Orange County Elder Attorney Answers “How Do I File For Guardianship of an Adult?”

Dear Darlynn:

My neighbor is a gentleman in his late 80’s and has been like a member of our family for as long as I can remember. Every single one of us refers to him as “uncle” and because he has no family, we have included him in ours.

When my parents passed away, I moved into my childhood home and began to enjoy regular outings and dinners with “Uncle Joe”. Over the past few months I have noticed big changes in Uncle Joe and when I return recently from a lengthy business trip, it became clear that he needs help.

I fear that he can’t continue to live independently and manage his assets. He has no will, power of attorney or healthcare proxy.

My question is whether I should begin a guardianship proceeding to have someone appointed to take care of Uncle Joe and his assets. What happens when there are no family members or friends who can be appointed guardian of him?

Answer:

While every situation is different, when it becomes obvious that a person is likely to suffer harm to his or her personal or financial needs because of an inability to take care of themselves, it is time to begin guardianship proceedings. Based on your opinion of Uncle Joe, it appears it would be appropriate to begin those proceedings.

Before beginning the process, you need to decide what type of guardianship Uncle Joe needs. A guardian may have authority to make decisions for a person, property or both. A guardian of person would allow someone to make decisions about Uncle Joe’s medical treatment, living arrangements and day-to-day needs. A guardianship of property allows one to make decisions about assets including managing finances, and if the court approves, may apply for government benefits or begin estate planning.

Once you’ve decided what type of guardian would be most appropriate, you will file a petition (along with an Order to Show Cause or OSC) with the court seeking appointment of the guardian. The purpose of the Order to Show Cause is to give notice to Uncle Joe and other interested parties that a hearing will take place before a judge to determine whether or not Uncle Joe lacks the abilities the guardian would handle for him. At the hearing, you will be the petitioner and your uncle will be referred to as an alleged incapacitated person.

The court will set a date for the hearing and will appoint an evaluator to assess your uncle’s situation. The evaluator will meet with your uncle to evaluate his ability to make decisions and his financial and personal care. That person may also speak with you, friends, healthcare providers or others to learn more about his situation. The evaluator will then prepare a report for the court which includes the recommendation regarding the placement of a guardian and whom should be the guardian (you or a court-appointed person). The court appointed evaluator would be paid out of your uncle’s assets.

You, your uncle, the evaluator and possibly others will testify at the hearing to determine guardianship. Afterward, the court will decide if a guardian is appropriate. If your uncle is found to be incapacitated, a guardian will be appointed and the court will specifically outline the types of decisions that guardian will be able to make.

The court requires that guardians complete a training course, and may be required to post a bond depending on your uncle’s assets. The guardian will visit your uncle at least quarterly making decisions on his behalf, and will be required to file annual reports detailing all financial activities and updates as to your uncle’s condition.

The court has the authority to name a guardian if you do not have a specific person in mind and will appoint one from a list of qualified individuals. Court appointed guardians are compensated for their services from your uncle’s assets.

Usually, it takes about a month between filing the petition (and OSC) and the hearing. Although delays are common and there is a considerable amount of time, effort and money required prior to the guardian being placed.

It seems as though your uncle did not make any plans regarding his estate, so you may have no option but to have a court intervene. If he had properly drafted a Power of Attorney and a healthcare proxy or trust, a guardianship proceeding may not be needed.

As always, I encourage my clients and readers to contact our Orange County guardianship and estate planning law firm at (949) 260-1400 with any questions regarding their personal estate plans or to ask questions about how to best educate your loved ones about estate planning.

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