A physical disability without an accompanying mental incapacity is insufficient to establish incompetence for the purposes of appointing a guardian. In this regard, the court’s focus is on the functioning of the person’s mind and not an impairment that affects control of bodily functions.
The court must determine that the physical impairment causing the incapacity is accompanied by a developmental disability, a serious and persistent mental illness, a degenerative brain disorder such as dementia, or a traumatic brain injury. The disability or incapacity must involve severe and long term conditions that impose great limitations upon the individuals’ ability to take care of themselves, express themselves verbally, earn a living, and live independently. However, the evidence before the court must be clear and convincing that the person is incompetent.
In their role guardians facilitate the independence and self-reliance of the ward. The guardian is granted only those powers necessary for the ward to accomplish what s/he cannot accomplish independently. The powers may include assuring the availability and maintenance of care for the ward and ensuring that educational and medical services are maintained and adequate. A guardian is required to submit updates to the court as to the status of the ward and the guardian’s duties.