A guardian is a person appointed by probate court and given power and responsibility to make certain decisions about the care of another individual. These decisions might include treatment decisions or where the individual should live. The duties of a guardian are listed in statute.

A full guardian can make all decisions for the individual. A limited guardian can only make the decisions for the individual that the court allows.

The court can appoint a guardian when it finds the person is a legally incapacitated Individual and determines that a guardian is necessary.

A legally incapacitated individual is an adult the court finds to be so impaired by mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, that he or she lacks the understanding or capacity to make or communicate informed decisions.

Is a guardian needed for an individual who may be legally incapacitated?

A guardian might not be necessary if someone else already has legal authority to make decisions for the person and there are no problems with the decisions they are making. (*Please see the definition of Power of Attorney)

Any person interested in the individual’s welfare may complete a Petition for Appointment of a Guardian of Incapacitated Individual (form PC 625) and file it, along with the filing fee, with the probate court where the individual resides or is presently located.

No, but a lawyer can be helpful, especially is someone objects to the appointment of a guardian, the authority you are asking to be given, or the person you are asking to be appointed guardian.

Certain disagreements about the request for a guardian may be mediated outside of the court only if the court has a plan (called an alternative dispute resolution plan) for mediating these disagreements.

After the petition is accepted for filing, the court will appoint a guardian ad litem to visit the individual to explain the guardianship proceedings and to make recommendations to the court as a result of the visit.

It is important for you to cooperate with the guardian ad litem. The guardian ad litem does not have the authority to make decisions for the individual. The individual may have to pay for the guardian ad litem. If necessary, the court may also order the individual to be examined by a physician or a mental health professional.

The guardian ad litem will personally visit the individual and explain to the individual the nature, purpose, and legal effects of the appointment of a guardian.

The guardian ad litem will:

IF an emergency exists, the judge may appoint a temporary guardian to serve until a hearing on the petition can be held.

Also called a patient advocate designation or a durable power of attorney for health care. This document enables a person to name an agent (called a patient advocate) to make his or her health care decisions when not capable or not competent to do so. The document may cover any type of health care decision including guidance to the agent about the type and extent of health care desired. It can also include authority to withhold or to withdraw life support services.

A do-not–resuscitate order is a document directing that the patient named in the order not be resuscitated if the patient’s spontaneous respiration and circulation stop in a setting outside a nursing home, hospital, or mental health facility owned or operated by the Department of Community Health. The patient must sign the document in the presence of his/her attending physician and two adult witnesses.

A conservator may be needed when the individual is unable to manage his or her property and financial affairs effectively because of certain reasons and:

1. He or she has property that will be wasted or used up unless proper management is provided; or

2. funds are needed for the support, care, and welfare of the adult and any of his or her dependents.

A mentally competent adult who, because of age or physical limitation,, my voluntarily petition the court himself or herself for the appointment of a conservator to assist in managing his/her estate.

Some of the reasons that might prevent the individual from being able to manage his or her property and financial affairs are:

A conservator might not be necessary if someone else already has legal authority (an individual with power of attorney, for example) to make decisions about the individual’s estate and there are no problems with the decisions being made.

Any person who is interested in the individual’s welfare may complete a Petition for Appointment of Conservator (form PC 639)and file it, along with the filing fee, with the probate court.

No, but a lawyer can be helpful, especially in any interested person opposes the appointment of a conservator.

After the petition is accepted for filing, the court will appoint a guardian ad litem to represent the individual in the court proceeding unless the individual has his or her own attorney or unless a mentally competent adult voluntarily requests the appointment.

It is important for you to cooperate with the guardian ad litem. The guardian ad litem does not have the authority to make decisions for the individual. The individual may have to pay for the guardian ad litem.

If necessary, the court may also order the individual to be examined by a physician or a mental health professional. The court may also send someone (called a visitor) to interview the individual. The visitor may be the guardian ad litem or a court officer or court employee.

If the court believes an individual’s estate requires immediate protection before appointing a conservator, the court may issue a preliminary protective order. This order may involve the appointment of a special conservator. The order will authorize specific acts that provide for immediate protection of the individual’s assets.