As the kupuna of our families go through the aging process, there may be times when other family members need to take over as decision-makers for certain aspects of their lives.
This type of arrangement, known as guardianship for an incapacitated adult, can occur if any adult relative becomes mentally or physically incapacitated.
Guardianship for incapacitated adults can be limited or unlimited. In a limited guardianship, the court grants specific powers, such as only medical decisions or tasks, which might include ordering prescriptions, obtaining a disabled parking pass, or securing a service animal.
An unlimited guardianship allows one to make all of the decisions for the incapacitated adult, including financial decisions, such as receiving money on their behalf and using that money to pay for their expenses. Whenever feasible, the Court grants only those powers which are necessary due to the adult’s limitations.
In order to establish legal guardianship of an adult, one must file a standard petition with the court explaining who requires guardianship and why, the proposed guardian, and a note from a physician explaining how that adult is incapacitated.
The court prioritizes potential guardians in the order of relationship to the incapacitated person in the following order:
- Parents
- Siblings
- Children
- Unrelated caregivers
The person petitioning for guardianship will also need to notify any other potential guardians and request a waiver and consent from them.
The court then schedules a hearing in which the petitioner provides the judge with the doctor’s letter, any waivers from other potential guardians, and a financial report for the incapacitated person. If there is a current caregiver, such as a nursing home, they will also need to be notified.
A petition for guardianship is usually granted if the reason for the request is confirmed by a physician and there are no objections by other potential guardians.
Following an approved petition, the potential guardian will need to file reports to the court annually, including information about the condition of the incapacitated adult and the status of their finances.
Overall, establishing guardianship for an incapacitated adult in the state of Hawaii can be easily navigated with the help of an experienced attorney. Seth Harris, senior associate with the PMK Family Law Division, is able to take you through the steps so you can make the best possible decisions for your kupuna.
