For a person to be adjudicated incapacitated, they must meet certain criteria, including being 18+ years old and unable to understand and evaluate information or make and communicate decisions. The court can declare a person totally incapacitated or incapacitated in limited areas such as making decisions about their property and money or personal care. The court’s decision needs to be based on a medical, psychological, or other expert evaluation, as well as other evidence of the individual’s inability to make decisions.
When a guardianship petition is filed, the AIP has certain rights and protections under the law. These include the right to receive notice of the proceeding, be represented by an attorney (separate from the petitioner or any other interested party's attorney), have a hearing on the need for guardianship, present evidence and witnesses, cross-examine witnesses, have guardianship ordered only based on clear and convincing evidence, receive notice of guardianship orders, and appeal the court's decision.
All AIPs have the right to legal representation. As of June 2024, if they do not have an attorney, one must be appointed by the court. The attorney is expected to represent the wishes and desires of the AIP and to identify the least restrictive alternatives available to meet the needs of the AIP.
It may be advisable for the petitioner and any other interested parties to retain their own attorney, as the process can be complex, and the outcome can be life-changing.
A judge may appoint a guardian ad litem (sometimes referred to by the initials GAL), who is an attorney or other qualified individual whose job it is to act as an investigator and report what they find to be in the best interests of the AIP. The role of guardian ad litem is different from that of an attorney representing the AIP because the guardian ad litem makes a neutral assessment of the AIP's situation and shares their recommendations with the court, while the AIP's attorney must represent their wishes.
Before the guardianship hearing can occur, several steps must be completed. These steps include, but are not limited to, scheduling the hearing, notification of the AIP and all interested parties at least twenty (20) days before the scheduled hearing, and notice to the court by the petitioner at least seven (7) days prior to the hearing if, to their knowledge, the AIP has not retained a lawyer.
Hearings may be an hour or longer depending on the case's complexity. Whenever possible, the AIP should attend the hearing. At the hearing, the judge will consider the evidence and testimony presented and determine the AIP's level of capacity.