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:
Any person interested in the welfare of an allegedly incapacitated person may petition for the appointment of a guardian. No filing fee under this or any other section may be required when a petition for guardianship of an incapacitated person is filed by a member of the individual treatment plan team for the alleged incapacitated person or by any state employee in the performance of official duties.
The petition must state:
(a) the name, address, and corporate or agency status of the petitioner, and its connection with or relationship to the proposed ward;
(b) name, age, and address of the proposed ward;
(c) name and address of any person or institution having care or custody over the proposed ward;
(d) the names and addresses of the spouse, parents, and adult children or, if none, any adult siblings and any adult with whom the proposed ward resides in a private residence, or, if none, the nearest adult relative;
(e) a brief description of and the approximate value of the real and personal property and income of the proposed ward, so far as they are known to the petitioner;
(f) the extent of guardianship authority sought, including full authority, limited authority, or no authority in each area of residential, educational, medical, legal, vocational, and financial decision making unless the petitioner is undecided on the extent of authority in any area, in which case the petition must state the specific areas in which the authority is sought;
(g) the occupation and qualifications of the proposed guardian;
(h) the name and address of the attorney, if known, who most recently represented the proposed ward;
(i) a statement alleging specific facts establishing the necessity for the appointment of a guardian;
(j) the name and address of any current conservator appointed for the proposed ward;
(k) the name and address of any person designated as an attorney in fact or agent in a power of attorney or as an agent in a health care directive;
(l) the name and address of any representative payee for the proposed ward;
(m) that less intrusive alternatives to guardianship have been considered;
(n) in the form of an attached recent statement, the physical, neurological, and psychological limitations of the proposed ward from an expert examiner, if available;
(o) Whether the petition seeks to restrict any of the following rights:
(1) To vote;
(2) To seek to change marital status;
(3) To obtain or retain a motor vehicle operator’s license; or
(4) To use, own, control, or possess a firearm; and
(p) if the proposed guardian seeks authority for involuntary treatment with prescribed mood stabilizer or antipsychotic medication, the petitioner also shall attach a recent report under subsection 2 of section 30.1-28-16.
Notice of Hearing:
The petitioning party, unless otherwise directed by the court, shall cause notice to be served personally on the ward or proposed ward, and the ward’s or proposed ward’s spouse and parents if they can be found within the state. Notice to the spouse and parents, if they cannot be found within the state, and to all other persons except the ward or proposed ward must be given.
The notice must be printed with not less than double-spaced twelve-point type. The notice must inform the ward or proposed ward of the ward’s or proposed ward’s rights at the hearing and must include a description of the nature, purpose, and consequences of an appointment of a guardian.
Examinations, Evaluations, and Interviews:
Upon the filing of a petition, the court promptly shall set a date for hearing on the issues of incapacity, appoint an attorney to act as guardian ad litem, appoint an expert examiner to examine the proposed ward, and appoint a visitor to interview the proposed guardian and the proposed ward. The proposed guardian shall attend the hearing on the petition unless excused by the court for good cause.
Adjudication and Disposition:
The court shall exercise its authority consistent with the maximum self-reliance and independence of the incapacitated person and make appointive and other orders only to the extent necessitated by the incapacitated person’s actual mental and adaptive limitations or other conditions warranting the procedure.
N.D. Cent. Code § Code 30.1-28-03
N.D. Cent. Code § 30.1-28-04
N.D. Cent. Code § 30.1-28-09