The establishment of guardianship depend to some extent on state laws and local court procedures. However, this section seeks to provide a general overview of the establishment of a guardianship.
The Uniform Guardianship and Protective Proceedings Act (UGPPA 2007) uses the following standard for the appointment of an emergency guardian: Substantial harm to respondent's health, safety, or welfare, and no other person appears to have authority and willingness to act (§ 312). The Act requires that a petition be filed with the court, notice to respondent be given (unless the respondent will be substantially harmed before a hearing can be held), the respondent have a right to counsel and presence at the hearing, and that the emergency guardian's authority not exceed 60 days. The Uniform Law Commission tracks the status of the Act for each state—to date, only a handful of states have enacted the Act in full.
The National Probate Court Standards (Standard 3.3.6) recommends courts to only appoint a temporary guardian or conservator ex parte:
- Upon the showing of an emergency;
- In connection with the filing of a petition for a permanent guardianship or conservatorship;
- Where the petition is set for hearing on the proposed permanent guardianship or conservatorship on an expedited basis; and
- When notice of the temporary appointment is promptly provided to the respondent.
The Standards support an expeditious hearing, the use of a protective order in lieu of a temporary guardian or conservator appointment where appropriate, and specific limited powers that expire after 30 days. When the temporary appointment is established, the date for the hearing on the proposed permanent guardianship or conservatorship should be scheduled, at which time the temporary appointment will lapse. In temporary conservatorship cases, full bonding of liquid assets should be required to protect the financial well-being of the protected person.
The establishment of guardianships will differ to some extent based on state laws and local court procedures. However, the process involves some common steps, including a petition to initiate a court proceeding and a hearing to determine capacity levels and the need for a guardianship or conservatorship. The National Probate Court Standards is an excellent guide on the guardianship and conservatorship processes from petition to final report and discharge. The standards recommend that a petition to establish a guardianship or conservatorship include the following information:
- The reasons why a guardianship or conservatorship is being sought
- A description of the nature and extent of the limitations in the respondent's ability to care for herself/himself or to manager her or his financial affairs
- Representations that less intrusive alternatives to guardianship or conservatorship have been examined
- The guardianship/conservatorship powers being requested and the duration of the powers
- The nature and estimated value of assets, the real and personal property included in the estate, and the estimated annual income (conservatorship cases).
Following the submission of a petition, the establishment of a guardianship or conservatorship generally involves the following steps, though variances will occur from court to court.
A full or plenary guardianship, which results in the loss of all individual rights of the protected person, should be used as a last resort. The Uniform Guardianship and Protective Proceedings Act (UGPPA 1997) advises the court to appoint a guardian or conservator only if it finds by clear and convincing evidence that the respondent is incapacitated and his or her needs cannot be met by less restrictive means (§ 311).
Recommendations from the Third National Guardianship Summit (2011) advise courts to implement the least restrictive alternative and maximize the person's right to self-determination and autonomy (Recommendation #2.2). Specific actions are suggested below:
- The court should develop a protocol to obtain an accurate and detailed assessment of the person's functional limitations.
- The court should conduct a factual investigation and review the assessment to determine the rights to be retained by the person and the powers to be granted to the guardian.
- The factual investigation may include contact with the person, interviews with the persons and family members, and discussions with court-appointed attorneys and court evaluators or any other court representative.
The National Probate Court Standards (Standard 3.3.10) encourages courts to appoint a guardian or conservator only if no less intrusive alternatives exist. Limited guardianships/conservatorships or protective orders that are limited and tailored to the respondent's particular needs and functional capabilities are preferred over full/plenary guardianships and conservatorships. The Standards suggest the following alternatives be considered.
The use of mediation as an alternative to guardianships and conservatorships, or to settle disputes once a guardianship/conservatorship is established, has been somewhat controversial. In an article in the Stetson Law Review (2002), Is the Use of Mediation Appropriate in Adult Guardianship Cases?, the author notes that mediation can be a beneficial way of resolving disputes, but it must be considered in the context of ensuring that the rights of the respondent remain the focal point of the mediation. An evaluation of Alaska's mediation program for guardianships and conservatorships concluded that "mediation for adult guardianship cases with significant conflicts appeared to be successful in most instances." In addition to Alaska, several state court systems and individual courts have established mediation programs
The various alternatives to a guardianship or conservatorship will not meet everyone's needs. In addition, the less intrusive alternatives are prone to abuses when the person placed in authority does not act in the best interests of the individual placed under his/her authority. Because there is no judicial oversight, abuses that occur under these alternative arrangements often go unnoticed for long periods of time. For example, in 2008 the AARP Public Policy Institute released a report on Power of Attorney Abuse, which demonstrated the misuse of powers of attorney and encouraged states to adopt the Uniform Power of Attorney Act (UPOAA).
