Anyone 18 years of age or older can file a petition with the court to become a guardian. From a person who died, from life insurance, or from a personal injury agreement), the person seeking guardianship must go to the Surrogacy Court. If you want to be the guardian of an adult, there are many forms you need to fill out to open a case. The forms tell the judge about you, anyone who wants to be a co-guardian with you, the person you want to be the guardian over, and why guardianship is necessary.
Keep reading to learn more about the forms you need to fill out and how to open a case. In all cases, guardianship should be seen as a solution of last resort, because it eliminates the person's fundamental right to self-determination. Once the Superior Court has appointed a guardian or co-guardians, only the court can modify or change the guardianship order. There are alternatives to guardianship that may be appropriate for your family member, such as a revocable power of attorney (POA).
During the hearing, both the petitioner and the AIP can present evidence about the status of the AIP. Sometimes, there is a jury trial on issues that were raised during the hearing, especially if the AIP doesn't want a guardian. The court will then decide whether to appoint a guardian. In making its decision, the court will consider many factors.
The court will appoint a guardian only if there is “clear and convincing evidence of incapacity” and the AIP is likely to suffer damages as a result. This usually means that you need to show that the person is more likely than not to be incapacitated. The court is supposed to structure the guardianship so that it does not interfere more than necessary with the life of the incapacitated person. That person should be given as much independence as possible.
As a guardian, you will be required to submit annual reports to the court on the status of the AIP and how you have handled the AIP money. If you know someone who can't manage their affairs and money, you may be able to file a “petition for guardianship with the Supreme Court.” The Family Court has similar jurisdiction and authority as the County Court and Surrogacy Court with respect to guardianship of the person of a minor (a child 17 years of age or younger). Establishing guardianship is a legal process, and some families turn to the Department of Human Services' Office of Guardianship Services for help with the process. These documents have been prepared by the Department of Human Services' Office of Guardianship Services (BGS).
If it has been determined that your family member needs a guardian, working through BGS is just one of several options you have for filing for guardianship. After filing and serving guardianship documents, the proposed guardians and the adult for whom guardianship is sought must participate in a hearing with a judge. If your family member has assets, such as a trust or other large assets, you should seek guardianship of the person and assets through a private lawyer. While it's possible to get guardianship without an attorney, some families turn to an attorney for help with POAs, guardianship, and similar legal proceedings.
At a Family Court guardianship hearing, the court takes testimony about the person seeking guardianship to determine if it would be in the best interest of the child to allow that person to assume responsibility for the care of the child.