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:
Any adult person may initiate guardianship proceedings by filing a petition to determine the incapacity of a ward. A copy of any petition for appointment of guardian or emergency temporary guardian, if applicable, shall be filed with the petition to determine incapacity.
The petition must be verified and include, among others, a statement that the petitioner believes the alleged incapacitated person to be incapacitated and specify the factual information on which such belief is based and the names and addresses of all persons known to the petitioner who have knowledge of such facts through personal observations.
Notice of Hearing:
When the petition for appointment of a guardian for an incapacitated person is heard upon the conclusion of the hearing in which the person is determined to be incapacitated, the court hears the petition without further notice. If the petition is heard on a later date, reasonable notice of the hearing must be served on the incapacitated person, the person’s attorney, if any, any guardian then serving, the person’s next of kin, and such other interested persons as the court may direct. The notice must state the time and place of the hearing to inquire into the capacity of the alleged incapacitated person and that an attorney has been appointed to represent the person and that, if she or he is determined to be incapable of exercising certain rights, a guardian will be appointed to exercise those rights on her or his behalf.
Evaluations, Interviews, and Examinations:
Within 5 days after a petition for determination of incapacity has been filed, the court shall appoint an examining committee consisting of three members. One member must be a psychiatrist or other physician. The remaining members must be either a psychologist, a gerontologist, a psychiatrist, a physician, an advanced practice registered nurse, a registered nurse, a licensed social worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or any other person who by knowledge, skill, experience, training, or education may, in the court’s discretion, advise the court in the form of an expert opinion. The members must complete evaluations of the person alleged to be incapacitated and file reports with the court.
Adjudication and Disposition:
If after a hearing the court or a jury determines the respondent is incapacitated, the judge issues an order appointing a guardian and outlining the scope of the guardian's powers. A guardian may be granted authority over the person, the property, or both.