What is a Guardian? A Guardian is a Court appointed person authorized to make legal, medical and financial decisions for a disabled person.
Why would I need to pursue a Guardianship? Guardianship is necessary when an individual becomes incapacitated and there is not a legal Medical and/or Durable Power of Attorney in place that would allow someone to act and make decisions on an individual’s behalf and in their best interest. Typically, a relative or friend to the disabled person Petitions the Court of Chancery in Delaware, or the Circuit Court in Maryland, and requests permission to serve as the Guardian. The disabilities that require this legal proceeding may be birth onset, may occur as an injury during life, can result from a work related injury, etc., and is not simply limited to the aging process.
This process is lengthy, expensive and tedious. First, there are several specific Court documents and Petitions that need to be drafted and filed in order to verify the medical and financial necessity for the Guardian. All next of kin must be notified of the Petitioner’s request. The next of kin may consent to the Petitioner’s request and if they do consent then they will be required to sign a waiver and return it to the Court. However, if the next of kin does not consent to the Guardianship this could add further delay to an already long process. The involvement of physicians and other attorneys can also cause delay.
Once all of the necessary paperwork is filed, there will be a hearing in the Court and in the presence of a Vice Chancellor. He/she will review the case with the Petitioner and the Petitioner’s Attorney and sign the Final Order if in agreement with the Petitioner.
Once the Final Order is signed and approved, it is required that a bank account is opened in the name of the Guardian. You will be required to submit an annual accounting of the Guardianship account and any other accounts that may be owned by the disabled person. There is a very specific format the Court will require for this accounting. A realistic timeframe to complete the process and be appointed the Guardian can be anywhere from 3-6 months.
In addition, if you are engaging in crisis and asset protection planning, you will be required to Petition the Court for the approval to engage in those planning strategies. Anytime you need to spend more than the Court permits in the monthly budget they set for you, you will be required to submit a Petition to Expend additional money. The list of responsibilities is lengthy.
This is exactly why investing in a good, thorough, legal and up-to-date Power of Attorney is a far better option than being in a position where you have to pursue Guardianship.