Certainly, it is always preferable for a person to have a valid health care proxy and durable power of attorney that will allow another individual to serve for them in the unfortunate event of incapacity. If one has not drafted and signed a health care proxy and durable power of attorney, and becomes mentally or physically disabled, another person or social service agency will need to petition the local probate court for an appointment of guardianship.
In order to proceed with a guardianship, the first step is to obtain a medical certificate from the physician treating the individual. This medical certificate must clearly state the medical condition and the need for a guardian to serve, establishing that the purported ward no longer has the ability to make personal, social, medical or financial decisions for herself/himself. Once this document has been obtained, it is necessary to petition the court for authority to become the guardian, and the court will then issue a notice called a citation, which has to be published in the newspaper where the purported ward currently lives. There is a date by which any person may object to the guardianship proceeding, and if no objection is made, then the hearing may be scheduled.
At the time of the hearing, it is possible that a new medical certificate will have to be obtained, since the current one on file may be over thirty days old. If that is the case, another visit to the physician will be necessary for issuance of a new medical certificate.
In some jurisdictions, the court will also request the presence of the party over whom authority and control is sought. If the person is unable to attend the hearing, then a motion may be filed with the court to exempt the requirement. Naturally, however, if the matter is contested, the person and all parties must be in attendance unless otherwise excused.
Once the court is satisfied that the person is incapacitated and the suitability of the petitioner is approved, the court will then investigate the assets of the person to ensure that proper safeguards are in place. When assets are in fact an issue, and the person is not qualified for medical assistance through governmental or state Medicaid authorities, the court may impose what is known as a corporate surety bond in an amount equal to the assets of the ward. This will require the bonding of the guardian, and if this person has any prior felonies or misdemeanors, he or she may not be able to be bonded. If this is the case, then another person will have to be substituted as the guardian, which may mean a further hearing to inform the court.
Once appointed and bonded, the guardian must file an inventory with the court, and also an annual accounting that must be reviewed by the judge and approved. If the accounting is not filed, the bond will continue to run and be paid on an annual basis until such time as the accounting is completed, filed, and allowed by the court.
Naturally, there are annual filing fees in addition to the initial filing fees, publication charges and legal fees in establishing the guardianship. As stated earlier, all of these requirements, fees, and the time-consuming process of petitioning for the guardianship may be eliminated with valid planning documents, such as the health care proxy and durable power of attorney.
By: Hyman G. Darling, Esquire
Comments