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 a Proceeding – Filing a Petition:
The proposed conservatee, the spouse or domestic partner of the proposed conservatee, a relative of the proposed conservatee, any interested state or local entity or agency, or any other interested person or friend may initiate conservatorship proceedings by filing a petition for the appointment of a conservator. Once the petition is filed, the court proceedings begin. The court will set a hearing date for a hearing on the issue of incapacity.
The petition shall request that a conservator be appointed for the person or estate, or both, shall specify the name, address, and telephone number of the proposed conservator and the name, address, and telephone number of the proposed conservatee, and state the reasons why a conservatorship is necessary. Unless the petitioner or proposed conservator is a bank or other entity authorized to conduct the business of a trust company, the petitioner or proposed conservator shall also file supplemental information as to why the appointment of a conservator is required.
Notice of Hearing:
At least 15 days before the hearing on the petition for appointment of a conservator, notice of the time and place of the hearing shall be given as provided in this section. The notice shall be accompanied by a copy of the petition. The court shall not shorten the time for giving the notice of hearing under this section.
Notice shall be delivered to the following persons:
(1) The spouse, if any, or registered domestic partner if any, of the proposed conservatee at the address stated in the petition.
(2) The relatives named in the petition at their addresses stated in the petition.
If the proposed conservatee is a person with developmental disabilities, at least 30 days before the day of the hearing on the petition, the petitioner shall deliver a notice of the hearing and a copy of the petition to the regional center identified in Section 1827.5.
Ward’s Rights at Hearing:
The alleged incapacitated person has the right to be present at the hearing in person. They have the right to counsel. They also have the right to present evidence, cross-examine witnesses, and request a jury trial.
Adjudication and Disposition:
A court order establishing guardianship shall contain findings of fact that the respondent is an incapacitated person. Following a hearing, the court will issue a decision. The proposed conservatee may be adjudged unable to provide for personal needs or to manage financial resources and, by reason thereof, a conservator may be appointed for the person or estate, or both.