Understanding the Concept of Legal Guardianship
The term "Legal Guardianship" is one that many have heard of but few actually understand what it means. If someone mentions "Guardianship" most people automatically link that to the Guardians of the Galaxy movie series and the intergalactic heroes that protect the galaxy from villains.
But Legal Guardianship is actually much more pedestrian in nature.
Legal Guardianship, sometimes referred to as Adult Guardianship, is a Court ordered arrangement appointing someone other than the individual to assist them in making decisions for their own welfare and/or making decisions for them. The person appointed by the Court is known as the Guardian.
Often, the Guardian makes all financial and healthcare decisions on behalf of the incapacitated individual. Basically the Guardian is given full control and complete decision-making power in the incapacitated individual’s affairs . This is done because the Court believes that the person who is unable to care for him or herself will be better off under the watchful eye of another.
The powers granted to the Guardian can vary. The Court in Hawaii has discretion in determining exactly what powers to grant based on what it feels is in the best interest of the incapacitated individual.
Legal Guardianship is never a permanent measure that once in place, cannot be altered in any way. The Court has the discretion to change the terms of the Guardianship whenever it is in the best interest of the incapacitated individual.
A Guardianship over the person is only effective while the individual functions in a manner which incapacitates him or her from making decisions for him or herself. It is not uncommon to have the Court revisit the guardianship to see if the terms of the Guardianship are still appropriate. When the Court orders a Guardianship to end, then the terms of the Guardianship are no longer effective, and the person regains their personal liberty.
Different Forms of Guardianship in Hawaii
Hawaii, like many other jurisdictions, offers various types of legal guardianships to address the specific needs of the persons in question. These types are generally categorized into guardianships for minors and those for incapacitated adults.
Guardianship of a minor is a legal arrangement where a person or entity is appointed by the court to manage the affairs of a child who is under the age of 18. The minor’s parents, or legal custodians, generally retain physical custody of the child, but the guardian handles financial matters, medical decisions, schooling, and in some cases, personal matters. The forms needed for guardianship of a minor usually include the Petition for Appointment of Guardian of Minor, Consent of the parents/responsible party, the Adverse Interest Statement, the Proposed Order, and the Certificate of Service.
Guardianship of an incapacitated adult, also known as guardianship of the person, attributes similar responsibilities to those of a guardian of a minor. However, this arrangement applies to individuals who have reached the age of majority (18) but are unable to manage their own affairs due to mental or physical disabilities. The forms required for guardianship of an incapacitated adult may include a similar Petition as that for a minor, but with adjustments reflecting the needs of an adult, an Affidavit of Nomination, and often, the Consent of the proposed guardian.
In both categories, the guardianship can be full or limited in scope, depending on the needs of the person for whom the guardianship is sought. Full guardianship may involve the guardian making all decisions regarding the personal affairs of the individual, while limited guardianship restricts the powers of the guardian to only those areas where their assistance is actually required. Careful attention must be paid to the requirements for each type of guardianship and the accompanying forms, as failing to submit proper documentation can delay the process or ultimately result in the denial of the petition. It is always recommended to consult with an attorney who has experience with guardianships to ensure that all the appropriate forms are completed and filed properly.
Key Forms for Guardianship
Specifically, forms required for establishing a legal guardianship in Hawaii include:
- Petition for Appointment of Guardian(s) of an Incapacitated Person (Form 11) (in cases where there is no will or trust)
- Petition for Appointment of Guardian (Form 11) (in cases where there is a will or trust)
- Report of the Guardian Form 11
- Proposed Plan of the Guardian for Personal Well Being (Form 11)
These four forms serve various purposes in the guardianship process. Form 11 petitions for the appointment of a guardian of an incapacitated person by the Hawaii Probate Court, including the appointment of a limited guardianship (i.e. one that provides authority to a guardian over some but not all of the affairs of an incapacitated person). A limited guardianship is supervised in the same fashion as a general guardianship, although different standards and considerations may apply to a limited guardianship. The statute governing guardianship in Hawaii that largely describes Form 11 is Hawaii Revised Statute § 560:5-307 through § 560:5-313. In addition to describing the background and current circumstances of the ward, these forms also require a "Physician’s Certificate" from a qualified doctor regarding the condition of the ward. Note that this requirement has been eliminated for the appointment of a successor guardian, however it is still required for the initial appointment of a guardian.
Submitting Your Guardianship Paperwork
As with anything administrative in Hawaii, filing forms can be complicated. The following is a description of the forms that must be filed with the court for guardianships, but this is not the step-by-step process for getting a guardianship appointed. That process is actually very involved, and there are specific steps and deadlines related to filing the guardianship forms.
