The Guardianship Process

The steps to take to have a legal guardian appointed for someone who is incompetent or incapacitated.

To appoint a guardian, you must first obtain a report certifying the legal disability of the ward and the need for a guardian. The report should contain:

  • A current analysis and evaluation of the person’s adaptive behavior, appropriate social skills, education, and mental and physical condition
  • A description of the nature and type of disability
  • An explanation of how the disability affects the person’s decision making
  • An opinion about and supporting reasons for the need for guardianship
  • Recommended living arrangements and treatment
  • Signatures by all people involved in the evaluation process, including a physician licensed to practice in the applicable state.

The next step involves filing a petition with the court. After this is done, summons will be served to the perspective ward. A hearing will be held at which evidence is presented to prove that the perspective ward is disabled. During this hearing, the potential ward usually has an attorney. The evidence must show that guardianship is appropriate and required. Ultimately, the hearing will decide who/what entity will act as guardian and what the authority of the guardian will be. This process usually takes anywhere from two weeks to two months.

Whereas the process of appointing a guardian takes time, many states have a policy allowing a guardian to be appointed in cases of an emergency. In these cases, the appointment is usually made after a cursory hearing about the specific issue and nature of the guardian’s role, which makes the process last only a few days. Additionally, a full hearing must be scheduled to validate the temporary guardianship before it expires.

Once you are appointed as a ward’s guardian by the court, you will have duties to and responsibilities for the ward, including:

  • Assessing and releasing confidential records
  • Consenting to or refusing medical treatment
  • Consenting to or refusing the ward’s travel plans
    Deciding on an appropriate living environment
  • Finding adequate clothing and personal necessities
  • Having the ward evaluated regarding appropriate placement or medical/social needs
  • Having the ward examined annually by a doctor and giving a written report of his or her findings to the court
  • Making arrangements for burial if the ward or ward’s family has not already done so
  • Making decisions pertaining to the ward’s social life (e.g., education, counseling, therapy)
  • Petitioning and restoring the ward’s rights when appropriate
  • Preparing an annual guardian plan for the court within 90 days of the last day of the anniversary month of the guardianship appointment
  • Preparing a guardian plan and filing this with the court within 60 days after letters of guardianship are signed
  • Visiting the ward to ensure that all personal needs are met

Once guardianship is appointed, it lasts forever unless modified, revoked, or terminated. The courts are able to do this if the ward’s decision capabilities are shown to be functional. As an appointed guardian, you are responsible for helping the ward to prove his or her competency if you feel that the ward has gained the ability to make competent decisions in the area(s) that guardianship has been assigned. The guardian’s position may also be temporary if he or she fails to fulfill any of the guardianship duties listed above.

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