Pauline G. Dembicki Attorney at Law Chicago Volunteer Legal Services Foundation

Transcription

1 Pauline G. Dembicki Attorney at Law Chicago Volunteer Legal Services Foundation

2 ABOUT THE AUTHOR Pauline G. Dembicki is a solo practitioner in Evanston, Illinois. Ms. D. has published, lectured, received awards from and been a member of several reputable organizations. Pauline Dembicki 2901 Central Street Suite A Evanston, IL pltf1@aol.com 2

3 TABLE OF CONTENTS I. INTRODUCTION... 7 II. LAW AND LOCATION... 7 III. OVERVIEW... 7 A. GUARDIANSHIP OF THE PERSON... 8 B. GUARDIANSHIP OF THE ESTATE... 8 IV. THE CLIENT INTERVIEW... 8 A. WHEN IS THERE JURISDICTION?... 8 B. WHEN IS GUARDIANSHIP APPROPRIATE?... 9 C. ARE THERE ANY DISABILITY PLANS?... 9 D. SAMPLE CVLS ADULT GUARDIANSHIP CASE... 9 E. WHO IS ENTITLED TO NOTICE? V. MECHANICS OF FILING THE CASE A. INITIAL FILING B. GUARDIAN AD LITEM C. A FEW DAYS BEFORE PLENARY HEARING D. DAY OF PLENARY HEARING E. A WEEK AFTER PLENARY ORDER VI. LEVELS OF GUARDIANSHIP A. PLENARY B. LIMITED C. TEMPORARY

4 VII. NOTICE REQUIREMENTS VIII. REQUIREMENTS OF THE FORMS A. PLENARY GUARDIANSHIP PETITION FOR APPOINTMENT OF A PLENARY GUARDIAN (CCP-200) SUMMONS FOR APPOINTMENT OF A GUARDIAN (CCP-201) NOTICE OF RIGHTS OF RESPONDENT (CCP-201A) REPORT OF PHYSICIAN (CCP-211) ORDER APPOINTING A GUARDIAN AD LITEM (CCP-209) PETITION TO WAIVE APPOINTMENT OF A GUARDIAN AD LITEM BOND NO SURETY (CCP-313) BOND SURETY (CCP-312) BOND ADDITIONAL SURETY (CCP-339) APPEARANCE AND CONSENT NOTICE OF MOTION ORDER APPOINTING A PLENARY GUARDIAN (CCP-204) STATEMENT OF RIGHT TO DISCHARGE (CCP-214) INVENTORY (CCP-334) PETITION TO SUGGEST DEATH B. TEMPORARY GUARDIANSHIPS PETITION FOR APPOINTMENT OF A TEMPORARY GUARDIAN (CCP-202) ORDER APPOINTING A TEMPORARY GUARDIAN (CCP-203) ORDER OF DISCHARGE (CCP 381) C. LIMITED GUARDIANSHIPS

5 1. PETITION FOR APPOINTMENT OF A LIMITED GUARDIAN ORDER APPOINTING A LIMITED GUARDIAN (CCP-207) WITHDRAWING A PETITION FOR APPOINTMENT OF A GUARDIAN CONTESTED ESTATES IX. MATTERS THAT REQUIRE COURT APPROVAL SAMPLE FORMS Plenary Guardianships 1. Petition for Appointment of a Guardian CCP Exhibit A 3. Summons for Appointment of a Guardian CCP Notice of Rights of Respondent 5. Doctor s Report (Instructions) 6. Doctor s Report (Sample) 7. Order Appointing a Guardian ad Litem CCP Motion to Waive Appointment of a Guardian ad Litem 9. Order Appointing a Plenary Guardian CCP Bond no Surety CCP-313 (Rev. 7/25/95) 11. Bond Surety CCP Bond Additional Surety CCP-339 (Rev. 2-88) 13. Statement of Right to Discharge CCP Appearance and Consent 15. Notice of Motion 16. Inventory CCP-334 (Rev ) 17. Petition to Suggest Death 18. Petition for Successor Guardian 19. Order Appointing Successor Guardian (also prepare an accounting) 20. Designation of Resident Agent 21. Annual Report - Guardian of the Person Only Temporary Guardianship 22. Petition for Appointment of a Temporary Guardian CCP Order Appointing a Temporary Guardian CCP First and Final Accounting 25. Order of Discharge (Rev. 8/26/93) CCP 381 Limited Guardianships 26. Petition for Appointment of a Limited Guardian (Modify CCP-200) 27. Order Appointing a Limited Guardian CCP-207 (Rev. 2/22/93) 5

