When is it Necessary: Having a Power of Attorney and a Health Care Proxy are the best ways of ensuring that your wishes are honored by a person that you trust. Sometimes, however, an individual loses capacity and has not executed these advanced directives. Without a Power of Attorney, NO ONE has the right to go into your bank account and withdraw assets to pay your own bills. NO ONE has a right to sell your house and move you into a more appropriate environment. And without a Health Care Proxy, NO ONE has a right to your health care records.
In those cases, it may become necessary to apply to court to appoint a person who will be able to take care of the individual and effect his wishes. That person is called a Guardian. The process of appointing a Guardian is long, expensive and entails a complete loss of privacy.
Judicial Standard: In order for a guardian to be appointed, there must be a judicial determination, based on a clear and convincing standard, that (1) the individual is unable to meet his daily needs for hygiene, food, clothing, medical care, financial affairs and personal safety, and (2) the individual is unable to comprehend his own inability to manage his own affairs.
Both of the above prongs are necessary: if a person is simply eccentric and prefers to live in a squalid environment, no guardian will be appointed. Similarly, if a person is wheelchair bound, but retains his mental facilities and is able to arrange for his own care, no guardian will be appointed.
Petition: A petition must be filed with the Court. Amongst other things:
a. The petition will provide a detailed description of the alleged incapacitated person’s (“AIP”) functional level and his understanding of his inability to manage activities of daily living.
b. The petition will list all the powers being sought by the guardian over the AIP.
c. The petition will list all the person’s assets, income, and debts.
2. Appointees: If the petition is deemed not to be frivolous, the court will appoint:
A. Court Evaluator. This is an independent person who will investigate the Petition. This person will interview the AIP, the AIP’s relatives, the AIP’s neighbors, the AIP’s doctors, the person who filed the petition, and anyone else who has any knowledge of the AIP. The Court Evaluator will provide a report to the judge, with this recommendation.
B. Attorney for the AIP. This person will represent the wishes of the AIP. Very often, the AIP does not want a guardian to be appointed over him – after all, who wants to lose his autonomy?
3. Hearing: A hearing is required before a guardian is appointed. During a hearing, the petitioner will present evidence about the AIP’s incapacity and need for a guardian. Petitioner and the AIP may both put witnesses on the stand and cross examine them. The Court Evaluator presents his report. The hearing is public, so anyone can attend.
4. Decision: At the end of the hearing, and taking into account all the evidence presented, the judge makes the decision about the necessity of the appointment. If a specific person sought to be appointed as a guardian (i.e. a daughter sought these powers over the mother), then she may receive it. If Adult Protective Services sought the guardianship, because no family is available, then a non-profit organization will be assigned as a Guardian.
Disclaimer: This article only offers general information. Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions. As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship.