What should you do when a loved one does not have the capacity and does not have any legal documents?

Unfortunately, not everyone has the foresight or ability to sign a Power of Attorney or Health Care Proxy. A Guardianship is a legal tool available to appoint a “Guardian” to ensure the protection and proper care of your loved one. This person acts as an Agent under Power of Attorney or Representative under Health Care Proxy would, with the addition of Court supervision.

To an outsider, the Guardianship process may seem daunting. At Hynes Law Group, we can walk you through the steps involved.

What is involved in a Guardianship?

This process can be broken down into four main phases:

  1. Making the application: In making the Guardianship application, the applicant must ensure that he or she has all necessary documentation and proofs. For example, the Court requires that an applicant have certifications from two physicians, or one physician and one licensed practicing psychologist, stating that they examined your loved one in the past 30 days and that he or she is incapacitated. The applicant must submit a Verified Complaint setting forth information about the applicant and the alleged incapacitated person, along with an Order to Show Cause, Proposed Order, and a Certification of the alleged incapacitated person’s assets and income.
  2. Return of the Order to Show Cause and Appointment of a Court-Appointed Attorney: If all proper documentation is submitted to the Court, the presiding Judge will sign the Order to Show Cause setting a date for hearing, and appointing a Court-Appointed Attorney to represent the alleged incapacitated person. Even if your loved one is clearly incapacitated, the Court-Appointed Attorney will ask to speak with the interested parties and the proposed Guardian.  After having these discussions, and meeting with your loved one, the Court-Appointed Attorney will submit a report to the Judge.
  3. Hearing: On the date set for hearing, the presiding Judge will generally make a decision on whether your loved one is incapacitated, and who will serve as Guardian. This process is generally very informal unless contested. Often, the court will not require the alleged incapacitated person to appear, because it is likely that the doctor’s certifications will state that they would not offer anything meaningful to the hearing.
  4. Fulfilling Fiduciary Responsibilities as a Guardian: Getting appointed Guardian is only half the battle. Once you start acting as Guardian, you need to obtain letters of Guardianship, marshal all assets, ensure that your loved one is properly being cared for, and submit filings with the Court, among other fiduciary obligations.  We can make sure that you are appraised of your fiduciary responsibilities, and assist you with every step of the way.

At Hynes Law Group, we can ensure that you submit a detailed and thorough application for Guardianship. By doing so, you will lessen the chance that a formal hearing will need to be held, or that the presiding judge will have any questions.  Should you be facing an emergency, we can use our legal expertise to expedite the whole process.

We also assist our clients in submitting all appropriate fiduciary filings with the Court once appointed as Guardian.  By outsourcing your fiduciary accounting needs to us, we can prepare the accountings in accordance with applicable laws, and help you to manage the Guardianship process.

To schedule a free 15-20 minute consult to determine if a Guardianship is appropriate for a loved one, please click on the “contact us” tab or call the number above.