- Definition, Types and Powers
- Guardianship Reform Efforts
- State Laws
- Guardianship Data
- General Process
Establishment of Guardianships
- Emergency Powers
- Use of Less Restrictive Alternatives
- Determination of Capacity
- Procedural Protections
- Key Issues
Training & Qualifications of Guardians
Guardianship Monitoring
Guardianship Technology
Standards & Model Programs
Guardianship Process
The guardianship process can vary significantly by state, court, and judge. Generally, the process begins with the determination of incapacity and the appointment of a guardian. Interested parties, such as family or public agencies, petition the court for appointment of guardians. The court is then responsible for ensuring that the alleged incapacitated person’s rights to due process are upheld, while making provisions for investigating and gauging the extent of incapacity. Should the individual be deemed incapacitated, the judge appoints a guardian and writes an order describing the duration and scope of the guardian’s powers and duties. Once a guardianship has been appointed, the court is responsible for holding the guardian accountable through monitoring and reporting procedures for the duration of the guardianship. The court has the authority to expand or reduce guardianship orders, remove guardians for failing to fulfill their responsibilities, and terminate guardianships and restore the rights of wards who have regained their capacity.
Generally, guardianships include five separate court actions: petition, pre-hearing activities, court hearing, monitoring, and termination or transfer. Descriptions of each step follow.
Petition |
Petition for guardianship filed with the court. The court appoints a Guardian ad Litem (GAL) , court investigator, or visitor; appoints counsel for the respondent if the respondent is not represented by a lawyer; orders a professional evaluation of the respondent; and sets a hearing date. |
Pre-Hearing Activities
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Respondent is evaluated. GAL/investigator/visitor interviews parties, reviews records, and makes recommendations. Evaluation reports filed. |
Court Hearing
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Petitioner, nominated guardian or conservator, respondent, and respondent's attorney attend hearing. Witnesses may testify. Court determines capacity, and if the respondent is found to be incapacitated, determines whether a limited or full guardianship/conservatorship is required, appoints a guardian or conservator, and sets the powers of the guardian or conservator. |
Monitoring
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Guardian/conservator must submit plans, reports, inventories, accountings as specified by the court and statute. The court reviews submissions and conducts periodic review hearings to determine whether the plans are appropriate, the guardian/conservator is properly performing the specified responsibilities, and whether there have been changes in the incapacitated person's condition that require modification or termination of the guardianship/conservatorship. |
Termination or Transfer
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The court terminates the guardianship/conservatorship and orders a final report or accounting upon a finding that the guardianship/conservatorship is no longer required or upon the death of the incapacitated person. The court transfers oversight of the guardianship/conservatorship if the incapacitated person has moved to another jurisdiction. |
Additional Online Resources
National Probate Court Standards
Guardianship of Adults: Achieving Justice, Autonomy, and Safety (for purchase)