Guardianship Rule Changes

Recently, the Supreme Court has implemented changes to the existing Court Rules. The changes are intended to make sure that the Guardians being appointed by the Courts are appropriate candidates. Since the persons who have guardians are vulnerable adults, the Courts want to protect the incapacitated person as much as possible from potential financial exploitation.

Proposed guardians must now provide criminal and civil judgment information in the form of an Affidavit or Certification. Certain categories of proposed guardians such as spouses and parents are exempt from having background searches done. This information is provided to the Court personnel, so the Court can conduct its own searches through judicial means. This information will be shared with counsel for the alleged incapacitated person. The Court is still in the process of working out the details on how this will be accomplished - county by county.

If something shows up, the Court will hold an independent hearing on the information obtained and allow the proposed guardian to address concerns. In addition, every court-appointed guardian will now be required to be fingerprinted. This will be handled through the county Sheriff’s Department for a fee and must be done in a timely fashion. Once appointed, the guardian is obligated to inform the Court as to any change in their criminal and civil judgment history.

In addition to changes to the guardianship filing rules, counsel for the alleged incapacitated person is also required to file a more detailed report concerning the investigation undertaken by him or her in connection with the proceeding. Counsel must meet with their client and the proposed guardians concerning the matter. But court-appointed Attorneys can also speak with any person they feel can provide critical information about their client and his or her needs.

The investigations by court-appointed Attorneys have expanded to include additional research. The attorney is required to make a reasonable inquiry to locate any will, powers of attorney, or health care directives or trusts wherein the client may have an interest. The location of these types of documents may impact the need for guardianship.

Counsel’s report must make specific recommendations to the Court. Those recommendations include whether the issue of capacity is in question, who the appropriate guardian is, whether less restrictive alternative could be utilized to provide more independence to the ward, and whether a full plenary guardianship or limited guardianship is recommended. As an advocate for the alleged incapacitated person, the court-appointed Attorney is charged with protecting the ward’s interests. To that extent, the limitations on the guardian or rights afforded the ward become critical. Said recommendations should also include preferences of the ward to the extent possible. Counsel is also asked to make recommendations concerning the revocation of existing powers of attorney or health care directives or additional planning that should be undertaken.

For more information on guardianships, contact the attorneys at Weiss, Tom & Trapanese.