Disabled's Estate

Appointing a Guardian of the Person and/or Estate

A "disabled" person is an individual 18 years of age or older not able to fully manage his personal or financial affairs due to a serious mental and/or physical condition. The law provides the possibility for the appointment of a guardian to handle the personal and financial affairs of an individual with serious mental or physical problems. In addition, the law provides that a person is disabled if they create serious financial problems for the family as a result of the excessive use of drugs or alcohol.

A formal written petition must be filed asking that a guardian be appointed stating the specific reasons in support of the request. The individual who is said to be disabled must be served personally with a summons and a copy of the petition, either through service by Sheriff or by taking the individual to the Sheriff's office. In addition, written notice of the filing of the petition and of the hearing date must be provided to family members. Generally, a written report of a qualified professional describing the specific disability is filed together with the petition. This report must be signed by at least one licensed physician. If such a report is not filed with the petition, the Court is required to order that an evaluation be made, and such a report filed.

Once the petition is filed, the Court generally appoints a "guardian ad litem" to visit the person who is alleged to be disabled, to explain to that person the nature of the proceeding and their rights under the law, and to report back to the Court. Guardian ad litem is typically a local attorney with experience in the area of disabled estates. The guardian ad litem reports to the Court his or her opinion of the validity of the petition, the interview with the proposed disabled person, and the position of that person concerning the appointment of a guardian.

Hiring an Attorney

The individual who is said to be disabled has the right to hire an attorney. The Court may also appoint an attorney if it thinks it is necessary. If the guardian ad litem takes the position that a guardian should be appointed and the individual disagrees, the Court is required to appoint a separate attorney to represent the interests of the individual.

Individual Rights

The individual has the right to a trial with a jury and the right to present any and all evidence, including medical experts, on his or her behalf. If the Court finds after a trial that a disability exists, the Court may appoint a guardian for the purpose of making personal decisions, for the purpose of managing the financial affairs, or both. In addition, the powers and authority of the guardian can be limited in any manner that the Court feels appropriate. The underlying goal of the statute is to maintain the independence of the individual, while assuring that his or her personal affairs receive adequate attention.

Ongoing Requirements

Once an order of disability and the appointment of a guardian is made, the disabled person may at any time ask the Court to reconsider or to set aside its ruling. If the Court receives any such request, even in the form of a very informal note, the Court is required to hold a hearing to determine whether or not the disabled person is still disabled, and whether the order previously entered should be changed in any manner. Each guardian appointed is required to report in writing to the Court annually concerning the physical status of the disabled person and the precise accounting of that person's finances and property.

Public & State Guardians

In the event that there are no appropriate family members or close acquaintances available to act as a guardian, there are public guardians and State guardians available who have experience in handling the personal and financial affairs of the disabled. Those persons must also report to the Court annually.