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7 I. INTRODUCTION This chapter looks at a typical CVLS adult guardianship (and more) case with many variables. Note that most CVLS guardianship cases are of the person only. A friend, relative or the Office of the State Guardian will serve as Guardian. There is no dispute as to who will serve as the guardian. Usually there is no objection on the part of the respondent as to guardianship or the proposed guardian. This chapter also includes matters that relate to guardianship of the estate. The chapter is organized into an overview of the guardianship court, a sample CVLS matter, the particular requirements of the forms and sample forms. The forms cover guardianship of the person and estate. Do not accept a guardianship case for CVLS that includes an estate unless you have office approval. II. LAW AND LOCATION Adult Guardianship cases are governed by the Illinois Probate Act of 1975 (755 ILCS 5/11a-1 et. seq., as amended), see also Rules of the Circuit Court of Cook County, Illinois as amended, and General Orders. All Adult Guardianship matters in Cook County are heard in the First District at the Richard J. Daley Center in the County Department, Probate Division. The court rooms and docket books are located on the eighteenth floor. Before a guardian is appointed, and prior to adjudication, matters are generally heard on the 11:00 AM call. After a guardian is appointed, or after adjudication, matters are heard on the 10:00 AM call. Contested matters are held at times determined by the Judge (usually 2:00 PM). Emergency matters are heard at times set by the Judge. Probate files, the cashier, bondsmen and blank court forms are available on the 12th floor of the Richard J. Daley Center. The guardianship forms are modified often, the index to this chapter lists the most recent forms as of the time of printing. However, the most recent forms may not reflect the most recent statutory requirements. Court Forms: CCP refers to the Cook County Probate forms. Other forms are office examples and not official court forms. III. OVERVIEW In guardianship court, the court transfers rights to the guardian to make decisions for a disabled adult. Although the court grants broad powers, it also maintains strong control over major decisions such as invasive medical care, placement in a residential facility, sale and management of assets, investments and financial expenditures. The guardian must act in the best interests of the disabled person. 7

8 Guardianship has two parts, of the person and of the estate. The same person usually serves as guardian of the estate and person. Some respondents have a financial management plan (property powers of attorney or trusts) or are without funds. For these respondents, no estate guardian is usually necessary. Some respondents are able to make personal care decisions and only require a guardian to manage their estate. A. GUARDIANSHIP OF THE PERSON Decisions covered by guardianship of the person include personal ones such as routine medical and dental care, clothing, housing and food. B. GUARDIANSHIP OF THE ESTATE Decisions covered by guardianship of the estate include financial matters, for example management and collection of assets and payment of bills. IV. THE CLIENT INTERVIEW A. WHEN IS THERE JURISDICTION? The first step is to determine whether or not there is jurisdiction. The initial interview should also determine whether guardianship is suitable, whether the proposed guardian is suitable, whether other care plans are in place, and whether there is an emergency. The attorney should also determine who is entitled to notice and if the medical report is already prepared, whether or not it will support the guardianship. The guardian of a person must be at least eighteen years old, not convicted of a felony, and capable of providing a suitable program of guardianship for the disabled person. Recent amendments to the Probate Code now allow non- Illinois residents to serve as estate guardians. Complete a designation of resident agent form to meet the requirement (attached). Co-guardians usually complicate matters unnecessarily and should be avoided. One exception to this rule is when both parents are appointed as co-guardians of their disabled son or daughter when he or she reaches majority (age eighteen). 8

