Should we file for Guardianship over a declining parent?
Guardianships of incapacitated persons can be over the person, over the estate or over the person & the estate. The Probate Division has jurisdiction of these guardianship types.
Guardianships of incapacitated persons are established when the court determines that the functional limitations of an individual have declined to the point where that individual’s ability to participate in and perform minimal activities of daily living is not present. Estate Guardianships of incapacitated persons are established when the court determines that a person’s ability to understand and make decisions relative to financial matters is not present.
It is appropriate to petition for guardianship if the person petitioning for guardianship can prove “beyond a reasonable doubt” that the proposed ward is unable to provide for basic needs of food, shelter, clothing, health care, safety and/or is unable to manage financial affairs. The petitioner must be able to prove that the proposed ward is incapable of making an informed choice not to provide for these needs, and must also prove that the proposed ward will or has come to substantial harm as a result of the incapacity. Finally, the petitioner must be able to prove that other less restrictive alternatives for the proposed ward have been explored.
At the guardianship hearing relatives and other interested parties should be prepared to testify as witnesses providing evidence to either support or challenge the need for guardianship.
If you have questions about guardianship you can contact Attorney John S. Polgrean of the Trust and Estates department of Welts, White & Fontaine, P.C. at (603) 883-0797.
This blog is intended for informational use only. The information contained herein should not be construed as offering legal advice or a legal opinion.