The Guardianship Process
We always recommend a Guardianship as a last resort. With that said, it is important that you understand the process before jumping in with both feet. You need to make sure you have a complete understanding of all of the people involved in the process and everybody’s roles and responsibilities. You also need to understand all of the paperwork that is required.
Complete a Certificate of Medical Examination and Questionnaire (CME)
The first step in the process is to talk to your loved one's doctor and ask him or her to fill out a Certificate of Medical Examination (“CME”). Most doctors that work with the elderly are familiar with this paperwork. It is very straightforward and self-explanatory. It is this CME that will let you, the attorney, and the Court have a better understanding as to your loved ones incapacity. It is this letter that will reflect which activities your loved one is capable of handling on his or her own and, more importantly, which activities he or she cannot handle on their own. Once you have the completed CME and questionnaire, the attorney can now begin preparing the Application.
The CME will direct the attorney to whether your loved one needs a Guardian of the Person, Guardian of the Estate, or both. This Application gives the basic information for your loved one, such as where he or she lives, date of birth, what the possible incapacity is, how many times he or she was married, how many children he or she has, etc. (It is important to note there are laws that dictate who can serve as a guardian and who has priority. We recommend that you speak with a qualified Guardianship attorney to understand these laws and whether you can even serve as a guardian.) The application and CME are both filed with the Court in order to begin the Guardianship process.
Once the Application is filed, the Court will appoint a Court Investigator. This person is an extension of the Court, and their role is to visit with you and your loved one to determine if a Guardianship is truly needed and who is to be considered as Guardian. The Court Investigator prepares a Report and then files it with the Court.
Attorney Ad Litem
As soon as the Court receives the Court Investigator’s Report, the Judge will appoint an Attorney Ad Litem. This is an attorney who has been certified to serve in this specific capacity. Anytime someone is in front of the Court, they have the right to be represented by an attorney. Because your loved one may not have the capacity to hire an attorney, the Court will appoint one for him or her.
The role of the Attorney Ad Litem is to visit with you, talk to your attorney, and perhaps even speak with your loved one. The Attorney Ad Litem relays their findings to the Court at the hearing.
As soon as the Court Investigator and Attorney Ad Litem completes their investigation, the hearing is scheduled. At the hearing, the Judge reviews the Court Investigator’s report and also reviews the CME. The Judge then hears your testimony which should explain why his your loved one needs a guardian and why you should be the one appointed. Once the testimony is given, the Judge makes the determination as to whether they feel your loved one is in need of a Guardian of the Person, Guardian of the Estate, both, or none at all.
As you can see, the Guardianship process can be difficult to navigate. For additional information, call our office at 214-559-7202 to schedule a no-charge consultation or request our free book, Is My Loved One in Need of a Guardian?