She also has the right to be present at any hearing. If her limitations mean that she cannot be present in the courtroom, the court must conduct the hearing at the AIP’s residence. The purpose is to permit the AIP to participate in the proceeding and to permit the judge to independently evaluate the AIP rather than relying only on the testimony of lay and expert witnesses.
If the court determines that a guardianship is necessary, it must craft a guardianship that is narrowly tailored to meet the needs of the incapacitated person, or IP. However, for the guardian, establishing the guardianship is only the beginning.
The law requires that guardians undergo training (although it may be waived). The guardian must take an oath. The guardian must act in a manner that reflects the trust and loyalty required, which demands that the guardian always act in a manner that takes into account the IP’s preferences or is in the IP’s best interests if those preferences cannot be determined. The guardian must also file annual reports with the court and, in the event the guardianship ends for any reason, a final report. If the guardian is not discharging his or her duties properly, a request can be made to the court to remove the guardian.
Ultimately, it is important to remember that the purpose of a guardianship is to assist the incapacitated person and in doing so, the guardian should afford him as much independence and self-direction as can be managed given the IP’s limitations and his understanding of those limits.
If you believe that someone you know is in need of a guardianship and you are willing to assist that person, consultation with an attorney relating to the issues surrounding guardianship is always wise. An attorney can assist in pre-guardianship planning and also in the preparation of the papers needed to be filed to apply to the court. For those who are going to try to go it alone, there are forms and information available on the unified court system Web page.
Wayne Shepard is director of the Delaware County Office for the Aging. ‘Senior Scene’ columns can be found at www.thedailystar.com/seniorscene.