9 B. WHEN IS GUARDIANSHIP APPROPRIATE? The first step in guardianship is to determine whether the prospective guardian has appropriate reasons to seek guardianship. Motives that are appropriate include the need to make personal and financial decisions for the care of the respondent. Inappropriate reasons are usually based on control of another persons decisions. Ask the petitioner to attend the initial court hearing to describe the care plan to the Judge. This will help the guardian to understand the court involvement that continues after appointment. C. ARE THERE ANY DISABILITY PLANS? The initial interview should also review whether or not the respondent created any disability plans such as powers of attorney for health care, mental health or property, living wills, or trusts. If these plans are in place, the agent (or trustee) is entitled to notice and a question arises whether or not guardianship is appropriate. Ask whether a guardian has already been appointed. In medical decision making situations, the Health Care Surrogate Act should be considered before guardianship proceedings. Sweeping legislative changes to that Act, effective early in 1998 should be reviewed for personal care decisions. D. SAMPLE CVLS ADULT GUARDIANSHIP CASE The typical CVLS guardianship case for an adult is of the person only. An estate guardian is usually not required when the residential facility or the parent or caregiver is already the representative payee of the income which usually consists of SSI, social security or other retirement benefits. The forms to complete include: Petition for appointment of a Plenary Guardian Exhibit A Notice of Motion or Consents Bond-No Surety Summons Notice of Rights of Respondent Medical Report Order Appointing a Plenary Guardian. Order Appointing a Guardian ad Litem (for estate guardianships) In cases where the court filing fee and Sheriff s fees will be waived, you will also need to complete a Legal Services Provider form. 9

10 After reviewing the reasons for guardianship, examine whether the medical report supports a guardianship. Review the medical report to determine that it is legible, that it is signed by a medical doctor, that it is timely and that it contains a diagnosis. The date of examination cannot be more than 90 days before the date that the case is filed. If information is missing, a letter on physician letterhead can supply additional information or a new report can be completed. If the doctor says the patient needs help with some decision-making, a plenary guardianship is not appropriate. At the beginning, determine whether or not an emergency exists that would warrant a temporary guardianship. It is not wise to file a guardianship matter without a medical report. E. WHO IS ENTITLED TO NOTICE? You will need to interview the client and determine who is entitled to notice under the Probate statute. Rather than ask who the relatives are, ask more specific questions. For example, ask who is the mother of the respondent, who is the father, does the respondent have any children, does the respondent have brothers and sisters, is the respondent married, does the respondent have any powers of attorney, does the respondent have a guardian, and so forth. Persons who are entitled to notice do not lose the right because of lack of contact with the respondent or because they live out of state, out of the country or in prison. Determine where the respondent lives. In most CVLS matters, venue is appropriate in Cook County as the residence of the respondent. The Petitioner is usually the proposed guardian and will sign the petition for appointment of a plenary guardian. The proposed guardian will sign the bond form. If the Office of the State Guardian (OSG) will be the guardian, surety bonds are excused. In OSG matters, the plenary order should reflect that no other suitable and willing person could be located to serve as the guardian. V. MECHANICS OF FILING THE CASE A. INITIAL FILING Take five copies of the Petition for Appointment of a Plenary Guardian (with exhibit A ), and five copies of the Summons to the 12th floor of Daley Center. If this is a CVLS case, use a Legal Services Provider Affidavit in place of payment to file the case. At the time that the case is opened the clerk will assign a case number (e.g. 01 P 123), a calendar (e.g. Calendar 256) and a page number (e.g. Page 4). The case number identifies the year and chronological sequence of the number of cases filed in the probate division to date. The calendar assigns the case to a particular Judge. The page identifies the case for docketing purposes. 10

