Guardianships

By Eileen M.S. Nims, J.D.

There are two ways in which a person can receive guardianship over an incapacitated individual: Power of Attorney and Guardianship Petition. 

Medical Power of Attorneys allow you to designate ahead of time, who is going to be able to speak for you when you no longer can. For many Molokai adults, this is an easy possibility to ensure you have an advocate who can talk to your doctor, your insurance company, a care-home etc. when you no longer can. It avoids confusion and provides clear instructions as to who you have chosen and directed that person to do on your behalf. Some people, however, never or no longer have the capacity to create a power of attorney. This is because the power of attorney always requires the person who signs it to be mentally capable to do so. If a person is not capable of creating a medical power of attorney, then a family member or other caring person may hire a guardianship attorney to petition the court for guardianship. 

Guardianships are when certain people who want to care for you ask permission from the court to do so. The court will provide them with the proper documents, so the care person is then able to make decisions on the incapacitated individual‘s behalf. Because this strips a person of their own decision-making power, the court requires a lot of proof that the individual who needs care actually is no longer capable of making arrangements and decisions for themselves. This means that the person petitioning the court for guardianship will have to come with medical records that show the judge why guardianship is necessary. Often, the judge will send an evaluator to meet with the person needing care, ensuring that the person truly requires a guardian to make decisions for them. The courts use the term Kokua Kanawai for such an evaluator. 

The Legal Aid society of Maui might be able to assist Molokai families who need guardianship based on their financial circumstances. If you don’t qualify for Legal Aid, or they are unable to assist, then the Family Court of the Second Circuit has all the forms available online with the instructions to file for guardianship. You can find these by going to the website at courts.state.hi.us  and select the “Self-Help” tab at the top of the page. Then select “Court Forms” and select “Family Court” under the “Second Circuit.” On that page, scroll all the way down to “Guardianship of an Incapacitated Person.” There you will find all the forms and instructions you need to file the petition.

Medical Power of Attorneys and Guardianship is for the care of a person, not for the persons’ finances. A different petition and power of attorney are required for taking over someone’s finances. 

If you want to receive individualized legal advice with regards to these Power of Attorney documents and Guardianship Petitions, please feel free to contact Eileen M.S. Nims, J.D. at eileen@nimsesq.com or by phone at (808) 664-1834.