The Probate Court has the power to appoint any adult as a guardian to assume responsibility for the care and management of the person, the estate, or both, of an incompetent person. However, a minor over 14 or a minor’s parents by will may suggest a guardian for a minor. Moreover, a competent adult may nominate a guardian to serve in the event of incapacity.
The application for guardianship is filed in the Probate Court of the county of the ward’s residency by an interested party, or on the court’s own motion. The application must include a statement of the guardian’s willingness to perform as guardian and a bond as required by law. In the case of a prospective incompetent ward the application must include a statement of the ward’s mental and physical condition from a treating physician, psychiatrist, or licensed psychologist. As prescribed by law, the prospective ward as well as the adult next of kin is to be notified of the impending guardianship and date and time of hearing.
In the case of an incompetency proceeding, a court investigator will serve a notice and a statement of rights on the prospective ward. The court investigator then conducts an investigation which includes an interview with the prospective ward in order to assist the court in determining the advisability of guardianship. Thereafter, a formal hearing is conducted by the Judge or Magistrate to determine if a guardianship is necessary, the guardian is suitable, and the guardian understands these duties. The prospective ward has the right to be present at the hearing to contest any application for guardianship and to be represented by an attorney. Generally, the court will appoint a guardian after hearing evidence that a person is incapable of making decisions.