Background:

Guardianship.

A guardianship action is a legal process in which a guardian is appointed and empowered by the court to make decisions for an incapacitated person. This process removes decision-making authority from the incapacitated person and gives the authority to make decisions for an incapacitated person to the guardian.

Establishing a Guardianship.

In order to establish a guardianship, a petition must first be filed with the court. This petition may be filed by any person or entity interested in the welfare of an alleged incapacitated person. A guardianship hearing date is set within 60 days of the petition and a guardian ad litem (GAL) is appointed.

After the GAL is appointed, he or she conducts an investigation to determine whether a guardianship is necessary. This investigation may include speaking with the alleged incapacitated person and obtaining medical and/or psychological reports. After the GAL's investigation is completed, the GAL files a written report with the court.

A hearing is then held and the court reviews all evidence in order to decide, by clear, cogent, and convincing evidence, whether the alleged incapacitated person is incapacitated.

During the hearing, an alleged incapacitated person has the right to be represented by counsel. The court also must provide counsel to represent any alleged incapacitated person at public expense if the alleged incapacitated person cannot afford one. This counsel must be provided as soon as practicable after a petition is filed and long enough before any final hearing to allow adequate time for consultation and preparation. A period of less than three weeks is presumed to be inadequate time for consultation and preparation.

An alleged incapacitated person is further entitled to testify and present evidence and, upon request, entitled to a jury trial on the issues of his or her alleged incapacity. In all proceedings for appointment of a guardian, the court must be presented with a written report from a physician, psychologist, or advanced registered nurse practitioner selected by the GAL. If the alleged incapacitated person opposes the health care professional selected by the GAL to prepare the medical report, then the GAL shall use the health care professional selected by the alleged incapacitated person. The physician, psychologist, or advanced registered nurse practitioner must have personally examined and interviewed the alleged incapacitated person within 30 days of preparation of the report to the court and must have expertise in the type of disorder or incapacity the alleged incapacitated person is believed to have.

Modification or Termination of a Guardianship.

A court may modify or terminate the guardianship at any time after establishment of a guardianship or appointment of a guardian. Any person, including an incapacitated person, may apply to the court for an order to modify or terminate a guardianship or to replace a guardian. After receiving an application to modify or terminate a guardianship, the court may: (1) schedule a hearing; (2) appoint a GAL to investigate the issues raised by the application or to take any emergency action the court deems necessary to protect the incapacitated person until a hearing can be held; or (3) deny the application without scheduling a hearing if it appears that the application is frivolous. Any denial of an application without a hearing shall be in writing with the reasons for the denial explained.In a hearing on an application to modify or terminate a guardianship, the court may grant such relief as it deems just and in the best interest of the incapacitated person.