A Guardianship is a court proceeding where a court makes a determination that a person is incapacitated and can no longer make decisions regarding his or her personally care. Once this determination is made, the person lacking capacity is referred to as the Protected Person, and the court will appoint a person or entity called a Guardian to make personal care decisions for the Protected Person.
Most commonly, the establishment of a Guardianship usually starts with the realization that a loved one, usually a grandparent or senior parent, can no longer make decisions regarding his or her personal care because of an impairment in the ability to receive, communicate, and evaluate information. The most common scenario is an elderly person suffering from dementia, but can apply equally to a minor child.
A Petition is filed by an interested person with the Court in order to request the establishment of a Guardianship and appointment of a Guardian. The Petition must contain specific information required by the Hawaii Revised Statutes regarding the Protected Person, and the proposed Guardian, and should include a medical opinion regarding the Protected Person’s ability to make decisions regarding his or her personal care. The court will assign a hearing date, usually 1 to 2 months after the filing of the Petition.
Once the Petition is filed, a copy of the Petition must be given to all interested persons, including the Protected Person, who will have an opportunity to respond or object. Usually, there are no objections, but it is not uncommon that objections are filed as to the capacity of the Protected Person and the identity of the proposed Guardian.
Prior to the hearing on the Petition, the court may appoint a person called the Kokua Kanawai, whose responsibility it is to interview the Protected Person, proposed Guardian, and any other interested person, in addition to reviewing the Petition and other objections or responses filed in the proceeding, in order to provide the court with a recommendation as to whether the court should establish the Guardianship due to the Protected Person’s incapacity, and whether the proposed Guardian is qualified to serve in that capacity. Although the court is not required to follow the recommendation of the Kokua Kanawai, that recommendation carries great weight.
At the hearing on the Petition, the court will consider all pleadings filed by any interested persons, and the recommendation of the Kokua Kanawai in reaching its decision. Once the court makes its determination that a Guardianship should be established for the Protected Person, and appoints a Guardian, an Order memorializing the court’s decision must be drafted and submitted to the court for its approval and signature. This process can take an additional 1 to 2 months.
MANAGEMENT OF THE GUARDIANSHIP ESTATE
Once the Order is approved and filed by the court, the Guardian is authorized to make decisions regarding the Protected Person’s personal care. One of the first things the Guardian must do is to prepare a Report of the Guardian within 30 days of the filing of the Order. The Report is filed on an annual basis thereafter, and includes information such as:
- The current mental, physical, and social condition of the Protected Person;
- The living arrangements for all addresses of the Protected Person during the reporting period;
- The medical, educational, vocational, and other services provided to the Protected Person and the Guardian’s opinion as to the adequacy of the Protected Person’s care;
- A summary of the Guardian’s visits with the Protected Person and activities on the Protected Person’s behalf and the extent to which the Protected Person has participated in decision-making;
- If the Protected Person is institutionalized, whether the Guardian considers the current plan for care, treatment, or habilitation to be in the Protected Person’s best interest;
- Plans for future care; and
- A recommendation as to the need for continued Guardianship and any recommended changes in the scope of the Guardianship.
Although a Guardianship can be a very expensive, time-consuming, and on-going proceeding subject to the supervision of the court, through proper planning, the need for a Guardianship can be avoided.
IS A GUARDIANSHIP REQUIRED? ESTATE PLANNING GROUP CAN HELP
If a person is already incapacitated and can no longer make decisions regarding his personal care, and failed to execute estate planning documents designed to address incapacity, a Guardianship may be unavoidable.
Estate Planning Group can help you navigate through the complex Guardianship process in an effective, efficient, and compassionate manner, always considering the best interest of the Protected Person, so that he or she may maintain the highest quality of life possible.