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Do you need to go to court to seek guardianship over another?

Status: Open    Oct 06, 2016 - 07:59 AM

Elder Law

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Nov 02, 2016 - 09:11 AM

Yes, you do need to go through the courts to obtain guardianship over another person. Which court you go through will depend on your local court system, but a local attorney or court administrator should be able to point you in the right direction.

Nov 02, 2016 - 09:13 AM

Absolutely. A Guardianship is a court appointed relationship. You will have to petition the court to appoint you as a guardian. I would contact an attorney to advise you.

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Nov 10, 2016 - 08:42 AM

Yes. A guardianship is a court created relationship. If the person you need to help has the mental ability to sign a power of attorney, then they could delegate to you most of the powers you would have as guardian. However, if someone does not have that capacity and you need to act for them, then a court is your only option.

Nov 10, 2016 - 08:46 AM

Generally, yes. Guardianships and conservatorships are similar in that they both require a person to file a petition in a court of proper jurisdiction asking the court to establish a guardianship or a conservatorship over another person who suffers from some incapacity. The person can ask the court that he/she be appointed to serve as guardian or conservator, or the petitioner can nominate another person so to serve.

Be sure to note that different states define conservatorships and guardianships differently. In Tennessee for example, a guardianship is generally established for a minor (i.e., a person who is legally incapacitated by age). On the other hand, TN law uses the term, “conservatorship,” when referring to a legal relationship established for an adult who is “incapacitated” or a “person with a disability” as defined by the statutes. Generally, the threshold question is whether or not the Respondent (the proposed ward) has the ability to take care of themselves, of if their condition is such that a conservator is needed to manage their assets and/or make medical decisions.

These fiduciary relationships can be complicated, and this writing is certainly not the full picture. It is highly suggested that you seek the advice of counsel prior to proceeding with either a conservatorship or a guardianship.
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