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When is a Guardianship Necessary? And How is One Obtained?

A Guardianship grants one person control over another person’s assets or even control over the actual person. Technically these are called Guardianship over the Person and Guardianship over the Estate.

The process starts by the proposed Guardian petitioning Probate Court for an appointment through the Court’s electronic filing system. That Petition must meet certain requirements such as specifically detailing behavior or incidents that have happened within six months including something that has happened with the 20 days previous to the filing. Those incidents or behavior must show that the Proposed Ward has or will come to some harm as a result. This showing must be proved “beyond a reasonable doubt.” That is the same standard for a criminal trial and is is really necessary since the Proposed Guardian is attempting to take most of the Proposed Ward’s rights away. In addition, those “incidents” or that “behavior” cannot be simply bad choices; we are all allowed to make bad choices. The behavior must show incapacity to make informed decisions.

The hard part in this is sometimes understanding that the Judge needs to hear facts, not  conclusions.  It is not enough to simply state that the Proposed Ward is confused and forgetful; you have to state facts which prove that the Proposed Ward is confused and forgetful enough to cause harm.

All in all, Guardianships can be tough, especially if someone, including the Proposed Ward is contesting the appointment.

Guardianships can be avoided altogether, however. The law makes it tough for one person to take away rights from another but makes it relatively easy for a person to give those rights and powers to another through the use of Durable Powers of Attorney for General Affairs and for Healthcare. If you are concerned that you or a loved one might have to have a guardianship in the future, execute Powers of Attorney right away. If it is too late to do that, then a Guardianship may be necessary. We can help in either case.

About the Author

Dwight Sowerby