What happens when there is a Guardianship proceeding for my Elderly Parent?

The Guardianship proceeding can be difficult to understand. There are many different participants in the Guardianship proceeding.

The first participant is called the petitioner. This is the person that starts the guardianship proceeding. Many times this is a concerned family member who wants to take care of an Elderly parent’s health care decisions and financial well being. When the petitioner starts the proceeding, the lawyer for the petitioner or the petitioner themselves submits two documents to the court. These documents are the order to show cause and the petition.

 The Petition outlines why the alleged incapacitated person (AIP) is in need of a guardian. The petition normally outlines instances when the alleged incapacitated person was in need of assistance and why the alleged incapacitated person needs assistance, lists financial assets of the alleged incapacitated person, lists if there were any estate planning documents of the alleged incapacitated person, and asks the court to grant the petitioner power over the alleged incapacitated person.

 The order to show cause is also submitted to the court. This document outlines the powers that the Guardian is looking to obtain. It informs the alleged incapacitated person of their rights and the powers that may be taken from them if the petition is granted. This document also sets the time and place of the Guardianship hearing. It orders the petitioner to put on their case (show cause) why a guardian should be appointed for the alleged incapacitated person at a specific date and time. The order to show cause also adds two new participants to the guardianship proceeding, the court evaluator and counsel to the alleged incapacitated person.

 The court is obligated to provide representation to the alleged incapacitated person under MHL 81.10. The alleged incapacitated person also has the right to retain their own counsel as well. Counsel to the alleged incapacitated person will speak with the alleged incapacitated person, find out if advance directive has been executed, and will represent the alleged incapacitated person’s position.

 The court evaluator is appointed by the court to investigate the allegations in the petition and provide the court a report as to the court evaluator’s findings. The court evaluator acts as the eyes and ears of the court and tries to provide a complete view of the circumstances involved in the guardianship proceeding. This involves the court evaluator conducting interviews with the alleged incapacitated person, the petitioner, and all parties involved. The court evaluator may review financial statements of the alleged incapacitated person, attempt to locate any estate planning documents, and may review health care records.

 The Petitioner, Court Evaluator, and Counsel to the Alleged Incapacitated Person are all participants in the Guardianship proceeding. If you would like to inquire about any of our guardianship services, feel free to give us a call at (718)875-2191 or fill out a contact form or request a consultation.

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