GUARDIANSHIPS – STARTING THE PROCEEDINGS – PART 4
By Cary A. Lind
Filing the Case and Hearing Dates.
The first time you file a disabled estate, it may seem like a cumbersome and rather wasteful procedure. However, there are logical reasons for each step.
1) File the estate in Room 1202. The estate will be given its numbers and will be assigned to a judge and a courtroom. Copy the case, docket, and page numbers onto all of the documents.
2) Go to the assigned courtroom and give to the clerk the original Petition, the Petition for Temporary Guardian (if applicable), and two copies of the Order Appointing Guardian Ad Litem for Disabled Person. Arrange a court date with clerk. If a temporary guardianship is sought, the hearing date will be very soon subject to the judge’s schedule. If only a plenary guardianship is sought, the return date will be at 11:00 a.m. and must be within 30 days. In either case (unless the estate has few assets), the judge will appoint a GAL (probably later that day).
3) Insert the date, room, judge’s name and telephone number, and any other missing information in the Petition, the Summons, the Notice of Rights of Respondent, and any other documents, in particular in the box in the Petition.
4) Go back to the Clerk’s office in Room 1202 and have the Summons issued and sealed.
5) Go to the Sheriff’s office and place for service the original and two copies of the Summons, one copy of the Petition, and one copy of the Notice of Rights.
If a temporary guardianship is sought, the GAL will try to meet with the respondent at once. Depending on the relief sought and the judge to which the case is assigned, prior notice may be required to the respondent or other interested parties. At the hearing, the court will grant to the temporary guardian only the powers necessary to meet the requirements of §11a-4 of the Act. A further return date will be set for the return of the Petition (for plenary guardian).
6) Promptly serve by mail a copy of the Petition to all of the parties shown on Exhibit A to the Petition. Notice including the return date and time must be sent no less than 14 days prior to the return date.
On the return date for plenary guardianship, a number of pieces need to come together before the adjudication and appointment can be made. First, there must be service of Summons on the respondent. Second, there must be a completed CCP-211, the Report of Physician, showing the nature of the disability and the need for guardianship based on an examination performed within three months of the date of filing of the Petition. Third, the GAL should be present with a written report of his or her meeting with the respondent. The GAL will advise the court if he or she believes guardianship is appropriate and of any matters that the GAL feels the court should consider. The GAL will also advise the court if the respondent objects to the guardianship. If the respondent does object, a contested hearing must be set. In that case, the GAL will usually be appointed as attorney for the respondent. The petitioner should also be in court to answer any questions the court may have. If no objection is made and if everything is in order, the petitioner will be appointed plenary guardian, the “respondent” will become the “ward,” and administration will begin.
Practical Note: If any of the “pieces” is not there, your client will not be appointed. Therefore, try to anticipate any problems that might get in the way. For example, you may need to give additional instructions or arrange for the petitioner to be present to assist with access for service of Summons and for meeting the GAL. Or, for example, if you cannot get the respondent to a physician, you must bring a physician to the respondent. There are psychiatrists who regularly interview guardianship respondents and testify in court when necessary.
In guardianships, all proceedings are supervised. You must ask the court’s permission (and may have to send notice to interested parties) before taking major actions which affect the ward and which involve spending the ward’s assets. Technically, all expenditures must be approved in advance. In reality, some expenses are beyond question, e.g., expenses relating to the ward’s real estate such as utilities and taxes, the ward’s medical expenses, the ward’s food, and more. You must obtain prior court approval to do any of the following:
- Move the ward, especially to an institutional setting or residential facility.
- Consent to electroconvulsive therapy or the administration of psychotropic drugs.
- Sell real estate or personal property.
- Make any gifts of property.
- Do any “estate” planning or Medicaid planning.
- Invade joint property for the benefit of the ward (see below).
- Freeze any assets to reduce the bond.
- Pay any attorney and guardian fees.
- In general, expend money for anything outside of usual and ordinary expenses.
One difference between guardianships and decedent’s estates is that inventoried assets in guardianships must include all joint assets where the ward is a joint tenant and which are potentially available for use for the benefit of the ward. The court is directed not to interfere with joint tenancy assets unless it is necessary so as not to also interfere with the ward’s presumed intent to make a gift of the ward’s joint interest at death. However, if necessary, those assets can be invaded. In one case, the court fashioned a creative solution by ordering a number of joint accounts to be invaded pro rata so as to preserve the “plan” as much as possible.
© 2001 by Cary A. Lind, all rights reserved