Hyden, Miron & Foster, PLLC Law Blog

Sunday, October 31, 2021

What Is Guardianship?

While each state may have its own unique laws and procedures in order to have a guardianship established, the fact remains that a guardianship is a court order established legal relationship where one person, the guardian, is essentially granted control of another person, the ward. Here, we will go over some of the more detailed aspects of guardianship, how it can be established, and how it can be avoided, in some cases.

What Is Guardianship?

Depending on the type of guardianship established, a guardianship can give a guardian control over the ward, the ward’s property, or both. This will depend on what is needed in a certain situation. In order for a guardianship to be established in the first place, however, it must be established that the potential ward is, in fact, incapacitated. Without this, a court will not approve the guardianship. A showing of incapacity means establishing that a mental or physical disability, or some other condition or circumstance renders a person incapable of managing his or her own health, safety, or finances. It should be noted, however, that a showing of money mismanagement alone is unlikely to merit the establishment of a guardianship.

In order to establish a guardianship, a petition for guardianship must be filed with the court first. Furthermore, notice should be provided to the ward that a petition for guardianship has been established. The notice should inform the ward that a hearing will take place as well as detailing the ward’s rights in relationship to the guardianship proceedings. The next step is for the ward to be evaluated by a professional in order to determine whether a guardianship is necessary.

In instances where the ward has already been evaluated within the past 6 months by a professional, the report generated from this evaluation can be used by the court in determining incapacity. Without a record of such evaluation occurring, the court will order a professional evaluation of the ward. The type of professional necessary to evaluate the ward will vary depending on the nature of the ward’s abilities that need to be evaluated. Some professionals that will perform evaluations in guardianship cases include:

  • Physicians
  • Psychologists
  • Social workers

The findings of the professional evaluation will be provided to the court prior to the hearing held in order to determine whether a guardianship is needed. The ward has the right to an attorney and that attorney can present evidence as well as cross examine witnesses. The ward’s attorney can also have another professional evaluation conducted and submitted to the court for consideration. The judge will render a decision on the guardianship based on the totality of the evidence presented.

If the court deems guardianship necessary, an order to the appointed guardian will be issued. The order will detail the authority the guardian has in regard to the ward’s person or property. Furthermore, “Letters of Guardianship” are issued to the guardian by the clerk of court. These letters are issued so that third-parties will be notified of the guardian’s authority.

Estate Planning Attorneys

Guardianship is a complex process that has serious repercussions on the life and rights of the ward. For more information on guardianship, the knowledgeable estate planning team at Hyden, Miron & Foster is here to help. Contact us today.

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