As described in the Forms section above, if you are filing:
You will need to file the following with the Family Court where the proposed ward resides, or the circuit court identified in the Petition if the proposed ward does not live in Hawaii:
Service of Process. Next, the service of notice that must be served on the "appropriate parties" (described in the Who Must Be Noticed Section above). Service must be completed 10 days prior to the return date, which is also commonly referred to as the hearing date. The requirement that the Service of Notice occur 10 days prior to the return date is usually extended to 10 days from the date the service was made for any "non-appearance" parties.
Proof of Service of Notice. You will then need to file a Proof of Service of Notice prior to the return date, to prove that each appropriate party was served as explained above.
Then what? The following forms must be filed with the court at least 2 days prior to the hearing.
Frequently Made Errors – and How to Avoid Them
Common mistakes when completing or filing guardianship forms in Hawaii include forgetting to obtain all relevant signatures, omitting essential information, and filing documents with the wrong circuit court. In some cases, incorrect forms are used or the documents are completed incompletely or incorrectly. Tech-savvy individuals may fail to take advantage of electronic filing capability, creating unnecessary paper documents that are filed and stored rather than following the more efficient and cost-effective e-filing process.
Missing documents, such as proof of service or mandatory family court forms, can result in rejected filings or multiple hearings. The person completing the legal guardianship papers must ensure that he or she understands the forms and is able to provide adequate documentation and information . Seeking help from a Kauai guardianship attorney alleviates these mistakes.
Others may submit a blank petition for appointment, using it as the first step in locating the right forms. Not having a specific form can hold up the process for much longer than it should and can result in having the incorrect forms filled out.
While it is tempting to wait until the last minute with any legal documents, failing to plan ahead and prepare is especially detrimental when it comes to guardianship forms. Recipients need adequate time to review their role, to consider how complex the situation will be, and to discuss the guardianship with legal counsel.
From start to finish, the forms require strict adherence to deadlines and requests for additional information requested by judges. Failing to abide by any timelines could result in a denial of the request to serve as guardian.
When to Obtain Legal Guidance
In certain cases, seeking professional legal assistance may be beneficial or even necessary. For instance, if the proposed guardian has not been in the child’s life recently, the mother or father who confirms the proposed guardian’s qualification may have concerns about doing so (or may not want to be contacted to contest the appointment). In these scenarios, there is an even higher likelihood that direct filing of the Petition will fail. In such situations and others such as during a contested Guardianship action, a lawyer may assist with information and effective preparation of the pleadings and legal documents needed for a successful filing.
Helpful Resources and Support
Navigating the guardianship process in Hawaii can be particularly challenging, but fortunately, there are local resources and support systems available to individuals and families seeking guidance. The Hawaii State Judiciary provides a guide to guardianship as well as a volunteer program (the Senior Guardianship Program) that involves retired or inactive attorneys who advise and assist individuals representing themselves in guardianship proceedings.
Community organizations that focus on elder law and special needs are also available to provide support, such as the Hawai’i Disability Rights Center and the Hawaii State Bar Association, each of which offers resources and referrals to attorneys specializing in guardianship matters.
Hawaii’s Office of Elections is a valuable resource for individuals who have questions about the voting rights of individuals under guardianship, as well as the voting process in general. The Office of Elections provides clear guidelines on how to determine an individual’s capacity to vote and how to assist individuals in registering to vote and casting their ballot.
Through the Hawaii Disability Rights Center, individuals can access The PABST (Person Adapting to Be Specially Treated) Project, a free statewide service that assists individuals with disabilities, including children, with special needs planning related to the guardianship process . The PABST Project provides information and resources related to Advance Directives, Legal Planning, Health Care Providers, Accessing Community Resources, Individual Education Plan (IEP) or 504 Plan, Budgeting and Managing Money, Social Security/Medicaid Information, and much more.
The Hawaii Developmental Disabilities Council (HDDS) can also offer information specific to individuals with developmental disabilities or acquired disabilities such as brain injury. HDDS aims to help individuals with disabilities receive services to live independently, have paid employment, and play meaningful roles in their communities. HDDS is a federally funded organization that operates through the Department of Human Services and works to empower and support people with developmental disabilities and their families.
The Hawaii State Bar Association also publishes an hour-long Family Law Segment on YouTube, which includes segments on Guardianship of the Person and Property, Conservatorships, and Joint Guardian/Conservator for Adults.
Families serving as caregivers, as well as individuals who may be in need of guardianship services, can also look into the Age-Friendly Hawaii initiative, which was developed with the support of the City and County of Honolulu and the Hawaii State Legislature to ensure that Hawaii becomes a place in which older adults can age in place and that their dignity and choices are respected.
To round out these recommendations, the U.S. Administration for Community Living which oversees the Medicaid Waiver Program lists a variety of organizations that focus on disability and aging resource assistance.