What is Legal Guardianship?
Generally speaking, legal guardianship refers to a situation where a judge appoints another person or persons to assume the responsibility of caring for an individual who requires supervision and care due to a number of different reasons. In many cases, guardianships involve those who have physical or mental disabilities who can no longer care for themselves, though they may also involve minors. Legal guardian is often the same thing as an individual acting as the legal and physical parent of a child, so for purposes of this article we will focus mostly on guardianship over disabled individuals. There are a number of different types of guardianship. Third-party guardianship involves the appointment of a third party (generally, a family member) as guardian of an adult who cannot care for the adult themselves. In these instances, the guardian would serve as legal representative of the ward. A more intensive form of guardianship is conservatorship. This is when a guardian has control over the estate of the ward and makes all financial and legal decisions on his behalf, including performing such actions as buying , selling and transferring property for the benefit of the conservatee. Other forms of guardianship include testamentary guardianship, which refers to a situation where a testator appoints a guardian in the event of his death, and guardianship ad litem, a type of guardianship where a judge appoints an unrelated third party to represent the best interests of a minor party during a court proceeding. It is important to realize that not all incapacitated individuals require a legal guardian to care for them. Some less severe measures can be taken if someone simply requires assistance in terms of making decisions of carrying out some daily responsibilities. For example, a reporter might serve as a guardian for a person with a disability in order to make recommendations about the person’s care and well-being, but the appointing court would not award any of the full legal authority of a legal guardian. If you have an individual in your life who has suffered from a disability or has reached a point in their life where they can no longer care for themselves, it’s wise to consult with an experienced guardianship attorney to determine whether or not you should start legal proceedings to appoint a guardian.
Why You Need a Legal Guardianship Lawyer
Unless you are a licensed attorney yourself, it is highly likely that you have never had to deal with setting up a legal guardianship for someone. It is also likely you have never litigated about one. The complexities of guardianships are many, and as a result, you want to ensure you have someone on your team who knows the ins and outs of guardianship proceedings. These individuals should also have experience dealing with the laws in your state, as every state has slightly different laws about legal guardianship. If you live in CDATA[Los Angeles] and need to legally assign a guardian to your special needs child, you want an attorney who specializes in CDATA[guardianship laws;]. In addition to guardianship, they should have experience dealing with specific issues regarding guardianship in California.
Why do you need a specialized attorney? A specialized attorney is an asset that most definitely will have the answers to your questions by the very nature of his/her practice. If you happen to have a loved one who is undergoing a court proceeding regarding a contested guardianship, then you probably already know that litigation can be very costly. If you want to save yourself money and time, you definitely want to make sure that you know exactly what course of action to take, which is to retain a specialized legal guardian attorney.
Keep in mind that guardianship is a serious issue, though not necessarily a complicated one. If there are contested issues that are being litigated, however, you will want the peace of mind that comes with a specialized attorney.
The internet makes it easier for everyone to find whatever information they are seeking. However, the thing that cannot be put into Google is a simple solution. Talent, experience, and knowledge can only come from an actual legal professional.
Guardianship is generally permanent, so you don’t want to go into something as serious as that without doing research. Find someone with experience, and do thorough background checks if you are unsure. It will save you money, and more importantly, time.
How to Locate an Attorney Specializing in Legal Guardianship in Your Area
To begin your search for the best legal guardianship attorney, you should start with recommendations from family, friends, and colleagues. People in your personal network can help you to identify legal guardianship attorneys who would be a good fit for you.
Another way to help narrow the field is to check your local Yellow Pages or online directories. Inside your local phone book, you should be able to locate legal professionals by scouring the professional listings. There are also popular online spaces that list legal professionals in your area by specialty including your local legal guardianship attorneys.
The next thing that you want to do is to read reviews on these legal guardianship attorneys online. By searching for the terms ‘legal guardianship lawyer near me’ or ‘guardianship lawyers near me’ and by searching your State’s Department of Justice, you can find legal guardianship attorneys in your area who will be in the best shape possible to help you with your legal guardianship needs.
Interrogatories to Ask Your Legal Guardianship Lawyer
LIST OF QUESTIONS TO ASK YOUR LEGAL GUARDIANSHIP ATTORNEY AT THE INITIAL CONSULTATION:
1. DO YOU HAVE EXPERIENCE HANDLING GUARDIANSHIP CASES?
While most attorneys are capable of handling a guardianship case, we would recommend that a potential client look for lawyers that have some experience with this type of case as guardianship matters only comprise approximately 5% of the New Jersey Court System’s dockets, and many judges will only have one or two cases going at a time. As such, the case law that governs this area of the law is sparse in NJ, and many issues that arise will not have been adjudicated. Also, many of the judges assigned to these cases frequently have had very little training or expertise in the area, as their court schedules normally comprise of entirely unrelated matters. Accordingly, lawyers looking to handle cases generally do not have as much hands-on experience.
