Quite often, people will find themselves in a position where they need the legal authority to make decisions on behalf of another individual. When someone either loses the ability to take care of themselves or is unable to responsibly manage their assets, the court can step in to appoint a guardian. The appointment of a guardian is usually a last resort, and the need for a guardian can often be prevented by proper estate planning.
It is not uncommon for people to confuse the terms Power of Attorney and guardianship. When people want to take control and make decisions regarding another individual’s medical treatment, assets and liabilities, they will often inquire about obtaining Power of Attorney over the individual. It is important to note that a Power of Attorney must be granted by a competent individual, over the age of 18. If someone is young, or is not competent, they cannot grant the Power of Attorney. In that case, often a guardianship is the only other option.
A guardian can be appointed to a minor who cannot be cared for by their biological or legal parents, as well as anyone who is declared a judge to be incompetent.
The National Guardianship Association defines guardianship as “a legal process, utilized when a person can no longer make or communicate safe or sound decisions about his/her person and/or property or has become susceptible to fraud or undue influence. Because establishing a guardianship may remove considerable rights from an individual, it should only be considered after alternatives to guardianship have proven ineffective or are unavailable.” Its purpose is to prevent minors and incapacitated individuals from being left without care, and to allow an individual to make decisions on behalf of another person.
There can be many situations in which guardianship is a necessary step to take. This could include circumstances such as the death of parents of a minor child, becoming incapacitated due to medical issues or injury, being abandoned as a minor child, and more.
It is hard to gauge at what point a person needs to step in to become a guardian. Contacting a lawyer and obtaining legal advice is a great way to ensure that you are stepping in when necessary and at the appropriate time. But don’t wait, often there are options that can be used before a guardianship is necessary. The guardianship proceeding should be used as a last resort.
A guardian will often be a family member or close friend, but that is not required by law.
A judge will appoint a guardian after hearing all the facts of a specific situation in a court of law. These trials may also be heard by a jury when there is an issue as to competency or who should be appointed as guardian. The alleged disabled person will have an attorney appointed to protect their rights, and you as the petitioner and interested person should, be represented as well.
If you do not have a lawyer to represent you in a guardianship case, there are many issues that you will face: proving incompetency of the alleged disabled person, proving the need for a guardianship, proving that you are the pest possible guardian. Without an experienced guardianship lawyer, you cannot guarantee that your rights and those of the alleged disabled person will be protected.
A guardianship can be expensive, as it is billed on an hourly rate and depends upon the complexity of the case. An undisputed guardianship will cost much less than a contested guardianship. Generally, we require a retainer of $2500-$5000 to begin the process. The fees will include the time necessary to meet with you, gather information, draft documents, research and investigate, attend court dates, etc.
Since 1996, the attorneys at the Ruben Law Firm have built our “five-star” reputation by providing extraordinary, convenient legal services all at affordable fees.