Guardianship/Incompetency

If you believe someone is unable to manage their own affairs or make their own decisions, perhaps due to injury or mental health issues, a petition may be filed to have the person adjudicated incompetent and to have a legal guardian appointed.

Upon the filing of the petition, a guardian ad litem (lawyer for the case) will be appointed by the court to represent the Respondent (person alleged to be incompetent) at an incompetency hearing. An adjudication of incompetence results in the loss of many of the basic rights that we take for granted, such as the right to make decisions regarding one’s health care and medical treatment or where one lives. No matter how “obvious” a person’s incompetence may be to family members, every alleged incompetent person has a right to be heard by the court and insist that the petitioner demonstrate “clear, cogent and convincing” evidence that a guardian is necessary. The court-appointed guardian ad litem will ensure that the Respondent’s interests are known to the court.

A general guardian or guardian of the person is expected to take part in planning for living arrangements for the ward, as well as being responsible for seeing that the ward is cared for and has the training, education, employment, or other services that he or she needs. The guardian must take reasonable care of the ward’s personal property. The guardian is also expected to take any legal action needed to protect the ward. The guardian can give any consent or approval that may be needed to enable the ward to receive most medical, legal, or psychological services. The guardian may be requested to give other types of consent such as permission for the ward to participate in recreational activities. An annual report of financial transactions by a general guardian or guardian of the estate should be filed with the Clerk of Court.

A guardianship may be modified after it has been established.

An incompetency hearing is generally scheduled three (3) to four (4) weeks from the filing of the petition. This allows the Sheriff’s Department sufficient time to serve the Respondent with the petition, allows family members and other next of kin time to plan to attend the hearing if they wish, and provides an opportunity for the court-appointed attorney to make a personal visit with the Respondent and decide how best to represent him/her.

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