So, what does a guardianship really entail?
Well the first step is always the filing of a petition. A petition gets filed in court to initiate the lawsuit against the person you’re alleging to be incompetent. And usually it’s a daughter and son or another relative that has to file the petition to start the case.
And the petition essentially alleges all the essential things to show we’re in the right court, in the right county and who this person is who is going to be declared incompetent and why. What things lead you to believe that this person cannot manage their own affairs anymore.
Once that petition is filed, then it has to be served on the incompetent adult and that is almost always done by sheriff. And then, a guardian ad litem is appointed. A guardian ad litem is someone to stand in court and represent the interests of the incompetent adult. And the adult can hire their own attorney if they want to defend the action, but the guardian ad litem is there to advocate for their best interest – which is not always what the incompetent adult wants.
But it is what the guardian ad litem thinks in is their best interests. The guardian ad litem usually interviews people, reviews medical records and ultimately with file a report with the court, and often will testify about what they’ve learned and why they believe – whatever the recommendation is – is in the best interest of the incompetent adult.
The guardian ad litem opinion is often weighed very heavily by the clerk because otherwise they have no interest in the proceeding. They’re a neutral person appointed by the clerk, so they weigh their testimony very heavily. But any interested party can present evidence. When I say interested party, it usually means relatives. Anyone who wants to defend against the action, or doesn’t think the choice of guardian is appropriate, or doesn’t think the person is incompetent, or does think the person is incompetent and wants to present evidence – that’s where the hearing comes in.
The hearing is basically like a trial, there are rules of evidence, you can make objections, you have to authenticate the documents – it’s just like regular court trial in many respects. So, you want to be prepared when you go in, if you’re the petitioner – the person alleging that someone is incompetent – you want to be prepared to prove your case. You have the burden of proving, by clear, cogent and convincing evidence that the person you filed this against is actually unable to manage their own affairs.
If you fail to prove that, the case gets dismissed and the person who might need these services of a guardian won’t be able to get them. So be adequately prepared. Sometimes these hearings are very quick, particularly if everyone is in agreement. We just need to make sure we say the right things, get the right documents into evidence and the clerk can make their decision.
Now if it’s contested, I’ve seen these things take several days. The clerk will want to consider all the evidence and make findings of fact to determine if the person has the ability to manage their own affairs.
And the clerk can do one of many things. He can dismiss the case, they can determine a person is incompetent and in need of a guardian, which can mean a guardian of the person – for personal care decisions or a guardian of the estate, which is over financial decisions or a general guardian which is over both – personal care and financial decisions.
Now the clerk may decide the person is incompetent, but that they retain certain rights and privileges because they have the ability to do certain things but not others. And every guardian ad litem when they file their report, they are required by law to consider whether a limited guardianship is appropriate.
And so, if you’re serving as a guardian ad litem, one of the things you’re thinking of is “Can we do something to make sure these people retain as much of their own rights as possible.” We don’t want to strip rights away from people who are capable of managing their own affairs, so if the person can cook for themselves, for example, or if they can still handle their own finances, we want to retain those powers and not strip them of those powers. So, we want to carefully craft a guardianship order that will allow them to continue to do what they can do, but not to put them in a position where they’re risking themselves or others.
And so that’s another option that the clerk has. If you’re in a contested case, particularly where the respondent – the person alleged to be incompetent – is defending, that may be a solution you can reach by agreement and present to the clerk as the final order.