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Although some parents petition for guardianship without the help of an attorney, most parents hire an attorney to guide them through the process. Although this article is not intended to teach you how to petition for guardianship, it gives you an idea of what to expect if you work with an attorney.
The court process will include most (not necessarily all) of the following elements:
Petition
The first step is to file a petition with the guardianship court. Typically, the petition is filed in the county where your child resides. You will petition for one of the following: 1) Guardian of the person; 2) Guardian of the estate; or 3) Guardian of the person and estate. You will petition for either limited or plenary guardianship.
The petition will likely include the following:
On filing the petition, the court will schedule a place and time for the hearing.
In most states, once your petition for guardianship is filed, you can only withdraw the petition with court approval. This rule is designed to protect the alleged disabled person.
Summons
The summons gives notice to the person with a disability as to the day, time, and location of the hearing. A copy of the petition will be attached to the summons. The summons is usually physically served by the sheriff or process server on the person with a disability. The sheriff or process server will charge a small fee. Commonly, the summons must be served at least 14 days before the hearing date.
The summons also informs the person with a disability (the respondent) of their legal rights. Depending on state law, this list of the respondent’s legal rights may include the following:
If the sheriff’s uniform might scare your child, either the sheriff can wear plain clothes or you can use a private process server.
Notice
Notice must be sent to all the people named in the petition (relatives, current guardian (if any), agent under a power of attorney). The notice should include the day, time, and location of the guardianship hearing along with a copy of the petition. Notice may be required to be given at least fourteen days before the hearing.
Physician’s Report
The court bases its ruling on evidence. You must prove guardianship is necessary. One element of proof is a medical evaluation by your child's doctor, often called a Physician’s Report, or Doctor's Report. Especially in uncontested guardianship cases, the physician’s report is the evidentiary foundation of your petition.
The report must be current. In many jurisdictions, it must be written within 90 days of filing the petition for guardianship.
The Physician’s Report typically includes the following:
The Physician’s Report must support the guardianship petition. The judge may require the physician to write another report if the report does not.
The Physician’s Report specifies whether your child is totally incapable of making personal or financial decisions or partially incapable of making such decisions. If the physician says the person can partially make decisions, then you will need the physician to specify which decisions your child is capable of making.
Guardian ad Litem (GAL) or Waiver of GAL
The court may appoint a Guardian ad Litem (GAL) to obtain further evidence. The GAL (usually an attorney) visits your child and reports to the court. The GAL does not represent you (the petitioner) or your child (the respondent). The GAL is an independent fact finder for the court -- the court's "eyes and ears." The GAL will report to the court if the person objects to guardianship and will report to the court what the respondent wants, even if it sounds unreasonable.
The GAL observes the respondent and has the right to read medical records. After gathering such information, the GAL files a written report with their recommendations to the court. The GAL describes the respondent’s physical and mental capacity and includes any medical evaluations to help the judge determine whether guardianship is needed and, if so, the type of guardianship.
Although GAL fees vary widely by locality, they can be expensive. Usually, you will want the court to waive the need for a GAL. Whether or not a GAL is required varies depending on your local court rules and customs. In some counties, a GAL is always appointed. In other counties, a GAL is usually appointed in a guardianship of the estate case but not necessarily appointed in a guardianship of the person case. The judge may waive the need for the GAL if it is a guardianship of the person case, the person with a disability is at the hearing and does not object to the guardianship, there's no family disagreement, and the nature of the child's disability is obvious. If you work with an experienced “special needs” attorney, they will know your odds of waiving the need for a GAL.
Below is an excerpt from an Illinois statute regarding the GAL's duties. Your state's statute will likely be similar. It gives you a detailed description of the GAL's job:
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The guardian ad litem shall personally observe the respondent prior to the hearing and shall inform him orally and in writing of the contents of the petition and of his rights, including providing a copy of the notice of rights under subsection (e). The guardian ad litem shall also attempt to elicit the respondent's position concerning the adjudication of disability, the proposed guardian, a proposed change in residential placement, changes in care that might result from the guardianship, and other areas of inquiry deemed appropriate by the court. 755 ILCS 5/11a-10(a).