11 If the client is advancing fees you will pay a filing fee at the time that the case is filed. Next travel to the 18th floor to the courtroom of the calendar Judge that the matter was assigned to by the clerk. Note that the courts are closed between 12:00 p.m. and 1:30 p.m. Set a date for the plenary hearing, with the clerk in the courtroom about 30 days forward. The clerk will place the matter on the 11:00 AM call. Mark your calendar, the petition for appointment and the summons with the date, time and room number of the hearing. If a GAL is required, provide the Clerk in the courtroom with two copies of the Order Appointing a Guardian ad Litem. Now return to the 12th floor to have the Summons certified or issued. The clerk will place an impression seal on the summons and assign a number. The last part of your travels will take you to the 7th floor where you will place the summons for service and a copy of the Notice of Rights of Respondent with the Sheriff s Office. If it is a CVLS case, present them with an additional copy of the legal services provider form. The first clerk will price the service. Then visit a cashier and pay the service fee or present the Legal Services Provider form. The cashier will issue a receipt with a summons number printed at the top. If the respondent attends a workshop on weekdays, you may want to use this address for service of process. List the days and times of the workshop on the summons. If the respondent is hospitalized, take this into account when placing service. Service on the respondent must be completed no less than fourteen (14) days prior to the plenary hearing. Remember that if the respondent moves after you have placed summons, service is unlikely to be completed in time. Returning to your office, you will mail the notice of motion to all parties entitled to notice, including the nominated guardian. Fourteen days notice is required. B. GUARDIAN AD LITEM If and when a Guardian ad litem (GAL) is appointed, make a telephone call and provide the GAL with a copy of the medical report (via facsimile) and the current location of the respondent as well as the telephone number. You will receive notice by letter from the court indicating the name and address of the GAL. C. A FEW DAYS BEFORE PLENARY HEARING A few days before the plenary hearing date, call the sheriff s office to see if service was completed and whether or not it was timely. There is a writ number on the receipt from the cashier to identify the summons. If it was not served, 11

12 determine why and prepare an alias summons. The summons is valid for 30 days after issuance. If Alias Summons must be issued, you will need to re-set the plenary date. Counter service, on the respondent, is also an option in some cases. D. DAY OF PLENARY HEARING On the day of the plenary hearing, check in with the clerk. Smile and hand the Clerk in the court room all original documents, including Petition, Exhibit A, Medical Report, Bond, Statement of Rights, and Notice of Motion. Have the prospective guardian in court, prepared to briefly describe the care plan to the Judge. E. A WEEK AFTER PLENARY ORDER Approximately a week after the plenary order is issued, Letters of Office will be mailed to the attorney. Use your office address instead of the CVLS address on the court forms. The original letters of office should be mailed to the guardian, retaining a copy for the file. If the guardian needs currently dated letters of office, they can be ordered on the 12th floor. Always take a copy of the letters of office (when ordering copies), in case they are not in the court file. Have the file pulled, and place an order for copies. A fee is paid and sometimes the letters are ready later the same day. Sometimes it takes longer. Late in 1997, the Court began a compliance call requiring an annual report of the guardian of the person each year. (See Annual Report attached) You may ask the guardian to complete the form (legibly). If a guardian of the estate is appointed, about 60 days after the Plenary order is filed, you will appear in court to file the Inventory and make any adjustments necessary to the bond. At this time, with guardianship of the estate, a Petition for Expenditures is appropriate (a budget). The Inventory date is set when the plenary guardian of the estate is appointed (the date is listed on the plenary order). A date for the Annual Accounting is set at the Inventory hearing. VI. LEVELS OF GUARDIANSHIP In addition to the two distinct parts of guardianship (of the person and of the estate), there are three levels of guardianship, namely, plenary, limited and temporary. A. PLENARY Plenary Guardianships cover all decisions. 12

