Establishing Guardianship

/Establishing Guardianship
Establishing Guardianship 2017-04-20T14:45:17+00:00

Guardianship is a legal process. Since a guardianship can remove considerable rights from an individual, the person or entity filing for a guardianship must fully demonstrate that the individual is not capable of making sound decisions on their own. Additionally, alternatives to guardianship should be pursued before filing for a guardianship.

A petition for guardianship typically follows the steps below.

1. Preliminary Investigation

This investigation is used to demonstrate a need for guardianship during the hearing. According to the National Guardianship Association (NGA), an investigative report should:

  • address the individual’s disability and how it affects decision making
  • analyze evaluations of the individual’s mental and physical condition, education, adaptive behavior, and social ability
  • state and support an opinion about the need for guardianship
  • and recommend and support living arrangements and treatment plans.

2. Filing of the Petition

To start the court proceedings, a petition, or official request for a guardian, must be prepared, signed, and filed by the person or entity that believes the individual needs a guardian. It is recommended that you consult with an attorney familiar with guardianship proceedings before filing a petition. The petition is filed with the Probate Court in the county in which the alleged incapacitated individual lives.

3. Hearing Date and Summons

After the petition is filed with the Probate Court, a hearing date is set. Then the summons to appear at the hearing (with date, time, and location) is sent to the individual in need of a guardianship. This summons also serves as the official notice to the individual that someone has petitioned for their guardianship.

This information is also sent to any interested parties (such as relatives and/or the proposed guardian) so that they can be present if they wish.

4. Hearing is Held

On the specified date and time, the hearing is held. At this point evidence is presented about the need for guardianship. Typically an attorney represents the individual at the hearing. After all evidence has been presented, the judge confirms or denies the petition for guardianship.

If the petition is confirmed, it is determined if the proposed guardian is eligible and able to serve in that capacity. If the proposed guardian is accepted, the responsibilities and limits of the guardian are defined to ensure that the best interests of the individual are met.

The clerk will then file letters of guardianship that will allow the guardian to make decisions on the individual’s behalf. At this time, the guardian makes an oath to serve the ward and accepts the letter of guardianship.

Please keep in mind that the legal process for establishing a guardianship takes considerable time. Establishing guardianship is a complex process that will not be done within 2-3 weeks.

The guardian is not held responsible for the actions of the protected individual. If the protected individual commits a crime, the guardian cannot be charged with the crime. However, the guardian is held responsible for his or her actions while acting as guardian for the individual.

National Guardianship Association. (2017). Questions and answers on guardianship issues. Retrieved from http://www.guardianship.org/pdf/Question_Answers.pdf

State of Vermont Judiciary. (2017). Purpose of guardianships for mentally disabled adults. Retrieved from https://www.vermontjudiciary.org/gtc/Probate/MasterDocumentLibrary/Purpose%20of%20Guardianships%20for%20Mentally%20Disabled%20Adults.pdf