Estate Planning and Probate

Estate Planning and Probate

Guardianship of an Incapacitated Person

When a person ages or suffers from a serious illness, he or she may not be able to manage their affairs any more. In such cases, a Durable Power of Attorney becomes very helpful as it allows the person’s nominated agent to make decisions on their behalf. Unfortunately, sometimes people do not have a proper power of attorney in place. In such instances it becomes necessary to obtain a guardianship for the person.

A guardianship is a court procedure by which the court declares that a person is incapacitated and therefore is no longer able to make decisions for himself or herself any more. The court appoints a guardian who will manage the affairs of the incapacitated person.  Having a guardian appointed is a very difficult process as it causes a person to lose many of their legal rights and affects their ability to make decisions for themselves. Further, guardianships are subject to ongoing court supervision. As such, courts will only grant a guardianship if there are no other alternatives.

A guardianship proceeding requires evidence and testimony of a medical professional who can testify to the alleged incapacitated person’s condition. The court will also hold a hearing to determine whether the person nominated as a guardian is an appropriate person. The court may also require the guardian to post a bond, which typically requires undergoing a credit check and paying a bond fee. Guardianship proceedings are often filed by nursing homes and long term care facilities on behalf of their residents so that the facility has the ability to receive government assistance on behalf of their residents or payable directly to the care facility for providing care to their residents.

If a guardianship becomes contested, wherein different parties who have an interest in the incapacitated person do not agree on the best course of action, the court will often appoint an attorney to represent the interest of the incapacitated person and make a decision that they believe is in the best interest of the incapacitated person.

As this process is very difficult and expensive, it is best to plan ahead and have the appropriate documents in place to avoid court involvement. In most cases, you can execute a durable power of attorney (and in Florida, a pre-need designation of guardian) while you have capacity. This allows you to pick the person you trust to act in your best interest should you become incapacitated. However, despite our best intentions, sometime we are unable to plan adequately ahead of time.

If you are seeking to obtain a guardianship of a family member or wish to contest the proposed guardianship, our attorneys are able to help you with this complex and difficult process with due care and sensitivity.

To set up a free initial consultation to discuss your guardianship needs, contact our office by e-mail or for assistance in Pennsylvania and New York call our office at 215-568-4968, for assistance in New Jersey call our office at 609-523-2222, and for assistance in Florida, call our office at 727-538-4178. Evening and weekend meetings can be sc