Since we are often asked about guardianships and conservators, we thought we would take a closer look at the legal process involved in choosing a guardian or conservator. What happens? What will the court do? What can you do?
While the answers to this question will differ slightly depending on where you live and the individual circumstances you face, there are general principles that apply to almost every situation. Today we will answer some of these questions so you will have a better idea of what happens when courts choose a guardian or conservator.
How Does a Court Choose a Guardian or Conservator? Starting the Process
Let’s say your grandmother is suffering from Alzheimer’s disease. You don’t think she is capable of making her own decisions anymore, but you don’t think just helping whenever you can is enough. You decide you need the legal authority to make decisions for her. What do you do?
The first step in the guardianship or conservatorship process requires you, the petitioner, to file a petition with the local court asking the court to get involved. The petition must include specific information, such as your name and address, the name and address of the person you want a guardian appointed over (called the respondent), and other important facts. If your petition is filed in the correct court and includes the correct information, the legal process then begins.
How Does a Court Choose a Guardian or Conservator? After Filing
Once the petition is filed, the court schedules a hearing at which the court will determine if the respondent needs a guardian or conservator, and will then rule on who that person will be.
There are events that must occur before the court holds a hearing. The petitioner will have to serve or deliver in a specific manner a copy of the petition and notice of the hearing to specific people, including the respondent and the respondent’s next of kin.
If the court believes it necessary, it will appoint a guardian ad litem. The guardian ad litem serves during the course of the hearing and is responsible for protecting the interests of the respondent.
At the hearing, the court will hear evidence to determine if the respondent is incapacitated, and, if so, choose who should serve as the guardian, the conservator, or both. Once the court makes its decision it will issue an order (called a judgment) that grants the chosen person the ability to make decisions on the incapacitated person’s behalf.