|Frequently Asked Questions - Guardianship
A guardianship is an involuntary trust relationship in which one party, called the guardian, acts for an individual called a ward. The law regards the ward as incapable of managing his or her own person and/or affairs.
A guardian is any adult person, association, or corporation appointed by the Probate Court to assume responsibility for the care and management of the person, the estate, or both, of an incompetent person or minor child. A corporation can only be guardian of the estate and not of the person.
A guardian may be appointed for either an incompetent or minor, which are defined by statute as:
Incompetent: Any person who is so mentally impaired as a result of a mental or physical illness or disability, or mental retardation, or as a result of chronic substance abuse, that he is incapable of taking proper care of himself or his property or fails to provide for his family or other persons for whom he is charged by law to provide, or any person confined to a penal institution within this state.
Minor: Any person under 18 years of age who has neither father nor mother or whose parents are unsuitable to have custody and tuition of such minor, or whose interests, in the opinion of the Court, will be promoted.
Minor Settlement: Natural parents do not have an inherent right to settle personal injury claims on behalf of a minor child. The Probate Court must authorize approval of such settlements. If the settlement exceeds $10,000, the Court will require the appointment of a guardian of an estate.
The Court appoints the guardian. However, a minor over 14, or the parents by will, may suggest a guardian for a minor. In addition, an adult, while competent, may nominate a guardian to serve in the event of incapacity.
1) Application for guardianship is filed in the Probate Court of the County of the ward’s residence by an interested party, or on the Court’s own motion.
2) Application must include a statement of the guardian’s willingness to perform as guardian, a bond as required by law, and, in the case of a prospective incompetent ward, a statement of the ward’s mental and physical condition from a treating physician, psychiatrist, or licensed psychologist.
3) The prospective ward, as well as the adult next of kin, are notified of impending guardianship and date and time of hearing as prescribed by law. In the case of an incompetent proceeding, the notice and a statement of rights will be served on the prospective ward by a Court Investigator.
4) An investigation is conducted, in the case of a prospective incompetent ward, by a Court Investigator, which includes an interview with the prospective ward in order to assist the Court in determining the advisability of guardianship.
5) Formal hearing is conducted by the Judge or Magistrate to determine if a guardianship is necessary, the guardian is suitable, and the guardian understands his duties.
The prospective ward has the right to be present at the hearing, to contest any application for guardianship, to have a record of the hearing taken, to have a friend or family member present at the hearing, and to be represented by an attorney. A prospective incompetent ward has the additional right to present evidence of a less restrictive alternative, and, if indigent and requested, to have an attorney and independent expert appointed at Court expense.
The Probate Court is the Superior guardian, and all guardians must obey all orders of the Court. The Court exerts its supervisory authority through the following:
Accountings: A guardian of the estate must file a written account with the Court annually or biennially as to the income and expenses of the ward’s estate.
Reports: A guardian of an incompetent ward must file a written report annually or biennially. The report concerns the status of, and continued need for, the guardianship.
Citations: If a guardian fails to timely file a report, inventory, or accounting, the Court may cite a guardian to appear, and may fine, reduce the guardian’s fee, or remove the guardian.
Investigations: To determine if a guardianship is functioning properly, the Court may order an investigation by a Court Investigator, Law Enforcement Agency, Adult Protective Service, or other County Agency.
Prior Approval: The guardian must first obtain approval of the Probate Court before entering into contracts or leases, making improvement to real estate, mortgaging real estate, selling assets of the ward, or settling any personal injury claim for the ward.
Removal: The Court may, at any time, in the best interest of the ward, remove the guardian.
Person and/or Estate: A guardian may be appointed either a guardian of the person, a guardian of the estate, or both. A guardian of the person has custody of, controls, and protects the person of the ward. A guardian of the estate controls and protects the assets or property of the ward.
Limited: A guardian may be appointed with limited powers to make restricted or specific decisions of the ward. The ward retains all powers not granted to the guardian.
Emergency: In an emergency in which significant injury to a prospective ward may occur unless immediate action is taken, the Court may appoint an emergency guardian for seventy-two (72) hours. The emergency guardianship may be extended an additional thirty (30) days by the court.
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