Adult guardianships are sometimes necessary when an adult becomes incapacitated and the adult can no longer handle his or her financial or medical business. If there is no durable power of attorney in place, the guardianship becomes necessary. The court is the institution that is in charge of appointing a representative to handle the matters of the adult. Generally, an interested family member or friend is considered to be a suitable representative. The court will take several things in consideration before naming the person as guardian.
Initiating a Guardianship Petition
The process is initiated by an interested party filing a petition for guardianship. The petition is required to be accompanied by a physician’s report that indicates the need for guardianship. According to law, the “disabled adult” is entitled to due process under law, so he or she must be served with the petition at least 14 days prior to the court proceedings.
Legal and Social Advantages of a Guardianship
A guardianship offers legal advantages for the representative and the disabled adult. The disabled adult can have his or her important financial and health decisions made by someone that has the person’s best interests in mind. An appointed guardian has a responsibility to report the ward’s activity to the court, so there is a checks-and-balances mechanism in place. Court oversight provides some protection for the representative, especially when others might make accusations that the representative is abusing his or her power. A guardian is required to have a bond issued to offer some protection of the disabled person’s assets.
Legal and Social Disadvantages of a Guardianship
A guardianship has several disadvantages as well. The costs of a guardianship can be fairly prohibitive. These costs include fees for court proceedings, legal representation, and posting a bond. The representative is required to pay a premium for the bond that protects the assets of the disabled adult. The annual reporting that is required by the guardian can be tedious. In addition, privacy is reduced considerably with this type of proceeding. A guardianship hearing is considered a public proceeding, and the public can sit in on the hearing, although not all of the information is public. For instance, the court will seal all medical and physician reports, and these reports can only be retrieved in circumstances where the judge deems it appropriate for the release of these records.
Is a Guardianship the Right Choice for Your Loved One?
There are several alternatives to guardianship, so it would be wise to discuss each of them with an elder law lawyer before deciding on the best option for your loved one. Attorney Andrew Lamkin focuses exclusively on elder law and related legal issues and offers free consultations. Call the Law Office of Andrew Lamkin, P.C., at 516-605-0625 to discuss your situation and your options.
Andrew Lamkin is principal in the law firm of Andrew M. Lamkin, P.C., where he focuses his practice in the areas of elder law, estate planning and special needs planning, including Wills and Trusts, Medicaid planning, estate administration and residential real estate transactions. He is admitted to practice law in New York and New Jersey.
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