Understanding Guardianship Proceedings in Probate Court
Cincinnati probate attorneys at Zimmer Law Firm can provide invaluable help if you must go to probate court. While many people are aware that they need to go to probate court to facilitate the transfer of assets after a loved one has passed away, these are not the only circumstances where going to probate court may be necessary. If someone in your life has become incapacitated and cannot care for himself any longer, you may need to initiate proceedings in probate court to have a guardian or conservator named.
If you must go to probate court for guardianship or conservatorship proceedings, the Cincinnati probate attorneys at Zimmer Law Firm can work with you every step of the way to try to make the process easier. It can be emotionally difficult and legally challenging to have a guardian named, so you need to have an advocate on your side who will provide assistance and advice as you ensure that your family is protected.
How Do Guardianship Proceedings Work in Probate Court?
Guardianship proceedings will become necessary if your loved one has become physically or mentally unable to make or express decisions — provided that no plans have been put in place in advance by the incapacitated person. If an incapacitated individual made plans in advance of being physically or mentally unfit, such as creating a power of attorney and naming an agent to act on his or her behalf, then guardianship proceedings would not be needed because the chosen agent could simply take over managing the incapacitated person’s assets and making decisions on his or her behalf.
If there are no plans in place, someone will need to be appointed as a guardian or conservator and given authority to make key decisions that the incapacitated person is no longer able to make. Guardianship or conservatorship proceedings are the process by which an appropriate person can be appointed.
To begin the process of having a guardian or conservator named, a loved one of the incapacitated person will need to petition the probate court. A hearing will be scheduled with the goal of determining if the person who is allegedly incapacitated is actually unable to make or express his or her own decisions. In some cases, a person who is being accused of being incapacitated will dispute this accusation and try to argue that he or she should still retain control over decision-making and asset management. This happens often in cases where an individual is seeking to have a guardian or conservator appointed for someone who is mentally ill and making bad decisions.
If the court determines that physical or mental incapacity has, in fact, made it impossible for an individual to make or express decisions, that person can be made a ward. The court will consider who is the most appropriate individual to serve as guardian or conservator for the person who is incapacitated. The court may decide not to choose the person who petitioned for guardianship or the person who is requesting to be the guardian. The court wants to ensure that it selects the right person with the qualifications and ability to manage the decisions of the incapacitated person.
After the court appoints a guardian or conservator, that guardian or conservator has authority to make decisions and act on behalf of the incapacitated individual. The individual who is acting as guardian or conservator has a fiduciary duty to act in the best interests of the ward. A fiduciary duty is the highest duty that any one person can owe to another individual. The court will typically monitor the actions that are taken by the guardian or conservator in order to ensure that the guardian or conservator is living up to his or her duty. If there is concern by others, such as close family members, that a fiduciary duty is being breached, legal action can be taken.
Getting Help from Cincinnati Probate Attorneys
Cincinnati probate attorneys at Zimmer Law Firm can provide assistance in submitting the court paperwork necessary to have a guardian or conservator named and can help with the process of making an argument regarding who should be appointed as guardian or conservator.
To find out more about the ways in which our legal team can provide help in cases where incapacity has necessitated that a guardian or conservator be named in probate court, join us for a free seminar. You can also give us a call at 513-721-1513 at any time.