If the court determines that the proposed ward is indeed incapacitated, the court then decides if the person seeking the role of guardian will be a responsible guardian. The proposed ward is usually entitled to legal representation at the hearing, and the court will appoint an attorney if the allegedly incapacitated person can't afford a lawyer.Īt the hearing, the court attempts to determine if the proposed ward is incapacitated and, if so, to what extent the individual requires assistance. Some simply require that notice of the proceeding be provided, while others require the proposed ward's presence at the hearing. Protections for the proposed ward vary greatly from state to state. An estate planning or elder law attorney handling probate issues is usually retained to file a petition for a hearing in the probate court in the proposed ward's county of residence. In most states, anyone interested in the proposed ward's well-being can request a guardianship. What Does the Process for Legal Guardianship for Adults Involve? Also, a developmental disability or mental illness is not, by itself, enough to declare a person incompetent. For example, a person may not be declared incompetent simply because they spend money in ways that seem odd to someone else. Generally, a person is judged to be in need of guardianship when they show a lack of capacity to make responsible decisions.Ī person can't be declared incompetent simply because they make irresponsible or foolish decisions, but only if the person is shown to lack the capacity to make sound decisions. In some states, the standards may change, depending on whether a complete guardianship or a conservatorship over finances only is being sought. The standard to determine who requires a guardian differs from state to state. In other words, the guardian may exercise only those rights that have been removed from the ward and delegated to the guardian. In such cases, the court may give the guardian decision-making power over only those areas in which the incapacitated person is unable to make responsible decisions (limited guardianship). Some incapacitated individuals can make responsible decisions in some areas of their lives but not others. In many states, a person appointed only to handle finances is called a conservator. Depending on the terms of the guardianship and state practices, the guardian may or may not have to seek court approval for various decisions. The guardian can be authorized to make legal, financial, and health care decisions for the ward.
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