Adult Guardianship

Guardianship Administration for Disabled Adults

If an adult (18 years old or over) is unable to handle his or her personal and/or financial affairs because of a mental and/or physical deterioration, illness, incapacity or disability (and if he or she does not have an effective property and/or health care power of attorney in place), the Court may declare him or her to be a “disabled person”. As a “disabled person”, he or she will lose the right to make independent decisions concerning some or all of his or her personal and/or financial affairs (depending on the extent of disability), and the Court may appoint a Guardian of the Person and/or a Guardian of the Estate for him or her.

The “Guardian of the Person” makes decisions concerning the disabled person’s physical and personal care, including living arrangements and health care related matters.

The “Guardian of the Estate” makes decisions concerning the disabled person’s financial affairs and is authorized to handle the disabled person’s money, property, bills, and other financial affairs. Often, the same person is named as both Guardian of the Person and Guardian of the Estate.

If the Court determines that the disabled person is able to handle some aspects of his or her affairs, the authority of the Guardian may be “limited” (partial authority) rather than “plenary” (total authority).

The Guardian must be a U.S. resident; at least 18 years old; not been convicted of a felony involving harm or threat of a minor, elderly or disabled person; and willing and able to act as Guardian. Often a family member or friend will be appointed Guardian. Sometimes, however, if no one is willing to act as Guardian or if family members fight over who will act as Guardian, the Court will appoint a County Public Guardian, the Office of State Guardian, or a financial institution as Guardian.

The proposed Guardian or other interested person will file a Petition for Guardianship with the Court, typically in the County in which the alleged disabled person lives. A physician’s report stating why a guardianship is necessary will be filed simultaneously. The Petitioner will then send notice of the date, time, and place of the hearing to the alleged disabled person and his or her relatives. At the hearing, the Judge will determine whether the alleged disabled person is a “disabled person” and if so, appoint a Guardian of the Person, Guardian of the Estate, or both; and determine whether the guardianship should be limited or plenary. The alleged disabled person will have the right to appear in Court and contest the guardianship (if he or she believes he or she does not need a Guardian or he or she wants someone else to be the Guardian) and is entitled to an attorney and his or her own physician’s report.

The Judge will sometimes appoint a Guardian ad Litem (GAL) to investigate the facts of the case and determine what would be in the (alleged) disabled person’s best interests. The GAL might interview the alleged disabled person, his or her family and friends, his or her physician, and other interested parties, and then will report to the Judge his or her findings and opinions regarding whether a guardianship is needed, who should be appointed Guardian, where the alleged disabled person should reside, and what types of services he or she may require.

Any time the Guardian wants to make a disbursement that is outside of the annual budget set forth for the disabled person’s Estate (e.g., reimbursements for expenses paid on behalf of the disabled person, attorney’s fees, Guardian’s fees), wishes to make a major disposition of Estate assets (e.g., sale of real estate in the Estate), or desires to make major changes affecting the disabled person’s care (e.g., moving him or her from his or her home to an assisted living facility), the Guardian will need to petition the Court for prior approval.

The Guardian of the Estate must file an annual accounting showing the receipts to and disbursements made from the disabled person’s Estate. Further, the Guardian of the Person must file an Annual Report on Ward reporting on the disabled person’s status and well-being.

FMS Law Group has represented clients in all the various roles in the Guardianship administration process, on behalf of:

  • the alleged disabled person;
  • the nominated Guardian;
  • a cross-petitioner who desires to be appointed Guardian;
  • the appointed Guardian of the Estate; and
  • the appointed Guardian of the Person.

In addition, the Court has appointed attorneys at FMS Law Group to act as Guardian ad Litem (GAL) to investigate and determine what is in the best interests of the disabled person.