A guardianship is a court order for one individual to make medical, mental health, housing and any other decisions needed for a person who is not able to make these decisions on his/her own. There are high legal standards involved in making someone a guardian, because a person’s decision making ability to say what medical and/or mental health treatment, and/or housing situation they want are held dear by our legal system. Just think if someone thought you were not capable of making your own decisions, we would not want the court to easily agree you are not capable. Instead the court has a process where an investigation takes place. The court names an attorney to represent the individual for whom a guardian is proposed. Plus the court names a person to investigate the situation and make a report to the court.
The person who takes guardianship paperwork to the court is the petitioner. The person who is the subject of the guardianship is called the respondent. If the court approves the guardianship, then this person becomes the ward. Once the guardianship paperwork is placed at the court, the judge will name a person to investigate what is going on with the respondent. This investigator is called the visitor. Because decision making ability and notice of any court action is so important, the court will name an attorney to work with the respondent. Part of this attorney’s job is to make sure that respondent understands this process and to find out what the respondent wants to happen.
If the respondent wants a guardian to make decisions on his/her behalf, and the visitor’s report supports the need for a guardian, then the judge may agree and appoint a guardian.
If the respondent disagrees with the guardianship proposal, then the attorney for the respondent will tell the judge this information. When this happens the petitioner will have to show the judge why the respondent needs a guardian. The petitioner will do this by having people come to court and tell the judge about the respondent. These people may also tell the judge whether they think the respondent needs a guardian. These people are called witnesses. They might include the respondent’s caregivers, doctors, teachers, social workers, employers, school mates, friends, and family.
Once the judge has listened to the witnesses, and the petitioner and the respondent have asked the witnesses any questions they might have, then the judge will make a decision on the guardianship.
The judge could approve the full guardianship, where medical and mental health, and housing decisions are made for the respondent or something less. The judge could decide just a conservatorship is needed. A conservator would make financial decisions on behalf of the ward.