Guardianship Definition and Process

Guardianship is a relationship created by state law in which a court gives one person or agency (the guardian) the duty and power to make personal and/or property decisions for another (the incapacitated person or ward).  The appointment of a guardian occurs when a judge decides an individual lacks capacity to make decisions on his or her own behalf.

Guardianships are established through a legal process outlined in state law.  The process begins with a petition alleging incapacity and includes procedural protections such as notice, appointment of counsel, and a required medical or mental health examination.  In addition, the judge may appoint a guardian ad litem or court visitor.

After a hearing, the judge makes findings on the capacity of the individual and may appoint a plenary (full) or limited guardian.  The appointment may be for guardianship of the person only, for guardianship of the property only, or both.  The appointment may be an emergency appointment if the person is at risk of immediate harm.  Once the guardian is appointed, the court is responsible for oversight, and the guardian must report to court periodically.