Taking away the rights and freedoms of an incapacitated person through the guardianship process is a serious matter. Accordingly, a lengthy and sometimes confusing legal procedure has been established to ensure that only those who are truly incompetent become wards. We at Petty, Livingston, Dawson and Richards have worked to remove confusion and make the process more transparent in order to assist our clients in protecting their loved ones.
In our initial consultation, we will inquire about your situation, and if it is determined that a guardianship and/or conservatorship is appropriate, we will provide you with a questionnaire that will gather all of the information needed to petition the court to appoint a guardian or conservator for your loved one. Next, we will send the proposed ward’s treating physician some paperwork that will allow him or her to more fully describe the nature and extent of the person’s incapacity. After receiving the physician’s medical evaluation, we will prepare and file the Petition to Appoint Guardian and/or Conservator and all of the pleadings required to accompany the petition. The Petition will name a proposed guardian/conservator who may or may not be the same person on whose behalf the Petition was filed (the “Petitioner”). The proposed ward’s next of kin will be served a copy of the Petition. We will ask the Court for a date and time to have a hearing on the Petition.
The Court will appoint an attorney to act as guardian ad litem to protect the interests of the incapacitated person. The guardian ad litem will deliver the Petition to the incapacitated person and explain the guardianship/conservatorship process to the extent the incapacitated person can understand. The guardian ad litem will file a report with the Court and recommend whether or not the subject individual should attend the hearing.
On the date of the hearing, the Petitioner and his or her attorney, the proposed guardian/conservator, the guardian ad litem, and perhaps the proposed ward will appear before a judge. At this time, the Petitioner will have a chance to explain to the Court why he or she would like a guardian and/or conservator appointed and the proposed guardian/conservator will tell the court how he or she plans to care for the individual.
If there are no objections and the Court finds that the proposed ward is in need of a guardian or conservator and that the proposed guardian/conservator is appropriate, the judge will enter an order appointing the proposed person guardian and/or conservator over the incapacitated person. The guardian/conservator will then meet with a clerk to “qualify” as such and to receive instructions regarding his or her duties as guardian/conservator.