Who can become a guardian?
Any competent adult and some agencies can be appointed as a guardian. The law gives preference, however, to appointment of the following persons in the following order:
- Persons suggested by the ward, in the event the ward is capable of expressing a preference
- Close and appropriate family members of the ward
- Other specified persons
How is a guardianship established?
Any person who believes that another person needs a guardian may file a petition for appointment of a guardian with an appropriate state district court. Usually an attorney represents the person filing the petition “the petitioner”. In addition, the petitioner may arrange for the proposed ward to be examined by a physician or psychologist. Unless a physician or psychologist has concluded that the proposed ward is incapacitated, it is unlikely that a court will grant the petition.
After receiving a petition, the court schedules a hearing. Various persons, including the proposed ward, must be notified of the hearing. If the proposed ward does not have a lawyer or cannot afford a lawyer, the court will appoint one. At the initial hearing the judge may schedule a trial, or if the judge finds no opposition to the petition, the judge may grant the petition.
At the trial, if one is necessary, the judge or jury may hear testimony from persons in support of and in opposition to the petition, including the proposed ward and the ward’s family, friends and physician. In addition, the judge may appoint qualified individuals called “visitors” to examine and report back to the court about the condition of the proposed ward, the proposed ward’s current place of residence and the proposed place of residence. At the conclusion of the hearing or trial, the judge or the jury decides whether or not to grant the petition.
