives the guardian more control and flexibility than a power of attorney, and also offers the potential for judicial review if needed. As stated above, this is merely an outline of the general process for obtaining guardianship, which can become exponentially more complicated in the event of a dispute, and therefore it is always suggested that if you are interested in obtaining a guardianship, you consult a competent lawyer. .


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