Probate Court

Pre-Hearing Procedure for an Adult Guardianship

The prior note discussed the preparation and the filing of the Petition for Guardianship. This note will discuss what happens after the petition is filed with the probate court up until the time set for hearing. A separate note will deal with the issues of the appointment of a temporary guardian.

After the petition is filed, the petitioner is given a hearing date by the court. It is the petitioner's responsibility to see that the interested persons are served with a notice of such hearing on a form entitled Notice of Hearing (PC 562) along with a copy of the petition. The interested persons for the appointment of a guardian of a legally incapacitated person are as follows:

• 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.

Service on interested persons, except for the legally incapacitated individual who must be served personally, may be accomplished by personal service 7 days before the date set for hearing or by ordinary first-class mail 14 days before the date set for hearing. If the address of an interested person is unknown, service may be accomplished by publication 14 days before the date set for hearing. In the case of publication, it is required that the party attempting service file with the court an affidavit showing that they have made a diligent effort to obtain an address for the interested person being served by publication. Once service is accomplished, a form entitled Proof of Service (PC 564) must be filed with the court.

Once a petition is filed with the court, the court must appoint a guardian ad litem to represent the interests of the alleged legally incapacitated person. It is the duty of the guardian ad litem to visit the subject of the petition, to advise the subject of the petition of the rights they may have, to discover what position the subject of the petition may be taking regarding the petition and to make a determination as to what action would be in the best interest of the subject of the petition. The guardian ad litem may file a written report with the court on a form entitled Acceptance of Appointment and Report of Guardian ad Litem (PC 643). The fee of the guardian ad litem is not included in the filing fee to initiate, modify or terminate a case. Please be aware that you will receive an additional invoice for the work performed by the guardian ad litem. If the subject of the petition objects to the petition in any way, the guardian ad litem should report only that fact to the court. The court must then remove the guardian ad litem and appoint an attorney to represent the subject of the petition. If the initially appointed guardian ad litem was an attorney, he or she may change roles and continue as the attorney for the subject of the petition. The attorney will appear at the hearing to represent the position of the subject of the petition and files no report.

After the petition is filed with the court, the court may appoint a physician or a mental health professional to examine the subject of the petition and to report to the court. They may file such a written report on a form entitled Report of Physician/Mental Health Professional of Alleged Legally Incapacitated Individual (PC 630). The court may also appoint a person called a visitor to interview the subject of the petition and investigate placement.