Petitioning for the Guardianship of an Adult
A guardian of a legally incapacitated individual is a guardian of an adult appointed under the Estate and Protected Individuals Code. Any person interested in the adult's welfare, including the adult, can file a petition by using the form entitled Petition for Appointment of Guardian of Legally Incapacitated Individual (PC 625). The petitioner must allege that the adult meets the definition of "legally incapacitated individual" which is as follows:
A person, other than a minor, who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, to the extent that the person lacks sufficient understanding or capacity to make or communicate informed decisions.
The petitioner must also include in the petition specific facts about the adult's condition and specific examples of the adult's recent conduct that demonstrate the need for the appointment of a guardian. It should be noted that the focus of the inquiry is on the the mental capacity of the adult to make informed decision. Just because the decisions being made are not thought to be in the adult's best interest is not sufficient as long as the adult is able to know the consequences of his or her actions and accepts those consequences. The interested persons need to be listed on the petition. It is extremely important that all interested persons be included along with their proper address. If an interested person is missed or is not properly served, the hearing can not be held. The persons interested in a petition for appointment of guardianship of a legally incapacitated individual are:
- the alleged legally incapacitated individual
- if known, a person named as attorney in fact under a durable power of attorney
- the alleged legally incapacitated individual's spouse
- the alleged legally incapacitated individual's children or, if no child is living, the individual's parents
- if no spouse, child, or parent is living, the presumptive heirs of the individual
- the person who has the care and custody of the alleged legally incapacitated individual
- the nominated guardian.
The petitioner must also nominate someone to serve as the guardian on the petition. Anyone may be nominated. However, the court is required to appoint according to their priority as determined by the Estates and Protected Individuals Code. Those priorities will be discussed in a subsequent note.
The petitioner may also request that the court appoint a temporary guardian before the full hearing. If the petitioner does so, he or she has to allege that an emergency exits and that no other person has the authority to act under the circumstances. The procedure for a temporary guardianship will be discussed in a subsequent note.
When the petition is completed, it must be filed with the probate court along with the filing fee. If the petitioner is indigent, the petitioner may file Affidavit and Order Suspension of Fees/Costs (Form MC 20). The court may suspend the fees and costs if appropriate. The court will set a date for hearing after accepting the petition.