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 – Filing a Petition:
A petition for the appointment of a guardian or conservator shall be filed by any person including a community services board and any other state or local governmental agency with the circuit court of the county or city in which the respondent is a resident or is located or in which the respondent resided immediately prior to becoming a patient, voluntarily or involuntarily, in a hospital, including a hospital licensed by the Department of Health, or a resident in a nursing facility or nursing home, convalescent home, assisted living facility, or any other similar institution or, if the petition is for the appointment of a conservator for a nonresident with property in the state, in the city or county in which the respondent's property is located.
The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act provides the exclusive jurisdictional basis for a court of the Commonwealth to appoint a guardian or conservator for an adult.
Where the petition is brought by a parent or guardian of a respondent who is under the age of 18, or by any other person and there is no living parent or guardian of a respondent who is under the age of 18, the petition may be filed no earlier than six months prior to the respondent's eighteenth birthday. Where such a petition is brought, a court may enter an order appointing the parent or guardian of the respondent, or another person if there is no living parent or guardian, as guardian or conservator prior to the respondent's eighteenth birthday. Such order shall specify whether it takes effect immediately upon entry or on the respondent's eighteenth birthday. Where the petition is brought by any other person and there is a living parent or guardian of a respondent who is under the age of 18, the petition may be filed no earlier than the respondent's eighteenth birthday.
Notice of Hearing:
Upon the filing of the petition, the court shall promptly set a date, time, and location for a hearing. The respondent shall be given reasonable notice of the hearing. The respondent may not waive notice, and a failure to properly notify the respondent shall be jurisdictional. A respondent, whether or not he resides in the Commonwealth, shall be personally served with the notice of the hearing, a copy of the petition, and a copy of the order appointing a guardian ad litem.
Examinations, Evaluations, and Interviews:
On the filing of every petition for guardianship or conservatorship, the court shall appoint a guardian ad litem to represent the interests of the respondent. The court or the jury, if a jury is requested, shall hear the petition for the appointment of a guardian or conservator. The hearing may be held at such a convenient place as the court directs, including the place where the respondent is located. The hearing shall be conducted within 120 days from the filing of the petition unless the court postpones it for cause.
A report evaluating the condition of the respondent shall be filed with the court in a separate confidential addendum and provided, within a reasonable time prior to the hearing on the petition, to the guardian ad litem, the respondent, and any other person or entity that becomes a party to the action. The report shall be prepared by one or more licensed physicians or psychologists or licensed professionals skilled in the assessment and treatment of the physical or mental conditions of the respondent as alleged in the petition. If a report is not available, the court may proceed to hold the hearing without the report for good cause shown.
Adjudication and Disposition:
If, after considering the evidence presented at the hearing, the court or jury determines on the basis of clear and convincing evidence that the respondent is incapacitated and in need of a guardian or conservator, the court shall appoint a suitable person, who may be the spouse of the respondent, to be the guardian or the conservator or both, giving due deference to the wishes of the respondent.