13 B. LIMITED Limited guardianships reserve specific rights to the respondent as set out in the order. C. TEMPORARY Temporary Guardianships are emergency matters that precede the appointment of a plenary guardian. Temporary guardianships continue for 60 days and may not be extended unless there is an appeal of the adjudication of disability issue. The powers of the temporary guardian are only those listed on the order appointing. VII. NOTICE REQUIREMENTS Notice requirements for all of probate division are more demanding than notices for other types of cases. In 1995 the class of persons entitled to notice of guardianship proceedings was expanded. Adult brothers and sisters, parents, spouses, and agents under powers of attorney are entitled to notice, see 755 ILCS 5/11a-8. If all or some of the parties entitled to notice are in agreement with the proposed guardianship, you may request Appearance and Consents rather than sending notice. (See sample in exhibits attached.) Notice is based on status or relationship to the respondent and not geographical location, interest in the respondent or contact with the respondent. Therefore persons entitled to notice who happen to live in jail or out of the state or country are still entitled to notice. Notice requirements can be waived by the person entitled to notice by use of the Appearance and Consent. Notice requirements do not end upon appointment of a guardian. In all of the following categories, notice shall be given to all persons who have filed an appearance by counsel or pro se and any other party granted notice by the court. Parties who have shared ownership interests with the respondent are also entitled to notice, i.e. joint tenants, tenants in common. Notice categories after a guardian is appointed include: contested matters; restoration; final account; annual accounts. Temporary Guardianships usually go forward in less than 14 days. For notice of Temporary Guardianships see 755 ILCS 5/11a-4. The court will indicate who needs notice. It is best to notify all persons entitled to notice under a plenary petition. If there is insufficient time for notice by mail, give telephone notice. Guardianship forms are self-explanatory. Nonetheless, the next section will review the particular items that must be included on the forms. 13

14 VIII. REQUIREMENTS OF THE FORMS A. PLENARY GUARDIANSHIP 1. Petition for Appointment of a Plenary Guardian (CCP-200) Care must be taken to provide notice required by law. This is a jurisdictional requirement and lack of notice will delay entry of a plenary order. Recent amendments (1995) to the notice requirement include agents appointed under the Power of Attorney Law, spouse, adult children, parents and adult brothers and sisters, if any, if none the nearest adult kindred. The persons entitled to notice should be listed on Exhibit A along with their relationships (and addresses) to the respondent. The diagnosis and reason for the guardianship must be completed. The court requires the original medical report signed by the physician. 2. Summons for Appointment of a Guardian (CCP-201) This must be served 14 days prior to the hearing, even if the respondent will appear in court. Personal service is required. Counter service is an option. 3. Notice of Rights of Respondent (CCP-201A) This form is served by the Sheriff or Special Process server along with the summons and petition for appointment. 4. Report of Physician (CCP-211) Ask the doctor to type the report if at all possible. Review the medical report before you take it into court. If the report is not legible, you may make another trip to court and delay appointment of the guardian. Also review the report for the following contents: physical and or mental condition or diagnosis, the nature of the disability and how it impacts on the ability of the respondent to make decisions. If the report is incomplete, you will have to appear in court again to provide an addendum report. The report must be completed by a medical doctor licensed in Illinois. A doctor of osteopathy (D.O.) meets this requirement. The medical report must be based on an examination no more than 90 14

15 days prior to filing the case. Stale medical reports will delay the matter from proceeding to an adjudication until a current medical can be obtained. Determine whether the physician report is parallel to your petition request, e.g. partially vs. fully incapable and limited vs. plenary guardianships. 5. Order Appointing a Guardian ad Litem (CCP-209) A Guardian ad litem is usually appointed when an estate is involved or when a Temporary Guardianship is requested. The court appoints the guardian ad litem (GAL) after the plenary petition is set for hearing and the petitioner s attorney is notified by mail. In Temporary Guardianship matters, a guardian ad litem is often appointed much sooner. Call the Guardian ad Litem when you receive notice from the court of their name and provide them with a copy of the medical report, current location of the respondent, background and applicable telephone numbers. Also, advise the caregiver or facility where the respondent lives of the upcoming visit. The guardian ad litem is entitled to a fee for services. The GAL advises the respondent of their rights under the Probate Act and determines whether or not the respondent has any objections. 6. Petition to Waive Appointment of a Guardian ad Litem There are times when appointment of a guardian ad litem will be waived. Factors taken into consideration include: when the respondent will be present in court on the plenary court date; a medical report indicating that the respondents condition indicates that receipt of information and a response to that information will not be meaningful (i.e. respondent is in a coma). The degree of relationship between the proposed guardian and the respondent will also be taken into consideration. Whether or not funds are available may also be taken into consideration. A petition to waive appointment of a Guardian ad Litem should be raised before setting the matter for a plenary hearing. In late 1997 a volunteer GAL program was revitalized and may change the need for this petition. 7. Bond no Surety (CCP-313) This bond is used when only guardianship of the person is requested or in cases where a one person will serve as guardian of the person and another will serve as guardian of the estate. Have the bond signed by the guardian and notarized before the plenary return date. 15

