An important aspect of estate planning to consider is guardianship. It is not only relevant to those with minor children or adult children with special needs. It can also be relevant to you if you become incapacitated and want to ensure the right person is making medical and/or financial decisions for you.
The most straightforward way is to name the person you want to become guardian in your will (and even naming anyone whom you do not want). However, if you do not do this, the legal process for appointing a guardianship if necessary is as follows.
Petition the court
If you can no longer manage your own affairs, a family member or friend will likely be the first to notice. This person may choose to try to become your guardian or ask another loved one to do so. The prospective guardian must file a petition to the probate court in the county where you live to begin the proceedings.
Prove incapacitation and necessity
Unless you are still in good enough mental condition to approve the appointment, the court will establish your incapacitation through solid proof, including from your medical provider. The judge will then determine if a guardianship is truly necessary or if an alternative option is more suitable. Even if you do need a guardian, the court will allow you to keep as many rights as possible.
Undergo a competency hearing
Finally, the court will decide if the potential guardian is qualified for the role by examining the following qualities of the applicant:
- Place in the priority list of guardian choices
- Experience, education and capability
- Any previous guardianships the person has held
The judge's decision ultimately relies on what is in your best interest.
Report to the court
The process does not end upon court approval. The guardian must report to the court every year to ensure proper fulfillment of duties. If the court finds any breach of duty, the process for finding a fit replacement commences.