Understanding Guardianship Proceedings in Probate Court

Overland Park probate attorneys provide assistance with all different issues that arise in probate court. While many people are aware of the need to go to probate court after a death has occurred so assets can transfer to new owners, this is not the only situation where probate proceedings may be necessary. It may also become necessary to go to probate court if a loved one has become incapacitated without an incapacity plan in place. Under these circumstances, going to probate court may be necessary in order for a guardian or conservator to be appointed to manage the affairs of the incapacitated person and to make decisions on the incapacitated person’s behalf. 

Having to go to probate court for any reason, whether to complete the probate process after a death or to have a guardian or conservator appointed, can be very complicated. It is imperative that you have Overland Park probate attorneys representing your interests.

Parman & Easterday can help you to understand the probate process, file the correct paperwork with the court, present the necessary evidence or information in court, and otherwise maximize the chances of your proceedings in probate court going smoothly. To find out more about how our compassionate and knowledgeable legal team can help you, give us a call today.

Understanding Guardianship Proceedings in Probate Court

When you believe that your loved one is unable to act on his or her own behalf as a result of physical incapacity or mental incapacity, you will need to petition the court in order to initiate guardianship proceedings.

Typically, a hearing will be scheduled in order to make a determination regarding whether the incapacitated person is, in fact, actually incapacitated. There are many situations in which it is very clear that someone is no longer able to act on his own accord. For example, if someone has experienced a stroke and is no longer able to communicate, then it is clear that person is not able to make decisions on his own behalf any longer.

However, there are also circumstances in which family members or loved ones believe a person has become incapacitated, but that individual does not agree and there is a dispute regarding whether the appointment of a guardian is needed. This can occur in cases of mental illness or dementia, where the individual affected by the illness does not realize that he is not able to act on his own any longer.

If there is a dispute over whether a guardian must be appointed or not, arguments will need to be made to the court in order to prove incapacity. The court will then make a determination regarding the next steps. The court can determine the individual is, in fact, incapacitated and can make him a ward. If this occurs, then the court will next make a determination regarding who is the best person to act on behalf of the incapacitated individual.

The court may not necessarily appoint the person who initially initiated the guardianship proceedings as the guardian or conservator.  A guardian is one who oversees the “person”.  A conservator oversees the financial affairs of the ward.  In some states the terms and responsibilities are combined into one overseer for the ward.  The court considers many factors in determining who is best suited to serve as a guardian. The person who the court believes to be most appropriate will be appointed as guardian and the court will then oversee the actions taken by the guardian or conservator to ensure that the guardian is fulfilling his or her fiduciary duty.

Because many people don’t like this court intrusion into family matters, and because many people would prefer to choose the person who will act for them in case of incapacity rather than having the court chose, making an incapacity plan is advisable. If a plan is put in place, then guardianship proceedings would not be necessary.

Getting Help from Overland Park Probate Attorneys

Overland Park probate attorneys at Parman & Easterday can help you to create an incapacity plan so your loved ones do not have to go to court if you become incapacitated. If you have advanced plans, including a power of attorney, then a guardian or conservator won’t have to be named and you can control who makes decisions on your behalf once you become unable to act of your own accord. We can also provide assistance to anyone who needs to go to probate court, whether for guardianship or conservatorship proceedings or to complete the probate process after a death has occurred.

To find out more about the services our firm can offer with all of your probate needs, join us for a free seminar. You can also give us a call today at (405) 843-6100 or contact us online at any time. Call today to get an advocate on your side to help you navigate the probate court process.