Is it Time for the Appointment of a Guardian?

The Facts: My aunt is widowed and living alone. Lately it has become clear that she cannot continue to live independently and cannot handle her finances. She is confused and does not appear to be eating well or bathing regularly. Unfortunately, there are no family members in a position to take care of my aunt. She does not have a will, power of attorney or healthcare proxy.

The Questions: Should I commence a guardianship proceeding to have someone appointed to make decisions about my aunt’s living situation and her assets? What happens if there are no family members or friends who can serve as guardian?

The Answer: Although every situation is different, commencing a guardianship proceeding is generally appropriate when it appears that a person is likely to suffer harm because she cannot provide for her personal and property needs and cannot understand and appreciate the nature of her functional limitations. From your description of your aunt’s condition, I believe it would be appropriate to commence a guardianship proceeding.

How it Works: Before seeking court intervention, you need to decide if your aunt needs a guardian of her person, a guardian of her property or both. A guardian of her person may have the authority to make decisions about your aunt’s living arrangements, medical treatment and procedures and day to day decisions about her care. A guardian of her property may make decisions about her assets, may handle her finances and may, with court approval, apply for government benefits or engage in estate planning on your aunt’s behalf.

Once you have decided what type of guardian would be appropriate, you will have to file a petition with the court seeking the appointment of the guardian. The petition is filed along with an Order to Show Cause (“OSC”) that essentially advises your aunt, as well as other interested parties, that a hearing will take place before a judge to determine if your aunt lacks the capacity such that the appointment of a guardian is needed. In the OSC you must advise your aunt that she may seek legal counsel and that she has the opportunity to appear at the hearing to object to the appointment of a guardian. As the subject of the guardianship proceeding, your aunt will be referred to as an Alleged Incapacitated Person. You will be the petitioner.

The court will set the date for the hearing and will appoint a court evaluator who acts as the eyes and ears of the court. The court evaluator will meet with your aunt to evaluate her ability to make decisions about her personal care and financial affairs. The evaluator may also speak to you and other family members, healthcare providers and others in an effort to learn more about your aunt’s situation. The evaluator will then prepare a report for the court which includes the evaluator’s recommendation with respect to the appointment of a guardian and his/her opinion as to whether your aunt should be present for the hearing to be conducted by the court.

At the hearing, the court will hear testimony from you as well as from the court evaluator and your aunt. Other interested parties have the opportunity to testify provided they have personal knowledge of your aunt’s situation. After hearing the testimony, the court will decide if the appointment of a guardian is appropriate. If your aunt if found to be incapacitated and a guardian is appointed, the court will explicitly state what types of decisions can be made by the guardian. The guardian will be required to complete a guardian training course and, depending on the value of your aunt’s assets, may be required to post a bond. In addition to visiting your aunt at least four times a year and making decisions on your aunt’s behalf, the guardian will be required to file annual reports detailing all financial activity and updating the court on your aunt’s condition.

If you do not ask that a certain person be appointed as guardian in the petition, the court has the authority to appoint a guardian for your aunt from a list of qualified individuals. These individuals, like the court evaluator, are compensated for their services from your aunt’s assets.

Ideally the time between the filing of the order to show cause and petition and the hearing is about one month. However, delays are common and, even after the hearing is completed, there is considerable time and effort required before the appointed guardian is actually in place and authorized to serve. In addition to the time and effort associated with a guardianship proceeding, there are significant costs involved in having a guardian appointed. Since your aunt apparently did not engage in any estate planning, you may have no choice but to seek court intervention. If she had a properly drafted power of attorney and healthcare proxy and/or trust in place, a guardianship proceeding may not be necessary.

This article first appeared in the August 18, 2011 issue of the Times Beacon Record Newspapers.

Linda M. Toga of The Law Offices of Linda M. Toga, P.C. is an East Setauket, New York attorney with a general law practice focusing on estate planning, real estate, marital planning, small business services and litigation.