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Guardianship

[big-title] Guardianship: Bootcamp![/big-title]
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What is a Guardianship?

[p]A Guardianship is when a Court declares that an individual is incapacitated in some manner so that another person can look after his or her affairs. The individual who the court appoints and grants a certain degree of legal authority over a person who is found to be incapacitated is called a Guardian or Conservator. A Court Order is issued after a court proceeding which a Judge signs signifying the Guardianship is in place. There are different types of Guardianships and different degrees of authority for Guardians.[/p]
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What is the procedure

[p]Usually the family meets with an attorney to guide them through the process of guardianship. The Guardianship proceeding must follow state law and there will likely be local county rules that would have to be followed as well.

In most situations the proceeding is 20-30 minutes long and is a very calm and organized proceeding. The Judge is presented with the evidence of what type of Guardianship is needed and then makes a decision on the evidence. Where Guardianship is in question, the hearing can be much longer. Some states appoint a Guardian Ad Litem to represent the alleged incapacitated person and make a recommendation to the Court whether in their opinion a Guardian is needed. Ultimately, the Judge will decide the matter. Sometimes a bond is required to protect the special needs person against negligent mismanagement and ensure that the Guardian follows the Court Order but sometimes it can be waived. From start to end the Guardianship process can take 2-3 months.
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[li-row]Petition filed with Court [/li-row]
[li-row]Notice to Interested parties [/li-row]
[li-row]Incapacitated person present at Court Hearing [/li-row]
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[li-row]Evidence presented to Court. Hearing lasts about 30 minutes [/li-row]
[li-row]Possible need for Guardian Ad Litem [/li-row]
[li-row]2-3 month long process[/li-row]
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Plenary Guardianship vs. Limited Guardianship

[p]Depending on your State, there are usually two types of Guardianships:[/p]
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[li-row]A Plenary Guardianship is full Guardianship and has nearly no limitations except by state law or what limits are included in the Court Order [/li-row]
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[li-row]A Limited Guardianship allows for maximum input by the special needs individual by restricting the decision making of the guardian to only those prescribed in the Court Order [/li-row]
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Guardian of the Estate and/or Guardian of the Person

[p]A Guardianship could be just of the Estate or just the Person or both or a mixture of the two depending on your state's law[/p]
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[li-row]Guardianship of the Person is on a plenary or limited basis, the guardian of the person oversees the health, safety and physical well being of the incapacitated person. This can include decisions on medical treatment, living arrangements, food, clothing, vacations, etc. Depending on your state, some decisions though will need court approval including commitment to a mental facility, sterilization, abortion, marriage, and estate planning. [/li-row]
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[li-row]Guardianship of the Estate is on a plenary or limited basis as well, the guardian of the estate oversees the management of the special needs individual’s financial resources. The guardian would invest the special needs individual’s assets in a separate account never to commingle the assets with the Guardian’s assets. In some circumstances, the Guardian will need Court approval for certain investments or expenditures which sometimes causes delay in acting and is time consuming. [/li-row]
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Who can become Guardian, what is the procedure and what are the Guardian's powers

[p]A Guardianship is when a Court declares that an individual is incapacitated in some manner so that another person can look after his or her affairs. The individual who the court appoints and grants a certain degree of legal authority over a person who is found to be incapacitated is called a Guardian or Conservator. A Court Order is issued after a court proceeding which a Judge signs signifying the Guardianship is in place. There are different types of Guardianships and different degrees of authority for Guardians.[/p]
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Do you need a Guardianship in your situation?

[p]Parents are the natural guardians under the law of children until the age of majority (usually 18). But the law presumes that individuals over eighteen are competent adults that have the right to make their own decisions. In some situations that is just not possible. So some families believe that a guardianship would be the best way to assert the rights of the special needs person and make sure that the person’s wishes and preferences are respected. In the best interest of the individual a guardianship petition is then filed.[/p]
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Steps to take if you need a Guardianship?

[p]If you have determined that a Guardianship is needed for your situation, follow the points below:[/p]
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[li-row]Describe why you think a Guardianship is needed [/li-row]
[li-row]Write down assets of the individual who may need a Guardian [/li-row]
[li-row]Contact an experienced attorney in your county with that info & ask about their fee [/li-row]
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[li-row]It may be possible to file a Guardianship Petition yourself [/li-row]
[li-row]Check local county rules if you do it yourself[/li-row]
[li-row]It may be possible for local legal aid agency to help if you financially qualify[/li-row]
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[big-title2]Kokua Network goes to great lengths to provide accurate information. Kokua Network is not rendering legal, tax, accounting or other professional advice or services and you should talk to a attorney, accountant or any other professional local to your area who is knowledgeable of the rules and regulations that apply in your unique situation. Kokua Network should be used as a general guide only.[/big-title2]