The guardian ad litem can also review relevant medical and other records.
Notwithstanding any provision in the Mental Health and Developmental Disabilities Confidentiality Act[, 740 ILCS 110/1, et seq.,| or any other law, a guardian ad litem shall have the right to inspect and copy any medical or mental health record of the respondent that the guardian ad litem deems necessary, provided that the information disclosed shall not be utilized for any other purpose nor be redisclosed except in connection with the proceedings. 755 ILCS 5/11a-10(a).
At or before the hearing, the guardian ad litem shall file a written report detailing his or her observations of the respondent, the responses of the respondent to any of the inquiries, the opinion of the guardian ad litem or other professionals with whom the guardian ad litem consulted concerning the appropriateness of guardianship, and other material issue discovered by the guardian ad litem. The guardian ad litem shall appear at the hearing and testify as to any issues presented in his or her report. 755 ILCS 5/11a10(a).
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Hearing
If the guardianship is uncontested and the GAL and the Physician’s Report indicate the need for plenary guardianship, the hearing will likely occur with the parties gathered before the judge. Or, since COVID, more and more hearings are done online by video conferencing. No witnesses are typically needed. Even the doctor who wrote the Physician’s Report will only have to appear in court if the judge orders.
The judge will likely ask the parents and their child with a disability some questions. The judge wants to know various information about the person with a disability: the nature and severity of the disability, the capacity to communicate responsible decisions, the ability to manage finances, and their living situation.
The judge may ask you various questions to ensure you qualify under the guardianship statute to be a guardian: Is the nominated guardian a resident of the US? Has the nominated guardian ever been convicted of a felony? Has the nominated guardian ever been adjudicated a person with a disability? And so forth. Although these questions may sound strange, the judge wants to ensure you qualify under the statute to be a guardian.
Orders of Appointment
The judge, assuming the evidence supports the petition, signs a court order naming the guardian. If the evidence supports the need for a plenary guardian of the person and/or estate, the guardian's full authority will be detailed in your state's probate statute. The court order will include the factual basis for the need for a guardian. (Note: In a contested hearing, if there is a jury trial, the jury will weigh the evidence.)
Letters of Office
Letters of Office prove that you are your child's court-appointed guardian. They are like your guardianship ID card. If anyone questions your authority to make decisions for your child, you show them your Letters of Office.
Oaths of Office
After you are appointed guardian, you will sign an Oath of Office whereby you swear to carry out your duties as guardian faithfully.
Bond
A guardianship bond is where a third party guarantees the guardian will execute their duties properly. If you are petitioning for guardianship of the person, many courts routinely waive the bond requirement. In contrast, a bond will typically be required with guardianship of the estate.
Annual Report or Accounting
In many jurisdictions, the guardian of the person must file an annual report updating the court about the person with a disability (the ward's) well-being. The actual court form may vary by county.
Similarly, a guardian of the estate must submit an annual accounting to the court, including an inventory of assets, receipts, and disbursements. Judges differ regarding the required level of documentation. Many parents hire an attorney to prepare and present the documentation to the court.
Although some parents petition for guardianship without the help of an attorney, most parents hire an attorney to guide them through the process. Although this article is not intended to teach you how to petition for guardianship, it gives you an idea of what to expect if you work with an attorney.
The court process will include most (not necessarily all) of the following elements:
- Petition;
- Summons;
- Notice;
- Physician’s report;
- Guardian ad litem (GAL) or waiver appointment of GAL;
- Hearing;
- Orders of appointment;
- Oaths of office;
- Bond;
- Annual report or accounting.
Petition
The first step is to file a petition with the guardianship court. Typically, the petition is filed in the county where your child resides. You will petition for one of the following: 1) Guardian of the person; 2) Guardian of the estate; or 3) Guardian of the person and estate. You will petition for either limited or plenary guardianship.
