Guardianship
Guardianship refers to the authority to make decisions on behalf of an adult individual who has been deemed incapacitated by the court. The standard for incapacity involves an analysis of whether the individual can manage their financial resources and/or meet essential requirements for their own health and safety. The first step for a party interested in pursuing guardianship of someone is to file a petition with the court. It will be necessary to secure expert testimony regarding the extent of the incapacity and the potential necessity for a guardian. The Petitioner has the burden to prove incapacity by clear and convincing evidence. Notice of the hearing and a copy of the petition must be served on the individual for whom guardianship is sought (Respondent) explaining in plain language the possible ramifications of the forthcoming legal proceedings. Notice must also be given to additional interested parties such as family members.
Following the hearing the court must determine if guardianship is appropriate. First, the court must designate if it is limited guardianship or plenary guardianship. Limited guardianship is appropriate where the Respondent is not totally incapacitated. In this case, the court must delineate what powers the Petitioner will have. The court must also indicate the duration of the guardianship. The appointed guardian must act for the best interests of the Respondent and file a report each year with the court regarding the ongoing care of the Respondent. The Respondent or any other interested party can petition the court to modify or terminate the guardianship if circumstances change or if the appointed guardian is not acting appropriately.
