Court Appointed Guardianship

By Michelle Lonsinger, based on information provided by the law firm of Vincent, Romeo, & Rodriguez, LLC (www.elderlawcolorado.com)

When a care recipient becomes so ill that they can’t make or communicate responsible decisions concerning their person and care, a guardian can be appointed through a court proceeding.

The following information is intended to provide an overview of the guardianship process and the rights and responsibilities of an assigned guardian. Because laws may change, and may vary by state or circumstances, you should consult with a qualified attorney before acting on this information.

Definitions

• A ward is a person who, due to mental or physical illness or disability, can’t make or communicate responsible decisions concerning his person and care.
• A guardian is a person or entity appointed by the court to make decisions concerning a ward. A guardianship allows the appointed person or entity to make decisions about the ward, such as where they will live, what kinds of medical care and assistance they’ll receive, and what kind of supervision they need.
• A petitioner is a person who asks the court to appoint a guardian.
• A respondent is a person on whose behalf the guardianship is sought.
• A conservator is a person or entity who has been appointed to make financial decisions for the ward, manage the ward’s estate, and ensure that the ward’s property and funds are available and secure for their future expenses.

Responsibilities and Powers of a Guardian

A court-appointed guardian has the same rights and responsibilities with respect to the ward as a parent has for their underage children who live at home. The guardian’s other responsibilities and powers include the following:

• Legal custody of the ward.
• Determining the type and location of housing for the ward, in any state.
• Providing for the care and comfort of the ward, including training and education if appropriate.
• Taking reasonable care of the ward’s personal effects, including clothing, furniture, and vehicles.
• Commencing protective proceedings for other property if necessary.
• Giving consent or approval for medical care, counseling, treatment, or other services while also considering the ward’s wishes.
• Reporting to the court on the condition of the ward and their estate.
• If a conservator has been appointed by the court, the guardian must account for all expenditures made in support of the ward and return any unused funds to the conservator.
• If a conservator has not been appointed by the court, the guardian is responsible for collecting outstanding debts and welfare on the ward’s behalf

Limits to the Powers of a Guardian

Before appointing a guardian, the court will consider whether there are other less restrictive means of providing the ward with protective services. The court will also consider the ward’s wishes regarding care and supervision, and the selection and duties of the guardian.

The court can set limitations and restrictions on the guardianship, including the duration of the appointment and the specific rights held by the guardian.

The guardian does not have to use his own funds to care for the ward, and does not become legally responsible to third parties for the ward’s actions, except as provided by law.

In some states, a guardian doesn’t have the right to commit the ward to a mental institution, obtain care and treatment for alcoholism, or obtain care and treatment for developmental disabilities without the ward’s approval. If these types of care are needed for a ward who doesn’t agree to them, the court must be petitioned for additional instructions.

The Guardianship Process

Following are the steps to the guardianship process:

1. The petitioner must file a “Petition for the Appointment of a Guardian” in the district court where the ward resides or is present. If an emergency exists, the need for an emergency guardian should be described in the petition.
2. The respondent’s physician must provide the court with a letter describing the respondent’s medical circumstances and establishing the need for a guardian.
3. The court will set a date for a hearing. If an emergency exists, the court may choose to act as guardian or may appoint an emergency guardian without notice and a hearing.
4. A “Notice of Hearing” form and copy of the original petition must be provided to the following:
   
   1. The respondent, in large type and by personal service
   2. The respondent’s spouse, parents, and adult children
   3. Any person who is serving as the respondent’s guardian or conservator, or who has care and custody of the respondent
   4. If no one identified in 4-2 or 4-3 can be notified, at least one of the respondent’s closest adult relatives, if any can be found
   5. The respondent’s treating physician
   6. Any institution in which the respondent resides
   7. Any legal representative of the respondent
   8. Any other person as directed by the court
5. A Return of Service indicating that the respondent has been personally served with notice and the petition, and Certificates of Mailing indicating that other appropriate individuals have received notice, must be filed with the court before the scheduled hearing.
6. The respondent’s attorney, or a “Court Visitor” appointed by the court, will interview the respondent, the prospective guardian, and all current or recent physicians or caregivers. The attorney or court visitor will also investigate the respondent’s living situation. The court visitor acts as the court’s eyes and ears, and will provide the court with a written report of their findings.
7. Following the hearing, the court will only appoint a guardian if the petitioner proves by clear and convincing evidence that it is necessary. The court will set forth its findings of fact concerning the nature and degree of the ward’s incapacity, and will determine the nature and extent of the required care, assistance, protection, and supervision.
8. If the court determines that a guardian should be appointed, an “Order Appointing Guardian for Ward” will be signed by the judge, and “Letters of Guardianship” that serve as proof of the guardian’s legal authority will be issued by the registrar. Any limitations or restrictions of the guardianship will be described in the Order and the Letters.
9. The guardian must sign an “Acceptance of Appointment” indicating that he or she is willing to accept the responsibility and submit to the court’s jurisdiction in any proceedings related to the guardianship.
10. If the guardian lives outside the state, he or she may be required to sign an “Irrevocable Power of Attorney Designating Clerk of Court as Agent for Service of Process,” which designates the court clerk to accept service of all legal notices and processes related to the guardianship.

Rights of the Respondent

• The respondent is entitled to be present at any court proceeding, to see or hear all of the evidence that is presented, to be represented by counsel, to present evidence, to cross-examine witnesses including the court visitor, and to trial by a jury.
• The respondent may be required to be examined by a court-appointed physician, who will submit a written report to the court.
• The respondent is allowed a court-appointed attorney if requested, or if the court believes that the rights and interests of the respondent cannot otherwise be protected. The court can also choose to appoint a temporary guardian to act in the respondent’s interest during the guardianship proceeding.
• The respondent is entitled to have the court consider less restrictive alternatives of providing the necessary protective services, and may object to the appointment of a guardian.
• The respondent is entitled to have the court consider his or her wishes concerning care, counsel, treatment, service, and supervision.
• The respondent is entitled to have the court consider his or her views concerning the selection of the guardian, the duties of the guardian, the scope and duration of the guardianship and any limitations or restrictions which should be imposed on the powers of the guardian. Once a guardianship has been established, the ward has the right to petition the court to terminate the guardianship on the grounds that the ward is no longer incapacitated. The ward may also ask for the removal of a guardian and the appointment of a successor guardian.

Michelle Lonsinger is a freelance researcher, technical writer, and editor.

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