Probate Code
Each state's laws set out detailed procedures which must be followed to have a guardian or conservator appointed. Although details vary, typically the process requires notice to the proposed ward and other interested parties, evaluation of the proposed ward and evidence supporting the request, a hearing, and a decision by a jury or judge.
Initiating an Action:
The complaint shall state:
(1) the name, age, domicile and address of the plaintiff, of the alleged incapacitated person and of the alleged incapacitated person’s spouse, if any;
(2) the plaintiff’s relationship to the alleged incapacitated person;
(3) the plaintiff’s interest in the action;
(4) the names, addresses and ages of the alleged incapacitated person’s children, if any, and the names and addresses of the alleged incapacitated person’s parents and nearest of kin, meaning at a minimum all persons of the same degree of relationship to the alleged incapacitated person as the plaintiff;
(5) the name and address of the person or institution having the care and custody of the alleged incapacitated person;
(6) if the alleged incapacitated person has lived in an institution, the period or periods of time the alleged incapacitated person has lived therein, the date of the commitment or confinement, and by what authority committed or confined; and
(7) the name and address of any person named as attorney-in-fact in any power of attorney executed by the alleged incapacitated person, any person named as health care representative in any health care directive executed by the alleged incapacitated person, and any person acting as trustee under a trust for the benefit of the alleged incapacitated person.
The complaint should also have attached an affidavit stating the nature, description, and fair market value of the alleged incapacitated person's estate; the debts of the estate; affidavits from two physicians who have examined the alleged incapacitated person; an affidavit regarding the criminal and civil judgment history of any nominated guardian; and a Case Information Statement in such form as promulgated by the Administrative Director of the Courts. Said Case Information Statement shall include the date of birth and Social Security number of the alleged incapacitated person.
Notice of Filing:
The order shall require that at least 20 days’ notice thereof be given to the alleged incapacitated person, any person named as attorney-in-fact in any power of attorney executed by the alleged incapacitated person, any person named as health care representative in any health care directive executed by the alleged incapacitated person, and any person acting as trustee under a trust for the benefit of the alleged incapacitated person, the alleged incapacitated person’s spouse, children 18 years of age or over, parents, the person having custody of the alleged incapacitated person, the attorney appointed pursuant to R. 4:86-4(b), and such other persons as the court directs. Notice shall be effected by service of a copy of the order, complaint and supporting affidavits upon the alleged incapacitated person personally and upon each of the other persons in such manner as the court directs.
Examinations:
The court may, on motion and upon notice to all persons entitled to notice of the hearing, order the alleged incapacitated person to submit to an examination. The motion shall set forth the names and addresses of the physicians who will conduct the examination, and the order shall specify the time, place and conditions of the examination. Upon request, the report thereof shall be furnished to either the examined party or his or her attorney.
Adjudication and Disposition:
Unless a trial by jury is demanded by or on behalf of the alleged incapacitated person, or is ordered by the court, the court shall, after taking testimony in open court, determine the issue of incapacity. The court, with the consent of counsel for the alleged incapacitated person, may take the testimony of a person who has filed an affidavit or certification pursuant to R. 4:86-2(b) by telephone or may dispense with oral testimony and rely on the affidavits or certifications submitted. Telephone testimony shall be recorded verbatim.