Guardianship – known as conservatorship in some states – is a legal proceeding in state court to appoint someone to exercise some or all legal rights for an individual who is mentally incapacitated. The individual who is mentally incapacitated is often referred to as the “ward.”
How Courts Determine Mental Incapacity
How is a person’s mental incapacity and need for a guardian or conservator determined? The exact procedure varies from state to state, but typically the following steps are taken:
1. A petition questioning the individual’s mental capacity is filed in the appropriate court. Usually, any “interested person” can file this petition, such as family members, friends, or even professional advisors.
2. The court will appoint a panel of doctors, nurses, and possibly social workers to evaluate the mentally incapacitated person. Sometimes the court forms this panel, or the court may order the attorney for the petitioner to identify the professionals to serve in this capacity.
3. The court will appoint an attorney to represent the mentally incapacitated person. Again, either the court itself is responsible for finding the attorney, or the attorney for the petitioner may be ordered to designate someone.
4. The panel will meet with the alleged mentally incapacitated person and evaluate them. Each member of the panel must meet with the individual in person.
5. The panel will prepare a written report regarding the individual’s mental and physical condition and submit it to the court. Each member of the panel must contribute their observations.
6. The attorney or court-appointed evaluator for the mentally incapacitated person must meet with them in person to inform them of the court proceedings and read the petition to them. The attorney or evaluator will prepare a written report outlining their meeting with the mentally incapacitated person and submit it to the court. The report must include a statement regarding whether they believe the individual understood the purpose of the meeting and the contents of the petition.
The Court’s Goal
The judge typically looks for the least restrictive means to assist the person identified as incapacitated. If it is determined that the individual is partially incapacitated, a guardian or conservator may be appointed only for limited purposes, such as paying their bills or overseeing their investments. If it is determined that the individual is completely incapacitated, typically all legal rights are transferred to the person or entity assigned as the guardian or conservator.
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Sources:
- The New York State Senate. “Section 81.09 Appointment of Court Evaluator.”
- Twelfth Judicial Circuit Court. “Guardianship Basics.”
- NYCourts.gov. “Guardian Assistance Network: Glossary.”
Source: https://www.thebalancemoney.com/what-is-guardianship-or-conservatorship-3505177
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