How do guardianships operate?
An individual might need a guardian if they are incapable of handling their own finances and personal matters because of a physical or mental disability. However, guardianship is considered a final option. It is often used when someone is unable to create any legal documents like a Power of Attorney, Health Care Proxy, or Trust. It can also be used when someone has the capacity to create such documents but lacks a family member or friend to appoint as their representative.
Guardianships are commenced by submitting a petition. In fact, the statute mandates the presence of a legal firm for guardianships. This is an initial fundamental measure in the process of establishing guardianship. Filing paperwork with the court is indispensable for guardianships, necessitating the assistance of an attorney.
It is called a Guardianship, but in reality it is a Living Probate. The term “Probate” is commonly associated with what occurs after one’s death. Regrettably, it can also occur during one’s lifetime. If an individual becomes mentally disabled prior to their demise, the court responsible for handling estates will designate someone to assume authority over them and their assets. These court-appointed guardians are obligated to submit meticulous financial reports to the court, detailing all expenditures on the person’s behalf. The Living Probate has no set end date and is costly. Moreover, similar to death probate, it is a public matter and can therefore be a highly distressing ordeal.
A guardianship is a court proceeding. The initial determination that a court must make in a guardianship proceeding is to determine whether or not somebody is mentally incapacitated. If the court determines that somebody is mentally incapacitated, then the court must decide whether there are advanced directives, namely a substitute decision-maker or a healthcare agent, that sufficiently meet the ward’s needs. If not, then it’s likely that a guardian will be appointed.
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