The petition will likely include the following:
- Your child’s name, birthdate, and residence;
- Your child’s nearest relatives;
- Your name, age, and occupation;
- The reasons for the guardianship;
- The relationship between you and your child;
- The value of your child’s estate;
- Your child’s gross annual income.
On filing the petition, the court will schedule a place and time for the hearing.
In most states, once your petition for guardianship is filed, you can only withdraw the petition with court approval. This rule is designed to protect the alleged disabled person.
Summons
The summons gives notice to the person with a disability as to the day, time, and location of the hearing. A copy of the petition will be attached to the summons. The summons is usually physically served by the sheriff or process server on the person with a disability. The sheriff or process server will charge a small fee. Commonly, the summons must be served at least 14 days before the hearing date.
The summons also informs the person with a disability (the respondent) of their legal rights. Depending on state law, this list of the respondent’s legal rights may include the following:
- The right to be present at the court hearing;
- The right to be represented by a lawyer, either one that you retain or one appointed by the judge;
- The right to ask for a jury of six persons to hear your case;
- The right to present evidence to the court and to confront and cross-examine witnesses;
- The right to ask the judge to appoint an independent expert to examine you and give an opinion about your need for a guardian;
- The right to ask that the court hearing be closed to the public;
- The right to tell the court whom you prefer to have for your guardian;
- The right to ask a judge to find that although you lack some capacity to make your own decisions, you can make other decisions, and therefore it is best for the court to appoint only a limited guardian for you.
If the sheriff’s uniform might scare your child, either the sheriff can wear plain clothes or you can use a private process server.
Notice
Notice must be sent to all the people named in the petition (relatives, current guardian (if any), agent under a power of attorney). The notice should include the day, time, and location of the guardianship hearing along with a copy of the petition. Notice may be required to be given at least fourteen days before the hearing.
Physician’s Report
The court bases its ruling on evidence. You must prove guardianship is necessary. One element of proof is a medical evaluation by your child's doctor, often called a Physician’s Report, or Doctor's Report. Especially in uncontested guardianship cases, the physician’s report is the evidentiary foundation of your petition.
The report must be current. In many jurisdictions, it must be written within 90 days of filing the petition for guardianship.
The Physician’s Report typically includes the following:
- The nature and type of disability, and an assessment of how such disability impacts on the ability of the respondent to make decisions or to function independently;
- An analysis and results of the respondent’s mental and physical condition, including educational condition, adaptive behavior, and social skills;
- An opinion regarding the need for, type, and scope of guardianship recommended; and
- A recommendation regarding the most suitable living arrangement.
The Physician’s Report must support the guardianship petition. The judge may require the physician to write another report if the report does not.
The Physician’s Report specifies whether your child is totally incapable of making personal or financial decisions or partially incapable of making such decisions. If the physician says the person can partially make decisions, then you will need the physician to specify which decisions your child is capable of making.
Guardian ad Litem (GAL) or Waiver of GAL
The court may appoint a Guardian ad Litem (GAL) to obtain further evidence. The GAL (usually an attorney) visits your child and reports to the court. The GAL does not represent you (the petitioner) or your child (the respondent). The GAL is an independent fact finder for the court -- the court's "eyes and ears." The GAL will report to the court if the person objects to guardianship and will report to the court what the respondent wants, even if it sounds unreasonable.
The GAL observes the respondent and has the right to read medical records. After gathering such information, the GAL files a written report with their recommendations to the court. The GAL describes the respondent’s physical and mental capacity and includes any medical evaluations to help the judge determine whether guardianship is needed and, if so, the type of guardianship.
Although GAL fees vary widely by locality, they can be expensive. Usually, you will want the court to waive the need for a GAL. Whether or not a GAL is required varies depending on your local court rules and customs. In some counties, a GAL is always appointed. In other counties, a GAL is usually appointed in a guardianship of the estate case but not necessarily appointed in a guardianship of the person case. The judge may waive the need for the GAL if it is a guardianship of the person case, the person with a disability is at the hearing and does not object to the guardianship, there's no family disagreement, and the nature of the child's disability is obvious. If you work with an experienced “special needs” attorney, they will know your odds of waiving the need for a GAL.
