Sunday, December 26, 2010

Guardianship - a Legal Process


Establishing a guardianship over the person and/or estate of an individual is a legal process that begins with the filing of a petition with the court by an individual or individuals, asking for appointment of guardianship. Depending on the kind of guardianship, and depending upon the age of the individual, different steps and procedures have to be implemented.Also, different states have different rules and procedures for establishing a guardianship. California law is different and in some ways, more complicated.

Some states, such as an Indiana guardianship for example, may require that notice be given to the individual, even if that person is a minor or even if that person is mentally and/or physically incompetent. If the individual is a minor, that is under the age of 18 years of age, there is usually no estate and thus, there is no need for guardianship over the estate of the minor. However, if that minor has received a settlement, say from a personal injury accident, then there would need to be appointment over the estate of the minor as well. There are other instances where the Guardian would also need to be appointed over the estate of a minor.

Notice of the Guardianship is Required

Notices need to be given out, typically to any interested person, which, in the case of a minor, might mean notice to a parent or parents, or other relatives. It really depends upon the circumstances. Notice is not necessary to someone who is going to appear at the hearing. Notice is usually required by statute to be given to the minor (less the minor is below the minimum age), but typically the minor is present, so there is no need for notice. Sometimes, the court may insist upon the appointment of a guardian ad litem where there are contested issues about the guardianship.

In the case where appointment as guardian is sought of an adult, there is often required some kind of medical evidence, or valid testimony, establishing the need for the guardianship. Notices in such cases may be to a wide range of interested persons. Often, such a guardianship have to do with the placing of an elderly person under the care of a loved one because this elderly person is no longer able to conduct their business, and they may have (but not necessarily) some serious cognitive issues as well.

Is an attorney required when seeking a guardianship?

It is certainly advisable to use an attorney when seeking a guardianship. There are too many variables, requirements, notices, and procedures that are beyond the average layperson’s ability and knowledge. This becomes especially important in a contested guardianship. One should never seek a guardianship without the aid of an attorney where there are contested issues.

How much time does it take to get a guardianship?

Usually, unless it is an emergency petition, a guardianship that is uncontested can be obtained in a reasonably short time, depending on the court calendar, and depending upon the county in which you live. In less populated counties, it can be a very short process, just days in some cases, while in the more populated counties, the time span is in weeks. If it is a contested guardianship, the time span usually becomes measured in months, mainly because of the need to gather witnesses, evidence, and to prepare for what amounts to a trial.