A guardian is a person who has been appointed by the Probate court to have care and custody of an incapacitated person (also called the “Ward”) by a court order. If there is a less restrictive means in place to assist the proposed ward, such as a health care power of attorney or a financial power of attorney signed by the proposed ward while competent, this is preferable than a guardianship.
The guardian may be appointed over the person allowing the Guardian to determine the ward’s health care decisions and determining where a ward may live. And in some circumstances, with Court approval, the guardian may be able to admit the ward to a nursing home or other institution.
A guardian can also be appointed over the person’s estate (allowing the guardian to manage the Ward’s finances). A guardian over the estate must take possession of the ward’s personal property, including monies, stocks, and real estate owned by the ward. The guardian is required to file an inventory and an annual accounting and report with the Court. The guardian owes a fiduciary responsibility to the ward and must act in the ward’s best interest. The guardian must keep the ward’s property separate from the guardian’s personal assets and protect and preserve the estate of the ward.
Whether a guardianship over the person only, estate only or person and estate should be sought will be dependent on the facts of each case.
Once the petition and required documents are filed, the court will schedule the case for a hearing. If an emergency, ex parte order is sought, a hearing will be scheduled within five days. Otherwise, the Court will schedule a hearing within thirty days.
Unless the proposed ward already has an attorney, the Court will appoint an attorney to represent the ward. At the hearing, which is held in a closed courtroom, it is the burden of the person seeking to become the guardian to prove beyond a reasonable doubt that the proposed ward is incapacitated and in need of a guardian.