Establishing a Guardianship There are three major steps to establishing a guardianship.
Petition
Appointment of Counsel & Show Cause Order
Service/Notices
Guardian Training (all) & Inventory (guardians of property only)
Hearing(s)/Trial
Monitoring
Selection and Appointment of Guardian (Powers)
Grounds for Appointment/ Pre appointment training
Case dismissed
Termination
Step 1: The Petition. The guardianship process starts with the filling of a Petition for Guardianship of Alleged Disabled Person in a circuit court. The petition can ask for the appointment of a guardian of the person, a guardian of the property, or both. It must include information about the ADP, interested persons, alternatives to guardianship that have been tried and failed, and the name(s) of any proposed guardian(s). Two “certificates of incapacity" (capacity assessments) must be attached to the petition. One certificate must be completed by a physician. The other certificate can be completed by another physician, a psychologist, a licensed certified social worker-clinical (LCSW-C), a nurse practitioner, or a psychologist. At least one certificate must be based on an examination or evaluation that is conducted within 21 days before the petition for guardianship is filed. Review Appendix B for more information on Capacity Assessments. Other documents related to the case such as any financial power of attorney, advance directive, or written supported decision-making agreement must also be attached to the petition.
Step 2: The Show Cause Order. After the petition and all attachments are filed, the court will issue a show cause order. The petitioner must serve (formally provide) the ADP and all interested persons that order, and all the paperwork filed in the case, along with certain notices that explain the proceedings and their rights. The case cannot move forward unless and until the court receives proof that the paperwork and notices were served to all the parties. The show cause order will set a deadline for when parties need to submit documents to the court and may include a date for a hearing/trial. If the ADP does not have a lawyer of their own choosing, the court will also appoint one to advocate for what the ADP wants and to protect the ADP’s rights. Step 3: The Hearing or Trial. The court will hold a hearing or trial in every guardianship case. Petitions for guardianship of the person are automatically set for a jury trial. The ADP or their attorney can waive the right to a jury trial and ask that a judge to decide the case in what’s call a “bench trial.” The petitioner has the burden of proving there are grounds for appointment of a guardian. 23
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