A guardian can be appointed by the court to make decisions on behalf of an adult individual who has been deemed incapacitated or incapable of making sound decisions on their own. The court must determine whether the individual for whom guardianship is sought can adequately manage their financial resources and/or meet basic essential requirements for their own health and safety. If you are the party filing for guardianship, the first step is to file a petition with the court. A hearing will be scheduled after review of the petition establishing a potential need. The petitioner (filing party) should secure expert testimony to corroborate the extent of the incapacity of the subject individual and the necessity for a guardian as the Petitioner has the burden to prove incapacity by clear and convincing evidence. At least ten (10) days prior to any scheduled hearing, 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 any additional interested parties such as other family members or individuals that could serve as guardian.
In addition to a determination as to whether a guardian should be appointed, the court can also dictate what type of guardianship. Limited guardianship is appropriate where the Respondent is not totally incapacitated and is capable of managing some aspects of their life. In this case, the court must delineate what powers the Petitioner will have versus what rights the Respondent retains for themselves. Plenary guardianship grants Petitioner all rights as it relates to safeguarding the best interests of the Respondents. This would be appropriate for a Respondent who is totally incapacitated. The court must also indicate the duration of the guardianship with the court responsible to reassess the ongoing need for a guardian. 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.