The stakes are high in a guardianship dispute. Because guardianships are established in court, ending or changing a guardianship cannot occur without court intervention. Read on for an overview of the motions which can be made in a guardianship dispute, as well as advice from attorneys about avoiding the need for a court-appointed adult guardianship in the first place.
Court Ordered
The process of disputing, replacing or terminating a court-appointed guardian can only occur through court proceedings. Essentially, once in place, it is very difficult to change or end a guardianship. That’s why, as Brady Cobin Law Group explains, establishing a guardianship for an adult should only be done when absolutely necessary: “Because a court already deemed them legally incompetent, an incapacitated or incompetent adult ward cannot petition for their removal of a guardian. Instead, a friend or family member must file the appropriate petitions and documentation to remove the guardian on behalf of their loved one.” Common reasons why someone may petition to remove a guardian include:
- They don’t believe the person qualifies for guardianship as an incompetent or incapacitated person.
- They believe another person would make a better guardian than the petitioner’s recommendation.
- They believe the guardian has failed in their duties to provide adequate or appropriate decisions for the ward.
- The guardian only acted as a child representative for a minor ward; the ward is now legally an adult.
Essentially, to remove a guardian, motions must be made in court to amend the original appointment. For example, motions can be made to set aside the court order, remove or replace the guardian or end the guardianship altogether:
- Motion to Set Aside the Order. This is essentially a re-do for the court to appoint a different guardian if the first guardian obtained the order through fraud, misconduct, misrepresentation, or other reasoning. You must file within a reasonable period shortly after the court appoints the guardian.
- Motion to Remove or Replace the Guardian. If you believe that the guardian has failed to perform their duties, mismanaged their duties as guardian, or is unsuitable as a guardian, you may petition the court to remove or replace the guardian. You may make a new recommendation for a guardian you feel is better suited.
- Motion to End Guardianship. If a dependent child ages out of guardianship or an incapacitated person becomes capable of a greater degree of decision-making, they may no longer require a guardian.
Alternatives to Adult Guardianship?
Though sometimes necessary, going to court to set up guardianship for loved ones who can no longer reliably make decisions for themselves can be difficult, and painful. Court involvement makes the matter public, and takes ultimate decision making away from the family. Attorneys point out that there are alternatives to guardianship, but they require proactive and timely intervention. For example, when a decline in capacity is anticipated or begins to be evident, authority over financial and health decisions can be legally assigned, without court intervention, via a power of attorney and health care power of attorney:
A guardianship grants very similar authority to that of a power of attorney, the main difference is the individual using a Power of Attorney was granted that power by the “grantor” and the Guardian is granted the power by the courts. A durable power of attorney avoids the need for a Guardian of the Estate, meaning the individual who was granted the power has the authority to handle all the necessary financial matters for the Grantor, including paying bills, contracting for care services, and handling investments, etc. The health care power of attorney avoids the need for a guardian of the person, as the HCPOA can make all of the necessary medical decisions when someone can’t make them for themselves any longer.
Good To Know: Guardianship Bonds?
Of course life circumstances do not always afford the time and opportunity to arrange power of attorney (POA) before a severe decline in capacity renders someone we care about unable to grant that authority. In those instances, court intervention to establish guardianship might become necessary. Given the seriousness of the role and responsibilities, guardians in many states are required to secure a guardianship bond: a type of fiduciary bond which protects the interests and affairs of “the ward.” The requirements of guardianship bonds vary from state to state, but as a national, direct writer, Colonial Surety provides bonds for every state.
At Colonial Surety, all fiduciary bonds, including guardian and conservator bonds are available directly and digitally. The steps to obtaining guardianship bonds are easy: get a quote online, fill out the information, and enter a payment method. Print or e-file the bond right from anywhere—even while at court or the law office.
Obtain Guardianship Bonds Here.
Family and Estate Law Practice?
Colonial Surety provides attorneys with complimentary business support services via The Partnership Account®. Once you sign up, you will have direct access to our complete online portfolio of court and fiduciary bonds–and your own private dashboard. Use it to quickly and efficiently obtain, track, manage and even e-file all the bonds needed to keep your clients and cases moving forward.
Colonial’s digital bond portfolio includes: administrator, estate, executor, guardian, personal representative, probate, trustee and conservator. We also have: appeal, supersedeas, injunction, replevin and receiver bonds—and more.
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Founded in 1930, Colonial Surety Company is a direct writer of surety bonds and insurance products. Colonial is rated “A Excellent” by A.M. Best Company, U.S. Treasury listed, and licensed for business everywhere in the USA.