Petitioning for Guardianship

Editor's Note: This article was originally written by the Social Services Team of the Alzheimer's Foundation of America (AFA).

We are often asked for advice about legal issues, in particular why a person would need to petition the court for guardianship of a loved one who has dementia and what to expect during that court process.

A guardianship proceeding is generally brought on by an interested party who desires to make decisions for a person who he or she feels lacks the capacity to make financial or medical decisions, and who has not drawn up advance directives (will, living will, health care proxy, power of attorney).

We advise the interested party to go to an attorney, preferably an elder law attorney. One source for elder law attorneys is the National Academy of Elder Law Attorneys.

After hearing the facts of the case, the attorney can petition the court for guardianship in the form of an "Order to Show Cause." This document cites the reasons that a guardian should be appointed.

After reading the order, the judge appoints a court evaluator. This evaluator becomes the judge's "eyes and ears" and conducts an investigation to determine if, in fact, the alleged incapacitated person (AIP) lacks the capacity to make financial and/or medical decisions.

During the investigation, the evaluator contacts all family members and interviews the AIP. The evaluator also investigates the AIP's financial resources, and he or she records all discussions and findings in a document called the "Report of the Court Evaluator." Based upon those findings, at a hearing, the court evaluator testifies and makes recommendations to the court regarding the AIP's capacity, whether or not a guardian is needed, and who the appointed guardian should be (sometimes it is recommended that the judge appoint two people as co-guardians).

The judge makes a determination after hearing the evaluator's testimony and generally after having spoken with the AIP. If the judge determines that the person lacks capacity, the AIP is then called an "IP," an incapacitated person. The judge then appoints the guardian, and details the "powers"-personal and/or property-the guardian will have regarding the IP.

The judge also appoints a person known as a court examiner, who oversees the guardian and to whom the guardian must submit annual reports describing their personal care and financial oversight over the course of the year.

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