Guardianship is the legal process whereby a person is determined to be incapacitated and another person is appointed to make decisions on behalf of the incapacitated person. This process should considered as a last resort….when no other methods can be used to care for an incapacitated person.
Guardianship cases are initiated by filing a Petition to determine incapacity and a Petition to Appoint a guardian with the court. When the court receives these pleadings, it automatically appoints an attorney to represent the expressed wishes of the alleged incapacitated person and an examining committee to evaluate the person. The examining committee is composed of a doctor and two other professionals who are either nurses, social workers or psychologists. The individual examining committee members will do a functional assessment of the person and determine whether he or she has the ability to make informed decisions about such things as contracting, making medical decisions, making financial decisions, determining residence and making social decisions. The examiners can recommend a complete or plenary guardianship, a limited guardianship or no guardianship at all.
Ultimately, a hearing is held and the court will decide if the alleged incapacitated person lacks capacity and to what extent, whether alternatives to guardianship to exist and if not, who should be appointed as guardian. Family members are entitled to preference in the appointment.
After guardianship is established, the guardian has to properly account to the court regarding the assets and provide a plan of care at least annually.