Guardianship of an Incapacitated Adult Thru Court Order
Petition
Court appointment of a guardian for an alleged incapacitated person is more involved than appointment in the case of a minor. A formal hearing must be started by petitioning the Court for either a limited or general guardianship.
Limited guardianship - allows the guardian to only manage some of the affairs of the ward
General guardianship - gives the guardian the right to to manage all business and personal matters for the ward
Hearing
There must be a hearing in the county the person lives in to determine if the adult is incapacitated and unable to take care of themselves without a guardian. The adult in question must be served personally at least 14 days before the hearing. Notice of a hearing on determining their capacity must also be given to, if applicable, their:
- Spouse
- Parents
- Adult children
- Anyone serving as conservator
- Person who has care and custody
Court Hearing Rights of the Alleged Incapacitated Person
They have the same rights of due process:
- to appear in person
- to be represented by counsel
- to present evidence
- to cross-examine
- to request a jury trial
The Court will assign:
- A lawyer (if they do not have one of their own)
- An "investigator" to interview the people involved and visit the living situation. This person is typically someone in social services, a nurse, or someone trained in the law and an officer, employee, or appointee of the Court
- An "examiner" to give a medical exam of the incapacitated person. This person is a doctor, psychologist, or registered nurse.
Bond
A bond may be required by the guardian, but are not mandated in every situation. Normally a conservator is appointed if the ward owns a large amount of property or income (typically, larger than $10,000 a year). The guardian has a right to receive funds and benefits, but if the amount is large, the Court will require a bond.