Benjamin Katz, Esq. P.C.

The steps to applying for guardianship can be time-consuming and unclear. It will take some time to get through all the steps, so it is best to start early and allow yourself lots of time. The following article will give you an idea of what the process entails and how much time it will take to complete each step.

 

Determine Whether a Guardianship Is Necessary

 

A guardianship is usually only necessary when an individual has lost the ability to make decisions.  It can also be used if they’re unable to care for themselves, manage their finances, or cause harm to themselves. Having a Power of Attorney and Health Care Proxy in place in advance will avoid the need to apply to a court for the power to make decisions for an individual found to be incapacitated.

 

Hire an Attorney

 

You’ll need an attorney if you plan on pursuing guardianship. They will help you navigate the court system and ensure your successful application. You should consider hiring an attorney even if you’re unsure about pursuing legal action. Some states require legal representation during this process anyway, so it’s better to know what you’re up against before going in alone.  In New York, the petition is brought in Supreme Court or County Court under Article 81 of the Mental Hygiene Law.

 

Serve Notice to the Disabled Person, His Legal Representative, and Relatives

 

When applying for guardianship, you must petition the court and serve notice of your intent on the person who is being proposed as your ward, referred to as the alleged incompetent person (AIP) and any family members who might object. The court will appoint a Court Evaluator and may also appoint an attorney to represent the AIP.  The court will also schedule a hearing, which is when you’ll present your case in front of a judge to be appointed to manage personal needs, property, or both.

 

Attend the Court Hearing

 

At the hearing, you’ll talk about why you think it’s necessary for someone else to be appointed guardian over the person in question. You may present witnesses and documentation in support of your petition.  Witnesses may include doctors, social workers, family, and friends.  The AIP or their attorney may object to the appointment, presenting reasons why the petition should denied or the power of the guardian should be limited.  If a family member objects to your application, they’ll also have an opportunity to speak at this time. The judge will listen to all sides as well as the Court Evaluator before making a decision about whether or not guardianship is warranted in this situation. Once it is determined that the individual is an incapacitated person (IP), it will tailor the powers given to the guardian in order to provide as much freedom as possible to the IP.  If granted guardianship, certain responsibilities come with this appointment. 

 

Attend a Guardian Training Class or Work With a Professional Fiduciary During the Process

 

Attend a guardian training class or work with a professional fiduciary during the process. Guardianship is not a simple process, and you want to be sure that you are prepared for the responsibilities and liability involved before applying for guardianship.