Understanding the Judicial Process
The guardianship process can vary significantly by state, court, and judge. Generally, the process begins with the determination of incapacity and the appointment of a guardian. Interested parties, such as family or public agencies, petition the court for appointment of guardians. The court is then responsible for ensuring that the alleged incapacitated person's rights to due process are upheld, while making provisions for investigating and gauging the extent of incapacity. Should the individual be deemed incapacitated, the judge appoints a guardian and writes an order describing the duration and scope of the guardian's powers and duties. Once a guardianship has been appointed, the court is responsible for holding the guardian accountable through monitoring and reporting procedures for the duration of the guardianship. The court has the authority to expand or reduce guardianship orders, remove guardians for failing to fulfill their responsibilities, and terminate guardianships and restore the rights of wards who have regained their capacity. Generally, guardianships include five separate court actions: petition, pre-hearing activities, court hearing, monitoring, and termination or transfer. More detailed information about guardianship and state laws and practices can be found on the
National Center for State Courts’ Center for Elders and the Courts website.