Probate Court

Petitioning for 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 an "incapacitated individual" which is:

An individual who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, not including minority, to the extent of lacking 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 mental capacity of the adult to make informed decisions, not the quality of the decisions they are making.

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 cannot be held. The persons interested in a petition for appointment of guardianship of a legally incapacitated individual are:

• the alleged incapacitated individual (must be served personally);
• if known, a person named as attorney in fact under a durable power of attorney;
• the incapacitated individual’s spouse, adult children and parents;
• if no spouse, adult child, or parent is living, the presumptive heirs of the individual;
• the person who has care and custody of the individual;
• the nominated guardian and standby guardian, if requested.

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.

The petitioner may also request that the court appoint a temporary guardian before the full hearing. If the petitioner does so, he or she must allege that an emergency exists and that no other person has the authority to act under the circumstances.

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 a Fee Waiver Request (MC 20). The court may suspend the fees and costs if appropriate.