Guardianship for Incapacitated Individuals


Guardianship proceedings involve the necessity to appoint a guardian to provide legal care of an incapacitated individual (the “ward”). Typically, a guardianship can be avoided if a ward has created life planning documents prior to incapacity. A guardianship addresses the ward’s rights of the person and/or the rights to or concerning property.

A guardianship of the person allows the guardian to make the ward’s personal decisions, such as healthcare, the right to determine residential setting, travel and socialization, etc. A guardianship of the property allows the guardian to make decisions regarding the ward’s assets, the right to contract, the right make gifts, etc. If the court grants a guardianship, in most cases, the guardian has the responsibility of providing an inventory of the ward’s assets and income, and an annual accounting and a plan of the ward’s care and day to day affairs.

There are required statutory steps and notice requirements to the alleged incapacitated person before a guardianship can be established by the Court. After a petition has been filed with the court to determine whether an individual is incapacitated, the court will appoint a panel of three individuals, called the “examining committee”. The examining committee is made up of a medical doctor as well as other healthcare professionals or a social worker. The examining committee members are required to meet and evaluate the alleged incapacitated person and provide written recommendations to the court.

Additionally, the court will appoint an attorney to represent the alleged incapacitated person. The attorney also acts as an “elisor” and is required to serve the petition for incapacity and petition for appointment of guardian on the alleged incapacitated person. The court appointed attorney will represent the alleged incapacitated person in the guardianship proceedings. At trial, the court will hear the recommendation of the examining committee as well as other witnesses, and if it finds the alleged incapacitated person incapacitated, a guardian may be appointed. At trial, the alleged incapacitated person has the right to remain silent and is not required to provide testimony in his or her defense.

If you or a loved one require assistance or have questions regarding the need to establish, defend, or maintain a guardianship, or need to take steps to avoid a guardianship, please contact an attorney for further details.

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