RESOURCES - LEGAL SERVICES
OBTAINING GUARDIANSHIP STATUS
Due to the transfer of rights from one person to another, a guardianship should only be considered as a last resort.
The guardianship process has well-established rules, forms, and procedures. The process isn’t difficult, and usually people don’t need to hire a lawyer. Safeguards protect you to make sure that you really need to have a guardian.
First, a PETITION FOR APPOINTMENT OF GUARDIAN, INDIVIDUAL WITH ALLEGED DEVELOPMENTAL DISABILITY is filed in the county where you live. These standardized Petitions, and lots of helpful information, are usually available on your county’s Probate Court website. Any interested person can file the Petition, including you or your parents. Almost any suitable person or agency can be appointed as guardian.
There is no fee to file this Petition.
To complete the Petition, you provide basic information about yourself and your situation. See the sample form for more information.
Every Petition must include a report about your capacity for self-care, to ensure that a guardian is really needed. The judge usually appoints a professional to prepare this report when the Petition is filed. The professional will examine you, complete some testing, and prepare a report for court. The report includes results of the examination and an opinion as to whether you need a guardian or not.
An attorney will usually be appointed to represent you when the Petition is filed. This attorney will talk to you and find out what you want, whether you want a guardian or not, and if so who you want to be your guardian, and will advocate for what you want in court.
A hearing is held within 30 days after the Petition is filed. This hearing is respectful and can be closed to the public.
You will be at the hearing, with your lawyer, the proposed guardian and the professional who prepared the report. People will testify under oath. The judge may ask you questions, and carefully consider your opinions, about whether you feel you need a guardian and, if so, who should be appointed.
The judge must make several legal findings based on the testimony, about how well you can care for yourself and manage your property. If the judge decides that you have capacity to care for yourself and your property, the Petition will be dismissed.
If the judge decides that you have some capacity for self-care and can manage your property, in some areas, but not others, a partial guardian of you and/or your estate will be appointed. The Letters of Guardianship explain the scope of a partial guardian’s powers.
If the judge finds that you don’t have enough capacity for self-care or to manage your property, a full (plenary) guardian will be appointed over you and/or your estate, and will have very broad authority.
Separate guardians can be appointed for you and for your property, or one guardian could be appointed. Co-guardians could be appointed but rarely are.
A standby guardian can also be appointed in case your guardian can’t serve for some reason.