16 8. Bond Surety (CCP-312) Have this form completed and stamped by a bondsman when guardianship of the estate is requested. This is an insurance policy purchased with the funds of the respondent to insure responsible performance in financial matters by the guardian of the estate. It protects the respondent from theft, mismanagement or embezzlement. The bondsmen are on the 12th floor of the Daley Center. This bond is not generally used for temporary guardianships unless the temporary guardian handles money or handles some asset of the respondent. This should be prepared before the plenary hearing. The amount of personal property is bonded at one and one-half times the total value of the personal property, including annual income. Real property is not bonded unless it is in a land trust. An annual premium is due each year on the bond. 9. Bond Additional Surety (CCP-339) If additional assets are discovered after filing the petition and before the Inventory date, this bonds needs to be completed so that all personal assets are protected. This bond is filed at the Inventory date or at a later date if additional assets are discovered. Note: The Bond for Sale of Real Estate is available on the 12th floor of the Daley Center. 10. Appearance and Consent This form can be used in lieu of the Notice of Motion to interested parties (but not the respondent). (Not a court form.) 11. Notice of Motion Use this form to notify parties listed on Exhibit A of the plenary hearing and any hearings after appointment of a guardian. 12. Order Appointing a Plenary Guardian (CCP-204) The factual basis for appointment of a guardian must include the doctor s name, and diagnosis as well as GAL participation (if appropriate). If the Office of the State Guardian is appointed as guardian, a statement should 16

17 be included that no other person is available to serve as guardian. The court must specifically find that a limited guardianship will not provide sufficient protection for the disabled person and/or his estate. (755 ILCS 5/11a-12(b). If an individual is appointed as the guardian, the order should also include language that the court finds that the guardian is capable of providing a suitable careplan for the respondent. Note that at the bottom of this form the clerk will assign your inventory date, if a guardian of the estate is appointed. 13. Statement of Right to Discharge (CCP-214) After appointment of a guardian, the court mails this form out to the respondent. Write the name and mailing address of the respondent on the form. 14. Inventory (CCP-334) This lists the assets owned by the respondent (individually, joint tenancies, tenancies in common, tenancies by the entirety) as of the date that the guardian of the estate was appointed. Include all personal property and real estate. List bank account numbers and identify any totten trusts or other known titling and ownership interests. Include expectancies of income, e.g. social security and pension income. The inventory is filed at a court hearing at a date set by the clerk and the attorney at the date of appointment of the guardian. The date is generally 60 days after appointment of the guardian of the estate. If additional surety is required, present the bond for additional surety at this time. If the Petition to appoint a Guardian over-estimated the value of the estate, you may petition to reduce the bond, nunc pro tunc. The inventory is filed in the courtroom on the 10:00 AM call. After the Judge approves the inventory, the clerk will assign the date for the annual account. 15. Petition to Suggest Death Use this petition when the respondent dies, even if it is before appointment of a plenary guardian. If there is only a guardianship of the person, an order of discharge should also be prepared. If there is a guardian of the estate an accounting must be prepared, along with appropriate notice, certificate of vouchers and an order of discharge. 17

