Legal Guardianship in Hawaii Explained: What You Need To Know

Legal Guardianship Defined

Under Hawaii law, a "legal guardian" of an individual is someone who has been appointed as the person charged with the care, custody and control over the person’s harm. In short, legal guardian refers to the person responsible for the well-being of another person.
In Hawaii, the guardianship system is separate from the parents’ responsibility for a person. For example, adult development disability services (ADSD) provides for a supplemental service in which a parent may delegate their guardianship authority over the child for Medicaid eligibility purposes. On the other hand , although the Hawaii Department of Human Services (DHS) is the guardian of a minor, DHS is also the designated agency for the adult and children programs of the federal Medicaid program.
Generally, Hawaii courts determine that a person is legally incapacitated; at the same time, the court will appoint a legal guardian for that person. In many cases, the court determines the person’s legal capacity by clear and convincing evidence. However, there are instances where a court concludes that a person will be incapacitated by reason of the person’s physical condition in the future and therefore must appoint a legal guardian before incapacity occurs.

The Different Types of Legal Guardianships in Hawaii

In Hawaii, there are several types of legal guardianship recognized under the law. These include guardianship for minors, guardianship for adults, temporary guardianship and permanent guardianship.
Guardianship for minors, or children under the age of 18, can be either temporary or permanent, depending on the circumstances. A petition can be filed with a family court showing that a child is in need of a legal guardian. In these cases, the family court can either appoint someone as a temporary legal guardian of the child, or issue an order to appoint permanent guardianship of the child.
The family court may only appoint a guardian for a minor if it deems by a preponderance of evidence that both of the following conditions existed: Guardianship for adults works differently and is sought for different reasons. Unlike guardianship of minors, the guardianship of an adult is not necessarily appointed by family court. The reason those seeking guardianship of an adult do not petition the family court is because the court does not generally have jurisdiction over adults, whereas it does have jurisdiction over children.
For example, adult guardianship is typically sought through the probate court – which has jurisdiction over adults – if the individual who has become disabled is either wealthy enough to have put together a living trust or has a will that leaves property to be distributed pursuant to the notice requirements of Hawaii probate code. A guardian of an adult may be either temporary or permanent, but it is only permanent upon the death of the guardian. The court may designate a guardian for an adult incapacitated person if a petition establishes by clear and convincing evidence all of the following: With regard to temporary guardianship of minors or adults, Hawaii law allows temporary appointment of a guardian if the adult is incapacitated because of medical care, disability or other reasons. Temporary guardianship can be granted by the probate court.

How To Obtain Guardianship In Hawaii

The process of applying for guardianship in Hawaii varies depending on the age of the ward and which type of guardianship is being applied for, but generally the process remains similar. Secure Medical Evidence The appointment of a guardian relies upon the existence of facts demonstrating the necessity for guardianship, in order to fulfill the court’s requirement of establishing that the person needs specific protective assistance. One critical step is to secure medical evidence, such as a medical report or psychological examination report, which would set forth a diagnosis of the person’s incapacity. It is possible to have an informal review of the situation through simply obtaining a medical examination from a doctor or psychiatrist, which will be reviewed by the Office of Elderly Affairs, a part of the Department of Community Services of the City and County of Honolulu. Obtain Required Legal Documents A guardianship petition form, approved by the state judiciary is required in order to file for guardianship. The current form can be found in the clerk’s office of each court district of the state, or from the Office of Elderly Affairs. A list of all the documents needed to be filed with the petition form is available from the Office of Elderly Affairs, as well as their locations throughout the islands. The completed petition must then be submitted to the court district that has jurisdiction, along with any required supporting documentation. Attend a Hearing Those who seek guardianship, as well as the proposed ward, must appear at a hearing in front of a judge. At this time, anyone who believes that they have a claim to be a guardian will be given the opportunity to appear before the judge. The law requires that anyone who chooses to serve as a guardian or who is appointed a guardian, will need to post a bond with the court, payable to the state of Hawaii. This serves as a type of ‘fiduciary insurance’ that ensures that the ward’s estate will be protected, with the condition that the guardian not abuse their legal position in any way. The exact amount of the bond required depends on the value of the assets pertaining to the initial appointment of the guardian. Once a guardian is appointed, however, there is no need for a bond increase or decrease, which also alleviates the need for ongoing petitions to the court. It is recommended that any respondents (those who would be opposed to the guardianship) be given notice relating to the filing and approving of the guardianship petition. They should not be requested to sign authorizations or consent, as those actions might be interpreted as admission of the ward’s disability, therefore making them unable to prosecute their claims against the petition. It is wise to hire an attorney when dealing with a guardianship application or case, as these cases are often complicated and can become difficult to navigate if you have no previous experience or knowledge of the process or any of the laws relating to those situations. Additional family and financial information is essential to applying for guardianship for a dependent person.