2. WILL YOU BE HANDLING THE AFOREMENTIONED CASE YOURSELF, OR WILL OTHERS IN YOUR FIRM BE PERFORMING WORK ON BEHALF OF YOUR OFFICE?
This issue is important because as you narrow down the list of candidates for your initial consultation, look for lawyers that are willing to devote their entire attention to the case. Some firms are set-up so that work is regularly delegated to other attorneys and associates in the office, and this is not necessarily a bad thing. However, it is best to seek lawyers that will handle the matter themselves, or make it clear to you if it is necessary to delegate work to others. Not every case is set-up this way , and in some situations the handling attorney will delegate some tasks to his/her assistants, and that will be fine for you as long as you are aware prior to retaining the attorney.
3. WILL YOU KEEP ME POSTED AS TO THE STATUS OF THE CASE, AND GENERALLY HOW FREQUENTLY CAN I EXPECT HEARING FROM YOU?
This question is important as once a complaint is filed, this matter will be consuming a good portion of your spare time, and the Court proceedings are not designed with precision. Sometimes a certified letter to the Court will end up in the wrong mailbox, leading to a delay in a hearing date. Other times, the parties involved will have difficulty obtaining a date for the next hearing, or there may be other unforeseen circumstances that cause delay in the proceedings. Accordingly, you will want to know that your attorney will keep you informed as to what is going on.
4. WHAT WILL YOUR TOTAL FEES BE?
This is an important question because clients need to have some idea as to how much the case will cost upon completion.
5. HOW MUCH OF AN UPFRONT RETAINER WILL I NEED TO PROVIDE TO YOU, AND HOW MUCH WILL THE PART FEE BE IF THE MATTER SETTLES PRIOR TO AMENDED COMPLAINT BEING FILED.
This question is important, because cases are resolved by default around 75% of the time without reaching a hearing. The fees charged by the attorney could then be less than half of what would have otherwise been expected if the matter remains contested.
Preparing to Meet with an Attorney
If you will be meeting with a guardianship attorney to discuss your situation, it will be beneficial to go in with some idea of your goals and what you hope to accomplish. When you call the lawyer’s office to set up an appointment, ask what documents you should bring with you. If you are seeking to become a guardian for another adult, including your older parent, you might want to have medical records in hand to show the nature of the medical condition or mental health issue at hand. You may also want to bring a financial statement if you or the person you want to be a guardian over has money. Outline why and how you want to pursue guardianship rights. Are you seeking full guardianship, including control over someone’s finances and assets? Or do you want joint guardianship so that you have a say in some medical or financial situations? Or are you after a limited guardianship, such as making medical decisions when your mom or dad is incapacitated in the hospital? Discuss any challenges you foresee in your pursuit of guardianship. For example, does your sibling oppose your desire for guardianship over your parent?
The Guardianship Process and What to Anticipate
When a person files for guardianship, they will generally file a petition to the local probate court or other relevant court. Once filed, the matter will be set for hearing on a date approximately thirty to forty-five days in the future. A motion will accompany the petition that will invoke the powers of the Court to appoint the proposed guardian and suspend the rights of the subject of the guardianship upon the issuance of process. A Notice is also usually provided to the subject of the guardianship to appear at the hearing and object to the petition. The petitioner then schedules the Court approved Notice to be placed in the local newspaper where the subject of the guardianship resides and serves the interested parties through the Court according to the Rules of Civil Procedure. Once any interested parties are served a copy of the petition and notice, the petitioner, the lawyers of all parties and the court reporter scheduled by the private guardian’s lawyer meet in the judge’s chambers before the scheduled court hearing takes place (Choate). The Court Reporter takes down all measured distances and angles of the home of the subject of the guardianship or wards. This is done to protect the wards and to prevent fraud. Those notes are given to the Deputy Clerk of Courts who goes to the home of the wards and takes measurements of all windows, doors and exits to make sure that the numbers measured by the Court Reporter match those obtained by the Deputy Clerk. That number is given to the Judge at the Hearing. Once the hearing does take place , the judge will ask the private guardian if they have had a bond filed (Choate). If the private guardian has not had a bond filed, they will be sworn in during the hearing (Choate). The bondsman or surety then pays the Court the amount of the bond. An investigation into the proposed guardian and subject of the guardianship will then be conducted by the Department of Family and Children’s Services. Once the investigation is completed, the Department sends their report to the judge. The judge will then issue an order that requires the Court Reporter to give the file to the Clerk of Court once the hearing is completed (Choate). Once the bondsman gets paid, the case is moved from the judge’s chambers to the courtroom. There, the judge holds the hearing, where two witnesses testify that the proposed guardian is capable of administering the affairs of the subject of the guardianship by doing such work as ordinary people, and do not have any felony convictions; a witness who knows the property value will also testify as well (Choate). The judge will make sure that all parties were notified according to law and if so, will qualify the proposed guardian, determine a bond and appoint the private guardian (Choate). The Bond and Inventory is then filed with the Clerk, usually before the second hearing. Once the inventory is filed, the judge appoints the private guardian (Choate).