The Steps Of A Guardianship

There is nothing more difficult than overcoming having a relative with an emergency medical situation. We hope this article will help, at least procedurally, with what needs to be done.

Identify The Situation

First, you need to identify the severity of the situation. Is your loved one disabled, unable to speak, unconscious? Every following step is dependent on the current state of your loved one. Let’s assume the situation is bad. So bad in fact that your loved one is unable to make decisions for him or herself.

Identify Your Currents Rights And Their Current Wishes

Second, do you already have certain rights or know what the loved one wants concerning their matters. By way of examples, joint accounts, powers of attorney, or health care directives are common tools to help you deal with these unfortunate circumstances. These tools are highly effective and cost-efficient when planning ahead. However, let’s again assume the loved one has no such tools in place.

Time for Court Involvement

Third, now is the time you need to be granted certain rights over the loved one. The court system in every state has a means for you to have certain decision-making powers for the loved one. In North Dakota, one way of achieving this is through Guardianship. Through a Guardianship, you can request a court to allow you to make medical, financial, and/or legal decisions on behalf of the loved one.

Identify The Urgency Of Becoming A Guardian

Fourth, do you need this power immediately? If so, courts allow you to become an emergency guardian. This means you will be given the same decision making power, but for a shorter period of time (in North Dakota, usually 90 days or less). Due to the necessity of having an emergency guardian appointed, courts generally require much less proof of necessity and qualification on your part. To become an emergency guardian in North Dakota, you will need to file a petition with the court, giving notice to the required parties, including at a minimum the loved one (the proposed ward), and a guardian ad litem will need to be appointed. Let’s finally assume your emergency guardianship term is about to be up, and you still need to make decisions for your loved one.

Prepare For The Process

Finally, you will need to petition the court for full guardianship. Unfortunately, this process can take some time. First, as with an emergency guardianship, you need to file a petition. This petition must include your personal information, qualifications for being a guardian, your relation to the loved one, and the loved one’s mental and physical state. Next, the court will set a date for a hearing. Prior to the hearing, the court will appoint a guardian ad litem (an attorney for the loved one). The court will also appoint a physician or clinical psychologist to report on the current status of the loved one and a visitor whose job is to meet with the loved one and the proposed guardian and explain options, understand expectations of the parties, and report to the court. At the hearing, the court will decide whether your loved one is incapacitated (unable to make decisions for him or herself). This process will end with the court issuing its findings and declaring whether the loved one is incapacitated, whether the proposed guardian is suitable, whether a guardianship is necessary, and whether a guardianship is the least restrictive means to provide for the loved one.

As you can see, the process of becoming a guardian is complicated. This article is meant only to generally outline the Guardianship procedures in North Dakota. If you need help with this issue or if you would like to find out ways to address and resolve these types of issues beforehand, call our Estate Planning Team at 701-297-2890 or send us an email below.

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