Guardianship Law Part II


6. Will my family member have an attorney at the hearing?

It depends. In some specific situations, the Court will automatically appoint legal counsel for the Alleged Incapacitated Person. In other situations, the Court will only appoint a Court Evaluator, who essentially acts as the Court's own witness and conducts an investigation, including an interview of the Alleged Incapacitated Person. If the Alleged Incapacitated Person requests an attorney during that interview with the Court Evaluator, or at any other time during the proceeding, the Court will appoint an attorney for the Alleged Incapacitated Person. In addition, the Alleged Incapacitated Person, if capable, always has a right to retain his or her own counsel.

7. If I am appointed as the Property Management Guardian for my family member, am I personally responsible for the payment of his or her bills?

No. A property management guardian is given the authority to marshal the income and assets of the Incapacitated Person and to pay the bills of the Incapacitated Person with the funds belonging to the Incapacitated Person. These monies are typically kept in a guardianship bank account established in the name of the Incapacitated Person with the Social Security number of the Incapacitated Person. It is never expected that the liabilities of the Incapacitated Person are paid with the guardian's own personal funds.

8. If I am appointed as the guardian for my family member, is it a permanent appointment?

It can be, but it does not have to be. It is common for Courts to appoint a guardian for an indefinite period of time because it is likely that the condition of the Incapacitated Person will not improve. However, if the Incapacitated Person does improve, the Incapacitated Person may petition the Court to end the guardianship. If the person is able to show that he or she is able to care for and manage his or her own affairs, the judge may terminate the guardianship. Alternatively, if the guardian, for whatever reason, feels that he or she can no longer act as guardian, or that there are no funds left in the guardianship account to be managed, he or she may petition the Court for removal as guardian, and, if necessary, the appointment of a successor guardian.

9. If I commence a guardianship proceeding to bring help to my family member, am I responsible for paying the legal fees?

There is no definitive answer to this question. Initially, our office generally requires the Petitioner to pay us a retainer in order for us to move forward with the commencement of the proceeding. At the conclusion of the proceeding, an application can be made to the Court for a Court-ordered fee to be paid from the funds of the Incapacitated Person. If this application is granted, the guardian has the authority to pay the legals fees with the Incapacitated Person's funds and the retainer is refunded to the Petitioner. However, if the application for fees is denied, or if the Court does not allow for payment in full to the law firm, the Petitioner is responsible for either the full payment, or any shortfall between actual fees incurred and the Court-ordered fees.

It is also important to know that if a Petitioner is unsuccessful and a guardian is not appointed, the Court may direct that all legal fees be paid by the Petitioner.

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