Guardianship is a legal proceeding grounded in the principle of due process. The goal is to ensure that only a person who is found to be legally incapacitated has a guardian appointed to manage his or her affairs.
Our legal system provides many safeguards, including the right to notice, the right to independent counsel, the right to be present in court, and the right to a jury or a trial to determine whether or not someone is incapacitated. That is so because there are many legal consequences that result from guardianship, such as loss of some or all of these rights:
Guardianship may be needed because there is some form of mental disability, illness, or injury that causes incapacity. An important point of the guardianship process is that an alleged incapacitated person (AIP) has shown an inability to provide for her own care or to independently manage her own affairs. Common examples as to why one might seek guardianship are financial mismanagement, abuse, self-neglect, abandonment, or exploitation.
A qualified guardian is appointed by the court as long as she or he is able to provide appropriate support and supervision of the financial and/or medical decisions for the incapacitated person. The guardian must be 18 years or older, be of sound mind, have no criminal convictions, and meet any necessary training and/or certification requirements. Often the petitioner and/or AIP have a preference for family members, as they tend to be most involved in the lives and well-being of the AIP. When a suitable family member or friend is not available, a Certified Professional Guardian may be appointed. Certified Professional Guardians are supervised by the courts and the Certified Professional Guardianship board.
Anyone interested in the well-being of the alleged incapacitated person may petition for guardianship. The petitioner may be a friend, a neighbor, a professional involved in the person’s care, or the Attorney General’s Office.
A Guardian ad Litem (GAL) is an individual appointed by the court to represent the best interests of a child or incapacitated person involved in a case in the superior court. In order to become a GAL, an individual must complete a preliminary training program, provide background information to the court(s) in which the GAL wishes to serve and meet all eligibility requirements set by statute and individual county local court rules.