Probate attorneys provide assistance after the death of a loved one when assets must transfer through the probate process. However, a death is not the only circumstance where going to court may be necessary. Probate courts can also preside over other legal proceedings, including the proceedings that become necessary when a guardian or conservator must be named for a person who has become incapacitated.
Nirenstein, Horowitz & Associates can provide assistance with the creation of an incapacity plan so guardianship proceedings will not be necessary. If an incapacity plan is created, a power of attorney can be used to determine who will take over management of assets and decision-making in the event of physical or mental issues that cause a person to be unable to act of his own accord.
Unfortunately, if a person becomes incapacitated without a plan in place, going to court to have a guardian or conservator appointed will be necessary because it will be too late for the incapacitated person to specify who should act on his behalf. When going to court to have a guardian named does become a necessity, the probate attorneys at our firm can help. Give us a call today to find out more.
Understanding Guardianship Proceedings in Probate Court
When a person has become physically or mentally unable to make decisions and no incapacity plan was put into place in advance, a family member or other concerned party will need to initiate guardianship or conservatorship proceedings. This means filing the appropriate court paperwork in the county where the incapacitated person resides. Often, it is best to have an attorney to help with this process to ensure the right forms are filed in the correct court.
Once the paperwork has been filed, a hearing will need to be scheduled. The court will consider evidence in order to determine if the allegedly incapacitated person should in fact be declared incapacitated. There are many circumstances where it is very clear that physical or mental incapacity has made it impossible for someone to act on his own accord. For example, if a person has had a severe stroke and cannot communicate any more, that person obviously cannot handle his own affairs or express his own wishes about his care.
There are also other circumstances where there may be controversy regarding whether a person is incapacitated or not. If a person is mentally ill, that individual could argue that he is in fact still able to make his own decisions. The court would need to carefully assess the individual’s mental state to determine the best course of action.
If the court has determined that a person is incapacitated, then the court can declare that person to be a ward. Appointing a guardian is the next phase of the process. The person who petitioned the court in order to have a guardian appointed is not guaranteed to be the person who will be chosen as guardian. The court will consider who is in the best position to act on behalf of the person who has been declared incapacitated.
When the court has determined who should be appointed guardian, the chosen guardian or conservator will have a fiduciary duty to act in the best interests of the ward. When a guardian has been named, the court oversees the actions that are taken by the guardian to ensure that the guardian fulfills all of his or her obligations and puts the ward’s best interests first.
There is no requirement for the court to oversee an individual who is given authority under a power of attorney to act on behalf of an incapacitated person, which is another reason many people prefer to make an incapacity plan.
Getting Help from Probate Attorneys
Probate attorneys at Nirenstein, Horowitz & Associates can help you in any situation where you have to go to probate court. We can provide representation to the executor of an estate as well as to heirs or beneficiaries or those who wish to contest a will hen the probate process occurs after a death. We can also provide representation in guardianship or conservatorship proceedings when someone has become incapacitated without an incapacity plan in place.