Below is an excerpt from an Illinois statute regarding the GAL's duties. Your state's statute will likely be similar. It gives you a detailed description of the GAL's job:
______________________________________________________________________________
The guardian ad litem shall personally observe the respondent prior to the hearing and shall inform him orally and in writing of the contents of the petition and of his rights, including providing a copy of the notice of rights under subsection (e). The guardian ad litem shall also attempt to elicit the respondent's position concerning the adjudication of disability, the proposed guardian, a proposed change in residential placement, changes in care that might result from the guardianship, and other areas of inquiry deemed appropriate by the court. 755 ILCS 5/11a-10(a).
The guardian ad litem can also review relevant medical and other records.
Notwithstanding any provision in the Mental Health and Developmental Disabilities Confidentiality Act[, 740 ILCS 110/1, et seq.,| or any other law, a guardian ad litem shall have the right to inspect and copy any medical or mental health record of the respondent that the guardian ad litem deems necessary, provided that the information disclosed shall not be utilized for any other purpose nor be redisclosed except in connection with the proceedings. 755 ILCS 5/11a-10(a).
At or before the hearing, the guardian ad litem shall file a written report detailing his or her observations of the respondent, the responses of the respondent to any of the inquiries, the opinion of the guardian ad litem or other professionals with whom the guardian ad litem consulted concerning the appropriateness of guardianship, and other material issue discovered by the guardian ad litem. The guardian ad litem shall appear at the hearing and testify as to any issues presented in his or her report. 755 ILCS 5/11a10(a).
______________________________________________________________________________
Hearing
If the guardianship is uncontested and the GAL and the Physician’s Report indicate the need for plenary guardianship, the hearing will likely occur with the parties gathered before the judge. Or, since COVID, more and more hearings are done online by video conferencing. No witnesses are typically needed. Even the doctor who wrote the Physician’s Report will only have to appear in court if the judge orders.
The judge will likely ask the parents and their child with a disability some questions. The judge wants to know various information about the person with a disability: the nature and severity of the disability, the capacity to communicate responsible decisions, the ability to manage finances, and their living situation.
The judge may ask you various questions to ensure you qualify under the guardianship statute to be a guardian: Is the nominated guardian a resident of the US? Has the nominated guardian ever been convicted of a felony? Has the nominated guardian ever been adjudicated a person with a disability? And so forth. Although these questions may sound strange, the judge wants to ensure you qualify under the statute to be a guardian.
Orders of Appointment
The judge, assuming the evidence supports the petition, signs a court order naming the guardian. If the evidence supports the need for a plenary guardian of the person and/or estate, the guardian's full authority will be detailed in your state's probate statute. The court order will include the factual basis for the need for a guardian. (Note: In a contested hearing, if there is a jury trial, the jury will weigh the evidence.)
Letters of Office
Letters of Office prove that you are your child's court-appointed guardian. They are like your guardianship ID card. If anyone questions your authority to make decisions for your child, you show them your Letters of Office.
Oaths of Office
After you are appointed guardian, you will sign an Oath of Office whereby you swear to carry out your duties as guardian faithfully.
Bond
A guardianship bond is where a third party guarantees the guardian will execute their duties properly. If you are petitioning for guardianship of the person, many courts routinely waive the bond requirement. In contrast, a bond will typically be required with guardianship of the estate.
Annual Report or Accounting
In many jurisdictions, the guardian of the person must file an annual report updating the court about the person with a disability (the ward's) well-being. The actual court form may vary by county.
Similarly, a guardian of the estate must submit an annual accounting to the court, including an inventory of assets, receipts, and disbursements. Judges differ regarding the required level of documentation. Many parents hire an attorney to prepare and present the documentation to the court.