Guardianship

Guardianship is an option for any individual who has trouble or is incapable of making their own decisions. A court may appoint a guardian and grant the guardian authority to make decisions on behalf of the 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. A petition should be filed with the court to initiate a guardianship proceeding. Shortly after filing a petition you will be assigned a hearing date. The petitioning party has the burden of proof to demonstrate guardianship is absolutely necessary. This generally involves securing expert testimony from a treating physician regarding the extent of the incapacity and necessity for a guardian.

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 other family members. The court’s decision will address the nature and duration of any guardianship to be instituted. For example, the court will state whether it is limited guardianship or plenary guardianship. Limited guardianship is appropriate where the Respondent is not totally incapacitated and only needs assistance with certain areas and so the court would dictate what specific powers the guardian will have. 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.