A. Notice of Hearing Date
Approximately 2 weeks after the application to have your loved one declared incompetent is submitted, the Court will set a date for the initial hearing. Once the initial hearing is scheduled, the person who seeks to be appointed as the Guardian must notify the alleged incompetent, his or her next of kin and anyone else who has a degree of relationship superior to that of the applicant of the date and time of the hearing, and the person’s ability to challenge the application. In certain circumstances, the Office of Public Guardian must also be notified of the application and given an opportunity to review and respond to it. The next of kin or other interested party may hire an attorney to represent their interests in the application or they may represent themselves, pro se. The next of kin or interested party is permitted to challenge both the requested declaration that your loved one is mentally incompetent and your appointment as Guardian. Because your loved one will receive a copy of the filed papers, your loved one will be advised not only that there is a request to have him or her declared mentally incompetent, but also of the name(s) of the person(s) seeking Guardianship.
B. Appointment of Temporary Guardian
On occasion, the Court will appoint a Temporary Guardian for your loved one while the Guardianship application is pending. The Temporary Guardian serves until the Court makes its final determination regarding a permanent Guardian. The Temporary Guardian can be the person(s) submitting the application for Guardianship, or it can be someone else selected by the Court. If the Court does not appoint the applicant as the Temporary Guardian, the Court may appoint an attorney (separate from the court appointed attorney who will represent your loved one in the Guardianship application process) or an accountant or other professional as the Temporary Guardian. The fees charged by the Temporary Guardian are usually paid from your loved one’s assets.
C. Court Appointed Attorney For Alleged Incompetent Person
The Court will appoint an attorney to represent your loved one. The Court appointed attorney is not free. He or she is usually paid from the assets of the alleged incompetent. This attorney will not only present your loved one with a copy of the papers submitted to the court, but will also spend some time with your loved one, interview him or her, will likely interview the guardian applicant, and will research whether your loved one previously signed a Power of Attorney or a Last Will and Testament. Once the Court appointed attorney’s research and interviews are complete, she will submit a report of recommendations to the Judge. Although the court appointed attorney represents your loved one, your loved one may hire his or her own private attorney at your loved one’s own expense to represent his interests and challenge a Guardianship application.
D. Conduct of the Hearing
If the Guardianship Application is not contested and the Court appointed attorney agrees with the Application, then the Court may not require anyone to be present at the hearing and the Judge will make his decision based upon the papers presented to him. However, if the Guardianship Application is contested, during the initial hearing the Judge will consider: (a) the written papers submitted to it that support and oppose the Guardianship, and (b) oral arguments (but not witness testimony) regarding the Guardianship Application. Usually, live witness testimony is not presented to the Court during the initial hearing. In both contested and uncontested Guardianship Applications, the Court will review and consider the observations and recommendations of the court appointed attorney. Sometimes, the Court decides that it does not have enough information to make an immediate determination on the Guardianship application. If that is the case, the Court will schedule another hearing and may request that additional information be submitted to the Court. At the second hearing, the Court may hear sworn testimony from (a) the person alleged to be incompetent, (b) the person applying to be the Guardian of the alleged incompetent, (c) the physicians, psychologist or psychiatrist who conducted examinations of the alleged incompetent, and (d) any other persons with an interest in the application or who have information regarding the alleged incompetent. Only after receiving all the information, evidence and testimony that the Court deems necessary and appropriate, will the Judge decide whether your loved one needs to have a Guardian appointed, and if so, who will be appointed the Guardian.
E. Bond Amount
In addition to deciding whether your loved one is mentally incapacitated and who should serve as Guardian, the Court will also decide the amount of the bond, i.e., insurance policy, that must be obtained by the person appointed as Guardian. The amount of the bond is generally based upon the value of the assets of your loved one. The bond is obtained by the potential Guardian, usually after a general background check, credit check and payment of a bond premium. The bond premium must be paid every year, and usually can be paid from the incompetent person’s assets.
If your loved one does not have the mental capacity to sign a Power of Attorney, all is not lost. An alternative to the Power of Attorney is a Guardianship for your loved one. A Guardianship requires an action in court and physician/psychologist certifications. Because the Guardianship process requires a Complaint being filed with the Court, a copy of the Complaint will be provided to your loved one over whom you seek Guardianship. Additionally, the next of kin of the alleged incapacitated person, along with those person(s) who have a degree of relationship superior to the applicant requesting to be appointed as Guardian must receive notice of the application. This may cause tension and misunderstandings between you and your loved ones if you make the application on your own. Only after a Judge is confident that he or she has received and reviewed all of the evidence and testimony necessary to make a determination regarding your loved one’s mental competency and appropriateness of a Guardianship will a judge make his or her ruling. If a Guardianship is granted, that ruling will include a Judgment of Legal Incapacity, the name of the person appointed as Guardian and the amount of bond that will need to be secured before the appointment of the Guardian can be finalized. Having an attorney prepare the Guardianship application and guide you through the Guardianship process can help reduce the confusion, sense of overwhelming, tension and misunderstandings that can accompany a Guardianship application. In Part 3 of this 3 part series, we will discuss a Guardian’s duties after being appointed by the Court.
If you wish to have a Power of Attorney or other estate planning documents drafted, or if you are concerned about your loved one’s ability to manage his or her financial affairs, medical treatment, health care decisions and overall well-being, or if you just received a copy of a guardianship application made by someone for your loved one, contact the law firm of Bathgate, Wegener & Wolf, P.C. to discuss your and your loved one’s legal options at 732-363-0666.
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