A Guardianship Proceeding is a type of Estate Litigation. It is a Court action where the Clerk of Court determines whether a person is incompetent. If the Clerk decides that the person is incompetent, the Clerk will then decide who should be the person’s Guardian. If there is not a determination of incompetence, a Guardian is not appointed.
To start the process, a Petition for Adjudication of Incompetence and Appointment of Guardian is filed with the Court. The person seeking the determination is called the Petitioner and the person for whom Guardianship is sought is called the Respondent. The Petitioner serves the Petition on the Respondent and the Respondent’s next of kin and other interested persons.
There are many reasons why a person may want to seek a Guardianship.
- Often, the Petitioner is a loved one, perhaps the Respondent’s child, spouse or sibling.
- The Petitioner may have concerns about the Respondent’s mental and physical well-being.
- The Respondent may be spending money improperly or perhaps a third-party is taking advantage of the Respondent.
It is not unusual for issues to arise between siblings when one of the siblings seeks a Guardianship for the parent. The other sibling may not believe the parent needs a Guardian or may believe that someone other than the Petitioner should be the Guardian. It is not unusual for the Respondent to be elderly and to have a strong desire to live alone. As a result, the Guardianship process can be extremely challenging and emotionally draining for everyone involved. However, in certain situations, it may be the only option.
If you have questions about guardianship, please call me at 336-275-1607.