How to Become a Guardian of an Incompetent Spouse

by Tom Streissguth
    A debilitating illness can serve as legal grounds for an order of guardianship

    A debilitating illness can serve as legal grounds for an order of guardianship

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    If your spouse becomes mentally or physically disabled or otherwise incapacitated, and unable to handle his affairs, you may apply to become his legal guardian. As a spouse, you normally have the right to make financial decisions on his behalf for any property held jointly. However, in order to make decisions for him regarding living arrangements or medical care, the laws of your state may require legal guardianship, which can only be ordered by a judge.

    Step 1

    Gather supporting evidence, including records that support the claim that your spouse is incompetent to make decisions on his own, handle finances, or direct his own medical care. This can also include statements or affidavits from physicians, caregivers, relatives, friends, acquaintances, colleagues -- anyone who has contact with your incapacitated spouse. Contact any witnesses who can support your claim of guardianship and request their live testimony at the trial or hearing that will take place.

    Step 2

    File a petition for guardianship in the court having jurisdiction over your household. In most cases this will be a state, circuit or county court. Submit your gathered evidence and include in the petition your grounds for requesting legal guardianship. If state law requires it, add a certificate of service that serves as your sworn statement that the petition has been furnished to your spouse and any interested parties, including relatives you list on the petition. Sign and date the petition as well as the certificate of service.

    Step 3

    Schedule a court trial with the clerk if the guardianship petition is contested, either by your spouse or by another concerned party, such as a parent or other close relative of your spouse. Schedule a simpler and shorter court hearing if the petition is uncontested. Bring your evidence and witnesses to the hearing and respond to any questions asked by the presiding judge or magistrate. The judge will either grant your petition and appoint you as legal guardian or deny it, either "without prejudice," meaning you can amend or correct it; or "with prejudice," meaning the case is closed and you will have to open another one by filing a new petition.

    Things Needed

    • Guardianship petition
    • Supporting medical records or other evidence

    Tips & Warnings

    • Your state may require a third party to conduct an investigation into your petition and your potential ward's disabilities, and file a report. This is always the case if the petition is contested. The evaluation must take place before the trial or hearing; the report will be incorporated into the case file and presented to the judge as evidence.
    • The petition must identify the legal guardian, explain the reason for the petition, and list heirs and children of the marriage, if any. Your state may also require a full financial disclosure of household assets and liabilities.
    • Your state may require that the court appoint a lawyer to represent your spouse in this action.
    • The court may require periodic reports on guardianship, including details of the ward's medical treatment, financial affairs, living arrangements, education, and the like. A court can suspend or terminate a guardianship if it finds that the guardian is not acting in the best interest of the ward.

    About the Author

    Tom Streissguth has worked for over 15 years in the legal field as a writer and legal assistant, and has authored numerous articles on Social Security disability law. He has many nonfiction and reference titles in print, including works for The Gale Group and Lerner. He holds a Bachelor of Arts from Yale University.

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