As discussed in our previous Guardianship blogs, when your loved one is no longer able to care for their own daily activities or finances and they are no longer able and/or willing to seek help from third-parties to manage their affairs, you may need to seek Guardianship. Guardianship grants you the legal authority to help care for your loved one so they won’t suffer harm. Without that legal authority, you cannot do anything on your loved one’s behalf.
Once you and your Elder Law Attorney have decided that seeking Guardianship is the proper course of action for your case, there are six steps you will need to follow before a Court will name you Guardian of your loved one:
Step 1: You will need to draft the proper paperwork to file with the Court in order to ask the Court to determine that a Guardian is needed.
This step is tricky – the papers must be written in a specific way. While it is possible to seek Guardianship without the help of an attorney, only a skilled Elder Law Attorney knows exactly what needs to be written and how it should be written to get the best results from the Court. Furthermore, if there are family members or friends who are going to oppose the Guardianship or wish to challenge who will be named Guardian, an Elder Law Attorney will be necessary to plead your case to the best of your abilities in front of the Court.
Step 2: You need to file the papers with the proper Court of law.
The County and Court in which you file for Guardianship will depend on the location of the person who needs a Guardian.
Step 3: You need to wait for the Judge to set the Guardianship Hearing date and time.
After the papers are filed, you need to wait for the Judge to sign them. In the signed papers, the Court will set the time and date for the Hearing. They will also name a Court Evaluator and, sometimes, an attorney for the person who needs a Guardian. You will need to make sure you serve the Court Evaluator and other attorney with the proper papers to inform them about the Hearing and what is being argued. You will also need to inform any other interested parties that the proceeding is taking place in case they would like to attend or even oppose the Guardianship.
Step 4: The Guardianship Hearing will take place and all sides will present their facts.
Everyone in attendance at the Hearing is given the chance to speak about the Guardianship matter. The Judge will usually hear from you, your attorney, the person who needs a Guardian, their attorney (if they hire one, or are appointed one), and the Court Evaluator. The Judge may also want to hear from any other family or interested parties who may attend the Hearing, so all sides of the story are on the record.
Step 5: The Judge will make a Decision on whether a Guardian is necessary.
Usually, the Judge will either make a decision at the end of the Hearing or they will wait a few days to make an official decision, in writing, after the Hearing ends. However, sometimes the Judge will not consider the Hearing finished after one meeting. There is a chance, if the Guardianship is contested, or the Court Evaluator needs more time to make their report, or if the Judge wants more information before making a decision, that the Hearing can be delayed or the results postponed.
Step 6: If you are named Guardian, you will need to follow the set out requirements in order to get your Guardianship documents.
If the Court does award you Guardianship over your loved one, there are still a number of things you will be required to do before you can act on their behalf. You will need to get a Commission, which is the official paperwork giving you authority as a Guardian. In order to be given that Commission, you will need to complete an educational course about Guardianship, and, often, you will be required to post a Bond.
To speak with a knowledgeable Guardianship attorney today about this process and whether it would be right for you and your loved one, please contact Cohen & Cohen Law Group, P.C. at (718) 275-7779.