Power of Attorney
A competent individual may sign a document called a Power of Attorney. This allows another adult to handle their financial affairs while still maintaining personal rights.This may be done through a private attorney and does not require court involvement.
Health Care Surrogate
The law also allows an adult to designate another adult to make medical decisions for him or her. This is similar to a Power of Attorney but focuses on medical issues versus financial affairs.
A representative of a consenting adult may become payee of government benefits like Social Security Income and Veterans’ benefits. This person then is able to manage these funds on behalf of the individual. Payees are established through the specific agencies and not through the court system.
An aged or infirmed person may request a curator through the Probate court. The curator, appointed by the court, is responsible for managing the individual’s monies. The Curator must be insured or bonded and is accountable to the Probate court.
When should Guardianship or Conservatorship be considered?
When an individual is not capable of exercising all the rights of an adult, and family or friends are unable to provide assistance, it may be necessary to appoint a guardian or conservator.
Appropriate petitions may be:
•An adult who is unable to meet his her own daily needs due to profound mental illness or dementia (ex. bills go unpaid, starvation, poor hygiene, incidents of wandering)
•Allegations of abuse, neglect or financial exploitation by a caretaker
•An adult diagnosed with mental retardation
•Serious accidents that result in trauma to the brain impacting the person’s ability to care for him or her self.
•Frequent referrals to Adult Protective Services.
Any person concerned with the welfare of an individual may file a petition for guardianship. The concerned person will be thepetitioner and the other individual will be the respondent on court documents.
What are Guardianship and Conservatorship?
Guardianship/Conservatorship is the legal relationship between a capable adult, the guardian, and the ward, a person who has been determined to be legally disabled. A legally disabled person is an individual found to be unable to make informed decisions about his personal or financial affairs.
A conservator handles only financial affairs.
Following the determination by a jury that an individual is partially or fully disabled, the judge will rule who shall be guardian and what responsibilities they will have (personal, financial or both). In the event of a partial disability determination the judge will decide what rights the ward will maintain (i.e. right to vote, drive, enter into contacts, etc.).
The appointment will legally enable a person to make decisions for and act on behalf of the disabled adult. The guardian uses the ward’s money to provide food, shelter, clothing for the ward and consents to medical procedures with some restrictions.
Petitions are filed in the Mental Inquest and Disability Division Clerk’s Office located in the Hall of Justice Building at 6th St. and Jefferson St.
The Circuit Court Clerk’s Mental Inquest/Disability Division Office is in Room 3177 of the Hall of Justice.
When filing a Petition, you must bring with you:
• $68 filing fee per applicant
• List of Respondent’s financial assets (income, real-estate, stocks etc.)
• Proof of the respondent’s social security number
• Names and addresses, including zip codes, of respondent’s next of kin
Following successful application:
The petition will be reviewed by a representative of the County Attorney’s Office to determine if the case is to proceed. If it is denied, the petitioner will be notified.
If approved, the respondent will be appointed an attorney to represent his or her interests. This attorney is referred to as theGuardian Ad Litem. Petitioners may choose to retain their own private attorney but need not do so.
The trial should be scheduled within 60 days. In this time the respondent must be examined by an interdisciplinary team of a physician, social worker and psychologist. Each assesses the respondent individually and creates an evaluation before meeting as a team to prepare a report to the court.
It is the petitioner’s responsibility to insure that the respondent is available to be evaluated by the team members.
In addition, it is also the petitioner’s responsibility to insure that the respondent be present at the hearing.
The physician team member, however, may determine that attendance at the hearing would subject the respondent to serious risk of harm and waive his or her appearance.
The individual or persons appointed as guardian will need to be insured or bonded in the amount of the respondent’s assets. A list of bonding companies is included in the petition paperwork. It is recommended that petitioners contact insurers for information before the trial.
Guardianship requires a jury trial. All proceedings are confidential and limited to petitioner and those friends and family that theRespondent may wish to have present. Petitioners will likely be asked to testify as will at least one member of the interdisciplinary team.
Juries may decide financial and personal affairs on behalf of the Respondent. For each issue, juries will determine either “No Disability”, “Partial Disability”, or “Full Disability.”
What are the financial costs involved in a Disability Proceeding?
The total costs, including the interdisciplinary team fees, usually range from $500 to $1500.
The fees will either be paid by county funds or from the ward’s funds depending on the estate of the ward. This determination is made by the Judge after the trial.
What are the Emotional Consequences involved in a Disability Proceeding?
It may be painful or unpleasant to have to prove that the respondent should not be allowed to keep making decisions for himself or herself.
The respondent must participate in three evaluations and the petitioner must bring the respondent to court.
The respondent must sit through a jury trial that will focus on his or her inability to make personal and financial decisions.
The petitioner may be required to testify and state the facts that led him or her to believe that the respondent is unable to make informed decisions.
Who may Act as Guardian or Conservator?
After the disability trial, the court may appoint any person or any public agency to act as guardian or conservator. The law gives preference to family members but the court will appoint the best person or public agency qualified and willing to serve. The court will also consider the wishes of the ward in this matter.
What is a Standby Guardian or Standby Conservator?
At the time that a guardian or conservator is appointed, or at a later date, the court may appoint another person as standby guardian or standby conservator to succeed the initially appointed guardian or conservator after a death, resignation or inability of the guardian to serve. It is best to designate this person at the initial appointment of a guardian.
The court can also appoint a co-guardian. However, both individuals must be present at all guardianship activities (i.e. signing checks, attending doctor’s appointments, etc.).
The court may also choose to limit the length of time a guardian is appointed.
What are the duties of a Guardian/Conservator?
A guardian is responsible for the care and custody of the ward. Depending upon the specific rights taken away from the ward, the guardian’s duties may include:
Arranging for a place for the ward to live
Arranging for medical, educational, social, vocational and rehabilitation services
Managing the ward’s financial resources and paying the bills of the ward. The court will require that a guardianship checking account be opened in the ward’s name.
Within 60 days of the appointment, the individual responsible for the ward’s financial affairs shall file an inventory of all of the assets/property of the ward with the court.
Within 16 months of the appointment the guardian or conservator must also file a financial report with the court. This report is an accounting of what income was received by the ward and how it was distributed.
Unless otherwise directed by the court, the same guardian/conservator must file a report every year thereafter.
Within 12 months of appointment, if the guardian is responsible for the personal matters of the ward, a report must be filed with the court detailing information on the ward’s placement, participation in programming and whether guardianship continues to be necessary.
A final report must be filed with the court within 60 days when:
• the guardian is removed
• the partial guardianship is not renewed
the ward dies
What is the Difference Between a Regular Trial and an Emergency Hearing?
If it is believed that an adult is in imminent danger to his or her health or safety, or that his or her money is being stolen or excessively wasted, a concerned individual may file a petition for an emergency hearing at the Disability Court. Before filing,the petition must be approved as appropriate for this emergency process by an Assistant County Attorney.
Information/Documentation needed to file an Emergency Petition:
$ 87 fee (cash or check) per applicant
A notarized letter from the respondent’s physician stating his or her diagnosis, prognosis and whether or not he or she can safely attend the hearing.
Proof of respondent’s social security number.
Relevant documents (unpaid bills, medical documentation, etc.).
After an Emergency Petition is Filed:
The court shall appoint a Guardian Ad Litem to represent the interests of the respondent.
An emergency hearing will be scheduled within two (2) to seven (7) days.
At this hearing the judge, without a jury, will listen to the evidence and decide if an emergency exists. If an emergency appointment of a guardian is made, it will only last until the jury trial (following this appointment the Regular Petition Process begins).