Getting a Court Appointment as Guardian

Here are the basics of what happens when an individual wants to be appointed a guardian.

Before petitioning the court for guardianship, family members (or in some cases, concerned third parties) need to:

•  compile some documentation that shows the individual "lacks capacity" to care for him or herself. 
• evaluations from one or more physicians and other medical professionals
• sworn statements from witnesses and other written documentation. This evidence will be used in an attempt to prove to the court that the person is incapacitated.

Next, a petition is filed with the court. The individual (sometimes called a potential "ward") and other interested parties will be served with a summons or given notice of the proceeding.

An incapacity hearing will be held to present the evidence. The potential ward has the right to an attorney and he or she (as well as other interested parties) can dispute the evidence.

Ultimately, the court will decide:

• If the individual is incapacitated;
• Who will serve as guardian; and 
• What the responsibilities of the guardian will be.

The process can take many months. (The family may be able to get an emergency guardian appointed on a temporary basis.) The court costs and legal fees can be expensive.

The court will examine the guardian's ability to be trusted to make either financial or health care decisions -- or both.

What if more than one person wants to serve as a guardian? In these cases, the court decides who is best suited for the position.

After an appointment is made, the guardian is monitored by the court and generally must file periodic reports. The guardian or guardians must make decisions about where the ward will live, what kind of medical care should be administered, and how finances should be handled.

This is a basic overview of the process. There are different types of guardianship and the exact procedures depend on state law.

Petitioning for guardianship is usually a difficult and painful decision. The elderly loved one may be angry about the decision and the loss of independence. In those cases, the proceedings can become adversarial.