How to Obtain Guardianship Over An Adult Family Member
Petition for Adult GuardianshipThe Estates and Protected Individuals Code (EPIC) has a chapter devoted to the operation of guardianships. The first step in the process is to obtain and complete PC form 625, Petition for Appointment of Guardian for Incapacitated Individual. This form has fields of basic information about both the petitioner and the allegedly incapacitated individual.
Many county probate courts have such forms available on-line. Simply pull up your county probate court's web site, download, complete, print, and sign the petition.
This form requires the petitioner to disclose the reason the guardianship is being sought over the adult. Be specific and complete; state exactly why the person is no longer to properly able to take care of their own affairs. Note: While chronic drug and alcohol use is a valid basis for guardianship, more is often required.
Other reasons for guardianship include a mental illness, or a physical illness or disability.
Appointment of a Guardian Ad LitemAfter the petition for guardianship is filed with a notice of hearing scheduling the matter for an open-court hearing (a minimum of 14-days from the day the petition is filed), the court will appoint a Guardian Ad Litem (GAL) who acts as the "eyes-and-ears" of the court. This person is an attorney trained by the probate court in the area of guardianships and assessing incapacitated individuals.
The GAL has a fiduciary duty to the court to investigate the facts and circumstances of the individual as well as the assertions contained in the petition. The GAL is required to personally visit the allegedly incapacitated individual and file a written report with the probate court at least 2-days prior to the hearing setting forth recommendations relative to the petition for guardianship.
It is standard practice for the appointed GAL to contact the petitioner to obtain their view of why the petition was filed. The GAL also appears in court at the hearing.
The GAL appears in cour
Hearing on Petition for Appointment of GuardianAfter all interested parties have been served with the petition and the GAL conducts her investigation of the allegedly incapacitated individual, a hearing is conducted in open court. At this hearing, the GAL will report to the judge whether she agrees that a guardian is need (or not); and why. By this time, the court should have the benefit of the GAL's report. If the petitioner does not have the report prior to the hearing, one will be provided on the morning of the hearing.
After the GAL provides her report to the judge, the petitioner will have the opportunity to address the court directly, explaining the circumstances on which the petition is based, and asserting why a guardianship is needed for the protection of the individual. Also at this hearing, other family members and interested parties of the allegedly incapacitated individual are afforded an opportunity to address the probate judge.
The judge either grants or denies the petition.
Qualifying As GuardianIf the probate court grants the petition, you must qualify your appointment by signing an Acceptance of Appointment to serve as Guardian. This is because serving as someone's guardian is a very serious responsibility. The probate court will not recognize you as the fiduciary of the now-incapacitated individual unless you affirmatively accept this responsibility and acknowledge your duties in this regard.
When you file your acceptance of the appointment, you will be issued official "Letters of Guardianship". This document is proof to the outside world (landlords, treating physicians, pharmacy) that you are the person responsible for, and making decisions for the incapacitated individual.
Your letters of guardianship expire one year from your acceptance and will need to be renewed at the time you file your annual report.
Sustaining Your Appointment as GuardianBy statute, the probate court will appoint someone (a volunteer or an attorney) to review the guardianship to determine whether it remains necessary, or whether the individual has re-gained her full capacity.
Also, a guardian is required to file an annual report with the court disclosing some of the salient events that occurred throughout the year relative to the guardian's physical and mental health, residence, activities, and guardian visits. The annual report is form PC 654, and can be found on-line like the petition. Be sure to include the most current address of the guardian's placement as this will be utilized by the probate court staff to send volunteers for the annual review(s).
If you fail to file the annual report, you will receive a notice of deficiency. Unless you correct this deficiency by completing and filing the report, you will eventually be removed as guardian.