Legal Rights & Responsibilities Of A Guardian In Hawaii

Once appointed, a legal guardianship in Hawaii continues in effect until the death of the ward or until the ward is found to no longer require a guardian.
A guardian in a guardianship in Hawaii has the following rights:

The right to receive all of the income and profits from the estate of the ward.
The power to dispose of the ward’s personal property (such as clothing and jewelry) that is unsuitable for him, her, or them, and the right to receive the proceeds thereof.
The right to the service, deposits, and rents from the ward’s real property.
The right to the appointment of an executor or administrator on the ward’s estate of inheritance if the ward dies intestate.
The right to pay all expenses incurred in the management of the ward’s estate out of any moneys belonging to the ward or to the ward’s estate after first applying the moneys referred to in the next number .

The duties of a guardian in a legal guardianship in Hawaii are the following:

The duty to apply the income and profits of the ward’s estate, and all other moneys or effects of the ward, which have come into the possession of the guardian or into the possession of any previous guardian, to the maintenance, support, and education of the ward, or to the ward’s family, when such guardianship is created for that purpose. If the guardianship was not created for that purpose, the duty ceases upon the ward attaining 18 years of age. In either event, the duty will cease upon the death of the ward.
The duty to apply all the ward’s income, profits or stock belonging to minors, so long as the ward is considered a minor child, to the normal maintenance and education of the ward’s family.
The duty to deposit all funds in excess of $100, which belong to minors and have come into the possession of the guardian by reason of the guardianship with the trust department of a bank chartered in the State. Such moneys shall be placed in the name of the ward, as "In Trust" and shall not be withdrawn except on the order of the court.

Challenging or Ending A Legal Guardianship

While every adult that has a guardian in Hawaii is entitled to periodic hearings to review their condition, sometimes a guardianship can be contested. Reasons for contesting a guardianship order in Hawaii vary, but commonly include:
A common reason a guardian is replaced is because the person or entity who serves in that role moves out of state or becomes ill or incapacitated. A guardian in Hawaii can also be removed for misconduct or mismanagement. This rarely happens but can occur if, for example, the guardian prefers a personal vacation over taking a disabled person on an outing as part of their care or is neglectful in fulfilling their legal obligations. A guardianship will also terminate when the person who is under the care of the guardian dies. The law dictates that a guardian must submit initial and annual reports to the probate court regarding the status of guardianship and the well-being of the ward. If there are any concerns related to the care of the ward, the probate court may investigate and remove the guardian and appoint another.

Frequently Asked Questions About Legal Guardianships

What is the cost of obtaining legal guardianship in Hawaii?
Because the costs associated with legal guardianship are typically outside of government support, it’s critical to hire an experienced attorney who can file your papers accurately and expedite the process. While specific costs can vary depending on the complexity of each case, attorney fees range from around $300 to $500 per petition. Before hiring a guardianship attorney, it’s wise to inquire about the expected timeline and its associated costs.
How long does it take to get legal guardianship in Hawaii?
In most cases, it will take a minimum of 2 to 4 months to complete the legal guardianship process in Hawaii. It may take longer if there are complications. After your petition is filed, the court will appoint a physician to evaluate the incapacitated person, and once their report is received, a hearing will be scheduled. If anyone challenges the case, costs and timelines may soar, and court intervention may be necessary.
If I become the legal guardian of an incapacitated adult , can I inherit under their will when they die?
Incompetent individuals can continue to make a last will and testament until their legal capacity is revoked by a court. Once that happens, a conservator can be appointed to manage the estate, while the guardian handles personal affairs. However, a guardian cannot inherit under the will of a ward (those for whom they control, including minors) unless the conservator works with the guardian to establish a special needs trust that provides for the wards medical, educational, and therapeutic expenses.
Will I have the right to enter into contracts for my ward? What are the exceptions?
As long as you become the guardian of an adult pursuant to Hawaii Revised Statute Section 560:5-309, you do have the right to enter into any binding agreements with the estate of the incapacitated ward. That said, the ward must receive the majority of the benefits from such a contract, and you have to be able to demonstrate that it would benefit the ward to enter into it.