18 B. TEMPORARY GUARDIANSHIPS 1. Petition for Appointment of a Temporary Guardian (CCP-202) This is an emergency procedure when the guardianship cannot wait for the plenary return date. The immediate welfare of the respondent is of paramount concern. You must recite the harm that you want to protect the alleged disabled person from specifically in the petition and order. A Petition for Plenary Guardianship must be filed simultaneously or prior to a Petition for Appointment of a Temporary Guardian. Appointment of a temporary guardian is not an adjudication of disability and is limited to sixty (60) days in duration. In some limited circumstances a temporary guardianship may be utilized to spend down assets for purposes of public aide. Please note that any time that a temporary guardian handles assets in a temporary guardianship, a bond is necessary. An accounting of the temporary guardianship is also necessary at the conclusion of the temporary guardianship. 2. Order Appointing a Temporary Guardian (CCP-203) This order must recite the harm identified by the court as well as the rights vested in the temporary guardian by the court. Examples of reasons why a temporary guardianship may be warranted are: discharge from hospital and placement in a nursing home or other residential facility; spend-down of assets to qualify for public aid (very limited); consent to invasive medical procedures. Emergency mental health procedures (e.g., forced medication or electro-convulsive shock therapy) are handled in the County Division. 3. Order of Discharge (CCP 381) This order releases the temporary guardian after an accounting or report of their administration is approved with the court. If the temporary guardian is appointed as the plenary guardian of the estate, the form is modified as set out in the example attached and the bond continues rather than being canceled. 18

19 C. LIMITED GUARDIANSHIPS 1. Petition for Appointment of a Limited Guardian For a limited guardianship petition, you need to modify the plenary guardianship petition (CCP-200). Unlike a temporary guardianship where the rights granted to the guardian are enumerated, in the limited guardianship, the reverse applies. In a limited guardianship the rights that are reserved to the respondent are enumerated. Appointment of a limited guardian is not an adjudication of disability. The current court form does not exactly mirror the statutory language as to the finding of no adjudication of disability. 2. Order Appointing a Limited Guardian (CCP-207) The Order appointing a limited guardian of the person and/or estate lists the duties and powers of the guardian and the legal disabilities to which the respondent is subject. 3. Withdrawing a Petition for Appointment of a Guardian After a guardianship case is filed, leave of court is required to withdraw the petition. The court may also require a medical report that indicates that the status of the respondent does not warrant a guardianship. Filing for guardianship often results in agents under powers of attorney coming forward. When creation of the powers is not challenged, this may be a reason to request a dismissal of the guardianship. If actions of the agent are not challenged, this may warrant dismissal of the guardianship. Also note that the objections of the respondent to guardianship or the proposed guardian is not an appropriate reason to withdraw the petition unless another guardian is proposed. 4. Contested Estates The respondent has the right to object to the guardianship as well as to the nominated guardian. If that happens, an attorney may be appointed to represent the interests of the respondent at a contested hearing. Note that if the guardian ad litem takes a position adverse to that of the 19

20 respondent, that person is usually not qualified to serve as counsel for the respondent. In some guardianship matters, there are two (or more) persons who want to serve as guardian. In that instance there will be a contested hearing. All parties are responsible for their own attorney s fees, in most instances. Some contested cases are appropriate for mediation or the settlement calendar instead of a trial. The Settlement Calendar is handled by one of the probate Judges (not the calendar Judge). In this situation, the parties file a pre-trial memorandum with the history of the case. The attorneys (and litigants where appropriate) work out an agreement. If an agreement is not reached, the matter is transferred back to the calendar Judge for a hearing. The issue of adjudicated is reserved to the assigned calendar judge and is not a settlement issue. Adjudication must be determined before a matter is transferred to the settlement calendar. IX. MATTERS THAT REQUIRE COURT APPROVAL The guardian of an estate does not have unbridled authority to make decisions for the disabled adult. Following are several areas that require specific court authority: Petition to Sell Personal Property Petition to Sell/List Real Property Petition for Placement in a Residential Facility Petition to Consent to Invasive Medical Care - Consider Surrogate Health Care Act Petition to Transfer Matter to County Department for Mental Health Proceedings Petition to Create a Trust or Estate Plan Annual and Final Accounts Petition for Attorneys Fees Petition for Guardian Fees Petition for Restoration Petition for Repairs to Real Estate When questions arise as to the Guardian s authority to make expenditures, court approval is an option. Court approval on expenditures protects the disabled adult as well as the guardian from later allegations of misuse of funds. Note that if court authority is not secured in advance for expenditures the guardian may be subject to a surcharge of amounts later determined to be improper. 20