- National Probate Court Standards
- State Statutes on Limited Guardianship (2017 American Bar Association Commission on Law and Aging)
- Alaska's Adult Guardianship and Conservatorship Mediation Program
- California's Self-Help Center (Conservatorships)
- Alternatives to Guardianship and Conservatorship of Adults in Georgia
- Alternatives to Guardianship in Nebraska
- Alternatives to Guardianship in Rhode Island
- Alternatives to Guardianship in Utah
- Alternatives to Guardianship in Virginia
The establishment of a guardianship or conservatorship is predicated on the determination of incapacity. Legal definitions of incapacity vary from state to state. The Uniform Guardianship and Protective Proceedings Act (UGPPA 2007) uses a definition of an "incapacitated person" to describe an individual who lacks the ability to "receive and evaluate information or to make or communicate decisions to the point that the person's ability to care for his or her health, safety or self is compromised" (§ 102(5)). The definition emphasizes the importance of a functional assessment and underscores the fact that capacity fluctuates from situation to situation.
The National Probate Court Standards call on the imposition of a guardianship or conservatorship "based on clear and convincing evidence of the incapacity of the respondent and that a guardianship or conservatorship is necessary to protect the respondent's well-being or property" (Standard 3.3.9). Evidence should come from professionals and experts who are qualified to assess the physical and mental condition of the respondent. The evidence should be used to consider whether a less restrictive alternative might be more appropriate.
Capacity is multifaceted. For instance, a mental illness diagnosis does not dictate whether an individual has legal capacity. Capacity can potentially be enhanced with education, training, rehabilitation, treatment, therapy, community services, and assistive devices. For this reason, the Standards recommend that court reports prepared by professionals and experts include an appraisal of the functional limitations of the respondent.
The American Bar Association and the American Psychological Association, in partnership with the National College of Probate Judges, published the Judicial Determination of Capacity of Older Adults in Guardianship Proceedings. The handbook discusses six pillars of capacity: (1) medical condition, (2) cognition, (3) everyday functioning, (4) values and preferences, (5) risk and level of supervision, and (6) means to enhance capacity. The steps to determining capacity are outlined in the graphic.
See our capacity section (link to Capacity under Aging section) for more information.
Procedural protections are critical in guardianship cases. The Uniform Guardianship and Protective Proceedings Act (UGPPA 2007) offers two alternatives for states to consider in terms of the right to counsel in guardianship proceedings:
The court shall appoint a lawyer to represent the respondent in the proceeding if:
(1) requested by the respondent;
(2) recommended by the [visitor]; or
(3) the court determines that the respondent needs representation. (§ 305(b))
Unless the respondent is represented by a lawyer, the court shall appoint a lawyer to represent the respondent in the proceeding. (§ 305(b))
The National Academy of Elder Law Attorneys (NAELA), in their public policy guidelines, supports the following aspects of procedural due process concerning adult guardianship: (1) timely notice in plain language, including information about the rights that are subject to being lost and the individual's rights at the hearing; (2) requirement for the individual to be present at the hearing unless there is good cause, and provisions for hearing accommodations; (3) mandatory court appointment of counsel at or before notice to act as zealous advocate for the individual, and court payment of fees for indigent respondents; and (4) hearing rights including right to compel attendance of witnesses, cross-examine, request a jury trial, and appeal the decision.
The National Probate Court Standards (Standard 3.3.5) states that a court shall appoint a lawyer to represent the respondent in a protective proceeding if at least one of the following conditions exist:
1. The respondent requests an attorney.
2. The court visitor recommends the appointment of an attorney.
3. The court determines that the respondent needs representation.
4. Representation is required by law.
The Standards indicate that the role of counsel is that of an advocate for the respondent. Counsel should consider the respondent's prior directions and expressed desires and opinions, if known. In cases where the respondent's position is not known, the counsel should request the court to consider appointment of a Guardian ad litem to represent the respondent's best interest.