Who can initiate a guardianship proceeding?

When is the appointment of a guardian required?

The party who initiates the guardianship proceeding is referred to as the Petitioner and the subject of the proceeding is referred to as the Alleged Incapacitated Person. Under the applicable state law, a guardianship proceeding may be initiated by (1) the Alleged Incapacitated Person, (2) a presumptive distributee of the Alleged Incapacitated Person (meaning anyone who is expected to take or share in the estate of the Alleged Incapacitated Person, such as a spouse, child, or parent of the Alleged Incapacitated Person), (3) the Trustee of a Trust where the Alleged Incapacitated Person either created the Trust (as the grantor) or is a beneficiary of the Trust, (4) the Executor or Administrator of an estate where the Alleged Incapacitated Person is a beneficiary, (5) a person otherwise concerned with the welfare of the Alleged Incapacitated Person (such as the Department of Social Services), (6) the person with whom the Alleged Incapacitated Person resides, or (7) the Chief Executive Officer or Administrator of a facility where the Alleged Incapacitated Person is a patient or resident.

A guardianship proceeding is initiated by filing two different petitions with the court. The first petition is a petition to determine incapacity in which you ask the court to make a determination that the IPS, which stands for the individual thought to be incapacitated, is mentally incapacitated. The other petition that is filed and when initiating a guardianship petition is a petition for appointment of guardian in which the petitioner asks the court to appoint them as the guardian over the IPS.

The appointment of a guardian is required when an individual experiences mental incapacity and is unable to independently handle their healthcare or finances. If there are no advanced directives in place, which are seen as a less restrictive alternative, then the appointment of a guardian becomes necessary.