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Guardianship Law

A guardian can be appointed for someone who can no longer handle their own affairs because they are mentally and/or physically incapacitated. The person for whom a guardian is appointed is referred to as the Ward. The guardianship can be “limited” or “plenary”.

A “limited” guardianship may, for example, involve handling only the ward’s financial affairs. A “plenary” guardianship involves handling all matters of the ward, including decisions about the ward’s medical care, where the ward will live, who the ward can associate with, the ward’s financial affairs, etc.

A guardian must be appointed by a circuit court judge. The legal process begins by someone, often a relative, filing a petition to determine whether a person is incapacitated, and if so, to what extent. We call this person the “alleged incapacitated person” (the AIP) because at this point in the proceeding, the person is only alleged to be incapacitated. The judge must hold a hearing on whether the person is incapacitated, and if so, to what extent. This can be a very contentious process if the person for whom a guardian is sought does not want one appointed. Both the petitioner and the AIP have an attorney representing them during the entire process. Before the day of the hearing the AIP will be examined by three (3) medical experts, referred to as the examining committee. Each member of the examining committee issues a report on whether the AIP is incapacitated, and if so, to what extent.

At the hearing both sides can call witnesses to testify. The judge then issues a written order addressing whether the AIP is incapacitated. If the judge determines that the AlP is not incapacitated, the petition is dismissed. If the judge determines that the AIP is incapacitated, the judge will determine what rights will be taken away from the AlP, who is now referred to as the “ward”. The judge will appoint a guardian, and those rights taken away from the ward will then vest in the guardian.