Incapacitated Persons


Guardianship of Incapacitated Persons

Guardianship of incapacitated persons can be avoided if the individual had previously  appointed an agent under a Durable Power of Attorney, or has a Trust. If not, then a guardianship proceeding must be opened.

Since losing one’s legal rights is the loss of a civil liberty, the due process requirements are stringent. Before a guardian can be appointed, there must be a legal determination by a judge as to whether that person is incapacitated and to what extent. This is a factual question, and is determined by medical records, testimony of family or friends, testimony of the “alleged incapacitated person” if they choose, and the reports of an “examining committee”.

The proposed guardian will file a Petition to Determine Incapacity. Then the guardianship judge appoints an examining committee consisting of a psychiatrist, psychologist and social worker. These three persons examine the alleged incapacitated person to determine whether, in their individual opinion, the person has the capacity to do the following twelve things:

Manage money and make gifts
Apply for government benefits
Have a driver’s license
Consent to medical decisions
Determine where they should live
Determine who they should socialize with
Enter into a contract
Seek and retain employment
Sue and Defend Lawsuits

If determined by a judge to lack the capacity to do these things, a guardian will be appointed, to take over any rights in which the person is deemed incapacitated to handle. The exception is the right to marry and vote, as they are personal to the individual.

Often, more than one person believes they are the best suited to be the guardian and more than one Petition for Appointment as Guardian is filed. In this case, after a hearing where evidence is presented, the judge will decide which person is the most qualified to serve.

The appointed guardian may have to take a guardianship class, if ordered by the judge, to learn how to complete the annual reports that must be filed for the ward.