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What is Guardianship or Conservatorship?

An Overview of Determining Mental Incapacity

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Guardianship, or conservatorship as it's called in some states, is the legal proceeding in a state court where a person, called the “Guardian” or “Conservator,” is appointed to exercise some or all of the legal rights of the incapacitated person, called the “Ward.”

How Mental Incapacity is Determined by a Court

How is a person determined to be mentally incapacitated and therefore in need of a guardian or conservator? The exact procedure will vary state by state, but in general the following steps will be taken:

  1. A petition that questions a person’s mental capacity will be filed with the appropriate state court. Usually any "interested person" can file the petition, including the alleged incapacitated person's family members, friends, and professional advisors.

  2. The court will appoint a committee of physicians, nurses and/or social workers to examine the alleged incapacitated person. Either the court itself will be responsible for assembling the committee or the attorney for the person who filed the petition to determine capacity will be responsible.

  3. The court will appoint an attorney to represent the person who is alleged to be incapacitated. Again, either the court itself will be responsible for finding the attorney or the attorney for the person who filed the petition to determine capacity will be responsible.

  4. The committee will meet with and examine the alleged incapacitated person. Each member of the committee will be required to meet in person with the alleged incapacitated person.

  5. The committee will prepare a written report about the alleged incapacitated person’s mental and physical condition and file it with the court. Each committee member will be required to contribute his or her observations to the report.

  6. The attorney will be required to meet in person with the alleged incapacitated person. The attorney will be required to inform the alleged incapacitated person about the court proceeding and read the petition to determine capacity to him or her.

  7. The attorney will prepare a written report about his or her meeting with the alleged incapacitated person and file it with the court. The attorney's report will include whether or not the attorney believed the alleged incapacitated person understood the purpose of the meeting and the contents of the petition.

  8. The judge will review the petition, the committee’s findings, and the attorney’s report. The judge will take into consideration the expertise provided by the medical committee's report as well as the observations of the attorney.

  9. A hearing will be held at which arguments will be made for or against the person’s need for a guardian or conservator. The alleged incapacitated person, his or her court-appointed attorney and all interested persons and their attorneys will be required to attend the hearing in order to assist the judge with making the right decision. Note, however, that the alleged incapacitated person won't be required to attend the hearing if he or she is too sick to do so.

  10. The judge will make the final determination as to whether or not the person is completely competent or partially or totally incapacitated. The judge will combine the written findings of the medical committee, written report and testimony of attorney for the alleged incapacitated person with the testimony of all interested persons heard at the hearing and make the final decision as to the alleged incapacitated person's overall mental abilities or disabilities.

The judge will look for the least restrictive way to assist the person who is determined to be partially or totally incapacitated. This means that if the person is determined to be partially incapacitated, then a guardian or conservator will be appointed only for limited purposes, such as paying bills or investing the incapacitated person’s assets. Or, if the person is determined to be totally incapacitated, then all of his or her legal rights will be taken away and instead handed over to the guardian or conservator.

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